1 Pursuant to 5 TH C IR

. R. 47.5, the Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5 TH C IR

. R.

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40652

_____________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee,

versus

WAL-MART STORES, INC., doing business as

Wal-Mart Store #1296 - San Benito, Texas,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(B-95-CV-123)

_________________________________________________________________

July 29, 1998

Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM: 1

Primarily at issue in this Title VII case is whether

sufficient evidence supports the jury’s finding that, by refusing

to rehire Charlene Brock, Wal-Mart both discriminated against her

because of her race and retaliated against her because she and/or

her mother had complained of discrimination. For this appeal from- 2 -

the judgment in favor of the Equal Employment Opportunity

Commission, we REVERSE and RENDER judgment for Wal-Mart.

I.

Wal-Mart hired Brock in December 1992 as a part-time seasonal

cashier at its San Benito, Texas, store. She had a high school

education; had prior job experience at K-Mart; and had also worked

as a babysitter and s ubstitute teacher. She was the only black

employee in the store at that time.

On commencing her employment, Brock signed a statement

acknowledging that a reduction in force might be necessary after

peak business seasons; that, if terminate d during such reduction

and eligible for rehire, she had to re-apply; that Wal-Mart was not

obligated to contact her for possible rehire; and that employment

applications were valid for only 60 days.

In early February 1993, Irma Adkins was promoted from

assistant manager to manager of the San Benito store. ( As

discussed below, Adkins became a central fi gure in Brock’s Title

VII claims.)

Brock’s 90-day performance evaluation in mid-February 1993

r ated her as “meeting requirements” and noted that she was

dependable, flexible, punctual, and maintained a good attitude with

the other sales associates (Wal-Mart’s term f or employees).

Nevertheless, a little over a week later, Brock was discharged

during a reduction in force; but, she was classified as “eligible- 3 -

for rehire”. ( Brock testified at trial that she did not think that

her race had anything to do with this reduction in force release.)

Four months later, in late June, Brock submitted an employment

application to the San Benito Wal-Mart. In mid-July, her mother

complained to the store manager, Adkins, that, as a result of

racial discrimination, Brock had not been rehired. Adkins, who is

hispanic, told Brock’s mother that Wal-Mart does not discriminate;

and that she would look into Brock’s application. Two days later,

Adkins called Brock’s mother and asked if Brock would come for an

interview that afternoon. Following the interview, Brock was hired

as a part-time sales associate in the electronics department.

Later, Brock was reassigned to a cashier position; although she did

not request the transfer, she had no objection to it.

Brock testified that, a few months after her July 1993 return

to work for Wal-Mart, Adkins began treating her worse than other

employees: t hat Adkins gave her the “cold shoulder” and would not

respond when Brock greeted her; that she was assigned to work at a

cash register directly in front of Adkins’ station; and that Adkins

closely monitored her while she worked. B ut, although she felt

“uncomfortable” about Adkins’ observation, she did not so advise

Adkins. Brock testified also that Adkins required her to scrape

gum off the floor, which Brock felt was not part of her job duties;

that she was the only cashier to whom Adkins assigned such tasks;

and that, without prior notice so that she could dress accordingly,- 4 -

Adkins assigned her to work outdoors in inclement weather in the

garden center.

Brock testified that she felt that Adkins was mistreating her

because of her race. However, she could not explain why, if Adkins

disliked her for that reason, Adkins di d not behave the same way

toward her either prior to her February 1993 reduction in force

release or during the first few months after her July 1993 rehire.

Brock acknowledged that there was a posted procedure for

complaints, but testified that she did not follow that procedure

because she did no t want to lose her job. Wal-Mart’s “open door

policy” regarding employee complaints provides:

Wal-Mart’s commitment is to maintain a work

environment that is free of harassment and

inappropriate behavior. In keeping with this

commitment, harassment or inappropriate

behavior directed at an Associate by anyone,

whether it’s a member of Management, a

Customer, or a Vendor, will not be tolerated.

If you feel you’ve been a victim of

harassment, or if you have witnessed or have

knowledge of behavior that violates Wal-Mart’s

policy, use the Open Door Polic y. If your

immediate Supervisor is the problem, go to the

next level of Management. Be as specific

about the incident as possible.... Remember,

there will be no retaliation for reporting

harassment or inappropriate conduct. If you

feel Wal-Mart has not properly addressed your

claim, you have the right to file a complaint

with your State’s Human Rights Commission or

the Equal Employment Opportunity Commission

(EEOC).

According to Brock, “[I]f I would have called or wrote a complaint,

they would have probably figured, well, she’s the only black one- 5 -

that works here. And I would have st[oo]d out, and they would have

known it was me and they would have c[o]me down on me”.

