1 United States Court of Appeals,

Fifth Circuit.

No. 95-30880.

Tommy L. SWANSON, Plaintiff-Appellee/Cross-Appellant,

v.

GENERAL SERVICES ADMINISTRATION, Roger W. Johnson, Administrator,

Defendant-Appellant/Cross-Appellee.

April 24, 1997.

Appeals from the United States District C ourt for the Eastern

District of Louisiana.

Before KING, JOLLY and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, we once again address the nature and degree of

evidence required to support a jury verdict in a Title VII action

alleging race discrimination and retaliatio n. Tommy L. Swanson

sued his employer , the General Services Administration ("GSA"),

alleging race discrimination and retaliation. Judgment was entered

upon a jury verdict in favor of Swanson, and GSA appeals.

Following well-established precedent, we conclude that the evidence

presented in this case was insufficient to support the verdict

because Swanson failed to offer competent evidence suggesting

either that GSA's non-discriminatory explanations were pretextual,

or that illegal discrimination wa s a motivating factor

notwithstanding the existence of a legitimate explanation.

I

Swanson has worked for GSA since 1973. Swanson has received

both automati c and merit-based promotions, and has worked in2

sev eral cities of GSA "Region Seven," which is headquartered in

Fort Worth, Texas. At the beginning of 1988, Swanson served as a

B uilding Manager in Little Rock, Arkansas; Swanson's government

rank at that time was GS-11. In the summer of 1988, there was a

vacancy announcement for a "Supervisory Building Management

Specialist" at the newly-conceived GSA "Facility Support Center" in

New Orleans. Swanson applied for and was awarded the position,

which carried a rank of GS-11/12. Because Swanson had already

served in a GS-11 capacity for some time, he was promoted to GS-12

upon his arrival in New Orleans in October of 1988.

Many of Swanson's difficulties in New Orleans related directly

to a series of organizational changes in the New Orleans office

struct ure. The GSA office in New Orleans was originally only a

"Field Office ." In 1988, a GSA reorganization effort determined

that the New Orleans office should be expanded and redesignated a

"Facility Support Center." Mr. Glenn Moore, previously head of the

New Orleans F ield Office, became Director of the New Orleans

Facility Support Center as a part of the reorganization.

An internal GSA document prepared by th e regional office,

dated June 24, 1988, outlined the changes to the New Orleans

office, and identified four separate "branches" of the new Facility

Support Center: Real Estate, Design and Construction, Contracts,

and Real Property Management and Safety. The vacancy announcement

to which Swanson replied announced the opening for the head of the

Real Property Management and Safety branch. Moore hired Swanson

for this position, believing at the time that Swanson would be a3

branch chief and that the new Facility Support Center could offer

its branch managers career advancement opportunities.

Unknown to either Moo re or Swanson, however, the June 1988

document labeling Swanson's departmen t a "branch" was incorrect.

A second docu ment, dated September 7, 1988, no longer listed

Swanson's position as the head of a branch. Although Swanson's

"branch" had been formally eliminated even before he arrived in New

Orleans, Moore and the other New Orleans employees did not realize

the error until a December 1989 inspection, at which point Moore

was told to eliminate the branch chief designation from Swanson's

position.

The original description of Swanson's position indicated that

he wou ld directly supervise as many as five other employees: a

building management specialist, a computer programmer, two physical

security specialists, and one budget clerk. Swanson never directly

supervised a computer programmer; Moore testified that this

position was incorrectly listed in Swanson's supervisory

description. The New Orleans office did have a computer programmer

who occasionally accepted document inputting assignments from

Swanson, because Swanson had requested assistance with his typing.

For more than a year, Swanson did supervise employees in the

other four positions. However, the December 1989 inspection

determined that t he workload in Swanson's area would not support

the building management specialist, and Moore was told to transfer

her to the Real Estate branch. Later, a decision at the national

level removed the entire security program from the buildings4

management area; Swanson's two security specialists subsequently

left the New Orleans Facility Support Center entirely. By 1992,

Swanson supervised only the budget clerk, and received occasional

secretarial assist a nce from Moore's secretary and a part-time

student intern.

In January 1 990, Swanson submitted a letter and request for

transfer to Earl Eschbacher; Eschbacher was the Assistant Regional

Administrator in Fort Worth, and he was Moore's direct superior at

the time. Swanson indicated that he had developed severe asthma,

his health was suffering, and he was unhappy that his status as a

branch chief had been eliminated. Swanson stated that he felt he

had been misled as to the advancement possibilities in the New

Orleans position, stating that he "bought this scenario, hook, line

and sinker." In the letter, Swanson requested that he be

considered for a transfer to the Fort Worth or Dallas area.

Following his change in status, Swanson's working relationship

with Moore and his co-workers rapidly deteriorated. Sometime in

early 1990, Moore established a sign-out board that applied to

Swanson and the employees he supervised. In his March review,

Swanson received an overall rating of "3" out of a maximum of five.

