[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10005

Non-Argument Calendar

____________________

QUWANDA CANNION PHILLIPS, 

Plaintiff-Appellant,

versus

FEDEX GROUND PACKAGE SYSTEM, INC., 

"Fed Ex" or the "Company",

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:19-cv-02137-RBD-LHP

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2 Opinion of the Court 23-10005

____________________

Before WILSON, JORDAN, and LAGOA, Circuit Judges.

PER CURIAM:

Quwanda Phillips, proceeding pro se, appeals the district 

court’s judgment against her, which was entered following a jury 

trial on her various race-based discrimination and retaliation claims 

against her former employer, FedEx Ground. Specifically, she asserts that the district court should have remanded the case to state 

court following FedEx Ground’s improper removal, and that the 

district court erred in granting FedEx Ground’s judgment as a matter of law as to her 42 U.S.C. § 1981 discrimination claim and in 

giving the jury a coercive Allen charge, see generally Allen v. United 

States, 164 U.S. 492, 501–02 (1896), during deliberations. Ms. Phillips also asserts that the jury’s verdict in favor of FedEx Ground on 

her Title VII claims was inconsistent and unsupported by the evidence, and thus the district court should have granted her motion 

to vacate the judgment and grant a new trial.

I1

Ms. Phillips worked as a part-time package handler for 

FedEx Ground in Cocoa, Florida, from March of 2013 through her 

official termination in July of 2017. Starting in October of 2013, Ms. 

1 We assume the parties’ familiarity with the facts and procedural history and 

set out only what is necessary to explain our decision. As to issues not discussed, we summarily affirm. 

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Phillips began making internal complaints accusing her managers 

at the time (Ken Thompson and David Antun) of discriminatory 

conduct and remarks addressed to her and other Black employees. 

FedEx Ground investigated those complaints and found them to 

lack merit. Specifically, Ms. Phillips alleged that Mr. Thompson 

favored white employees in hiring and other employment decisions, and that he—along with Mr. Antun—would sabotage her 

work by writing her up for unwarranted misloads of her truck. Ms. 

Phillips believed this sabotage was an attempt to terminate her 

based on her race and she filed her first of four grievances with the 

EEOC in October of 2013. In that grievance, she also noted that 

Mr. Antun allegedly stated that “Blacks are not smart enough to 

load trucks.”

At trial, neither Marquel Kimbrough (another employee) 

nor Ms. Phillips testified to having directly heard that statement 

and, in fact, testified that they had not directly heard Mr. Antun 

make that statement. Ms. Phillips and Mr. Kimbrough did, however, testify that Mr. Antun asked them whether they were affiliated with “the Bloods and Crips” gangs, which both perceived as 

an inappropriate stereotype based on their race. Mr. Thompson 

was transferred to another FedEx location in October of 2014 

(three years prior to Ms. Phillips’ termination), and Mr. Antun was 

transferred another location in May of 2016 (more than a year prior 

to her termination).

In October of 2015, Ms. Phillips suffered a knee injury which 

required certain accommodations. At the time of the injury, 

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Roberto Springer was Ms. Phillips’ sort manager and was responsible for her accommodations. Following her injury, Ms. Phillips was 

out on medical leave for a period—about a year and a half, only 

coming into work “on and off”—but eventually returned at some 

(but not full) capacity, which included weight restrictions. According to Ms. Phillips, Mr. Springer was not responsive to her accommodation requests and would not accept her doctor’s notes regarding her absences. Though Ms. Phillips asserted that her doctor put 

her “out indefinitely” in 2016, she acknowledged that Mr. Springer 

never told her that she could stay out indefinitely. 