In late September 1993, B rock received a 90-day performance

evaluation, rating her as “meeting requirements” and noting that

she was punctual, worked well with her immediate supervisor, and

had good customer service skills. And, in early December, she

received a six-month evaluation, in which her rating improved; she

was complimented for her strengths, which included punctua lity,

dependability, flexibility, and friendliness with customers and coworkers. Adkins did not participate in either evaluation.

In April 1994, ap proximately nine months after her rehire,

Brock ’s part-time position was eliminated as part of another

reduction in force; but, she was again classified as “eligible for

rehire”. Thirty other part-time and full-time employees were also

released then. Brock refused to sign the exit interview form,

however, because she felt that Adkins was discharging her because

of her race.

The next day, Brock’s mother wrote, and hand-de livered, a

letter to Adkins, stating t hat she believed her daughter was

released because she was blac k. Brock testified that it was not

her mother’s idea to claim that Wal-Mart discharged her because of

her race; but that she had her mother write the letter because her

handwriting was better. Wal-Mart did not respond to that letter.- 6 -

A week later, Brock’s mother sent a similar letter to WalMart’s chief executive officer. Again, she did not receive a

response.

In early June 1994, Brock filed a discrimination charge with

the EEOC, alleging that her April 1994 discharge was based on race.

(As discussed below, in late August she added to the charge.)

A week lat er, on 10 June, Brock submitted an employment

application at the San Benito Wal-Mart. On 15 August, Adkins

resigned as manager of that store. Steve Estrada replaced her.

Brock submitted a second application on 17 August to the San

Benito store. A week later, she amended her EEOC charge, alleging

that, since h er termination, she had submitted “several”

applications and had not been rehired. (Brock testified that she

had made “about four” applications prior to amending her EEOC

charge; but only two were introduced into evidence.)

On 13 September, Brock’s mother wrote a letter to the new San

Benito store manager, Estrada, stating that Brock had previously

worked at the store; that she had reapplied; and that she wanted to

be considered for a position. T he letter made no reference to any

alleged discriminatory treatment or retaliation

, and was

a ccompanied by another employment application. Brock testified

that she did not receive a response from Estrada; Estrada, that he

did not recall receiving the letter.- 7 -

On 12 October 1994, Brock submitted another application to the

San Benito store. And, on 20 October, she applied at Wal-Mart’s

Harlingen, Texas, store. She was interviewed for a position at the

Harlingen store, but not hired.

On 1 November, Bro ck reapplied at the San Benito store.

(Although Brock testified that she applied “maybe seven times” at

the San Benito store, she introduced only five applications into

evidence.)

The EEOC fil ed this action in August 1995 against Wal-Mart,

alleging that it refused to rehire Brock because of her race and/or

in retaliation agai nst her because she and/or her mother had

complained of discrimination. T he EEOC did not complain about

Brock’s April 1994 reduction in force discharge, even though Brock

ha d alleged in her original EEOC charge that it was due to

discrimination

.

In August 1996, Brock began working part-time for El Globo.

Following two days of trial that September, the jury was asked

to de cide whether, from June through December 1994, Wal-Mart

discriminated and/or retaliated against Brock by not rehiring her.

The jury found discrimination and retaliation, and awarded $12,000

for lost wages, $5,000 for past and future compensatory damages,

and $100,000 in punitive damages. Judgment as a matter of law was

denied Wal-Mart both before and after the verdict.

II.- 8 -

Wal-Mart challenges the sufficiency of the evidence concerning

discrimination, retaliation, compensatory damages, and malice; the

refusal of a jury instruction defining malice; the amount of

exemplary damages; and the admission of evidence regarding the

reasons for Adkins’ resignation. Because the evidence is

insufficient to sustain liability for either discrimi nation or

retaliation, we do not reach the remaining issues.

“A [F ED

. R. C IV

. P. 50] motion for judgment as a matter of law

... in an action tried by jury is a c hallenge to the legal

sufficiency of the evidence supporting the jury’s verdict.”

Hiltgen v. Sumrall , 47 F.3d 695, 699 (5th Cir. 1995). “On review

of the district court’s denial of such a motion, the appellate

court uses the same standard to review the verdict that the

district court used in first passing on the motion.” I d

. And, in

reviewing the denial of a Rule 50 motion for judgment, we apply the

standard found in Boeing Co. v. Shipman

, 41 1 F.2d 365 (5th Cir.

1969) (en banc), overruled in part on other grounds

, Gautreaux v.

Scurlock Marine, Inc. , 107 F.3d 331 (5th Cir. 1997) (en banc):

[T]he Court should consider all of the

evidence--not just that evidence which

supports the non-mover’s case--but in the

light and with all reasonable inferences most

favorable to the party opposed to the motion.

