United States Court of Appeals

Fifth Circuit



## FILED

April 7, 2004

Charles R. Fulbruge III

Clerk REVISED April 12, 2004

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 02-21149

____________

LORETHA KANIDA,

Plaintiff – Appellant,

versus

GULF COAST MEDICAL PERSONNEL LP; NURSEFINDERS

INC,

Defendants – Appellees.

Appeal from the United States District Court

For the Southern District of Texas

Before JONES, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Loretha Kanida appeals from a jury verdict in favor of her employers, defendants Gulf Coast

Medical Personnel LP (“GCMP”) and Nursefinde rs Inc., which found that the defendants did not

retaliate against Kanida in violation of the Fair Labor Standards Act. 29 U.S.C. § 215(a)(3). Kanida

claims that she is entitled to a new t rial because the district court refused to include a requested

permissive pretext instruction in the jury charge, and also because of two additional jury instructions-2-

she requested that the district court refused to give. Kanida also claims that two jury instructions the

district court actually gave were improper and require a new trial. Additionally, Kanida challenges

the district court’s evidentiary rulings limit ing or excluding the testimony of five witnesses. Finally,

Kanida claims that the district co urt erred when it concluded that a victim of retaliation cannot

recover compensatory and punitive damages under the FLSA. For the following reasons, we affirm

the district court.

I

In August 1999, Kanida contacted Mary Beth Parks, the founder and owner of Gulf Coast

Medical Personnel (“GCMP”), and requested a meeting. At this meeting Kanida claimed that GCMP

owed her unpaid overtime compensation. Parks collected Kanida’s employment records, calculated

the amount that GCMP owed, and offered payment to Kanida. Kanida refused GCMP’s offers, and

demanded payment of an amount significant ly higher than Parks calculated. Kanida filed a complaint

regarding the unpaid overtime compensation with the Department of Labor (“DOL”), whic h

commenced an investigation in November 1999. While this investigation was ongoing, Parks

finalized the sale of GCMP to Nursefinders. Parks co ntinued to work for Nursefinders, and

Nursefinders assumed any potential liabilit y associated with Kanida’s claims. At the conclusion of

the DOL’s investigation, Nursefinders and Parks attended a conference with the DOL where Parks

acknowledged liabilit

y for the unpaid overtime. Parks subsequently offered payment of unpaid

overtime compensation to all of the affected emplo yees as determined by the DOL. Kanida again

declined to accept payment of this amount and retained counsel to pursue the matter. Kanida filed

this lawsuit in May 2000, but continued working for Nursefinders until January 2001 when she left

voluntarily.1 Kanida presented evidence that GCMP gave her written reprimands associated with her

work, gave her negative employment evaluations, decreased her salary, refused to assign her to light

duty work after she was involved in a non-work related car accident, an d reduced her scheduled

hours after her doctor removed the weight restrictions resulting from her accident.

2 GCMP presented evidence to show that the written reprimand was given because Kanida

failed to inform her immediate supervisor of a change to the prescribed medication for her patient.

GCMP claimed that Kanida’s negative employment evaluation was based upon the written reprimand,

complaints made by two nurses, both orally to Parks and in writing, that Kanida was harassing them

about t heir overtime compensation claims, and a report by another nurse, Cheryl Oliver, to her

supe rvisor that Kanida had approached her to solicit a GCMP patient away from the company.

GCMP presented evidence that Kanida’s salary was reduced bec ause her job responsibilities had

decreased, and that her salary was not reduced earlier due to a clerical error. GCMP claimed that

Kanida was not p ro vided with as many light duty assignments as she requested because no

assignments fitting her needs were available at that time. Finally, GCMP presented evidence that the

reduction in Kanida’s hours was the result of her own request and not done in retaliation.

-3- Kanida claimed that Parks, and consequently GCMP and Nursefinders, retaliated against her

for filing a

co mplaint with the DOL in violation of the Fair Labor Standards Act (“FLSA”). To

support her retaliation claim, Kanida produced evidence to show that subsequent to her filing of the

DOL claim she was subject to adverse employment actions. 1 In response to Kanida’s production of

this evidence, GCMP offered legitimate non-discriminatory reasons for the disputed actions. 2 Kanida

then offered evidence to show that GCMP’s purported reasons were merely a pretext for actions that

were actually retaliation for her DOL complaint. The case was tried to a jury which ruled in favor

of GCMP. Kanida moved for a new trial, but the district court denied this motion and entered final

judgment awarding Kanida only the overtime pay that the parties stipulated she was entitled to based

upon the DOL investigation. This appeal followed.

II

Kanida argues that the district court abused its discretion by refusing to include the permissive3 The permissive pretext instruction Kanida requested was: “If the plaint iff disproves the

reasons offered by Defendants by a preponderance of the evidence, you may p resume that the

employer was motivated by retaliation.”

4 The “pretext plus” standard “requires a plaintiff not only to disprove an employer’s

proffered reasons for the discrimination but also to introduce additional evidence of discrimination”

while under the “permissive pretext” standard “if the plaintiff establishes that the [emplo yer’s]

reasons are pretextual, the trier of fact is permit ted, but not requi red, to enter j udgm ent for the

plaintiff.” Ratliff

, 256 F.3d at 361 (citations omitted).