In June of 2017, Ms. Phillips gave FedEx Ground a physician 

assistant’s note stating that she should be excused from work “if 

the left knee bec[ame] ecchymotic.” This was the last time Ms. Phillips came into work and she never contacted FedEx Ground thereafter regarding her return. According to FedEx Ground’s employees, they made various attempts to contact Ms. Phillips via telephone and mail but never received a response. Accordingly, FedEx 

Ground determined that Ms. Phillips should be terminated for job 

abandonment. Ms. Phillips asserts that she did not know she was 

fired until February of 2019, when she received a letter from the 

EEOC regarding her termination. 

Ms. Phillips filed suit in state court and the case was removed 

to the district court in November of 2019. Relevant to this appeal, 

Ms. Phillips asserted claims for discrimination and retaliation under 

Title VII, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981. The case proceeded to a jury trial. After the close of evidence, FedEx Ground 

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moved for judgment as a matter of law as to all claims, which the 

district court granted as to Ms. Phillips’ § 1981 claim and denied as 

to her Title VII claims. Following deliberations, the jury entered a 

verdict against Ms. Phillips and in favor of FedEx Ground as to 

those remaining claims. Based on that verdict, the district court 

entered judgment against Ms. Phillips, who then moved to set aside 

or vacate the judgment and for a new trial. That motion was denied, and the instant appeal followed. 

II

Ms. Phillips first asserts that the district court erred by failing 

to grant her motion to remand. Because she did not list the district 

court’s order denying that motion in her notice of appeal, FedEx 

Ground argues that we lack jurisdiction to address the issue. We 

disagree.

A notice of appeal must “designate the judgment, order, or 

part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). Our prior 

caselaw explained that we generally have jurisdiction to review 

“only those judgments, orders, or portions thereof” that are designated in an appellant’s notice of appeal. See, e.g., Osterneck v. E.T. 

Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). But Rule 

3 was amended in 2021, so that now a notice of appeal encompasses 

all orders that merge into the appealable order. See Fed. R. App. P. 

3(c)(4).

Ms. Phillips’ notice of appeal, filed by since-withdrawn counsel, lists the district court’s order granting judgment as a matter of 

law, the final judgment, and the order on plaintiff’s motion to set 

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aside judgment. The notice of appeal did not list Ms. Phillips’ motion to remand, but it did not have to. Under Federal Rule of Appellate Procedure 3(c)(4), the district court’s interlocutory remand 

order merged into its final judgment on appeal, such that it is reviewable on appeal along with that final judgment. See Fed. R. 

App. P. 3(c)(4); Fed. R. App. P. 3 advisory committee’s note to 2021 

amendment. Moreover, Ms. Phillips, now proceeding pro se, explicitly stated in her initial brief that is appealing the district court’s 

failure to remand and there is no indication that her notice of appeal prejudiced or misled FedEx Ground, as FedEx Ground also 

fully briefed the remand issue. See Forman v. Davis, 371 U.S. 178, 

181–82 (1962). Accordingly, we have jurisdiction to review her appeal of the district court’s remand order.

 We review the denial of a motion to remand to state court

de novo. Moore v. N. Am. Sports, Inc., 623 F.3d 1325, 1328 (11th Cir. 

2010). A defendant may remove “any civil action brought in a State 

court of which district courts . . . have original jurisdiction.” 28 

U.S.C. § 1441. Federal district courts have original jurisdiction over 

cases brought under the “[United States] Constitution, laws, or 

treaties of the United States.” 28 U.S.C. § 1331. A defendant may 

remove an action from state court “within 30 days after the receipt 

by the defendant, through service or otherwise, of a copy of the 

initial pleading setting forth the claim for relief upon which such 

action or proceeding is based.” Id. § 1446(b)(1). “A removing defendant bears the burden of proving proper federal jurisdiction,” 

Leonard v. Enter. Rent A Car, 279 F.3d 967, 972 (11th Cir. 2002), and

a plaintiff may seek remand back to state court based on two 

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grounds—a lack of subject matter jurisdiction or a procedural defect in the removal of the case. See Russell Corp. v. Am. Home Assur. 