If the facts and inferences point so strongly

and overwhelmingly in favor of one party that

the Court believes that reasonable men could

not arrive at a contrary verdict, granting

[judgment as a matter of law] is proper.- 9 -

Boeing , 411 F.2d at 374. Of course, in this regard, although “we

might have reached a different conclusion if we had been the trier

of fact, we are not free to reweigh the evidence or to re-evaluate

credibility of witnesses.” Hiltgen , 47 F.3d at 700.

A.

A Title VII discrimination claim is subject to the well-known

burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green

, 411 U.S. 792, 802-04 (1973). “[T]he plaintiff first must

establish a prima facie case by a preponderance of the evidence;

once established, the prima facie case raises an inference of

unlawful discrimination.” Rhodes v. Guiberson Oil Tools , 75 F.3d

989, 992 (5th Cir. 1996) (en banc). “The burden of production then

shifts to the defendant to proffer a legitimate, nondiscriminatory

reason for the challenged employment action.” I d

. at 992-93. “If

the defendant meets its burden, the presumption raised by the

plaintiff’s prima facie case disappears.” I d

. at 993. To prevail,

the plaintiff must prove that “the defendant’s articulated

rationale was merely a pretext for discrimination”. Id

.

The EEOC contends that it is entitled to judgment because it

established a prima facie case and Wal-Mart failed to articulate a

legitimate, nondiscriminatory reason for not rehiring Brock. But,

“[a]fter a case has been fully tried on the merits, the McDonnell

Douglas burden shifting analysis ceases to be of import to an

appellate court.” P atte rson v. P.H.P. Healthcare Corp. , 90 F.3d- 10 -

92 7, 933 (5th Cir. 1996), c ert. denied

,

___ U.S.

___, 117 S. Ct.

767 (1997); see also Travis v. Board of Regents

, 122 F.3d 259, 263

(5th Cir. 1997) (internal quotation marks and citation omitted)

(“When a case has been fully tried on the merits, the adequacy of

a party’s showing at any particular stage of the McDonnell Douglas

ritual is unimportant”), cert. denied

,

___ U.S.

___, 118 S. Ct.

1166 (1998). “Instead, our inquiry becomes whether the record

contains sufficient evidence to support the conclusions reached by

the trier of fact.” Patterson , 90 F.3d at 933.

In any event, even assuming that the McDonnell Douglas burden

of production is relevant at this stage of the proceedings, WalMart satisfied that burden. Although it did not present any

witnesses, it presented its case through cross-examination of the

witnesses called by the EEOC, many of whom were Wal-Mart employees.

Wal-Mart presented evidence that its corporate policy i s to make

hiring decisions based on nondiscriminatory factors, and that such

policy forbids discrimination, as refle cted in the associate

handbook:

Our commitment to equal opportunity for all

associates is reinforced by policy and by

actions. We do not tolerate discrimination of

any kind. Not only is discrimination against

our beliefs, it’s against the law.

Wal-Mart also introduced evidence of training programs offered to

managerial and supervisory personnel regarding discrimination.

Moreover, although Wal-Mart did not present a specific- 11 -

explanation or reason why Brock (as opposed to other applicants)

was not rehired, it elicited evidence that, during the time period

in which Brock sought to be rehired at its San Benito store (June

through December 1994), that store hired only nine persons, some of

whom had been released in prior reductions in force. Olivia

Juarez, who served as personnel manager at the San Benito store,

testified that applications are filed by month, in the order in

which they are received. The applications do not reflect the

applicant’s race. Janie Lopez, personnel manager at the Harlingen

store, testified that, wh en an opening occurs, the first

applications pulled and reviewed are those filed on the day the

opening arises, because the older the application, the more likely

the applicant has found other employment; and that, in reviewing

applications, no effort is made t o give preference to applicants

who have prior Wal-Mart experience. San Benito store manager

Estrada testified simila rly — when an opening occurs, the first

applications reviewed are those received that day.

Considering that the San Benito store weekly receives between

10 to 30 applications, and that only nine persons were hired

between June and December 1994, it is not surprising that Brock was

among those not hired for one of those nine openings. As Brock

acknowledged on cross-examination, if numerous pe rsons apply for

only a few openings, some will, and some won’t, be hired.

The EEOC contends that, based on the evidence that Brock was

the only black working at Wal-Mart, that she was treated worse than- 12 -

a ll other employees, and that she was released despite her

experience and good performance reviews, the jury could infer that,

from the beginning, Adkins disliked Brock because of her race.

Wal-Mart urges that Adkins’ feelings toward Brock are irrelevant,

because Adkins did not play a role in maki ng hiring decisions at

the San Benito store.

Adkins did not testify at trial, because neither party could

locate her. And, Brock testified that she did not know who made

hiring decisions at the San Benito store.

Glen Gibardi, a Wal-Mart district manager, testified that,

generally, hiring is done by a hiring committee; that, typically,

the store manager is not part of that committee; that, although a

store manager can overrule the hiring committee, in 13 years he had

never seen that done; and that he did not know whether Adkins had

anything to do with the decision not to rehire Brock.

