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 Knights appeals a judgment,

following a jury verdict, denying him recovery

in his race discrimination 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 Savingsfrom 1988 to

1991. After United Savings acquired San

Jacinto Savings in 1991, Knights continued in

his position. In May 1992, United Savings

(now called Bank 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 terminated him, however,

following a specific incident. 

A.

On February 28, 1996, a substitute vault

custodian at the Greens Road branch, Helen

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

discrepancy in the vault balance 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 “vault ticket,” however, showed

that the vault teller 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 for

$5,000 in cash. 

 

*

 Pursuant to 5TH CIR. 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 5TH CIR. R.

47.5.4.
2

Knights called Cruse, who was off work on

February 28, and asked how much money she

had shipped to the central vault on

February 27. Cruse responded that 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

confirm that the shipment contained $6,293.

Unfortunately, the central 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

shipped. Knights signed the altered ticket as

“manager” and, with permission from Cruse,

signed Cruse’s name on the space for “teller

signature.” The next day, the central vault

reported that the $6,293 had been properly

accounted for and that there was no loss or

discrepancy. 

Bank United’s area manager, Dennis Laird,

directed Bank United’s head of corporate

security to investigate. In a written report, the

security officer concluded that Knights had

“force balanced” the February 27 vault cash

drawer. Force balancing occurs when

someone manipulates or causes something to

balance by adding or subtracting money. The

report confirmed that there was no loss, no

criminal intent, and no intent to 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 securityofficer’s conclusion that

Knights’s action constituted forced balancing.

Based on this conclusion, Laird, Bargas, and

Ancira (another senior human resources

executive) recommended that Bank United

terminate Knights’s employment. This

recommendation was made to Ron Coben,

Bank United’sregionalmanager, who held the

ultimate authority to terminate.

After making their recommendation, Laird

and Ancira met with Knights to hear his

account ofthe relevant events. Ancira testified

that she and Laird were willing to reconsider

their recommendation if Knights offered some

explanation or information that 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 Knightsthe option

to resign or be terminated. Knights requested

probation and asked that his good years of

service be given consideration. Laird,

however, told Knights that Bank United no

longer trusted him. Given the option of

termination or resignation, Knights tendered

his resignation. 

B.
3

Knights sued Bank United, Laird, and

Ancira in state court, alleging race

discrimination and retaliation under title VII of

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

et seq., race discrimination and retaliation

under the Texas Labor Code §§ 21.051 and

21.055; and state law causes of action for

slander, defamation, and intentional infliction

of emotional distress. Defendants removed to

federal court. 

Knights alleged that his termination was

motivated by racial animus and discrimination.

He argued that the “forced balancing” incident

was a pretext 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 the black branch

managersin the Houston area had left and had

been replaced bywhites. He argued that white

employees and branch managers, who had

been guilty of more seriousinfractions 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 to Laird and Ancira on

Knights’s race discrimination claims under

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

Labor Code. It denied summary judgment on

race discrimination claims, however, for

defendant Bank United. 

The parties went to trial on the race

discrimination claims, withBank United asthe

only defendant. The jury returned a

unanimous verdict for Bank United, and the

district court entered a final judgment

dismissing the lawsuit against all of the

defendants.

II.

Knights claims the court committed

reversible error (1) by refusing to instruct the

jury that he was constructively discharged; (2)

by refusing to admit evidence about other

alleged racial discrimination 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 that Bank United intentionally

discriminated against 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 terminated is equivalent to a

discharge, Knights claims that the jury felt

obligated to side with Bank 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 objection under FED. R. CIV. P. 51,

because Knights did not supply a proposed written

instruction 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” in bold type on the

submitted instruction signify that the defendants

objected to its admission. 

We agreewith 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,

Knights 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 request.”

9 JAMES W. MOORE ET AL., MOORE’S FEDERAL

PRACTICE § 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 did issue a ruling

at the charge conferencewhen it stated, in response

to Knights’s questioning, that there was no factual

dispute on whether a termination occurred.
4

1.

