## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________

No. 98-20834

Summary Calendar

_______________



### GREGORY KNIGHTS,

Plaintiff-Appellant,

VERSUS



### BANK UNITED OF TEXAS FEDERAL SAVINGS BANK;

DENNIS LAIRD; C.J. ANCIRA,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-97-CV-0669)

_________________________

August 13, 1999

Before JOLLY, SMITH, and WIENER,

Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Gregory Knig h ts appeals a judgment,

following a jury verdict, denying him recovery

in his race discrimin at ion and retaliation

lawsuit against Bank United of Texas, Dennis

Laird, and C.J. Ancira (collectively “Bank

United”). Finding no error, we affirm.

I.

Knights, a black male, worked as a branch

manager for San Jacinto Savings from 1988 to

1991. After United Savings acquired San

Jacinto Savings in 1991, Knights continued in his pos it ion. In May 1992, United Savings

(now called Ban k United) appointed Knights

manager of its Greens Road branch, where he

worked until he was terminated in February

1996. He never received any disciplinary

measures or any other negative marks related

to his employment before February 1996.

Bank United ter m inated him, however,

following a specific incident.

A.

On February 28, 1996, a sub st itute vault

custodian at the Gr eens Road branch, Helen

Jackson, told Knights that there was a $5,000

discrepancy in the vault bala nce recorded on

February 27. The vault balance on any given

day should equal the cash in the vault plus the

cash delivered to the central vault. The

February 27 “va ult ticket,” however, showed

that the vault t eller on duty that day , Tami

Cruse, had placed $1, 293 in a bag to ship to

the central vault. According to Jackson, the

February 27 vault ticket did not account f or $5,000 in cash. * Pursuant to 5 T H C IR

. R. 47.5, the court has

determined that this opinion should not be

p ublished and is not precedent except under th e

limited circumstances set forth in 5 T H C IR

. R.

47.5.4.2

Knights called Cruse, who was off work on February 28, and asked how much money she

h ad shipped to the central vault on

February 27. Cruse responded t hat she had

shipped $6,293, including $5,000 in $100 bills

and $1 ,293 in mutilated bills. Knights then

tried to contact the central vault to have them

co nfirm that the shipment contained $6,293.

Unfortunately, the centr al vault had not yet

received the shipment and could not verify

Cruse’s recollection.

Based on Cruse’s statement, Knights

instructed Jackson to change the February 27

vault ticket to show that $6,293 had been

shippe d

. Knights signed the altered ticket as

“manager” and, with permission from Cruse,

signed Cruse’s name on the space f or “tel l er signature.” The next day, the central vault

reported that the $6,293 had been properly

ac counted for and that there was no loss or

discrepancy.

Bank United’s area manager, Dennis Laird,

directed Bank United’s head of corpo r ate security to investigate. In a written report, the

s ecurity officer concluded that Knights had

“force b a lanced” the February 27 vault cash

drawer. Force balancing occurs when

someone manipulates or cause s something to

balance by adding or subtracting money. The

report confirmed that there was no l oss, no

criminal intent, and no inte nt t o falsify bank

records to conceal a loss and that Knights

understood the importance of not engaging in

forced balancing.

On request from Vickie Bargas, the human

resources director, the operations department

confirmed the security officer’s conclusio n that

Knights’s action constituted forced balancing.

Ba sed on this conclusion, Laird, Bargas, and

Ancira (another senior human resources executive) recomm

ended that Bank United

terminate Knights’s empl o yment. This

recommendation was made to Ron Coben,

Bank United’s regional manager, who held the

ultimate authority to terminate.

After making their recommendation, Laird

and Ancira met w it h Knights to hear his

account of the relevant events. Ancira testified that she and Laird were willing to reconsider

their recommendation if Knights offered some

explanation or information t hat they did not

know. Knights was not able to satisfy their

concerns, however. In particular, Cruse’s

telephone assurances did not provide sufficient

verification to alter the vault ticket.

Laird and Ancira offered Knights the opti on

to resign or be terminated. Knights requested

pr o bation and asked that his good years of

service be gi v en consideration. Laird,

however, told Knights that Bank United no longer trusted h im. Given the option of

terminatio n or resignation, Knights tendered

his resignation.