Lopez, the Harlingen Wal-Mart personnel manager, testified

that hiring at the Harlingen store is done by the hiring committee;

and that, although the store manager has the “last word”, she could

not recall a situation where the manager became involved in making

hiring decisions.

Juar ez, who served as San Benito Wal-Mart personnel manager

from June 1993 through April 1994, and was a customer service

manager at that store at the time of trial, testified that hiring- 13 -

at the San Benito store was done by a hiring committee; and that

Adkins did not participate in the hiring process.

Estrada, who became manager of the San Benito store in

September 1994, after Adkins’ 15 August resignation, testified that

the hiring committee has the power to do the hi ring, but that he

liked to have some input as to who was hired.

To support its assertion that Adkins participated in the

d ecision not to rehire Brock, the EEOC relies on Gibard i’s

testimony that a store manager can overrule any decision made by

the hiring committee; Estr ada’s testimony that he liked to have

input as to who was hired; and Lopez’s testimony that the store

manager has the last word on hiring. A t most, this testimony

supports an inference that Adkins had the authority to participate

in hiring decisions a t the San Benito store; but, n one of the

witnesses testified that she did so. The only evidence that Adkins

ever exercised that authority is when she called Brock to come for

an interview in July 1993, after her mother had complained to

Adkins of discrimination. (As noted, Brock was then hired.)

Even assuming t hat the evidence supports an inference that

Adkins participated in hiring decisions at the Sa n Benito store,

the probative value of that inference is limited. As discussed,

Adkins resigned on 15 August 1994. Between Brock’s reduction in

force discharge on 20 April 1994 and Adkins’ resignation on 15

August 1994, Brock applied for employment only once (on 10 June).- 14 -

Broc k’s next application is dated 17 August, a fter Adkins’

resignation. Accordingly, Adkins’ treatment of, and feelings

toward, Brock are relevant only with respect to the period between

10 June and 10 August (although Adkins resigned on 15 August,

Brock’s 10 June application was valid for only 60 days).

The fact that B rock was the only black employed at the San

Benito store during both periods of her employment does not support

an inference that Wal-Mart refused to rehire her because of her

race. That her race did not necessarily contribute to her not

being hired is demonstrated by her having been hired twice before.

Broc k was hired initially in December 1992; and she was hired a

second time, in July 1993, even after her mother had complained to

Adkins about discrimination.

Brock testified that there are not many blacks in San Benito,

which is predominantly an hispanic community; and that she would

not expect too many blacks to apply for jobs at the San Benito WalMart. Although Estrada testified that the San Benito store weekly

receives approximately 10 to 30 applications, Juarez, who served as

personnel manager at that store from June 1993 through April 1994,

testified that the store received only about three applications per

year from blacks. ( This testimony was based on the fact that,

although, as noted, race is not shown on the application,

applicants personally hand Juarez the applications, or request them

from her to complete.) There was also evidence that, between April- 15 -

1994 and the time of trial (September 1996), the San Benito store

hired two blacks, one of whom had previously worked at Wal-Mart.

The only evidence which supports the EE OC’s assertion that

Adkins treated Brock worse than all other employees at the San

Benito store is Brock’s earlier-described testimony tha t, a few

months after she was re-hired in Ju ly 1993, Adkins gave her the

“cold shoulder” , made her clean gum off the floor, and made her

work in inclement weather in the garden center, but did not

similarly treat other employees. As stated, Adkins did not

testify.

Brock admitted that all Wal-Mart associates are expected to

keep the floors clean, but asserted that such expectations did not

include scraping gum off the floor. However, Brock described only

one occasion on which she was ask ed to do so. She also admitted

that all Wal-Mart employees are expected to fill in where they are

needed, when they are ne eded; and that, from July 1993 to April

1994, she was required to work in the garden area only two or three

times. And, on those few occasions, she was allowed to call her

mother to bring her a coat.

Assuming arguendo that Brock’s tes timony could support an

inference that Adkins disliked her, it does not support a further

inference that such dislike was based on Brock’s race. As

discussed, Brock admitted that she had no problems working with

Adkins either prior to the February 1993 reduction in force or- 16 -

during th e first few months after she was rehired in July 1993,

after her mother had complained to Adkins about discrim ination.

Brock could not explain why, if Adkins’ alleged dislike was based

on race, it did no t manifest itself until after they had worked

together for several months.

As further evidence that Adkins disliked Brock because of her

race, the EEOC points to Adkins including Brock among those

discharged in the April 1994 reduction in f orce, despite Brock’s

having received good performance evaluations. (Again, the EEOC did

not claim that discharge was discriminatory.) The EEOC relies on

the testimony of district manager Gibardi and store manager Estrada

that Wal-Mart has no specific policy of deciding who will be

released during a reduction in force; and that performance is taken

into consideration in selecting the employees to be retained during

such a reduction.