Co., 264 F.3d 1040, 1043–44 (11th Cir. 2001). 

The Supreme Court has unanimously held that “a district 

court’s error in failing to remand a case improperly removed is not 

fatal to the ensuing adjudication if the federal jurisdictional requirements are met at the time judgment is entered.” Caterpillar v. Lewis, 

519 U.S. 61, 64 (1996). It cannot be disputed that Ms. Phillips’ complaint—which asserted claims under Title VII (42 U.S.C. § 2000e) 

and 42 U.S.C. § 1981—established federal question jurisdiction. As 

such, because “timeliness of removal is a procedural defect—not a 

jurisdictional one,” any untimeliness in the filing of the notice of 

removal would be an insufficient basis to vacate the judgment and 

remand for a new trial. See Moore, 623 F.3d at 1329 (quoting Pretka 

v. Kolter City Plaza II, Inc., 608 F.3d 744, 751–52 (11th Cir. 2010)). 

III

Ms. Phillips next asserts that the district court erred in granting FedEx Ground’s motion for judgment as a matter of law on her 

§ 1981 discrimination claim. 

Rule 50(a) permits a party to move, during trial, for judgment as a matter of law before a verdict has been returned. See Fed. 

R. Civ. Pro. 50(a). A district court may grant the motion before 

submitting the case to the jury if a party has been fully heard on an 

issue during a jury trial and the court finds that a reasonable jury 

would not have a legally sufficient evidentiary basis to find for the 

party on that issue. See id.

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We review the grant of a judgment as a matter of law de 

novo, applying the same legal standards as used by the district court. 

See Bishop v. City of Birmingham Police Dep’t, 361 F.3d 607, 609 (11th 

Cir. 2004). Those standards require us to consider “whether the 

evidence presents a sufficient disagreement to require submission 

to a jury or whether it is so one-sided that one party must prevail 

as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–

52 (1986). We consider all evidence, and the inferences drawn 

therefrom, in the light most favorable to the nonmovant. See 

Bishop, 361 F.3d at 609. “If the facts and inferences point overwhelmingly in favor of one party, such that reasonable people 

could not arrive at a contrary verdict, then the motion was 

properly granted.” Carter v. City of Miami, 870 F.2d 578, 581 (11th 

Cir. 1989). 

Title VII of the Civil Rights Act of 1964 outlaws employment 

discrimination because of “race, color, religion, sex, or national 

origin.” 42 U.S. § 2000e-2(a)(1). Likewise, § 1981 prohibits employers from intentionally discriminating based on race in employment 

contracts. See Tynes v. Fla. Dep’t of Juvenile Justice, 88 F.4th 939, 944 

(11th Cir. 2023). To prove a claim under either statute, a plaintiff 

can use direct evidence, circumstance evidence, or both. See id. 

Nonetheless, “[u]nlike a Title VII discrimination claim—where a 

lesser ‘motivating factor’ standard sometimes applies—a § 1981 

claim requires proof that race was a but-for cause of [the] termination.” Ossmann v. Meredith Corp., 82 F.4th 1007, 1014 (11th Cir. 

2023) (citing Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 

140 S. Ct. 1009, 1013, 1017 (2020)). This does not require a plaintiff 

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to prove that race was the exclusive cause of his or her termination, 

but it does require a plaintiff to prove that but for his or her race, 

the plaintiff would not have been terminated. See Ossmann, 82 F.4th 

at 1014. 

Thus, to survive FedEx Ground’s motion for judgment as a 

matter of law as to her § 1981 claim, Ms. Phillips needed to have 

produced enough evidence during trial to permit a reasonable jury 

to find that, had she not been Black, she would not have been terminated. See id. Both below and on appeal, Ms. Phillips offers the 

alleged statement made by Mr. Antun that “Black workers are not 

smart enough to load trucks” as “direct evidence” of intentional 

discrimination. See Appellant’s Br. at 6.2

Even if we were to consider this direct evidence—we would 

likely not, see Fernandez v. Trees, Inc., 961 F.3d 1148, 1156 (11th Cir. 