A "3" rating was "fully satisfactory," but was a step down from the

"4" that Swanson had received the previous year; Swanson refused

to sign the review, although the employee signature line did not

indicate agreement with the rating.

In May 1990, Swanson sent a memorandum to Jimmie Jones, a GSA

building manager who was a colleague rather than a subordinate of5

Swanson. Swanson's memorandum included a demand that Jones perform

some action in accordance wit h Swanson's specifications: "[t]he

bottom line is I expect you all to stop whining, get off your duffs

and do your damn j ob." When Jones complained to Moore, Moore

responded by requiring Sw anson to submit for Moore's review all

correspondence Sw anson intended to send beyond the New Orleans

office.

In June 1990, Swanson filed his first EEO charge alleging

racial discrimination. In July, Swanson sent an overnight package

at GSA expense to a Mr. Robert Goodspeed at Goodspeed's personal

post office box in Fort Worth. Goodspeed was a former member of

the "Black Affairs Committee," apparently an informal committee of

black GSA employees that was "recognized" by GSA, but had no

official purpose within GSA. When the expense was discovered later

that month, Moore de manded that Swanson reimburse GSA for the

expense. When Swanson refused to do so, he was suspended for one

day.

At some point in mid-1990, Swanson indicated to Moore that he

wanted to tape-record their phone conversations. In August,

without waiti ng for a response, Swanson secretly taped a

personnel-related conversation among himself, Moore, Eschbacher,

and Kathy Wyche, a GSA personnel representative. In January 1991,

Swanson delivered a typed transcript of the taped conversation with

cover letter to Mr. Hollis Rutledge, the head of GSA Region Seven.

At trial, Swanson further conceded that he had initially denied

taping the conversation, and that he had destroyed the tape. In6

January 1991, Swanson was suspended on Eschbacher's recommendation

for taping the phone conversation without the knowledge or consent

of the other participants; Eschbacher testified that he had

recommended a fourteen-day suspension, but that Rutledge reduced it

to five days.

In April 1991, Swanson received a "letter of counseling" from

Moore regarding h is failure to follow procedures when requesting

leave. In August, Swanson filed an assault charge with GSA

security alleging that Moore had kicked Swanson about the ankle and

lower leg; Moore stated that he stepped on Swanson's foot

accidentally. The incident occurred during a confrontation between

Moore and Swanson in Swanson's office, concerning a report Swanson

needed to complete. In December, Moore sent Swanson a memorandum

detailing ten occasions when Swanson had been tardy over the

previous two months, and charging Swanson approximately two hours

of annual leave.

Throughout this period, Swanson continued to file formal EEO

complaints alleging race discrimination and retaliation. After his

June 1990 complaint, Swanson filed a second complaint in February

1991. A third complaint was filed in September and a fourth in

December. In April 1992, Swanson submitted a grievance to Casey

Bowen, the Regional Director or R eal Property Management and

Safety, concerning his performance evaluation for that year, which

had again been a "fully satisfactory" rating of "3," and

complaining of his mistreatment in New Orleans. Also in April

1992, a hearing was held on Swanson's EEO complaints.7

The entire "facility support center" concept for the New

Orleans office eventually failed in mid-1992. Swanson was not the

o nly manager who never supervised the full staff he anticipated;

none of the center 's branches ever achieved the full staffing

indicated in the 1988 plan. In mid-1992, the New Orleans GSA

office was downgraded from a "facility support center " to an

"enhanced field office." In this reorganization, the managers of

the Real Estate, Design and Construction, Contracts areas all lost

their status as "branch chiefs," and Moore's position was

downgraded to Real Pr operty Officer of the New Orleans Enhanced

Field Office. The Shreveport Field Office, which had reported to

Moore under the Facility Support Center concept, reported directly

to Fort Worth after the 1992 reorganization.

On May 12, 1992, shortly after the EEO hearing and the second

day after Swanson had returned to the office from two weeks'

vacation, Swanson received a "directed reassignment" that

transferred him involuntarily to Fort Worth as a part of the

reorganization of the New Orl eans office. Swanson's position in

Fort Worth remained "Building Management Specialist" and his grade

remained "GS-12," but the position was no longer supervisory.

Swanson was given one week to decide whether to accept the

position, which began on August 3, 1992. Swanson accepted the

reassignment unde r protest, and remained employed by GSA in Fort

Worth during the pendency of this litigation.

II

Swanson filed suit in federal district court on March 15,8

1994, alleging race discrimination and retaliation for having filed

EEO complaints. Because Swanson alleged discrimination occurring

both before and after the effective date of amendments permitting

jury trial in Title VII cases, the case was tried before both a

judge and jury as factfinders. The parties agreed that the

magistrate judge to whom the case had been referred would determine

all issues relating to alleged acts of discrimination occurring

before the November 21, 1991 effective date. The jury would

determine liability and compensatory damages only on alleged acts

occurring after that date. The trial itself was not bifurcated,

however, and the jury heard all the evidence presented at trial.