No evidence was presented r egarding the factors Adkins

considered in determining which employees would be affected by the

April 1994 reduction in force. Juarez, who was then serving as

personnel manager at the San Benito store, testified that part-time

workers (such as Brock) were usually the first to be released in

such a reduction. More important, as noted, the EEOC does n ot

claim that Brock’s release as part of the April 1994 reduction was

discriminatory. And, it did not introduce evidence regarding the

performance of those em p loyees retained in April 1994.- 17 -

Accordingly, whether Wal-Mart had a policy of considering employee

performance in determinin g who to release, or whether Adkins

followed such a policy in deciding to include Brock in the

reduction in force, is not probative of di scrimination in the

decision not to rehire Brock.

The EEOC ass erts also that A dkins was even responsible for

Brock’s failure to be hired at the Harlingen store in October 1994.

It relies on the testimony of Lopez, the personnel manager of that

store, that, when interested in a candidate with p rior Wal-Mart

experience, she would routinely call that Wal-Mart’s store manager

for a reference. The EEOC maintains that the jury could i nfer

that, after speaking with Adkins, the Harlingen store did not view

Brock favorably.

But, this contention is not supported by the record. Adkins

resigned from the San Benito Wal-Mart on 15 August 1994

. Brock did

not even apply for employment at the Harlingen store until 20

October

. Accordingly, the jury could not reasonably infer that

anyone at the Harlingen store spoke with Adkins about Brock. And,

Estrada, who succeeded Adkins as the San Benito store manager,

testified that no one had ever called him and asked about Brock.

In sum, Adkins’ behavi or toward Brock supports nothing more

than a possible inference that Adkins may have disliked Brock.

But, it goes without saying that “evidence of mere dislike is not

enough to prove pretext under Title VII”. G rimes v. Texas Dept. of- 18 -

Mental Health & Mental Retardation

, 102 F.3d 137, 143 (5th Cir.

1996).

As noted, Adkins’ motives are relevant only for the period

between Brock’s 10 June application and Adkins’ 15 August

resignation. Decisions with respect to Brock’s subsequent

applications at the San Benito store were made after Estrada became

manager. The EEOC did not present evidence as to either the

identity of the members of the hiring committee, or a

discriminatory motiv e on the part of either those committee

m embers, or Estrada, or any other Wal-Mart employees involved in

the hiring process during that time period.

The EEOC relies heavily, however, on Brock’s being classified

as eligible for rehire when she was released during the April 1994

reduction in force. It points to Gibardi’s testimony that the

determination whether an employee is eligible for rehire depends on

work performance, such as dependability, trustworthiness,

punctuality, and providing good custome r service; and that these

factors would be taken into consideration when a former employee

reapplies at a Wal-Mart store. The EEOC relies also on Estrada’s

testimony that such factors would be important and considered in

deciding who to rehire; that Brock’s previous employment with WalMart would be considered a “plus”; and that, in reviewing Brock’s

qualifications, including her education and experience, he did not

see any reaso n why she would not have been qualified to fill any- 19 -

positions that became availab le in the cashier or sales floor

category. The EEOC asserts that, in the light of Gibardi’s

testimony that it costs Wal-Mart approximately $1500 to train each

new associate, Wal-Mart logically would have an incentive to hire

former employees who had performed well in order to avoid that

cost.

Wal-Mart’s failure to rehire Brock may have been unwise,

illogical, or uneconomical. But, it again goes without saying that

Title VII does not mandate prudent hiring decisions, only nondiscriminatory ones. Cf

. Bodenheimer v. PPG Indus., Inc. , 5 F.3d

955, 959 (5th Cir. 1993) (addressing claim under Age Discrimination

in Employment Act).

Next, the EEOC points to the notation “wrong #” written on the

corner of Brock’s application at the Harlingen store. The notation

was in a different color ink than used by Brock to complete the

application. She testified that the notation was not on the

application she tendered to the Harlingen store; and that the

address and telephone number listed on her application were

correct. Lopez, personnel manager at the Harlingen store when

Brock applied, testified that she did not know what the notation

referred to, other than possibly the telephone number being wrong.

Lopez testified also that a p erson with previous Wal-Mart

experience, who had received good evaluations, would be considered

as long as the hours they could work were unrestricte d. Brock- 20 -

stated on the application that she had worked at the San Benito

Wal-Mart; and that there were no restrictions on the hours she was

available to work. As stated supra , Brock was interviewed by the

Harlingen store, but not hired.

The EEOC comments that “the strange notation went unexplained,

leaving the jury to weigh the evidence and possibly infer that the

notation was a signal or code indicating the wrong person or race

for the job”. But, any such inference would be based on nothing

but pure speculation, which is obviously inadequate to sustain a

finding that the Harlingen store did not hire Brock because of her

race.