We give 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 give the jury

adequate guidance to intelligently determine

the questions presented.” 9 JAMESW.MOORE

ET AL., MOORE’S FEDERAL PRACTICE §

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

First, we consider whether the charge “as a

whole leaves us with substantial and

ineradicable doubt whether the jury has been

properly guided in its deliberations.” Kyzar 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, based upon the

record, that the challenged instruction could

not have affected the outcome of the case.”

Middleton v. Harris Press & Shear, Inc., 796

F.2d 747, 749 (5th Cir. 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 authority for Knights’s

termination, testified that he decided to

terminate Knights. The court relied on

Coben’s undisputed testimony to hold that

“there is not a disputed issue as to whether his

decision to leave Bank United was voluntary

or not.”

Knights points to a number of statements

and documents implying that he resigned

voluntarily. For instance, at opening

argument, Bank United’s counsel stated that

“Bank United had a valid non-discriminatory

reason for asking Mr. Knights to resign . . . .”

Other documents described how Knights was

given the opportunity to resign or be

terminated. 

We do not agree that these statements

seriously misled the jury into believing that

Knights resigned voluntarily. In addition to

Coben’s unequivocal 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

Knights had voluntarily resigned or that the

jury should base its decision onwhether he had

voluntarily resigned. Therefore, Knights’s

attack on the jury instruction falls far short of

creating 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

offered evidence that Bank United adopted a

discriminatorypolicytoward its customers and

refused to change this policy despite

complaints by its employees. After

considering this proffered evidence in a

hearing outside of the jury’s presence, the

court excluded Knights’s evidence under FED.

R.EVID. 401 for lack of relevance and FED.R.

EVID. 403 for potential prejudice and

confusion. 

We afford district courts great latitude

when determining the admissibility of

evidence, and we review such decisions only

for abuse of discretion. Kelly v. Boeing

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

Cir. 1995). Additionally, an evidentiary ruling

will not be the basis for a reversal unless it is

erroneous 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 prejudice results from its

exclusion. Id.

Knights appeals the exclusion of his

evidence that Bank United treated Nigerian

customers differently from other classes of

customers. According to testimony by

Knights and his colleague Helen Jackson,

Bank United’s security chief Richard Carr

announced separate procedures to screen

customers of Nigerian background when

opening new accounts. Knights testified that

he strongly disagreed with this policy, because
5

it treated Nigerians differently from other

customers. 

After considering evidence ofthis policy, as

well as other proffered evidence of an

atmosphere of discrimination, the court

excluded Knights’s evidence under rules 401

and 403, explaining that (1) there was no

evidence that the alleged Nigerian screening

policy was a procedure of the decisionmaker

who terminated Knights; and (2) the alleged

policy involved discrimination on the basis of

national origin and is not the same kind of

discrimination alleged by Knights.

InKelly, this court faced a similar challenge

to a decision to exclude evidence about an

alleged atmosphere of discrimination. The

Kelly plaintiff sued his employer for

discriminating on the basis of his disability and

then offered evidence about his supervisor’s

insensitive actions against minority and

disadvantaged groups as well as against the

disabled. The district court excluded in limine

anyevidence about discriminationagainst nondisabled minority groups, and we affirmed. 

Unlike cases in which the proffered

evidence related to the same kind of

discrimination and in which bigoted

superiors directly made or participated

in the employment decisions complained

of, the court’s ruling regarding

anecdotal incidents of unrelated kinds of

prejudice cannot be labeled an abuse of

discretion 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

correct when it excluded this evidence as

irrelevant concluding that the alleged screening

policy “is discrimination on the basis of

national origin, [and not] discrimination on the

basis of race.”

Further, the court relied on its authority

under rule 403 to exclude even relevant

evidence if it has a tendency to 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 policy and the

confusion such evidence would 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 defend itself

against Knights’s allegations. We find these

considerations persuasive, and we therefore

refuse to see the district court’s alternative

basis for exclusion under rule 403 as an abuse

of discretion.