At trial, Swanson argued that he had been the victim of

repeated acts of racial discrimination and retaliation at the hands

of Moore and Moore's superiors. Swanson presented testimony from

Debra Mazant, his budget clerk; Manual Gaines, one of the two

physical security specialists who reported to Swanson until 1992;

Terry Duplessis, the local union pres ident; himself; Moore;

Eschbacher; and Herbert Patterson, the GSA security officer who

took Swanson's report concerning the alleged assault in Swanson's

office. Swanson additionally presented the transcript testimony of

two former GSA employees who had contact with Moore and who stated

that they had been discriminated against in a manner similar to

Swanson.

Swanson identified six separate "adverse actions," that either

occurred or were "continuing" after November 1, 1991, that he

claimed were acts of illegal discrimination: (1) treatment of9

tardiness, (2) denial o f training, (3) denial of parking, (4)

annual evaluation, (5) directed reassignment to Fort Worth, and (6)

elimination of supervisory authority. Several additional acts that

occurred before November 1, 1991, presented questions for the judge

only. Swanson argued that the repeated acts of discrimination

caused him mental pain and suffering, and contributed to his health

problems and the eventual breakup of his marriage.

The members of the jury were instructed that if they found

that one or more of the a cts constituted illegal discrimination,

they were to determine an appropriate amount of damages to

compensate Swanson for any emotional pai n or mental anguish

proximately caused by the acts found illegal. As the jury

deliberated, the court issued its verdict on the alleged

discrimination before November 1, 1991; the court found for GSA on

all alleged acts of discrimination, including those that were also

submitted to the jury under a "continuing" violation theory. The

jury, however, found for Swanson on four claims: treatment of

tardiness, denial of parking, di rected reassignment and the

elimination of supervisory authority. The jury awarded $120,000 in

compensatory damages. In accordance with the jury's finding of

liability, on May 8, 1995, the court entered $39.42 in backpay on

the tardiness claim, and $43,058.87 in costs and attorney's fees.

Both Swanson and GSA filed motions for judgment as a matter of law.

T he court denied both motions on June 30, 1995. This appeal

followed.

III10

GSA appeals the court's denial of its motion for judgment as

a matter of law on all acts occurring after November 1, 1991,

alleging that the evidence was insufficient to support the verdict

reached by the jury. Swanson contends that the evidence was

sufficient, citing both "general evidence" of discrimination

against blacks at GSA, and also claiming that the tra nscript

testimony of Lillian Andrews and Shirley Whittington demonstrated

that Moore followed a pattern of discriminating against blacks who

filed EEO charges.

S wanson cross-appeals the court's finding of no lia bility

prior to November 1, 1991, contending that the court's factual

conclusion was clearly erroneous. Swanson further appeals the

court's decision to grant only $38.42 in equitable relief, and the

court's rejection of certain transcript co s ts associated with

post-trial motions.

Swanson additionally challenges the court's decision to grant

GSA's motion in limine exclu ding the testimony of witnesses who

would have testified to alleged acts of discrimination committed by

other GSA managers in other offices. The court found that because

the witnesses could not testify to acts of discrimination by anyone

in Swanson's supervisory chain, the testimony would be irrelevant.

The court alternately fo und that because the proposed witnesses

were expected to testify only to their b elief that they had been

discriminated against—rather than direct evidence of

discrimination, or any formal finding of discrimination—the

probative value of the testimony would be outweighed by the time11

required essentially to relitigate each witness' claim.

IV

A

We fi rst address GSA's challenge to the sufficiency of the

evidence supporting the jury's verdict in favor of Swanson. We

recently canvassed the law concerning sufficiency of the evidence

claims in employment discrimination cases in our en banc decision

in Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Ci r.1996) ( e n

banc ). In Rhodes, we determined that the plaintiff's case must,

at the very least, create a conflict in substantial evidence from

which the jury may infer illegal discrimination. Id. at 993.

In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct.

2742, 125 L.Ed.2d 407 (1993), the Supreme Court outlined the series

of burden-shi fting steps through which a Title VII plaintiff

develops evidence from which the jury may infer discrimination.

First, the plaintiff mus t establish a p rima facie case of

discrimination, after which the burden shifts to the empl oyer to

articulate a legitimate, non-discriminatory explanation for the

challenged action. I d. at 507, 1 13 S.Ct. at 2747. Once the

employer satisfies this burden of pro duction, the plaintiff must

show that the employer's explanation is not the true reason, but is

instead a pretext for illegal discrimination. I d. at 508, 113

S.Ct. at 2747.