Finally, the EEOC asserts that the discrimination finding is

supported by evidence that Brock was as qualified, and in many

instances more qualified, than those hired at the Harlingen store.

The EEOC notes that, of the persons hired at that store, many had

sig nificantly less education, less experience in retail sales,

and/or no experience working at a Wal-Mart.

Wal-Mart does not dispute that Brock was qualified, and does

not claim that the persons it hired were better qualified than

Brock. In any event, even assuming that such a comparison of

qualifications is relevant in this case, it is well-settled that an

employer has discretion to choose among qualified candi dates, so

long as the decision is not based upon unlawful criteria. Wright

v. Western Elec. Co., 664 F.2d 959, 964 (5th Cir. 1981); Amburgey- 21 -

v. Corhart Refractories Corp., 936 F.2d 805, 814 (5th Cir. 1991)

(it is not f or the court to decide which employee is best

quali fied; the employer is entitled to make that decision for

itself).

Our court has stated that evidence that a plaintiff is

“clearly better qualified” than the candidate chosen for a position

can support finding that the employer’s articulated reason is

pretextual. S ee Amburgey

, 936 F.2d at 814 (summary judgment).

This was explained further in Odom v. Frank , 3 F.3d 839 (5th Cir.

1993) (bench trial):

Generally, a court’s belief that an

unprotected applicant who has been promoted is

less qualified than a protected applicant who

has been passed over, will n ot in and of

itself support a finding of pretext for

discrimination. If, however, the passed over

a pplicant who is protected against

discrimination is clearly better qualified for

the position in question, a finding of pretext

masking discrimination can be supported by the

promotion of the less qualified person.

Odom

, 3 F.3d at 845-46 (emphasis in original). S ee also Nichols v.

Loral Vought Systems Corp.

, 81 F.3d 38, 42 (5th Cir. 1996) (summary

judgment in an age discrimination case; “[a] genuine issue of

material fact exists when evidence shows the plaintiff was ‘clearly

better qualified’ than younger employees who were retained”).

The evidence does not establish that Brock was clearly better

qualified than those hired at the Harlingen store after she applied

on 20 October 1994. There is no evidence that a particular level- 22 -

of education, experience in retail sales, or prior experience

w orking for Wal-Mart were qualifications for the positions for

which Brock applied. Even assuming that such qualifications might

be beneficial to Wal-Mart, and that it should have considered them

in making its hiring decisions, that decision is for Wal-Mart, not

a jury, to make.

In any event, as stated, the evidence shows that Brock’s

qualifications were not “clearly better” than those of the persons

hired at the Harlingen store. The EEOC introduced into evidence

the emp loyment applications of all those hired to fill hourly

positions at that store between April 1994 and the September 1996

trial; and Lopez, the Harlingen Wal -Mart personnel manager,

testified that Brock was “as qualified” as “most people” hired for

a part-time cashier’s position. This is insufficient to prove that

Brock was not hired at the Harlingen store because of her race.

The same is true with respect to those hired at the San Benito

Wal-Mart. The EEOC also introduced into evidence the employment

a pplications of all the hourly associates hired at that store

between April 1994 and the September 1996 trial. Brock was not

“clearly better qualified” than any of them.

In sum, considering the evidence in the light most favorable

to the EEOC, no rational trier of fact could conclude that Wal-Mart

refused to rehire Brock because of her race.

B.- 23 -

The other liability finding is that, because Brock had

complained of discrimination, Wal-Mart retaliated by not rehiring

her. Title VII provides, in pertinent part: “It shall be an

u nlawful employment practice for an employer to discrimin ate

against any of his employees ... because he has made a charge ...

under this subchapter.” 42 U.S.C. § 2000e-3(a).

1.

Despite the fact that Brock’s amended EEOC char ge does not

allege retaliat ion, the district court had jurisdiction over the

retaliation claim presented by the EEOC’s complaint. S ee Zipes v.

Trans World Airlines, Inc. , 455 U.S. 385, 393 (1982) (filing of a

timely charge with EEOC is not a jurisdictional prerequisite to a

Title VII suit in federal court; instead, it is a condition

precedent and is subjec t to waiver and estoppel); L awrence v.

Cooper Communities, Inc.

, 132 F.3d 447, 451 (8th Cir. 1998) (same).

Wal-Mart has never as serted that the EEOC’s retaliation claim is

beyond the scope of Brock’s EEOC charges.

In any event, had Wal-Mart done so, it would probably have

been futile. Regardless of whether an action is brought by the

EEOC or an individual, the scope of the judicial complaint may be

as broad as the scope of the EEOC investigation which can

reasonably be expected to grow out of the initial charge of

discrimination. S anchez v. Standard Brands, Inc.