B.3

Knights sued Bank United , Laird, and

An cira in state court, allegi ng race

discrimination and retaliation under title VII of

the 1964 Civil Rights Act, 42 U.S.C. § 2000e,

et seq.

, race discrimination and retaliation

under t he Texas Labor Code §§ 21.051 and

21.055; and st at e law causes of action for

slander, defamation, and intentional inflict ion

of emotional distress. Defendants removed to

federal court.

Knights alleged t hat his termination was

motivated by racial animus and discrimination.

He argued that the “forced balancing” incident

was a pret ext and, had he not been black, he

would have been allowed to keep his job. He

pointed out that since Bank United took over

United Savings in 1991, all t he black branch

managers in the Houston area had left and had

been replaced by whites. He argued that white

employees and branch managers, who had

been guilty of more serious infractions of bank

policy, had been permitted to keep their jobs.

He also asserted that Bank United terminated

him in retaliation for his involvement in a race

discrimination lawsuit against Bank United by

another terminated black employee.

The court granted summary judgment to all

defendants on Knights’s retaliation and state

law claims and t o Laird and Ancira on

Knights’s race discrimination claims under

ti tle VII, 42 U.S.C. § 1981, and the Texas

Labor Code. It denied summary judgment on

race d iscrimination claims, however, for

defendant Bank United.

The parties went to trial on th e race

discrimination claims, with Bank United as the

only defendant. The jury returned a

unanimous verdict for Bank United, and the

district court entered a final judgment

dismissing the lawsui

t against all of the

defendants.

II.

Knights claims the court commi t ted

reversible error (1) by refusing to instruct the

jury that he was constructively discharged; (2)

by refusing to admit evidence about other

alleged racial discriminat i on at Bank United;

and (3) by granting summary judgment on his

retaliation claims. We consider each in turn. A.

Knights argues that the court should have

instructed the jury that, a matter of law, Bank

United’s “resign or be terminated” demand is

a constructive discharge. 1 The jury question

asked, “Do you find from a preponderance of

the evidence th at Bank United intentionally

discriminated ag ai

nst Gregory Knights because

of his race by discharging him from his

employment?” (Emphasis added.) Without an

instruction explaining that being asked to resign or be termi nated is equivalent to a

disc harge, Knights claims that the jury felt

obligated to side with Ban k United if it

mistakenly believed that Knights’s resignation

was not the same as a discharge. We find no

error.

1 Bank United claims that Knights failed to

preserve this objecti on under F E D

. R. C IV

. P. 51,

because Knights did not supply a proposed written

instruc tion and failed to obtain a ruling from the

court on Bank United's proposed instruction

. Knights replies that he did submit a proposed

written instruction on constructive discharge in the

joint pretrial order. Further, he explains that the

words “Defendant contest” i n bold type on the

submitted instruction signify that the defenda n ts objected to its admission.

We agree with Knights that it is hard to see how

Bank United can claim ignorance of this proposed

jury instruction on constructive discharge when it

specifically objected to its admission. Further,

Knigh ts is also correct that the lack of a written

instruction “is not necessarily fatal to appellate

review

. . . so long as the trial court was

sufficiently advised of this instruction re quest.”

9 J AMES W. M OORE ET AL

., M OORE ’ S F EDERAL

P RACTICE § 51.11[1][b] (3d ed. 1999); Bender v.

Brumley

, 1 F.3d 271, 276 (5th Cir. 1993) (“We

recognize that error is preserved for appeal so long

as the complaining party states his assertion to the

trial court prior to the time when the court invites

on-the-record objections to the charge.”).

Finally, we reject Bank United’s claim that

Knights failed obtain

a ruling from the court to

preserve its objection. The court d id issue a ruling

at the charge conference when it stated, in response

to Knights’s questioning, that there was no factual

dispute on whether a termination occurred.4 1.

We giv e district courts wide latitude in

drafting jury instructions, and we ignore

technical imperfections. Bender , 1 F.3d

at 276. On the other hand, “at a minimum the

court’s instructions must gi ve the jury

adequate gui dance to intelligently determine

the questions presented.” 9 J A MES W. M OORE

ET AL

., M OORE ’ S F EDERAL P RACTICE §

51.10[1] (3d ed. 1999). We conduct a twostep inquiry when reviewing a jury instruction.