Hicks reiterated that the "inference of discrimination" raised

by the prima facie case serves only to force the defendant to come

forward with a legitimate explanation, and once the defendant does12

so, this inference "simply drops out of the picture." I d. at 507,

511, 113 S.Ct. at 2747, 2749 ( citing Texas Dept. of Community

Affairs v. Bur dine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1095, 67

L.Ed.2d 207 (1981)). The plaintiff retains throughout the ultimate

burden of proving that the defendant disc riminated against him

because of his race. I d. at 511, 113 S.Ct. at 2749. The inference

of discrimination created by the prima facie case is go ne. To

satisfy the statutory burden, the p laintiff must offer s ome

evidence, whether direct or circumstantial, that permits the jury

to infer that the proffered explanation was a pretext for illegal

discrimination. The trier of fact may not simply choose to

disbelieve the employe r's explanation in the absence of any

evidence showing why it should do so. E EOC v. Louisiana Office of

Community Ser vices, 47 F.3d 1438, 1443-44 (5th Cir.1995) ( citing

Elliott v. Group Medical and Surgical Serv., 714 F.2d 556, 562 (5th

Cir.1983); c ert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d

364 (1984)).

Accordingly, the question we fac e in this appeal is whether

Swanson produced any evidence that, if believed, sustains his

burden of proof. Having carefully reviewed the arguments of the

parties and the record in this case, we conclude that Swanson's

evidence—construed in the ligh t most favorable to the

verdict—demonstrates at most that his working relationship with his

supervisors was hostile and unpleasant. Swanson simply offered no

evidence that tends to disprove GSA's non-discriminatory

explanations; nor did he offer any evidence that otherwise13

connects the adverse actions in question to Swanson's race or his

filing of EEO complaints. We address in turn each action upon

which the jury found liability.

(1)

Treatment of Swanson's Tardiness

Swanson argued that Moore's December 1992 memorandum

concerning Swa nson's repeated tardiness was an act of

discrimination against him because of his race and because he had

filed several EEO complaints. The memorandum identified ten

s pecific occasions over the previous two months when Swanson had

arrived late for work and charged Swanson two hours of annual leave

for the infraction.

Swanson made no real effort to show pretext: he never denied

that he had arrived late at his office on t hose dates. Nor did

Swanson argue that charging annual leave was an i nappropriate or

excessive response. Furthermore, Swanson did not attempt to show

that other white managers had been late without similar penalties.

He did testify that, for at least s ome of the dates, he did not

"consider himself late" because, in one case, an emplo yee had

called Swanso n at home early in the morning, delaying Swanson's

departure for work. On one or more other unspecified occasions,

Swanson stated, he had been stopped in the hall by building tenants

because they recognized him as a building management employee, and

had some building-related question or concern. Even if Swanson

specifically had offered explanations for each instance of

tardiness, however, such testimony alone would not show pretext.1 Swanson argued that Moore should have come to him to ask why

he was late and whether Swanson was experiencing any problems.

Swanson further insisted that because he, Swanson, was a manager,

Moo re should have dealt with the tardiness problem "informally."

Moore testified, and Swanson did not deny, that he had counseled

Swanson on several prior occasions abou t Swanson's lateness, and

even suggested that Swanson change his work hours. Without

evidence that Moore's response was inappropriate, or that similarly

situated employees were treated differently, there was no evidence

from which the jury could infer discriminatory intent.

14 The pretext question is not a question whether Swanson "considered

himself" late, but whether Mo ore considered Swanson late when he

decided to charge Swanson with annual leave for his tardiness.

Swanson conceded that, on those occasions when he arrived late, he

did not go to Moore with any explanation. 1

Rather than attempting to show pretext, Swanson's testimony

focused on a complaint that his comings and goings were unfairly

"micro-managed," and that he wa s "watched" closely while other

white managers were not. Both Swanson and Debra Mazant, Swanson's

budget clerk, testified that Swanson was "watched" closely by Edie

Fenstermacher, Moore' s secretary. Again, we note that Swanson

never attempted to show that white employees were regularly late

but not "watched."

Even assuming that an employee may claim discrimination by

being "caught" unfairly in a work rule infraction without a

demonstration that others committed similar infractions, Swanson's

evidence falls short. Mazant testified that Fenstermacher seemed

to be watching to see when Sw anson would arrive, but Mazant also

testified that Fenstermacher was the office's time and attendance

clerk, and that Mazant herself had occasionally been forced to go15

to Moore with problems when Swanson was late and could not be

reached. Mazant's testimony simply does not connect the close

scrutiny of Swanson's arrival with either his race or his filing of

EEO claims.

In fact, the only testimon y that Swanson offered that

connected the scrutiny to his race were concl usory statements by

Shirley Whittingt on and Lillian Andrews that blacks were closely

"watched." Whittington testified that whites "could leave out any

time that they wanted" while "the blacks were always, like, you

know, you sort of better be on time or something was said or you

were watched." Swanson argues that this testimony is sufficient to

sustain the jury's verdict on the tardiness claim because it shows

a patt ern of discriminating against blacks by scrutinizing them

more than whites. We disagree.