, 431 F.2d 45 5

,

465 (5th Cir. 1970) (suit by individual); Harris v. Amoco- 24 -

Production Co.

, 768 F.2d 669, 684 (5th Cir. 1985) (discussing scope

of civil action brought by EEOC), cert. denied

, 475 U.S. 1011

(1986); see also Brown v. Hartshorne Pub. Sch. Di st. No. 1 , 864

F.2d 680, 682 (10th Cir. 1988) (internal quotation marks and

citation omitted) (“[w]hen an employee seeks judicial relief for

incidents not listed in [her] original charge to the EEOC, the

judicial complaint nevertheless may encompass any discrimination

like or reasonably related to the allegations of the EEOC charge,

including new acts occurring during the pendency of the charge

before the EEOC”).

Because the alleged retaliation occurred after Brock filed her

initial EEOC charge, the scope of the EEOC’s investigation of the

initial charge could reasonably be expected to encompass it. See

Barrow v. New Orleans S.S. Ass’n

, 932 F.2d 473, 479 (5th Cir. 1991)

(a district court has jurisdiction to hear a claim of retaliation,

even though a charge alleging retaliation has not been filed with

the EEOC, when the alleged retaliation grows out of an

administrative charge that is properly before the court); Gupta v.

East Tex. State Univ.

, 654 F.2d 41 1, 414 (5th Cir. 1981) (same).

See also Malarkey v. Texaco, Inc.

, 983 F.2d 1204, 1209 (2d Cir

.

1993) (where an alleged act of retalia tion occurs a fter an

individual has filed an EEOC charge, the retaliation is reasonably

related to the charge); Seymore v. Shawver & Sons, Inc. , 111 F.3d

794, 799 (10th Cir.) (internal quotation marks and citations- 25 -

omitted) (when plaintiff seeks judicial relief for incidents not

alleged in EEOC charge, “the judicial com plaint nevertheless may

encompass any discrimination like or reasonab ly related to the

allegations of the [EEOC] c harge, including new acts occurring

during the pendency of the charge before the [ EEOC]”), c ert.

denied

,

___ U.S.

___, 118 S. Ct. 342 (1997). As the Tenth Circuit

noted, “[t]his rule obviates the need for filing repetitive

complaints with the [EEOC] where the defendant engages in

retaliatory actions after a complai nt has been filed with the

[EEOC]”. Id

.

Moreover, seve ral courts have held that the EEOC is not

limited to the specific dis crimination alleged by the charging

party, but may sue for any type of discrimination it uncovers

during an investigation of the charging party’s complaint. Under

this rule, if a valid charge of discrimination is filed, the EEOC

may bring a civil action encompassing any discrimination which is

uncovered during a reasonable investigation of that ch arge. S ee

EEOC v. General Elec. Co.

, 532 F.2d 359, 373 (4th Cir. 1976) (cited

with approval by our court in Harris v. Amoco Production; the

standing of the EEOC to sue under Title VII cannot be controlled or

determined by the standing of the charging party); EEOC v. Gurnee

Inn Corp.

, 914 F.2d 815, 819 n.6 (7th Cir. 1990) (a suit by the

EEOC is not limited to the specific discrimination that the

charging party has standing to raise); see also EEOC v. Allegheny- 26 -

Airlines

, 436 F. Supp. 1300, 1304 (W.D. Pa. 1977) (EEOC should not

be limited, in its right to bring suit, to the type of

discrimination specifically alleged by the charging party or to a

type of discriminati on which the charging party had standing to

assert).

2.

A retaliation claim has three elements: (1)

the employee engaged in activity protected by

Title VII; (2) the employer took adverse

employment action against the employee; and

(3) a causal connection exists between that

protected activity and the adverse employment

action.

Mattern v. Eastman Kodak Co. , 104 F.3d 702, 705 (5th Cir.), cert.

denied

,

___ U.S.

___, 118 S. Ct. 336 (1997). “The ultimate

determinati on is whether, ‘but for’ the protected conduct, the

employer would not have engaged in the adverse employment action.”

Douglas v. DynMcDermott Petroleum Operations Co.

, 144 F.3d 364, 372

(5th Cir. 1998).

In this case, the first two elements for a retaliation claim

are not at issue: Brock filed an EEOC charge and subsequently

applied unsuccessfully for employment. But, the third element is.