Finally, even if we assumed, arguendo, that

the evidence was relevant and that its

probative value was not substantially

outweighed by its potential for unfair

prejudice, Knights has not shown how the

exclusion of this evidence affected his

substantial rights. The evidence strongly

supported the jury’s finding that Knights was

terminated as a result ofthe “forced balancing”

incident. Knights’s proffered evidence would

have focused the jury’s attention on statements

by Carr, a non-decisionmaker, regarding a

request that did not involve employment

decisions, and that at best showed a different

kind of discrimination. Unlike evidence that

Bank United would have disciplined a nonblack employee differently for the same errors

 

2 Knights directs our attention to Polanco v.

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

for the proposition that evidence of a hostile

atmosphere is probative in termination cases. We

do not disagree with this general statement but

reject its applicability to this case. Polanco

involved a review of the sufficiency of the evidence

for a jury determination 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 evidence

that Bank United terminated Knights for a

legitimate, non-discriminatory reason.

C.

Knights attacks the summary judgment for

Bank United on his claim of retaliation.

Specifically, he argues that he raised a factual

issue sufficient to defeatsummaryjudgment on

whether Bank United terminated him because

of his participation in an unrelated race

discrimination lawsuit (“the Spearman

lawsuit”) against the bank. 

1.

When a district court grants summary

judgment, 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 Cir.),

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

judgment is appropriate when, viewing the

evidence in the light most favorable to the

nonmoving party, the record reflects that no

genuine issue of material fact exists, and the

moving party is entitled to judgment as a

matter of law. See Celotex Corp. v. Catrett,

477 U.S. 317, 322-24 (1986);see also FED.R.

CIV. P. 56(c).

2.

To establish a prima facie case of unlawful

retaliation, Knights had to establish that (1) he

engaged in activity protected by title VII,

(2) an adverse employment action occurred,

and (3) a causal link existed between the

protected activity 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 causal 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

evidence that Coben, the ul timate

decisionmaker on Knights's employment, knew

of Knights'sinvolvement 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 claims, circumstantialevidence showed

that Laird and Ancira knew of Knights's

involvement in the suit, this 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

Cobden's lack of knowledge about Knights's

protected activity does not resolve the issue of

whether there was a causal connection. This

court will not require a direct causal

connection between termination and the

decisionmaker in a discrimination lawsuit

where the decisionmaker follows a

recommendation by someone who does have

a causal connection.3

Knights is less persuasive, however, when

he argues that as long as he can show that

Laird and Ancira probably had knowledge of

his involvement in the Spearman lawsuit, 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 necessaryto avoid summaryjudgment on

this causal link, it is true that Knights “need

not prove that [his] protected activity was the

sole factor motivating the employer's

challenged decision . . . .” Long, 8 F.3d at 305

n.4. Still, this court has required more than

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 make employment decision); Long, 88 F.3d

at 307 (remanding summary judgment when

employees established causal link between

protected activity and immediate supervisors'

recommendations for termination).
7

In Long, the court found that plaintiffs

asserting a title VII retaliation claim had raised

a fact issue on the causal link between their

protected activities and their terminations

when (1) the plaintiffs had filed complaints

directly against their supervisors; (2) the

supervisors had knowledge of these

complaints; and (3) t he supervisors

recommended terminating the plaintiffs after

learning of the complaints. Id. 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 not take,

and never did take, any action that aided the

Spearman lawsuit. Therefore, while it is

possible Laird and Ancira knew that Knights

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 plaintiffs offered affidavits

swearing that action was taken against them

immediately after they filed their complaints.

In contrast, Knights has offered no timeline or

evidence establishing that Laird or Ancira

acted as a result of his involvement in the

Spearman lawsuit. 

It is certainly true that Knights need not

establish that his minimal participation in the

Spearman lawsuit was the “but-for” factor

motivating histermination. See Long, 88 F.3d

at 305 n.4. Knights, however, has failed to

raise provide even a “scintilla” of evidence that

Laird and Ancira knew of his involvement or

that they acted in any way as a result of his

being named in the suit. Mere knowledge of

possible protected activity is not enough to

raise a fact issue on the necessary causal link

for a retaliation claim.

AFFIRMED.