First, we consider whethe r the charge “as a

whole leaves us with substantial and

ineradicab le doubt whether the jury has been

properly guided in its deliberations.” K yzar v.

Vale Do Ri Doce Navegacai, S.A.

, 464 F.2d

285, 290 (5th Cir. 1972). Then, even if we

determine that an error has occurred, “[w]e

will not reverse if we find, ba sed upon the

record, that the challenged instruction could

no t have affected the outcome of the case.”

Middleton v. Harris Press & Shear

, Inc

., 796

F.2d 747, 749 (5th C ir. 1986) (internal

quotations omitted).

2.

The court refused to give an instruction on

constructive discharge, because it found there

was no dispute as to whether Knights was

fired or whether he resigned. Ron Coben, the

Bank United official who held the

decisionmaking autho rit y for Knights’s

termination, testified t hat he decided to

terminate Knights. The court relied on

C oben’s undisputed testimony to hold tha t

“there is not a disputed issue as to whether his

decision to leave Bank Unite d was voluntary

or not.”

Knights points to a number of statements

and documents implying t hat he resigned

voluntarily. For instance, at opening

argument, Bank United’s cou nsel stated that

“Bank United had a valid non-discr iminatory

reason for asking Mr. Knights to resign

. . . .”

Other documents described how Knights was

given the opp ort unity

to resign or be

terminated.

We do not agree that these statem ents seriously misled the jury into believing that

Knights resigned voluntarily. In addition to Coben’s unequi vo cal testimony, Knights

testified that “they forced me out. I mean, it’s

an ultimatum. That’s what it is. 'You resign

or we’re going to fire you.' So, I got fired.”

Bank United did not argue to the jury that

Knight s had voluntarily resigned or that the

jury should base its decision on whether he had

voluntarily resigned. Therefore, Knights’s

attack on the jury instruction falls far short of

cr eat ing the “substantial and ineradicable

doubt” necessary for reversal.

B.

Knights proffered evidence of what he

alleged was an atmosphere of discrimination

against blacks at Bank United. Specifically, he

o ffered evidence that Bank United adopted a

discriminatory policy toward its customers and

refused to change this policy despite

complaints by its employee s. After

considering this proffered evidence in a

hearing outside of the jury’s pres ence, the

court excluded Knights’s evidence under F ED

. R. E VID

. 401 for lack of relevance and F ED

. R.

E VID

. 403 for potential prejudice and

confusion.

We aff ord district courts great latitude

when determining the admissi bilit y of

evidence, and we review such decisions only

for abuse of discretion. K elly v. Boeing

Petroleum Servs.

, Inc. , 61 F.3d 350, 356 (5th

Cir. 1995). Additionally, an evidentiary ruling

will no t be the basis for a reversal unless it is

erro neous and substantial prejudice results.

Mooney v. Aramco Services Co

. , 54 F.3d

1207, 1220 (5th Cir. 1995). The party who

offers the evidence has the burden of showing

that substantial prejudi ce results from its

exclusion. Id.

Knight s appeals the exclusion of his

evidence that Bank United treated Nigerian

customers differ e ntly from other classes of

customers. According to testimony by

Knights and his colleague Helen Jackson,

Bank United’s secu rit y chief Richard Carr

announced separate procedures to screen

customers of Nigerian backgro und when

o p ening new accounts. Knights testified that

he strongly disagreed with this policy, because5

it treated Nigerians differently from other

customers.

After considering evidence of this policy, as

w ell as other proffered evidence of an atmosphere of discrimination, the court

excluded Knights’s evidence under rules 401

and 403, explaining t hat (1) there was no

evidence that the allege d Nigerian screening

policy was a procedure of the decisionmaker

who terminated Kni ght s; and (2) the alleged

policy involved discrimination on the basis of

national origin and is not the s ame kind of

discrimination alleged by Knights.