-4- pretext instruction she requested in its jury charge. 3 A permissive pretext instruction specifically

informs jurors that they are permitted to, but need not, infer that an employer’s actions regarding an

employee were based on a prohibited motivation from evidence that the reasons the employer gave

for its actions were mere pretext. S ee Ratliff v. City of Gainesville, Tex.

, 256 F.3d 355, 359-60 (5th

Cir. 2001). This is, however, only an evidentiary instruction, and to prevail employees must prove

that the employer’s actions were taken because of the prohibited motivation. I d

. at 359 n.3. Kanida

claims that our decision in Ratliff requires district courts to give a permissive pretext instruction in

employment retaliation cases.

Ratliff considered a permissive pretext instruction within the context of an age discrimination

claim under the Age Discrimination in Employment Act. I d. at 359. As part of his claim, the plaintiff

in Ratliff presented evidence to show that the non-discriminatory reasons the employer gave for its

actions were actually a pretext for age discr iminat ion. I d

. This plaintiff requested a permissive

pretext instruction, similar to the one at issue here, and the R atliff district court also refused to

include this instruction in its jury charge. Id . The district court in Ratliff also chose to instruct the

jury regarding the plaint iff’s burden in that case by using a “pretext plus” jury instruction. 4 I d

. In

Ratliff we held that “the district court erred in failing to give an inference instruction and [in] holding

jurors to a ‘pretext plu s’ standard.” I d. at 364. Relying upon R eeves v. Sanderson Plumbing-5-

Products, Inc.

, 530 U.S. 133, 148, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), we correctly held that

district court erred in giving the “pretext plus” instruction because this instruction incorrectly stated

the plaint iff’s burden of proof. Ratliff

, 256 F.3d at 361-62 (citing Reeves , 530 U.S. at 147, 120 S.

Ct. 2097 (holding that “it is permissible for the trier of fact to infer the ultimate fact of discrimination

from the falsity of the employer’s explanation”) (emphasis in original)). However, in R atliff we also

relied upon Ree ves t o decide t hat the district court erred when it refused to give a requested

permissive pretext jury instruction in an employment discrimination case. Ratliff , 256 F.3d at 360.

W h ile Reeves clarified the legal burden of producti on a plaint iff must meet to present their

case to a jury, Reeves

, 530 U.S. at 146-47, 120 S.Ct. 2108, it did not address whether a district court

must give a permissive pretext jury instruction. Many of our sister circuits do not understand R eeves

to require that instruction. S ee Moore v. Robertson Fire Prot. Dist. , 249 F.3d 786, 789 (8th Cir.

2001) (failure to include inst ruction on pretext is not reversible error where the given instructions

correctly stated the law because the jury was still free to consider any evidence of pretext) ; Palmer

v. Bd. of Regents of the Univ. Sys. of Ga.

, 208 F.3d 969, 974-75 (11th Cir. 2000) (no reversible error

from refusal to include permissive pretext instruction when the rest of the jury instructions correctly

stated the law); Fite v. Digital Equip. Corp.

, 232 F.3d 3, 7 (1st Cir. 2000) (finding that although an

instruction that the jury can infer discrimination from evidence of pretext is permitted, “we doubt that

such an explanation is compulsory, even if properly requested”). We recognize, however, that other

circuits agree with our decision in Ratliff

. S ee Ratliff

, 256 F.3d at 361 n.7 (citing Smith v. Borough

of Wilkensburg

, 147 F.3d 272, 280 (3d Cir. 1998) (requiring that jurors receive a permissive pretext

instruction); Cabrera v. Jakabovitz

, 24 F.3d 372, 382 (2d Cir. 1994) ( same)); T ownsend v.

Lumbermans Mut. Cas. Co

. 294 F. 3d 1232, 1241 (10th Cir. 2002) (requiring permissive pretext5 In a McDonnell Douglas analysis, the plaint iff must first prove their prima facie case, which

creates a presumption that the employer acted with discriminatory intent. R eeves

, 530 U.S. at 142,

120 S. Ct. 2097. The employer can rebut this presumption by producing legitimate nondiscriminatory

reasons for their actions. I d.

, 120 S. Ct. 2097. Once the employer does this, the presumption drops

out of the case, and the only remaining question is whether the defendant intentionally discriminated

against the plaint iff. I

d

. at 142-43, 120 S. Ct. 2097. The plaintiff then has the opportunity to present

evidence showing that the employer’s proffered explanations were a mere pretext for discrimination

-6- instruction when “a rational finder of fact could reasonably find the defendant’s explanation false”).