Wal-Mart contends that the EEOC failed to present substantial

evidence of a cau sal connection between Brock’s filing the EEOC

charge and Wal-Mart’s failure to hire her. It bases this on there

not being any evidence that anyone involved in the hiring process

k new that Brock and/or her mother had complaine d of2 The court instructed the jury that, “[w]hen an employer

decides not to hire or rehire an individual because she or someone

acting on her behalf complained of discrimi nation, that is

retaliation.” (Emp hasis added.) Wal-Mart did not object to that

instruc tion or to the wording of the jury interrogatory allowing

the jury to find retaliation based on complaints by Brock “and/or

her mother”. Because Wal-Mart does not contend that Title VII’s

anti-retaliation provision, 42 U.S.C. § 2000e-3(a), does not

encompass complaints made by persons other than an employee, we

assume, without deciding, that Brock’s retaliation claim may be

based on complaints made by her mother. However, nothing in this

opinion should be construed as holding that such non-employee

complaints are covered by § 2000e-3(a).

- 27 - discrimination. 2 S ee Corley v. Jackson Police Dept. , 639 F.2d

1296, 1300 ( 5th Cir. 1981) (“employer cannot be guilty of

retaliation for an employee’s opposition to discrimination unless

[employer] is aware of that opposition”).

Wal-Mart relies on the evidence, discussed supra

, that hiring

decisions at its San Benito store were made by a hiring committee.

It contends that the EEOC did not present any evidence regarding

the identity of the members of that committee, or whether those

members were aware of any discrimination complaints by Brock and/or

her mother.

The EEOC points out that Brock’s personnel file contained the

April 1994 letter to Adkins from Brock’s mother, in which she

compl ained that Brock was being discriminated against because of

her race, and notes that there is evidence that, when considering

rehiring a former employee, Wal-Mart would look at their files or

call the person’s former store manager for a reference. The EEOC

asserts that, in the light of Brock being “more than amply- 28 -

qualified for the positions”, and that it was standard practice for

Wal-Mart to check the personnel files of former employees applying

for rehire, it is “highly likely” that the persons making the

hiring decisions were aware of Brock’s discrimination complaints,

and chose not to hire her for that reason.

Brock testified that she did not know whether anyone at the

San Benito or Harlingen stores knew that she had complained of

discrimination or filed an EEOC charge during the time she was

applying for employment. Former San Benito personnel manager

Juarez testified that a new file is started if a former employee is

rehired, and that the old file is not used. She testified that she

never reviewed a former employee’s personnel file when that former

employee was being considered for rehire; that she “would not know”

whet her a department manager would look at a closed file on a

previous employee; and that it would be “up to the hiring

committee” whether to look at a personnel file of a former employee

being considered for rehire.

As stated, there is no ev idence that Adkins participated in

making hiring decisions during the relevant time period (between 10

June, the date of Brock’s first application after the April 1994

reduction in force, and 10 August 1994, 60 days later; Adkins

resigned prior to Brock submitting additional applications).

Although there is evidence that Adkins was aware both of Brock’s

mother’s discrimination complaints and of Bro ck’s initial EEOC- 29 -

charge, the evidence does not support an inference that she refused

to rehire Brock in retaliation. After all, despite the fact that

Brock’s mother complained to Adkins of discrimination after Brock’s

first discharge, Brock nevertheless was rehired in July 1993.

As noted, Estrada, who became manager of the San Benito store

in September 1994 after Adkins’ resignation, testifie d that he

liked to have input in the hiring process. He testified, however,

that he only made decisions as to which applicants would be

interviewed by the hiring committee af ter it presented him with

recommendations. There is no evidence that Estrada was presented

with the opportunity to approve or reject any of Brock’s

applications.

Again, there is no evidence as to the identities of the

members of the hiring committee which selected the persons hired at

the San Benito store betwee n June and December 1994. The only

evidence about such membership is that the committee was made up of

department managers, who are hourly employees. Estrada testified

that, at the San Benito store, the only persons who had access to

personnel files were the manager, the assistant managers and the

personnel manager; the department manager s did not. Accordingly,

there is no evidence that the hiring committee had access to

Brock’s personnel file.

Estrada testified fur t her that personnel files of former

employees are separated from those of current employees; and that- 30 -

he liked to look at former employees’ files regarding their past

performance when considering them for rehire. But, there is no

evi dence that he reviewed Brock’s personnel file; in fact, he

testified that he was not aware that Brock had applied for

employment.

As noted, Harlingen store manager Lopez testified that, as a

matter of policy, a former employee’s store manager would be called

for a reference check on a former Wal-Mart employee applying for a

position at the Harlingen store. However, she did not know whether

such a ref erence check was made with respect to Brock’s

application. And, again, Estrada, manager of the San Benito store

when Brock applied at the Harlingen store, testified that no one

had ever asked him about Brock.

Viewing this evidence in the light most favorable to the EEOC,

no rational trier of fact could conclude that Brock would have been

rehired between June and December 1994 “but for” her having filed

an EEOC charge or her mother having written letters complaining of

discrimination.

III.

For the foregoing reasons, the judgment is REVERSED and

judgment is RENDERED in favor of Wal-Mart.

REVERSED and RENDERED