Like much of the "evidence" upon wh ich Swanson relies,

Whittington's and Andrews' statements are not "evidence"—they

simply reflect the opinions of the witnesses on a fact issue that

is for the jury to decide. Without testimony of the circumstances,

or without examples of bl acks who were scrutinized while

similarly-situated whites were not, a broad, generalized statement

that black employees were "watched" more closely t han whites is

incompetent to establish a pattern of discrimination. See, e.g.,

Odom v. Frank, 3 F.3d 839, 849 (5th Cir.1993) (rejecting anecdotal

and speculative opinion testimony concerning an "unwritten policy"

discouraging advancement of older employees).

(2)16 Denial of Parking

Swanson argued that he was denied parking in the basement of

the Hale Boggs Courthouse, the building where GSA's New Orleans

office is located, on the basis of hi s race. GSA responded that

Moore distributed a limited number parking spaces on the basis of

a ranking system that awarded s paces to the highest ranked

individuals, and then, as spaces later became available, to those

GS-12 employees who were branch chiefs.

Swanson argued that this explanation is pretextual because he

was believed to be a branch chief until December of 1989, yet he

was not awarded an in-building parking space even though other

branch managers received parking spaces "when they arrived." Yet

Moore testified that in early 1988, he wa s the only GSA employee

with in-build ing parking. Later in 1988, Moore obtained two

additional parking spaces, and awarded them to Tom Sarver, the

Field Office Manager who was ranked GS-13, and Ron Snow, who

arrived shortly after Swanso n to serve as the chief of the Real

Estate branch. Swanson pointed to Snow, arguing that when Snow

arrived he was a GS-12 branch manager like Swanson. GSA produced

evidence that Snow's position was a GS-12/13 while Swanson's was a

GS-11/12. Moore further testified that in 1988 and 1989, the other

white GS-12 branch manag ers, including Evelyn Morris and Elvera

Pigg, did not have in-build ing parking. Moore testified that

additional parking spaces were not available until early 1990;

these spaces were then awarded to Pigg and Ed Wortmann, both GS-12

branch chiefs. By early 1990, the GSA inspection had revealed that17

Swanson had been incorrectly labeled a branch chief. Moore

testified that neither Swanson nor Alex Deverede, a white GS-12

with greater supervisory responsibilities than Swanson, ever

received in-building parking.

As complicated as the park ing explanation may be, the

uncontroverted evidence nonetheless establishes a legitimate

ranking system for awarding limited benefits, and that this ranking

system excluded whites who shared Swanson's rank. Swanson did not

offer evidence that contested Moore's testimony concerning either

the timing or the rank of the individuals who received parking.

Nor did Swanson offer evidence that additional parking spaces were

available, or that Moore could easily have obtained suffici ent

parking spaces for all the supervisory GS-12 employees.

The only evidence Swanson offered that purported to show that

the distribution of parking was discriminatory, was the testimony

of Lillian Andrews, w ho testified that Moore, who supervised her

previously, took away her parking space. Andrews testified that

Moore claimed the space was needed for another agency. Andrews

also testified, however, that her white colleagues of similar rank

did not even have parking spaces. By way of explanation, Andrews

stated tha t her white colleagues did not need parking spaces,

because, she thought, one did not drive and the other rode to work

with her husband.

The fact that Moore "took away" Andrews' p arking space when

the space was required by another agency—an explanation that

neither Andrews nor Swanson contested—is not evidence that Moore18

discriminated against blacks in t he distribution of parking.

Undisputed testimony at trial revealed that, in April 1992, Pigg

and Wortmann, both white GS-12 branch chiefs, similarly lost their

parking spaces whe n an incoming agency needed parking for its

employees. Again, Swanson offered no evidence to contest Moore's

testimony that the number of parking spaces available to GSA

employees fluctuated according to the needs of tenant agencies.

As with the claim concerning the treatment of his tardiness,

Swanson presented no competent evidence from which the jury could

conclude either that Moor e's description of his system for

distributing parking spaces was false, o r that illegal race

discrimination nonetheless motivated Moore's decision to deny

Swanso n an in-building parking space. Swanson offered only the

conclusory opinion of another employee that Moore discriminated

against her becau se of her race when he "took away" her parking

space. Yet there was no evidence from which the jury could infer

that race, rather than rank and limit ed availability, was the

dispositive factor. Without such evidence, there was no legitimate

basis from which the jury could disregard GSA's proffered

non-discriminatory explanation.

(3)

Directed Reassignment to Fort Worth

Swanson's claim that his directed reassignment to Fort Worth

was discriminatory focuses upon the contention that t he directed

reassignment was an action taken against him in retaliation for his2 Swanson also stated that the only other employee he knew who

had received a directed reassignment was also minority (Hispanic).