In Kelly

, this court faced a similar challenge

to a dec isio n to exclude evidence about an

alleged atmosphe r e of discrimination. The

Kelly plaint iff sued his employer for

discriminating on the basis of his disabilit y and

then off ered evidence about his supervisor’s

insens it ive actions against minority and

disadvantaged gr o ups as well as against the

disabled. The district court excluded i n limine

any evidence about discrimination against nondisabled minority groups, and we affirmed.

Unlike cases in which the proffered

evidence related to the same kind of

discriminat io n and in which bigoted

superiors di

rectly made or participated

in the employment decisions complained

of, the court’s rul i ng regarding

anecdotal incidents of unrelated kinds of

prejudice cannot be labeled an abuse of

disc retion when considered within the

framework of this case.

Kelly

, 61 F.3d at 358. We find this reasoning

equally applicable in this case. 2 Knights did not offer any evidence that the screening

policy toward Nigerians was in actuality a

policy designed to screen all customers of

African descent. Therefore, the court was

co rrect when it excluded this evidence as

irrelevant concl

udi ng that the alleged screening

policy “is discrim

ination on the basis of

national origin, [and not] discrimination on the

basis of race.”

Fu rt her, the court relied on its authority

under rule 40 3 to exclude even relevant

evidence if it has a tendency t o confuse,

mislead, inflame, or waste the time of the jury.

The court conducted a balancing analysis

between the weak probative value of evidence

of the alleged screening poli cy and the

confusion such evidence woul d cause by

creating a new line of inquiry in the trial. The

court reasoned that Bank United would have

to explain its policies for dealing with fraud in

opening new accounts and measures it used in

dealing with such problems to defe nd itself

against Knights’s allegations. We find these

consi derations persuasive, and we therefore

refuse to see the district court’s alt ernati ve

basis for exclusion under rule 403 as an abuse

of discretion.

Finally, even if we assumed, arguendo

, that

the evidence was relevant and th at its

probative value w as not substanti al l y outweighed by its po t ential for unfair

prejudice, Knigh t s has not shown how the

exclusion of this evidence affec t ed his

substantial rights. The evidence strongly

supported the jury’s finding that Knights was

terminated as a result of the “forced balancing”

incident. Knights’s proffered evidence would

have focused the jury’s attenti on on statements

b y Carr, a non-decisionmaker, regardi ng a

request that did not involve employment

decisions, and t hat at best showed a different

kind of dis crimination. Unlike evidence that

Bank United would have disciplin ed a nonblack employee differently for the same errors 2 Knights dire cts our attention to P olanco v. City of Austin

, 78 F.3d 968, 969 (5th Cir. 1996),

for the p r oposition that evidence of a hostile

atmosphere is probative in termination cases. We

do not disagree with this general state ment but

reject its applicability to this case. P olanco

involved a review of the sufficiency of the evidence

for a jury determin ation and not a trial court’s

evidentiary ruling. Additionally, the evidence of a

(continued...) (...continued)

hostile atmosphere in Polanco involved the same group (Hispanics) alleging discriminatory

employment treatment.6

committed by Knights, the proffered evidence

could not overcome the substantial eviden c e

t hat Bank United terminated Knights for a

legitimate, non-discriminatory reason.

C.

Knights attacks the summary judgment for

Bank United on his claim o f retaliation.

Specifically, he argues that he raised a factual

issue sufficient to defeat summary judgment on

whether Bank United terminated him because

of his participation in an unrelated r ace

discrimi nati on lawsuit (“the Spearman

lawsuit”) against the bank.

1.

When a district court grants sum mary judgme n t, we review the determination

de novo

, employing the same standards as did

the district court. See Urbano v. Continental

Airlines, Inc.

, 138 F.3d 204, 205 (5th Ci r.),

cert. denied

, 119 S.Ct. 509 (1998). Summary

judgment is ap p ropriate when, viewing the

evidence in the light m

ost favorabl e to the

nonmoving party, the record refl e cts that no genuine issue of material fact exists, and the

moving pa r ty is entitled to judgment as a

matter o f law. S ee Celotex Corp. v. Catrett

, 477 U.S. 317, 322-24 (1986); see also F ED

. R.

C IV

. P. 56(c).

2.