Despite this co ncern, “it is the firm rule of this circuit that one panel may not overrule the

decisions of another.” U

nited States v. Taylor , 933 F.2d 307, 313 (5th Cir. 1991). Therefore, we

are required to follow Ratliff

. Although R atliff

’s decision that the district court erred by refusing to

give a permissive pretext instruction in employment discrimination cases was not necessary to reach

its decision to reverse the district court, see Ratliff

, 256 F.3d at 364 (holding that the “pretext plus”

instruction requires reversal), this decision is still binding precedent upon this panel as an alternative

holding. S ee, e.g., United States v. Adamson

, 665 F.2d 649, 656 n.19 (5th Cir. 1982) (holding that

decisions on issues that were fully presented and litigated, and likely to arise on retrial, are not dictum

and are still binding precedent even if the decision was not necessary to support the ultimate ruling,

such as an alternative holding).

We are concerned that our permissive pretext jury instruction holding in Ratliff unnecessarily

expands the scope of the Reeves opinion for four reasons. First, and most importantly, R eeves was

not a jury case. In R eeves, the Supreme Court reviewed the evidence a plaintiff must produce to

fulfill their burden and avoid summary judgment or judgment as a matter of law. Reeves , 530 U.S.

at 146-47, 120 S. Ct. 2097. R eeves considered the plaint iff’s burden of producti on within the context

of the burden shift ing analysis first articulated in M cDonnell Douglas Corp. v. Green

, 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d. 668 (1978). S ee Reeves

, 530 U. S. at 142-47, 120 S. Ct. 2097. 5 Inand not worthy of credence. I d.

, 120 S. Ct. 2097. However, “although the evidentiary burdens shift

back and forth under this framework” the plaintiff always bears the burden of “persuading the trier

of fact that the defendant intentionally discriminated” against them. Id . at 143, 120 S. Ct. 2097.

6 Indeed, although Ratliff did not consider this fact, every Fifth Ci rcuit precedent ci ted i

n

Ratliff applied Reeves within the context of a district court’s grant of summary judgment or judgment

as a matter of law and not within the context of jury instructions. S ee Ratliff

, 256 F.3d at 360-61

(citing Blow v. City of San Antonio , 236 F.3d 293, 297 (5th Cir. 2001) (applying R eeves in a

summary judgment case); Evans v. City of Bishop

, 238 F.3d 586, 591 (5th Cir. 2000) (summary

judgment case); Russell v. McKinney Hosp. Venture , 235 F.3d 219, 223 (5th Cir. 2000) (judgment

as a matter of law); Rubenstein v. Adm’rs of Tulane Educ. Fund

, 218 F.3d 392, 400 (5th Cir. 2000)

(summary judgment case)).

-7- Reeves

, the circuit court understood Supreme Court precedent to require plaint iffs to pro duce

evidence that the employer’s purported justifications were pretext “plus” additional evidence of

actual discrimination, and held that judgment as a matter of law for the defendant was appropriate

in that case because the plaint iff failed to produce any additional evidence. I d

. at 145-46, 120 S. Ct.

2097. The Supreme Court found that “the Court of Appeals misconceived the evidentiary burden

bourne by plaintiffs” as previously defined by the Supreme Court because “a plaintiff’s prima facie

case, combined with sufficient evidence to find that the employer’s asserted justification is false, may

permit the trier of fact to conclude that the employer unlawfully discriminated.” I d . at 146-48, 120

S. Ct. 2097. Thus, R eeves was intended to clarify the judiciary’s understanding of the evidentiary

burden of production plaintiffs must meet to survive McDonnell Douglas burden shift ing analysis.

Id

. at 146-47, 120 S. Ct. 2097 (citing St. Mary’s Honor Ctr. v. Hicks

, 509 U.S. 502, 511, 113 S. Ct.

2742, 125 L. Ed. 2d 407 (1993)). “The McDonnell Douglas formula, however, is applicable only

in a directed verdict or summary judgment situation,” and “is not the proper vehicle for evaluating

a case that has been fully tried on the merits.” P owell v. Rockw ell Int’l Corp.

, 788 F.2d 279, 285 (5th

Cir. 1986). 6 Thus, R atliff ’s holding that Reeves also guides the evaluation of cases fully tried on the-8-

merits appears to be in tension with Reeves and our own precedent.

Second, Reeves did not change what a plaint iff must ultimatel y pro ve to prevail on their

claim )) that the adverse employment action was motivated by actual discriminatory intent. R eeves

,

530 U.S. at 147, 120 S. Ct. 2097 (“In other words, ‘[i]t is not enough to dis believe the employer; the

factfinder must believe the plaint iff’s e xplanat io n of intentional discrimination.’”) (emphasis in

original) (internal citations omitted). This Court has consistently held that district courts should not

frame jury instructions based upon the intricacies of the McDonnell Douglas burden shift ing analysis.

See, e.g., Walther v. Lone Star Gas Co.

, 952 F.2d 119, 127 (5th Cir. 1992) (“Instructing the jury on

the elements of a prima facie case, presumptions, and the shift ing burden of proof is unnecessary and

confusing.”); O litsky v. Spencer Gifts, Inc. , 964 F.2d 1471, 1478 (5th Cir. 1992) (same). Instead,

we have held that district courts should instruct the jury to consider the ultimate question of whether

a defendant took the adverse employment action against a plaintiff because of her protected status.