Eschbacher testified that he had issued directed reassignments to

as many as 12 employees during his tenure in Fort Worth. Swanson

presented no specific cases or statistical evidence to demonstrate

that only minorities received directed reassignments. Swanson also

conceded that transfers were an anticipated part of his job.

19 EEO activities. 2 GSA responded that the directed reassignment was

part of the downgrading of the New Orleans office from a Facility

Support Center to an Enhanced Field Office. Eschbacher offered

undisputed testimony that the decision to transfer Swanson was made

by Eschbacher in Fort Worth, and that Moore did not participate in

the reassignment, except to deliver Eschbacher's letter to Swanson

when the letter was received in the New Orleans office.

Swanson argued that the reassignment was retaliatory because

it was issued shortly after an administrative hearing on Swanson's

EEO complaint, and immediately following Swanson's return from a

two-week vacation. Eschbacher testified, however, that the changes

to th e New Orleans office had been planned for more than a year,

and th at there was inadequate work in the New Orleans office to

support Swanson's position. Eschbacher further testified that no

other GSA "enhanced field office" had a "supervisory building

management specialist." Eschbacher explained that he had decided

to move Swanson to Fort Worth in February, but waited until May to

inform Swanson of the transfer, so that the transfer would not

interfere with the EEO hearings being conducted in New Orleans.

Swa nson never attempted to disprove any of Eschbacher's

testimony , but maintained that the May 12 reassignment must have

been retaliatory because on May 11, Swanson prepa red a "civil3 We observe, though, that the mere fact that some adverse

action is taken after an employee engages in some protected

activity will not always be enough for a prima facie case. Between

June 1990 and May 1992, for example, Swanson filed four EEO

complaints, issued various grievances and memorandums complaining

of discriminatory actions, and participated in an EEO hearing and

numerous meetings with his lawyer. If timing a lone were enough,

any action taken against Swanson after June 1990, no matter how

justified, could be sustained as discriminatory. Title VII's

protection against retaliation does not permit EEO complainants to

disregard work rules or job requirements.

20 rights" memorandum detailing alleged abuses and indicating that he

would continue to prosecute his discrimi nation claims. Swanson

t estified that he sent the memorandum to Moore the same day, but

Moo re testified that he did not see it until May 12, after the

directed reassignment had arrived from Fort Worth. Swanson offered

no evidence to show that Eschbacher, who made the decision, was

even aware of his civil rights memorandum.

Close timing between an employee's protected activity and an

adverse action against him may provide the "causal connection"

required to make out a prima facie case of retaliation. A rmstrong

v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993). 3 However, once

the employer offers a legitimate , nondiscriminatory reason that

explains both the adverse action and the timing, the plaintiff must

offer some evidence from which the jury may infer that retaliation

was the real motive. Swanson did not argue that the reorganization

was a pretext; indeed, the undisputed evidence indicates that m ost

of the New Orleans management personnel, including Moore himself,

were adversely affected in May 1992 when the New Orleans office was

downgraded to an "enhanced field office."

Although Swanson was the only person relocated to a different4 It is, in fact, difficult to understand how Eschbacher would

have viewed the transfer as retalia tory, given that Swanson had

twice requested that he be relocated away from New Orleans, once specifica lly naming Fort Worth as a desirable option. Although

Swanson testified that by May of 1992, he no longer wanted to move

to Fort Worth, he conceded that he never told Moore or Eschbacher

of this change of heart.

21 office, GSA offer ed uncontested testimony that there was

insufficient work to support Swanson's p osition in New Orleans.

Swanson never attempted to show that there was sufficient work for

him to remain in New Orleans. He did not offer evidence that other

managers in New Orleans also had insufficient work, but were not

transferred. In short, Swanson failed to raise a factual dispute

as to GSA's nondi scriminatory explanation for the transfer. Nor

did Swanson offer evidence that connected the transfer to his EEO

activity, from which the jury could infer that Eschbacher was

motivated by a desire to retaliate against Swanson when he decided

to trans fer Swanson to Fort Worth. 4 Accordingly, Swanson's claim

that his directed reassignment t o Fort Worth was discriminatory

fails for lack of evidence.

(4)

Elimination of Supervisory Authority

With respect to the specific incidents that led to Swanson's

loss of supervisory authority, the record and briefs are unclear as

to which incidents were considered by the jury in finding liability

on this point. The jury was the factfinder as to liability for

acts occurring after November 1, 1991 . Swanson lost supervisory

authority as a part of his directed reassignment to Fort Worth, but

we have already concluded that there was insufficient evidence to22

sustain a finding of liability on that basis. Swanson's job title,

rank and pay remained the same in Fort Worth. Swanson offered no

evidence that his workload in Fort Worth required that he have

assis tants to supervise, nor did Swanson argue that a more

appropriate position with supervisory responsibilities was

available when he was transferred. In fact, Swanson presented no

evidence whatsoever concerning his position in Fort Worth.