2020)—this was not part of the record evidence at trial. Ms. Phillips 

admitted that she never heard Mr. Antun make this comment, and 

Mr. Kimbrough also testified that the only direct statement he 

heard Mr. Antun make was the “Bloods and Crips” statement made 

years before Ms. Phillips’ termination. See D.E. 147 at 160–61; D.E. 

148 at 116–19, 148. 

Ms. Phillips did not produce adequate circumstantial evidence from which a reasonable jury could infer that intentional 

2 Ms. Phillips’ initial brief seems to focus on her Title VII claim with respect to 

the district court’s judgment as a matter of law, but the district court did not 

grant FedEx Ground’s motion on those claims. We read her pro se argument

liberally. 

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discrimination was the but-for cause of her termination. Nor did 

she prove that FedEx Ground’s non-discriminatory reason for her 

termination—job abandonment—was pretextual. The statements 

referred to above, as well as the purported sabotage regarding the 

written-up misloads, all occurred years before her termination by 

managers that were transferred to other facilities by the time she 

was ultimately terminated. She admitted that she never returned 

to work for nearly two years, nor did she reach out once to FedEx 

Ground once that time period. 

Liberally construed, Ms. Phillips also asserts that because the 

jury ultimately found that, under her Title VII discrimination 

claim, race was a “motivating factor” in FedEx Ground’s adverse 

employment action, it was therefore error for the district court to 

not have allowed the § 1981 claim to proceed to the jury. But the 

Supreme Court has explained that Title VII’s statutory “motivating 

factor” standard is inapposite to § 1981 claims. See Comcast Corp., 

140 S. Ct. at 1017. Indeed, it is a lower burden. And here, the fact 

that the jury ultimately found that FedEx Ground would have fired 

her even had it not considered her race as a motivating factor, actually cuts against her but-for causation argument.

In sum, because Ms. Phillips failed to establish evidence at 

trial from which a reasonable jury could infer that her race was the 

but-for cause of her termination, the district court did not err in 

granting FedEx Ground’s motion for judgment as a matter of law 

as to that claim.

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IV

After about three hours of deliberations, the jury in Ms. Phillips’ trial indicated that they were deadlocked. The district court 

then gave an Allen charge, see Allen, 164 U.S. at 501–02, instructing 

the jury to keep deliberating until a verdict was reached. As her 

final argument, Ms. Phillips asserts that this Allen charge was coercive, and therefore, an abuse of discretion. See Rubinstein v. Yehuda, 

38 F.4th 982, 992 (11th Cir. 2022). 

While sometimes controversial, see id. at 996, our precedent 

condones the practice of giving an Allen charge as long as the district court does not “coerce any juror to give up an honest belief.” 

United States v. Anderson, 1 F.4th 1244, 1269 (11th Cir. 2021) (internal quotations omitted). Whether an Allen charge is coercive depends on two things: “the language of the charge and the totality 

of the circumstances under which it was delivered.” Id. 

We reject Ms. Phillips’ argument that the language used by 

the district court was coercive, as it was nearly identical to the pattern Eleventh Circuit jury instruction. See Rubenstein, 38 F.4th at 

996. To the extent Ms. Phillips takes issue with the pattern language indicating that jurors in the minority should consider 

whether their beliefs are reasonable, we have approved of such language on multiple occasions and find no error here today. See id. 

See also Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068, 1085 n.5 

(11th Cir. 2018). 