Cf. W alther , 952 F.2d at 127 ; Olitsky , 964 F.2d at 1478. Before R atliff we only required district

courts to instruct juries on the ultimate question they must answer; Reeves did not change this.

Consequently we should not have interpreted Reeves to alter the instructions that district courts are

required to give to a jury.

Third, the pretext inference described in Reeves is merely a permissive and not a mandatory

inference. S ee Reeves

, 530 U.S. at 148, 120 S. Ct. 2097 (noting that “there will be instances where,

although the plaint iff has established a prima facie case and set forth sufficient evidence to reject the

defendant’s explanation, no rational factfinder could conclude that the action was discriminatory”).

The Fifth Circuit pattern jury instruction on the consideration of evidence permits jurors to draw the

reasonable inferences they feel the evidence justifies. S ee U.S. F IFTH C IRCUIT D IST

. J UDGES A SSOC

.,-9-

P ATTERN J URY I NST

RUCTIONS : C I VIL C ASES -C ONSIDERATION OF THE E VIDENCE § 2.18 (1999). There

are numerous permitted inferences, and only requiring an instruction regarding the permissive pretext

inference risks confusing the jury regarding the ultimate issue a plaint iff must prove. C f. Gehring v.

Case Corp

., 43 F.3d 340, 343 (7th Cir. 1994) (“[A] judge need not deliver instructions describing

all valid legal principles. Especially not when the principle in question describes a permissible, but

not an obligatory, inference.”). To prevail, a plaintiff must show actual discriminatory intent;

successfully rebutting the defendant’s asserted justifications may not itself be sufficient. S ee Reeves

,

530 U.S. at 141, 120 S. Ct. 2097 (“When a plaint iff alleges disparate treatment, liabilit y depends on

whether the protected trait

. . . actually motivated the employer’s decision.”) (citations omitted).

Diverting the jurors’ attenti on in this manner risks understating the complexity of their inquiry, and

potentially places the burden of persuasion upon employers to show that the explanations they offer

are true rather than requiring plaint iffs to prove that their employers acted with inappropriate intent.

Cf. Townsend v. Lumbermans Mut. Cas. Co.

, 294 F.3d 1232, 1246 (10th Cir. 2002) (Brorby , J.,

dissenting) (“[I]n some instances, a facially n eut ral permissive inference instruction might draw

unwarranted attention to a small porti on of the evidence presented at trial or mislead the jury as to

the applicable law.”).

Fourth, and finally, in R atliff we based our holding that permissive pretext instructions are

required in part on the concern that “[w]ithout a charge on pretext, the course of the jury’s

deliberations will depend on whether the jurors are smart enough or intuitive enough to realize that

inferences of discrimination may be drawn from the evidence establishing plaint iff’s prima facie case

and the pretextual nature of the employer’s proffered reasons for its actions,” and concluded that “[i]t

does not denigrate the intelligence of our jurors to sug gest that they need some instruction in the7 The Supreme Court has found in certain circumstances that argument to the jury by counsel

cannot replace a jury instruction by the district court. See, e.g., Carter v. Kentucky , 450 U.S. 288,

304, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981) (“The other trial instructions and arguments of

counsel that the petitioner’s jurors heard at the t r ial of this case were no substitute for the explicit

instruction that the petitioner’s lawyer requested.”); Taylor v. Kentucky

, 436 U.S. 478, 488-89, 98

S. Ct. 1930, 56 L. Ed. 2d 468 (1978) (finding tha t t he mere fact that defense counsel argued the

presumption of innocence to the jury in both opening and closing argument could not compensate for

the failure of the court to include a specific instru ct ion on this issue). However, in other

circumstances the Court has found argument by counsel sufficient. S ee Simmons v. South Carolina

, 512 U.S. 154, 169, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994) (finding that in death penalty cases

where future dangerousness is an issue, “due process plainly requires that [the defendant] be allowed

to bring [the possibility of imprisonment without parole] to the jury’s attenti on by way of argument

by defense counsel or an instruction from the court.” ) (emphasis added). C ar ter and T

aylor are

distinguishable from this case because they involved mandatory and not permissive presumptions.

Carter , 436 U.S. at 294, 101 S. Ct. 1112 (criminal defendant requested instruction that he was not

compelled to testify and that no inference of guilt can result from the fact that he refused to do so);

Taylor

, 436 U.S. at 480-81, 98 S. Ct. 1930 (criminal defendant requested a jury instruction regarding

the presumption of innocence). Therefore, argument to the jury by plaintiff’s counsel regarding the

permissible inferenc e is sufficient when the jury is correctly instructed on the ultimate burden the

plaintiff bears.

-10- permissibilit

y of drawing that inference.” R atliff

, 256 F.3d at 361 n.7 (quoting Smith v. Borough of

Wilkensburg

, 147 F.3d 272, 281 (3d Cir. 1998)). However, in this case, even without the permissive

pretext instruction, the jury received instructions regarding the ultimate legal question it must answer

a nd t he jury was also instructed that it was permitted to draw any reasonable inferences it felt the

evidence justified. The plaintiff was free to argue that actual discriminatory intent was t he

appropriate inference to mak e from the evidence offered to show that the employer’s purported

reasons for their actions were mere pretext. 7 For these reasons, we disagree with Ratliff and urge

en banc reconsideration of its holding that it is error for the district court to refuse to give a requested

permissive pretext instruction in employment discrimination cases.