The record does not reveal exactly when in 1991 the two

physical security specialists, Manuel Gaines and Larry Moore, were

removed from Swanson' s supervision, but Swanson did not dispute

Moore's testimony that the decision to separate security operations

from building management entirely was made at the national level.

The jury therefore could not have inferred that the local or

regional GSA officials discriminated or retaliated against Swanson

by removing the security specialists.

The jury might have based its verdict on the loss of

supervisory authority caused by the removal of the computer

programmer position and the transfer of Alissa Ruth, the building

management specialist, to the Real Estate branch, if t he jury

concluded that their earl ier removal from his supervision

constitut ed a "continuing violation." Assuming that the loss of

supervisory authority may be a continuing violation, we nonetheless

conclude that the evidence was also insufficient on this claim.

The pattern is familiar. Moore offered legitimate

explanations for these actions. The computer programmer position

had been incorrectly included in the description of Swanson's23

supervisory responsibilities; Swanson's area of management had no

need of a computer programmer. Ruth was transferred to Real Estate

w hen, following the December 1989 inspection, Moore was informed

that Swanson's area did not have enough work to support both

Swanson and a lower-level building management specialist.

Swanson neve r offered evidence that these explanations were

pretextual. Although Swanson repeatedly argued that he needed

typing support because he was n ot a trained typist, he did not

ind icate any use in his area for a computer p rogrammer.

Furthermore, Mazant, Swanson's budget assistant, testified that

none of the branch managers had administrative support just for

typin g—a statement that Swanson did not dispute. Swanson's only

"evidence" of race discrimination in the elimination of supervisory

authority were generalized and unsubstantiated statements by

Swanson and Andre ws that blacks were never allowed to supervise

whites for very long. Such unsupported testimony is nothing more

than a subjec tive opinion that is incompetent as evidence to

establish Swanson's claim of discrimination. Furthermore, it is

irrelevant to Swanson's specific claim as at least half of the

subordinates who were "taken away" from him were black.

We conclude, therefore, that the evidence was insufficient to

sustain the jury's finding of liability, and the court below erred

when it denied GSA's motion for judgment as a matter of law.

B

Because we c onclude that the evidence was insufficient to

support the jury's verdict, we need not address Swanson's24

cross-appeal concerning the amount of equitable damages and costs

awarded. Additionally, for the same reasons cited above, we reject

Swanson's argument that the court's finding of no liability on acts

occurring prior to 1991 was clearly erroneous.

Swanson's last ground of appeal is a challenge to the

district court's decision to exclude the testimony of several

witnesses from offices other than New Orleans. Swanson argues that

their exclusion was erroneous based on this court's recent decision

in Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350 (5th

Cir.1995). In Kelly, the excluded witnesses would have testified

to acts concerning the plaintiff' s actual work environment. The

court concluded that although a district court may ab use its

discretion by summarily excluding work environment witnesses, the

district court in Kelly's case did not do so, but in fact had

carefully considered each witness.

Here, by contrast, the excluded witnesses were not New Orleans

employees and could not testify to Swanson's work environ ment in

New Orleans or to his relatio ns with Moore. Swanson argues that

the excluded witnesses would have testified to similar

discriminatory actions, such as the denial of parking, retaliation

after fil ing EEO complaints, and not being "allowed to supervise

whites." Because the chain of command from these witnesses

similarly led to Earl Eschbacher and Casey Bowen in the Fort Worth

regional office, Swanson argues that their testimony would reveal

a "pattern" that also affected Swanson.

The court below carefully considered the anticipated testimony25

of each witness, and determined that the witnesses could offer only

speculation that any adverse actions they suffered were the result

of racial discrimination or retaliation. We conclude that the

court did not abuse its discretion in rejecting this argument after

individually considering the expected testimony of each witness.

V

In conclusion, we hold that the Swanson failed to produce

sufficient evidence of either race discrimination or retaliation to

sustain the jury verdict in his favor. Accordingly, the decision

of the court below denying GSA's motion for judgment as a matter of

law is REVERSED, and judgment is hereby RENDERED in GSA's favor.

REVERSED and RENDERED.

DENN IS, Circuit Judge, concurring in part and dissenting in

part:

I respectfully concur in part and dissent in part. This case

is on all issues very close to the line dividing minimally

sustainable jury verdicts from those that are deficient in

evidentiary basis. However, the evidence is of such quality and

weight that reasonable and fair minded persons in the exercise of

impartial judgment could find that, in a number of instances, the

employer's explanations for its adverse employment actions were not

worthy of belief and that the employee was the victim of

intentional discrimination.