In reviewing the totality of the circumstances, five are particularly (but not exclusively) relevant to the coerciveness analysis: 

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(1) the total length of deliberations; (2) the number of times the 

jury reported being deadlocked and was instructed to resume deliberations; (3) whether the judge knew of the jury’s numerical split 

when he instructed the jury to continue deliberating; (4) whether 

any of the instructions implied that the jurors were violating their 

oaths or acting improperly by failing to reach a verdict; and (5) the 

time between the final supplemental instruction and the jury’s verdict. See Brewster v. Hetzel, 913 F.3d 1042, 1053 (11th Cir. 2019). We 

have held that fifteen minutes of deliberation between an Allen

charge and the verdict did not indicate coercion. See Rubinstein, 38 

F.4th at 997.

Upon review, the circumstances here do not raise any spectre of coercion. The jury deliberated for an additional two hours 

after receiving the Allen charge and only reported being deadlocked 

once. There is also no indication that the district court knew of the 

jury’s numerical split when it gave the charge, nor was there any 

implication from the instructions that the jurors were violating 

their oaths or otherwise acting improperly. The district court, 

therefore, did not abuse its discretion.

V

Following the jury’s verdict in favor of FedEx Ground, Ms. 

Phillips moved to vacate the judgment and for a new jury trial.

Specifically, Ms. Phillips asserted that the jury’s verdict as to her 

Title VII discrimination and retaliation claims was inconsistent and 

against the weight of the evidence produced at trial. 

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Under Rule 59(e), a district court may “alter or amend a 

judgment” that is based on “manifest errors of law or fact.” Metlife 

Life & Annuity Co. of Conn. v. Akpele, 886 F.3d 998, 1008 (11th Cir. 

2018); Fed. R. Civ. P. 59(e). Additionally, under Rule 59(a), a district court may grant a motion for a new trial if it believes that the 

verdict rendered was contrary to the great weight of the evidence 

or will result in a miscarriage of justice. See Rosenfield v. Wellington 

Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987). We review 

a district court’s denial of either motion for an abuse of discretion. 

See McGinnis v. Am. Home Mortg. Servicing, Inc., 901 F.3d 1282, 1288 

(11th Cir. 2018); Akpele, 886 F.3d at 1003.

We disagree with Ms. Phillips’ contention that the jury verdict as to her Title VII claims was inconsistent for two reasons. 

First, Ms. Phillips (through counsel) did not timely raise the purported inconsistency with the district court. Second, and in any 

event, the verdict was not legally inconsistent. 

A verdict is inconsistent when there is “no rational, nonspeculative way to reconcile . . . two essential jury findings” Witt v. 

Norfe, Inc., 725 F.2d 1277, 1278 (11th Cir. 1984) (internal quotations 

and citation omitted). A district court “must make all reasonable 

efforts to reconcile an inconsistent jury verdict and if there is a view 

of the case which makes the jury’s answers consistent, the court 

must adopt that view and enter judgment accordingly.” Burger King 

Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983). See also Atl. & 

Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962) 

(“When there is a view of the case that makes the jury’s answers to 

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special interrogatories consistent, they must be resolved that 

way.”).

But “[a] party must object to a verdict as inconsistent before 

the jury has been dismissed.” Reider v. Philip Morris USA, Inc., 793 

F.3d 1254, 1259 (11th Cir. 2015) (citing Walter Int’l Prods., Inc. v. Salinas, 650 F.3d 1402, 1419–20 (11th Cir. 2011)). Indeed, failure to 

object to an inconsistent verdict before the jury is excused forfeits 

the objections. See Reider, 793 F.3d at 1259. See also Mason v. Ford 

Motor Co., 307 F.3d 1271, 1275–76 (11th Cir. 2002) (“[The defendant’s] failure to raise its objection before the jury was discharged 

waived the right to contest the verdicts on the basis of alleged inconsistency.”). “The reason for this particular raise-it-or-lose-it rule 

is that if the inconsistency is raised before the jury is discharged, the 

jury can be sent back for further deliberations to resolve the inconsistency in its verdict or interrogatory answer,” but “that is not possible” once the jury is gone. See Pensacola Motor Sales, Inc. v. E. Shore 

Toyota, LLC, 684 F.3d 1211, 1225 (11th Cir. 2012). Ms. Phillips’ 

counsel did not object either to the verdict form itself or the jury’s 

verdict as inconsistent until her post-trial motion was filed on July 

11, 2022—long after the jury had been discharged. 