III

As discussed above, the Reeves opinion, on which Ratliff based its permissive pretext holding,-11-

elaborates upon the requirements of the McDonnell Douglas burden shifti ng analysis. Retaliation

claims under the FLSA are also subject to the McDonnell Douglas analytical framework. S ee Brock

v. Casey Truck Sales, Inc.

, 839 F.2d 872, 876-78 (2d Cir. 1988) (holding that McDonnell Douglas

pretext analysis applies to FLSA claims); Connor v. Schnuck Mkts., Inc.

, 121 F.3d 1390, 1394 (10th

Cir. 1997) (“In analyzing FLSA retaliation claims, we apply the shift ing b urden of proof schem e

init ially articulated in McDonnell Douglas .”) (citations omitted). Thus, R atliff applies as equally to

FLSA cases as it does to employment discrimination cases. Kanida is correct that the district court

was required to give her requested permissive pretext instruction, and erred by not doing so.

GCMP claims that Ratliff is distinguishable from this case on its facts. In R atliff the district

court chose to instruct the jury on McDonnell Douglas burden shifting. S ee Ratliff

, 256 F.3d at 359,

361-62. GCMP thus claims that R atliff only requires permissive pretext instructions in cases where

the district court has instructed the jury as to McDonnell Douglas burden shifting, and that in cases

where no such instruction was given, the permissive pretext instruction is not required. We find

nothing in Ratliff suggesting such a limitation. S ee Ratliff

, 256 F.3d at 360-61. Indeed it would not

make sense to read Ratliff this way because on remand the district c ourt should not formulate its

instructions based upon McDonnell Douglas

. While R atliff did not specify the precise language a

permissive pretext instruction must contain, under the stare decisis rules of this court we find that the

district court erred by refusing to include a permissive pretext instruction in its jury charge.

Although in Ratliff we held that it was error for a district court to refuse to give a requested

permissive pretext instruction, we did not consider whether, based upon the facts of that case, the

failure to give the permissive pretext instruction rose to the level of reversible error. R atliff

, 256 F.3d

at 360-61, 364. This was because the improper “pretext plus” instruction provided reversible error8 The general inference instruction given in this case was very similar to the pattern jury

instructions in this Circuit. The actual instruction given was:

You must co n sider only the evidence in the case, but you are

permitted to draw such reasonable inferences from the testimony and

exhibits as you feel are justified in the light of common experience. In

other words, you may make deductions and reach conclusions which

reason and common sense lead you to draw from the facts which have

been established by the testimony and evidence in the case.

. . . There

are two types of evidence you may consider. One is direct evidence,

such as testimony of an eyewitness. The other is indirect or

circumstantial evidence, the proof of circumstances that tend to prove

or disprove the existence or nonexistence of certain other facts. The

law makes no distinction between direct and circumstantial evidence,

but simply requires that you find the facts from a preponderance of all

the evidence, both direct and circumstantial.

-12- and it was unnecessary to consider whether not giving the permissive pretext instruction constituted

reversible error. I

d

. at 361-62, 364. In contrast, in this case we must determine whether the district

court’s refusal to give the requested permissive pretext instruction is reversible error.

“This Court reviews a district court’s refusal to provide a requested jury instruction for abuse

of discretion.” United States v. McClatchy , 249 F.3d 348, 356 (5th Cir. 2001) (citations omitted).

Recognizing t hat district courts have substantial latitude in crafting jury instructions, the district

court’s refusal to give a requested jury instruction constitutes reversible error “only if the instruction

1) was a substantially correct statement of law, 2) was not substantially covered in the charge as a

whole, and 3) concerned an important point in the trial such that the failure to instruct the jury on the

issue seriously impaired the [party’s] ability to present a given [claim].” Id

.

As our previous discussion indicates, the permissive pretext instruction Kanida requested is

a correct statement of law. In addition, based upon our understanding of R atliff

, we find that the

requested permissive pretext instruction was not substantially covered in the charge as a whole. The

instruction on inference the district court gave in this case was a general inference instruction. 8 UnderCf. U.S. F IFTH C IRCUIT D IST

. J UDGES A SSOC

., P ATTE RN J URY I NSTRUCTIONS : C IVIL C ASES

C ONSIDERATION OF THE E VIDENCE § 2.18 (1999).

-13- Ratliff

, the Fifth Circuit’s pattern general inference instruction is insufficient and a permissive pretext

instruction must also be given. R atliff

, 256 F.3d at 360 nn.5-6. Although failing to give a requested

permissive pretext instruction courts reversal, based upon our consideration of the record, we

conclude that this error did not seriously impair Kanida’s abilit y to present her claim in this case. The

district court’s refusal does not constitute reversible error.