To establish a prima facie case of unlawful

retaliation, Knights had to establish that (1) he

engaged in activity p rot ected by title VII,

( 2) an adverse employment action occurred,

and (3) a causal link exis ted between the

protected activi

t y and the adverse action.

Long v. Eastfield College

, 88 F.3d 300, 304

(5th Cir. 1996). The district court assumed

that Knights's name appearing in the Spearman

lawsuit is a protected activity and that his

termination was an adverse employment

action. To survive summary judgment,

however, Knights also had to raise a fact issue

as to a causa l connection between his

involvement in the Spearman lawsuit and his

termination.

The court based its summary judgment on

two grounds. First, it observed that there is no evi dence that Coben, the ul ti m ate

decisionmaker on

Kni ghts's employment, knew

of Knights's involvement in the Spearman suit.

In fact, Coben swore in his affidavit that he did

not have any such knowledge.

Second, the court reasoned that even if, as Knight clai m

s, circumstantial evidence showed

that Laird and Ancira knew of Knights's

involvement in the suit, t his evidence alone

cannot create a fact issue on whether Knights's

name appearing in the suit was causally linked

to his termination.

Knights is correct when he argues that

Co bden's lack of knowledge about Knights's

protected activity does not resolve the issue of

whether there was a causal c onnection. This

co urt will not require a direct causal

connection between termination and the

decisionmaker in a di s crimination lawsuit

where the decisionmaker f ol l ows a

recommendation by someone who does have

a causal connection. 3

Knights is less persuasiv e, however, when

he a rgues that as long as he can show that

Laird and An cira probably had k now ledge of

his involvement in the Spearman l a wsuit, he

has raised a fact issue as to whether racial

animus played a role in their recommendation

to terminate him. To establish a genuine fact

issue necessary to avoid summary judgment on

t his causal link, it is true that Knights “need

not prove that [his] protected activity was the

so le factor motivating the employer's

challenged decision

. . . .” L ong

, 8 F.3d at 305

n.4. Still, this court has required more t han

mere knowledge of

protected activity on the

part of supervisors to find a fact issue.

3 See Equal Employment Opportunity Comm'n

v. Manville Sales Corp.

, 27 F.3d 1089, 1092 (5th

Cir. 1994) (admitting evidence of supervisor's

discriminatory remarks even though supervisor did

not m a ke employment decision); L ong, 88 F.3d

at 3 07 (remanding summary judgment when

empl oyees established causal link between

protected activity and immediate supervisors'

recommendations for termination).7

In L ong, the court found that plaint iffs

asserting a title VII retaliation claim had raised

a fact issue on

t he causal link between their

protected ac t ivities and their terminations

when (1) the plaint iffs had filed complaints

directly against their supervisors; (2) the

supervisors had kno wledge of these

complaint s; and (3) t he supervisors

recommended terminating t he plaintiffs after

learni ng of the complaints. I d. at 306.

Knights, however , has provided only weak

circumstantial evidence that Laird and Ancira

knew that his name had been listed in the

Spearman lawsuit. He provides no evidence

that they knew that he had taken any action to

aid Spearman. In fact, Knights did no t t ake,

and never did take, any action that aided the

Spearman l awsuit. Therefore, while it is

possible Laird and Ancira knew that Kni ghts

had been named in the Spearman lawsuit as a possible witness, there is no evidence that they

had any knowledge that he had participated in

any meaningful way in the suit.

In Long

, the plaint iffs offere d affidavits

swearing that action was taken agains t them

imme diately after they filed their complaints.

In contrast, Knights has offered no t imeline or

evidence establishing that Laird or Ancira

acted as a result of h is involvement in the

Spearman lawsuit.

It is cert a inly true that Knights need not

establish that his minimal par t icipation in the

Spearman lawsuit was the “but-for” factor

motivating his termination. S ee Long

, 88 F.3d

at 305 n.4. Knight s, however, has failed to

raise provide even a “scint illa” of evidence that

Laird and Ancira knew of his involvement or

that they acted in an y way as a result of his

being named i n t he suit. Mere knowledge of

po ssible protected activity is not enough to

raise a fa ct issue on the necessary causal link

for a retaliation claim.

AFFIRMED.