In any event, the jury’s verdict on the Title VII claims can be 

reconciled and is therefore legally consistent. The verdict was also 

supported by the evidence.

Under Title VII, it is unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, 

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terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 

2000e–2(a)(1). An employer may not retaliate against an employee 

because she has opposed any practice made unlawful under that 

law, and a protected activity means an employee participated in filing a formal complaint with the EEOC or in the investigation of 

proceedings under Title VII. See 42 U.S.C. § 2000e-3(a); EEOC v. 

Total Sys. Serv. Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). 

In a Title VII race discrimination case, even if the plaintiff 

provides evidence that the defendant, in making an adverse employment decision, was motivated in part by an impermissible consideration, such as race, the defendant can prevail if it can prove by 

a preponderance of the evidence that it would have made the same 

decision even in the absence of the discriminatory consideration. 

See 42 U.S.C. § 2000e-2(m); Pullman v. Tallapoosa Cnty. Jail, 185 F.3d 

1182, 1184 (11th Cir. 1999). Thus, defendants in Title VII employment discrimination cases may prove as an affirmative defense that 

they would have reached the same employment decision even in 

the absence of bias. See 42 U.S.C. § 2000e-5(g)(2)(B); Pullman, 185 

F.3d at 1184. 

To establish a claim of retaliation under Title VII, a plaintiff 

must prove that she engaged in statutorily protected activity, she 

suffered a materially adverse action, and there was some causal relation between the two events. See Goldsmith v. Bagby Elevator Co., 

513 F.3d 1261, 1277 (11th Cir. 2008). After the plaintiff has established the elements of a claim, the employer has an opportunity to 

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articulate a legitimate, nonretaliatory reason for the challenged 

employment action as an affirmative defense to liability. See id. 

The plaintiff bears the ultimate burden of proving retaliation by a 

preponderance of the evidence and that the reason provided by the 

employer is a pretext for prohibited retaliatory conduct. See id. 

Regarding her Title VII discrimination claim, the jury found 

that FedEx Ground took an adverse employment action against 

Ms. Phillips and that her race was a motivating factor in that adverse action. But, per the verdict, the jury also found that FedEx

Ground would have taken the same adverse action against Ms. 

Phillips even if FedEx had not taken her race into account. As to 

her Title VII retaliation claim, the jury found that Ms. Phillips engaged in protected activity, but that FedEx Ground did not terminate Ms. Phillips because of that protected activity. 

These findings are not inconsistent. It is reasonable that a 

jury could conclude—based on the evidence introduced by the parties at trial—that FedEx Ground would have fired Ms. Phillips for 

reasons other than her race (such as her abandonment of the job), 

and that, as such, her internal complaints and EEOC claims were 

not the cause of her ultimate termination. Though the jury also 

found that race was a motivating factor in the adverse actions taken 

by FedEx Ground, it does not necessarily follow that her race-based 

complaints were the reason she was fired.3 Indeed, there is overlap 

3 Ms. Phillips introduced evidence at trial that she was subject to various actions, including unwarranted write-ups and refusals for injury 

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between FedEx Ground’s “same decision” affirmative defense and 

its articulation of a legitimate, nonretaliatory reason for Ms. Phillips’ termination.

The district court did not abuse its discretion in denying Ms. 

Phillips’ request to set aside or vacate the judgment, or the request 

to grant a new trial.

VI

We affirm the district court’s judgment against Ms. Phillips 

and its order denying her motion to set aside that judgment and/or 

for a new trial.

AFFIRMED.

accommodations, which could have been considered adverse by the jury (and 

indeed, were argued to have been adverse by Ms. Phillips).

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