Other than its failure to give Kanida’s requested permissive pretext instruction, the district

court’s instructions properly stated the law governing this case. The jury was instructed to find for

Kanida if it found that she would not have suffered the adverse employment act io ns absent her

protected activity of filing a DOL complaint. Unlike the plaint iff in Ratliff , the instructions did not

require Kanida to meet a “pretext plus” burden. Further, the permissive pretext instruction issue was

resolved at the charge conference prior to closing arguments, and all of the parties understood that

the law permits the jury to infer actual discrimination based only on evidence supp o rting Kanida’s

prima facie case under McDonnell Douglas and the evidence showing pretext on the part of GCMP.

Kanida was free to tailor her argument to fit the court’s instructions and to argue based upon those

instructions that the jury should infer actual discrimination based upon the evidence she presented in

this case showing pretext on the part of GCMP. Defendants coul d not argue that thi s was not a

permitted inference. The jury was properly instructed regarding the controlling law and trial counsel

w as able to present the jury with the inferences they were permitted to make from the ev idence.

Consequently we cannot conclude that Kani da was seriously impaired in presenting her claim.

Therefore, although the district judge’s failure to give the requested permissible pretext instruction9 The jury instruction Kanida proposed stated:

The Defendants in this c ase are a corporation and partnership. A

corporati on and partnership are legal entities, or persons, and may be

found guilty of ret aliat ion. A corporation and/or partnership, may

o nly act through natural persons, who are known as its agents. In

general, any agent or repres e ntative of a corporati on may bind a

governmental body by his or her acts, declarations, or omissions.

-14- is error under Ratliff

, it does not rise to the level of reversible error in this case.

IV

Kanida claims that the district court abused its discretion by refusing to include in the jury

charge two additional instructions she requested. These claims are reviewed under the same standard

as the permissive pretext instruction above. McClatchy , 249 F.3d at 356. First, Kanida claims the

district court’s refusal to include a vicarious liabilit y instruction is reversibl e error. 9 Both parti es

recognize that Kanida’s requested instruction was a correct statement of law, however GCMP argues

the re was no reversible error because the instruction was substantially covered in the charge as a

whole and it did not concern “an important point in the trial such that the failure to instruct the jury

on the issue seriously impaired the [party’s] abilit y to present a given [claim].” M cClatchy

, 249 F.3d

at 356.

GCMP’s only defense was that the actions its employees took regarding Kanid a were not

retaliatory. It never disputed the issue of vicarious liability. Further, Kanida points to no evidence

in the record suggesting that vicarious liabili t y was ever an issue at trial. In the jury charge

conference, defendants indicated that they believed that this undis put ed issue was adequately

addressed by the general circumstantial evidence and inference in st ructions and the district judge

agreed. Even, assuming their belief was incorrect, if further clarification or emphasis of an employer’s

responsibility for the actions of its employees was necessary, nothing preven ted Kanida f rom10 A “taint” instruction info r ms the jury that the improper motive of one member of a

corporati on can taint the actions taken by another employee in certain situations. S ee Ratliff

, 256

F.3d at 362-63; see also Laxton v. Gap, Inc.

, 333 F.3d 572, 584 (5th Cir. 2003) (describing situation

where discriminatory animus of an employee can be imputed to actions of other employees).

11 The full text of the instruction Kanida requested was: “Plaintiff does not have to establish

a direct causal connection in a retaliation claim.”

-15- highlight ing this issue in her argument to the jury. This instruction did not concern a disputed issue

at trial and the jury was adequately instructed on the law governing retaliation, the ultimate issues it

had to resolve in this case. Therefore, refusing to include the vicarious liability instruction did not

impair Kanida’s ability to present her claims to the jury.

Second, Kanida claims the district court erred in refusing to include a “taint” instruction. 10

We need not consider the merits of this claim because Kanida did not adequately preserve this issue

for appeal. Failure to present a specific written instruction to the trial court bars an subsequent

complaint on appeal that the instruction was not given. T ransoil (Jersey) Ltd. v. Belcher Oil Co.

, 950

F.2d 1115, 1120 (5th Cir. 1992) (citing Fisher v. Indiana Lumbermens Mutual Ins. Co. , 456 F.2d

1396, 1400 (5th Cir. 1972)). Although Kanida requested an instruction providing that a plaintiff does

not have to prove a direct causal connection in a discrimination claim, 11 she never requested a taint

instruction. Her direct causal connection instruction was not sufficient to preserve a claim regarding

a taint instruction for appeal. See F ED

. R. C IV

. P. 51 (“No party may assign as error the giving . . .

of an instruction unless that party objects thereto

. . . stating distinctly the matter objected to and the

grounds of the objection.”). The direct causal connection instruction differs significantly from a taint

instruction because it never mentions either the relationships between employees or the circumstances

under which one employee’s discriminatory animus can taint the actions of another employee. Thus,

Kanida’ s o bjection before the district court regarding her requested causal connection instruction12 The specific instruction in this case was:

To prevail on this claim, Ms. Kanida must prove by a preponderance

of the evi dence t hat these alleged adverse employment actions

occurred and that they would not have occurred “but for” her filing of

the complaint with the Department of Labor. In other words, Ms.