If the employer satisfies its burden of p roducing evidence

that the complained of adverse employme nt actions were taken for

legitimate, nondiscriminatory reasons, the presumption of

discrimination disappears. St. Mary's Honor Center v. Hicks, 50926

U.S. 502, 507, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). The

disappearance of the presumption, however, does not mean that the

jury cannot consider evidence introduced by the plain tiff to

establish a prima facie case. A satisfactory explanation by the

employer, supported by ev idence, destroys the legally mandatory

inference of discrimination arising from the plaintiff's initial

evidence. Nonetheless, this evidence and inferences properly drawn

therefrom may be considered by the jury in deciding whether the

employer's explanation is worthy of belief and whether the employee

has been the victim of intentional discrimination. R hodes v.

Guiberson Oil Tools, 75 F.3d 989, 993-94 (5th Cir.1996)(en banc);

See Hicks, 509 U.S. at 511, 113 S.Ct. at 2749; Texas Dept. of

Comm. Affairs v. Burdine, 450 U.S. 248, 255 n. 10, 101 S.Ct. 1089,

1095 n. 10, 67 L.Ed.2d 207 (1981).

Once the presumption of discrimination disappears, the case is

treated like any other civil case. G uiberson, 75 F.3d at 993. We

test jury verdicts and motions for summary judgment for sufficiency

of the evidence under the Boeing Co. v. Shipman, 411 F.2d 365 (5th

Cir.1969)(en banc), standard. The standard for granting a Rule 56

motion for summary judgment or a Rule 50 motion for judgment as a

matter of law is the same. I d. at 369 n. 4. In Boeing, after

thorough study of the numerous prior decisions of this court which

had dealt with the subject, as well as the different formulations

of legal writers and commentators , the court announced the

following standard:

On motions fo r directed verdict and for judgment

notwithstanding the verdict the Court should consider all of27

the evidence—not just that evidence which supports the

non-mover's case—but in the light a nd 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 of the motions is proper. On the other hand, if

there is substantial evidence opposed to the motions, that is,

evidence of such quality and weight that reasonable and

f air-minded men in the exercise of impartial judgment might

reach different conclusions, the motions should be denied, and

the case submitted to the jury. A mere scintilla of evidence

is insufficient to present a question for the jury. The

motions for directed verdict and judgment n. o. v. should not

be decided by which side ha s the better of the case, nor

should they be granted only when there is a complete absence

of probative facts to support a jury verdict. There must be

a conflict in substantial evidence to create a jury question.

However, it is the function of the jury as the traditional

finder of the facts, and not the Court, to weigh conflicting

evidence and inf erences, and determine the credibility of

witnesses.

Id. at 374-75.

Applying the Boeing standard to all of the evidence in the

present case, in the light and with all reasonable inferences most

favorable to the plaintiff, I conclude that there is evidence of

such quality and weight that reasonable jurors in the exercise of

impartial judgment could have reached different conclusions as to

whether (A) the employer discriminated against Swanson because of

his race in (1) placing him under surveillance and docking his

accrued annual leave time for being late for work; (2) denying him

parking privileges on an equ al basis with other supervisory

personnel; (3) denying him appropriate staff assistance; (4)

giving him an improperly low annual evaluation, which deprived him

of an opportunity for a promotion; and (B) the employer retaliated

against S wanson by the above actions because Swanson filed

complaints with the Equal Employment Opportunity Commission.28

There was evidence that white employees were not monitored for

late work arrivals and that the management watched black employees

more closely for work rule infractions than other employees. There

was also testimony that Swanson was the only manager who was

required to sign in and out. Ms. Mazant testified that after

Swanson filed his first complaint the work atmosphere changed and

that close surveillance of Swanson began after his first grievance.

Although Swanson was told he could not have parking privileges due

to his lack of seniority and the lack of available space, there was

evidence that less senior white employees were given parking spaces

immediately upon their arrivals. There was evidence that Swanson

was t he only manager not allowed to park in the basement garage.

In support of his complaint that he was denied adequate staff

assistance, S wanson testified that he regularly stayed two hours

late and came in on weekends to finish his work, and that he

frequently had to type voluminous contracts.

On the other hand, I agree with the majority that the jury's

finding that the employer reassigned Swanson to Fort Worth for

discriminatory or retaliatory reasons is not supported by a

sufficient basis in the evidence. The decision to relocate Swanson

was made at the Regional level by management in Fort Worth. The

employer gave a legitimate, nondi scriminatory reason for the

reassignment—there was no longer a need for a Building Management

Speci alist in New Orleans. There is no evidence from which a

reasonable inference could be drawn that the employer's Fort Worth

regional office decision to reassign Swanson was connected with the29

evidence of discrimination by his New Orleans superiors.

Accordingly, I concur in the majority's decision to reverse

the jury verdi ct with respect to the employer's reassignment of

Swanson to Fort Worth and to the resulting loss of his supervisory

authority; but I respectfully dissent from the majority's decision

to reverse the jury's verdict in all other respects.