*

Pursuant to CIR. R. 47.5, the court has determined that this opinion should not be published and is not

precedent except under the limited circumstance set forth in 5th CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20707

Summary Calendar

SHARON SPILLER,

Plaintiff-Appellant,

versus

WAL-MART STORES, INC.,

Defendant-Appellee.

______________________________________

Appeal from the United States District Court

for the Southern District of Texas

(8H-99-CV-631)

______________________________________

November 21, 2001

Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Sharon Spiller (“Spiller”) appeals the district court’s grant of judgment as a matter of law in

favor ofWal-Mart Stores, Inc. (“Wal-Mart”) on her Title VII retaliation and punitive damages claims.

Spiller also appeals the jury’s verdict for Wal-Mart on her discrimination claim. For the following

reasons, we affirm. 
1All of the candidates selected for the manager positions were non-African-American.

2

FACTUAL AND PROCEDURAL HISTORY

This case involves an employment discrimination lawsuit arising out of Spiller’s employment

with Wal-Mart. On March 8, 1993, Joe Munoz (“Munoz”), a Wal-Mart pharmacy district manager,

hired Spiller, a black female, as a staff pharmacist. In November 1994, Spiller exhibited difficulties

with correctly filling prescriptions and, as a result received, a coaching for prescription misfills.

Shortly thereafter, Spiller sought a manager position that had recently become vacant. However, the

positionwasfilled byGaryBarnhill(“Barnhill”), a white male who had been employed withWal-Mart

for a longer period of time than Spiller and who was previously a pharmacy manager. Thereafter,

Spiller was passed over for numerous manager positions because the other candidates were more

qualified, according to Wal-Mart.1 Finally, in February 1998, Munoz offered Spiller a manager

position. Spiller submitted a letter to Munoz, which contained demands she wanted fulfilled before

she would accept the position. The demands included: (1) a pay raise, (2) a weekly work schedule

of 9:00 a.m. to 6:00 p.m., (3) all weekends off, and (4) an extra week of vacation. Munoz did not

accept these demands and Spiller turned down the position. 

In 1997, Spiller submitted a charge of discrimination to the Equal Employment Opportunity

Commission (“EEOC”). On May 30, 1998, Spiller received a “Notice of Right to Sue” letter from

the EEOC. On June 22, 1998, Spiller filed a lawsuit against Wal-Mart in federal district court alleging

violations of Title VII, 42 U.S.C. § 1981, and the Texas Commission of Human Rights Act. Spiller

also asserted a claim of intentional infliction of emotional distress. Spiller sought, among other

remedies, a promotion and punitive damages. At the close of Spiller’s case, the district court granted

Wal-Mart’s motion for judgment as a matter of law on the Title VII and punitive damages issues.
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The jury found that Spiller failed to prove discrimination and entered judgment for Wal-Mart. This

appeal followed.

STANDARD OF REVIEW

We review a district court's evidentiary rulingsfor abuse of discretion. Celestine v. Petroleos

de Venezuella S.A., 266 F.3d 343, 349 (5th Cir. 2001). 

DISCUSSION

Spiller filled a pro se brief raising the following issues: (1) whether the district court abused

its discretion in failing to allow the jury to consider her retaliation claim, (2) whether the district court

abused its discretion by failing to submit the issue of punitive damages to the jury, (3) whether the

district court’s error deprived Spiller of her right to due process, and (4) whether a rationalfactfinder

could have made a contrary decision if presented with a proper jury charge based on the excluded

evidence. We address each of Spiller’s contentions below.

I. Retaliation

To demonstrate a claim for retaliation in a race discrimination case, the plaintiff must prove

(1) that she engaged in a protected activity;(2) an adverse employment action occurred; and (3) there

is a causal connection between the participation in the activity and the adverse employment action.

Webb v. Cardiothroacic Surgery Ass’n, 139 F.3d 532, 540 (5th Cir. 1998). 

The district court properly held Spiller’s retaliation claim was of no merit. “Title VII was

designed to address ultimate employment decisions, not to address everydecisionmade by employers

that arguably might have some tangential effect upon those ultimate decisions.” Dollis v. Rubin, 77

F.3d 777, 781 (5th Cir. 1995). This court has found that ultimate employment decisions include acts

such as hiring, discharging, and promoting. Mattern v. Eastern Kodak Co., 104 F.3d 702, 707 (5th
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Cir. 1997). Here, the only adverse employment action that Spiller can possibly assert is that she was

not promoted to manager. The district court correctly found that Spiller had not articulated a viable

cause of action for retaliation because she filed her lawsuit after she received the offer for a

promotion and turned down the offer after the lawsuit wasfiled. We agree with the district court that

Spiller has not presented sufficient evidence to support a retaliation claim, and therefore, affirm the

district court’s decision on this issue. 

II. Punitive Damages

Spiller also argues that the district court erred in failing to submit the issue of punitive

damages to the jury. To recover punitive damages under Title VII or § 1981, a plaintiff must prove

that the adverse party acted with malice or reckless indifference. Kolstad v. Am. Dental Ass'n, 527

U.S. 526, 535-36 (1999). When determining whether punitive damages are appropriate, the district

court should evaluate "the nature of the conduct in question, the wisdom ofsome form of pecuniary

punishment, and the advisability of a deterrent.” Jones v. Western GeophysicalCo., 761 F.2d 1158,

1162 (5th Cir. 1985). Here, the district court properly considered all o f the evidence, in the light

most favorable to Spiller, and concluded that there was insufficient evidence to base a claim for

punitive damages. Spiller maintains that the record clearly reflects discrimination on the bases of

race. We disagree. After reviewing the record, we are unable to find any evidence that Wal-Mart

discriminated against Spiller. Thus, the district court properly granted judgment as a matter of law

to Wal-Mart on this issue. 

III. Due Process

Spiller contends that her due process rights were violated because the district court failed to

submit all of the issues pled in her complaint to the jury. A district court may not grant judgment
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as a matter of law “unless a party has been fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on that issue.” Fitzgerald v.Weasler

Eng’g Inc., 258 F.3d 326, 337 (5th Cir. 2001). In the instant case, Wal-Mart moved for judgment

as a matter of law after Spiller rested. Thus, Spiller was fully heard on both the retaliation and the

punitive damages issues. For the reasons stated previously, the district court correctly found that

based on the evidence, a reasonable jury could not have rendered a verdict in Spiller’s favor.

Accordingly, we find that the district court did not violate Spiller’s due process rights in not

submitting these issues to the jury.

IV. Sufficiency of the Evidence

Rule 28(a) of the Federal Rules of Appellate Procedure lists the information that must be

contained within an appellant’s brief. This rule states that an appellant’s brief must provide an

argument section, which contains “appellant's contentions and the reasons for them, with citations

to the authorities and parts of the record on which the appellant relies.” FED. R. APP. P. 28(a)(9)(A).

Regarding issue four, Spiller simply argues that “the [district court] judge erroneously

excluded all of the witnesses from [Spiller’s] case in chief.” Spiller does not elaborate on how the

exclusion was erroneous and does not provide any authority to support her position. Therefore, we

find that because Spiller hasfailed to sufficiently argue thisissue, it is waived. Yohey v. Collins, 985

F.2d 222, 225 (5th Cir. 1993). "Although we liberally construe the briefs of pro se appellants, we

also require that arguments must be briefed to be preserved." Id. (citing Price v. DigitalEquip. Corp.,

846 F.2d 1026, 1028 (5th Cir.1988)). 

CONCLUSION

For the reasons stated above, we AFFIRM. 
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AFFIRM.