Kanida must prove that her filing with the Department of Labor was

a motivating factor in the alleged adverse employment actions.

-16- failed to adequately preserve a taint instruction for appellate review.

Kanida claims two instructions the district court chose to include in the jury charge are also

reversible error. “Challenges to jury instructions are reviewed to determine whether the court’s

charge, as a whole is a correct statement of the law and clearly instructs jurors on the legal principles

at issue.” R ubinstein v. Adm’rs of the Tulane Educ. Fund

, 218 F.3d 392, 404 (5th Cir. 2000). First,

Kanida claims the “but for” causation standard the district court used as the definition of a motivating

factor is reversible error be cause it is the wrong legal standard. 1 2 “But for” causation is a correct

statement of law in this case. This Court has repeatedly stated that in retaliation cases the employee

must prove that the adverse employment actio n wo uld not have occurred “but for” plaintiff’s

protected activity. S ee, e.g., Rios v. Rossotti

, 252 F.3d 375, 380 (5th Cir. 2001) (“For ret aliati on

claims, this final burden requires the plaint iff to demonstrate t hat the adverse employment action

would not have occurred ‘but for’ the protected activity.”); Seaman v. CSPH, Inc.

, 179 F.3d 297,

301 (5th Cir. 1999) (In a retaliation claim, “[u]ltimately the employee must show that ‘but for’ the

protected activity, the adverse employment action would not have occurred.”). Thus, inclusion of

this instruction was not error on the part of the district court.

Second, Kanida claims on appeal that including a business judgment instruction was reversible13 The business judgment instruction given in this case was:

You may not return a verdict for Ms. Kanida just because you might

disagree with Gulf Coast’s or Nursefinders’ actions or believe them to

be harsh or unreasonable. Under t he law, employers are entitled to

make employment decisions for a good reason, for a b ad reason, or

for no reason at all, so long as the decision is not motivated by

unlawful retaliation. You sho uld not second-guess Gulf Coast or

Nursefinders’ decision or substitute your own judgment for theirs.

-17- error because it undermined her efforts to show that GCMP’s stated reasons were pretext. 13 Kanida

failed to object to this instruction before the district court. S ee F ED

. R. C IV

. P. 51 (“No party may

assign as error the giving or failure to give an instruction unless that party objects thereto before the

jury retires to consider its verdict.

. . .”). Therefore we will o nly review this instruction for plain

error. T exas Beef Group v. Winfrey , 201 F.3d 680, 689 (5th Cir. 2000). Including this instruction

in the jury charge was not plain error because this Court has approved similar busine ss judgment

instructions in other retaliation cases. See, e.g., Julian v. City of Houston

, 314 F.3d 721, 727 (5th

Cir. 2002) (approving a similarly worded business judgment instru ct io n in an ADEA case).

Therefore, Kanida’s claim regarding this instruction fails.

V

Kanida challenges five of the district court’s evidentiary rulings excluding certain testimony.

“We apply an abuse of discretion standard when reviewing evidentiary rulings. If an abuse o f

discretion is found, the harmless error doctrine is applied. Thus, evidentiary rulings are affirmed

unless the district court abused its discretion and a substantial right of the co mplaining party was

affected.” G reen v. Adm’rs of the Tulane Educ. Fund

, 284 F.3d 642, 660 (5th Cir. 2002) (citations

omitted).

First, Kanida challenges the district court’s decision to exclude the testimony of Judi Coates.-18-

Kanida claims that Coates was going to testify that she left her employment with GCMP, but returned

several months later to claim unpaid o vert ime co mpensation from GCMP. Coates would further

testify that GCMP entered into a settlement agreement with her regarding this compensation, but that

Parks became angry with Coates and threatened her life during the process of reaching the settlement

agreement. The district judge excluded this testimony for two reasons 1) it was impermissible

character evidence because it was being introduced to show that Parks was the type of person who

got angry, and 2) that the testimony was not relevant because the way Parks behaved towards Coates

was not necessarily relevant to Parks’ motive regarding any employment action taken with respect

to Kanida.

After reviewing the record, we cannot say the district court abused its discretion by excluding

this testimony. Kanida is correct that comments are admissible to show pretext if they 1) show

retaliatory animus and 2) were made by the in dividual primarily responsible for the retaliatory

conduct. S ee Laxton v. Gap, Inc.

, 333 F.3d 572, 583-84 (5th Cir. 2003); Russell v. McKinney Hosp.

Venture

, 235 F.3d 219, 226 (5th Cir. 2000). These cases are distinguishable because, unlike this case,

the comments in those cases were addressed to the party claiming they were the object of the animus.

Here, Coates was not going to testify rega rding any retaliatory animus Parks may have exhibited

towards Kanid a. Nor could Coates testify that she suffered any retaliatory actions as she was no

longer employed with

GCMP at the time of her alleged confrontation with Parks. Instead Kanida

claims that Coates’ testimony would help corroborate Kanida’s claim that Parks acted with retaliatory

animus to wards her because she filed a complaint regarding overtime compensation with the

Department of Labor. Ostensibly Kanida would argue that Parks’ anger towards Coates supports

the proposition that Parks had the same reaction when Kanida made a similar overtime compensation1 4 Cheryl Oliver was the nurse who reported to Parks that Kanida approached her about

soliciting a GCMP patient away from the company, one of the reasons GCMP gave to jus t ify the

negative employment evaluation Kanida received. See supra note 2.

-19- claim. This testimony is impermissible propensity character evidence because Kanida wo uld use

Parks’ reaction towards Coates to show that Parks’ reacted the same way towards her. F E D

. R. E VID

.

404(b) (“Evidence of other

. . . acts is not admissible to prove the character of a person in order to

show action in conformity there with.”). Furtherm ore, as the di stri ct court observed, i t does not

follow that an init ial emo t io nal reaction towards one person necessarily translates into retaliatory

animus against another. Therefore, we cannot conclude that the district court abused its discretion

by excluding the testimony of Judi Coates.

Second, Kanida challenges the exclusion of Paulette Bennett’s testimony. The district court

excluded Bennett’s testimony because much of it consisted of impermissible hearsay evidence. F E D

.

R. E VID

. 802. Specifically, it found that Bennett’s testimony regarding a conversation she overheard

between Kanida and two other employees was hearsay. F E D

. R. E VID

. 801. On appeal, Kanida

argues this testimony was relevant and probative of her claim. Specifically, it would corroborate her

testi mo ny and help her establish pretext. Kanida did not, however, challenge the district court’s

ruling that this testimon y was hearsay. This argument is waived. S ee Trico Marine Assets Inc. v.

Diamond B Marine Srvs. Inc.

, 332 F.3d 779, 790 n.6 (5th Cir. 2003) (“Issues not raised or argued

in the brief of the appellant may be considered waived and thus will not be noticed or entertained by

the court of appeals.”) (citation omitted, emphasis in original).

Third, Kanida challenges the district court’s ruling limit ing her cross-examination of Cheryl

Oliver. 14 The district court ruled that Kanida could not cross-examine Oliver regarding her purported

knowle dge t hat GCMP had hired undocumented foreign nurses. Kanida claims this line of cross--20-

examination was necessary to show that Oliver was biased against Kanida, leading Oliver to fabricate

portions of her testimony. Kanida claims Oliver disclosed the alleged hiring of undocumented nurses

to Kanida and was upset when Kanida subsequently disclosed her knowledge of this practice to Parks.

The district court did not permit Kanida t o t est ify regarding the alleged hiring of undocumented

workers during her case in chief. The district court also refused to allow Kanida to raise this topic

during her cross-examination of Cheryl Oliver because the court found that it was prejudicial and

irrelevant to this case. S ee F ED

. R. E VID

. 403. Other than describing the alleged factual situation

giving rise to the alleged bias, Kanida cites no legal authority nor makes any legal argument before

us supporting her contention that the district court’s decision was incorrect. Therefore, this claim

was inadequately briefed and is waived for purposes of this appeal. See Trico Marine Assets , 332

F.3d at 790 n.6.

Kanida’s final two evidentiary cha llenges concern the district court’s refusal to allow two

witnesses to testify on rebuttal, Rita Darjean and Kanida herself. Darjean was listed as a witness for

Kan ida’s case in chief, but was not called. Kanida stated that it was necessary to call Darjean in

rebuttal because the court refused to allow testimony from other witnesses during her case in chief.

The purpose of Ka nida’s rebuttal testimony was “to refute everything [the defendants] say.” The

district judge refused to allow either person to testify on rebuttal because they both were available

to testify during the plaint iff’s case in chief and neither party was going to testify regarding evidence

previously unavailable. S ee Tramonte v. Fibreboard Corp

., 947 F.2d 762, 764 (5th Cir. 1991) (“The

trial court generally admits rebuttal evidence either to counter facts presented in the defendant’s case

in chief, or to rebut evidence unavailable earlier through no fault of the plaintiff.”) (citations omitted).

The district court did not abuse its discretion in excluding this rebuttal testimony.-21- VI

For the reasons discussed above, we AFFIRM the district court’s amended final judgment

awarding Kanida overtime pay in the amount stipulated to by the parties before trial. Therefore, we

need not address plaint iff’s claim concerning the availabilit y of compensatory and punitive damages

under the FLSA and DISMISS this claim as moot.-22-

BENAVIDES, Circuit Judge, specially concurring:

I concur in the majority opinion in most respects. In

particular, I agree that, under Ratliff v. City of Gainesville

, 256

F.3d 355, 360-61 (5th Cir. 2001), the district court erred by

refusing to instruct the jury on permissive pretext. I also agree

that, because that error was harmless on the facts of this case, we

must affirm the judgment of the district court.

However, I do not join the majority opinion’s criticism of

Ratliff or its call for en banc review of that decision. First, I

am not convinced that Ratliff ’ s reasoning is incorrect. More

importantly, because we have determined that the error in this case

was harmless, the majority’s criti que of R atliff is unnecessary.

For the same reason, this case is not a suitable vehicle for us to

reconsider R atliff en banc. I would not urge en banc review and

the expenditure of time and resources that review would entail.