IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-50493

_____________________

LLOYD BROWN,

Plaintiff - Appellee-Cross-Appellant,

versus

KINNEY SHOE CORP., doing

business as Foot Locker,

doing business as ASF/

Foot Locker, doing business

as Champs Sports, doing

business as Lady Foot Locker,

doing business as Susie's,

doing business as Athletic X-Press,

Defendant - Appellant-Cross-Appellee.

_________________________________________________________________

Appeals from the United States District Court for the

Western District of Texas

_________________________________________________________________

January 15, 2001

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal presents a challenge to various aspects of a jury

trial that resulted in a finding of intentional racial

discrimination in viol ation of Title VII. The plaintiff, Lloyd

Brown, brought this Title VII action against his former employer,

Kinney Shoes, d/b/a Foot Locker, (“Foot Locker”). He alleged racial

discrimination based on Foot Locker’s failure to promote him to a

managerial position in a “non-ethnic store.” Ultimately, the jury1 Brown i ntroduced evidence that Foot Locker destroyed

documents on the ethnic classification of its stores.

2 found Foot Locker liable and awarded Brown $69,493 in past and

future wages, $21,500 in mental anguish d amages, and $250,000 in

punitive damages, plus costs and attorney’s fees. The district

court entered a judgment in favor of Brown, but reduced his damages

by $1160 to meet the statutory cap. On appeal, Foot Locker seeks

review of (1) the district court’s failure to conduct a Batson

inquiry, (2) a number of evidentiary rulings, and (3) the

sufficiency of the evidence to support the jury’s verdict. Brown

seeks review of the district court’s rulings on damages, attorney’s

fees, and a jury instruction on s poliation. 1 We reject Foot

Locker’s Batson and evidentiary claims. We also conclude that the

evidence is sufficient to support Brown’s failure to promote claim.

The evidence is not sufficient, however, to support his claim for

constructive discharge. While upholding liability for the failure

to promote claim, we remand for a new trial on damages, including

compensatory, emotional, and punitive damages.2 A considerable amount of time at trial was spent on the issue

of how Foot Locker classified its Texas stores.

3 I

A

Lloyd Brown, who is black, worked for Foot Locker from

February 1989 to December 1995. He began his management career

with Foot Locker in October 1990 in the Killeen Mall store. Soon

after assuming a management position, Brown perceived and was told

by other black managers that black managers were not hired to

manage “non-ethni c stores,” and, further, that the managers of

“non-ethnic sto res” were more often promoted to district manager

positions. 2 Additionally, Brown testified that he began to notice

that the black managers were subject to harsher reviews and audits

than were white managers.

In 1993, following Brown’s request to be transferred to a

“non-ethnic store,” he was promoted to manager of the Town Center

Mall store in Fort Worth, Texas. The Town Center Mall store,

however, like the Killeen Mall store, was an “ethnic store.” The

sales volume of the Town Center Mall store was $1.1 million for the

y ear before Brown’s arrival. Although conditions at the Town

Center Mall store were, concededly, anything but ideal (because of

problems with crime, the imposition of a cu rfew, and store

vacancies), the evidence at trial established that Brown had a4

difficult time managing the store. Sales dropped from $1.1 million

to $980,000 in 1993. By 1995, sales had dropped to $577,000 under

Brown’s management. In 1996, however, Brown was able to increase

sales to approximately $609,000. In addition to declining sales,

Brown also received critical evaluations from Jan Balder, his

district supervisor, and from store auditors. The critical

evaluations stemmed from Brown’s problem with “shrinkage,” that

is, store inventory unaccounted for.

In early 1995, Brown moved his family from Fort Worth to

Austin, Texas, so that they would be closer to his wife’s mother.

Sometime after moving his family to Austin, Brown applied for a

transfer to one of Foot Locker’s two new stores under construction

in Austin. Both of these stores were categorized as non-ethnic

stores.

The first store, the Lakeline Mall store, was projected as a

$900,000 volume store. At trial, there was conflicting testimony

regarding why Brown was not offered a managerial position at the

Lakeline Mall Store. District Manager Balder testified that Brown

was denied a transfer to this store because it would have

constituted a promotion, when he was not promotable given the drop

in sales to ju st over $600,000 at the Town Center Mall store.

Instead, Foot Locker promoted Mike Zoiber, a white male, who, Foot

Locker argued at trial, was more qualified based on his work5

evaluations. Brown offered testimony, which the jury apparently

believed, demonstrating that Zoiber was less qualified based on the

fact that he had only one year’s experience as a manager at a

“rookie” store, a store smaller than Brown ’s Town Center Mall

store. Additionally, in response to Foot Locker’s assertion that

he was not promotable, Brown testified that after he was denied the

Lakeline Mall job he was offered a managerial position at a Fort

W orth Outlet Mall store, a store with a sales volume of $1.4

million to $1.6 million. The Fort Worth Outlet Mall store had an

“ethnic store” classification. To support this testimony, Brown

offered the testimony of the manager of the Outlet Mall store, Joe

Maldonado, who stated that when Balder offered him the job she

indicated that he (Maldonado) was the second choice for the job in

that Brown had already declined the offer. Balder denies having

offered a managerial position at the Outlet Mall to Brown. The

jury, however, was entitled to reject her testimony, and apparently

did.

The second store, the Barton Creek Square Mall store, was a

$400,000 to $500,000 volume store. Foot Locker offered evidence

establishing that Brown was denied a transfer to this store because

it was classified as a “rookie” store for entry level managers

only. Ultimately, Martin Rhoads, a Hispanic male manager with no3 In his original complaint, Brown alleged claims pursuant to

42 U.S.C. § 1981 and the Texas Labor Code. However, at the charge

conference, the district court referred to Brown’s claims as only

brought pursuant to Title VII. Brown made no attempt to correct

the district court d uring the charge conference. Additionally,

Brown did not object to the district court’s instructions to the

jury limited to Title VII.

6 previous management experience, was hired by Foot Locker to manage

the store.

By November 1995, Brown had become frustrated by his inability

to secure a promotion or even a transfer to a “non-ethnic store.”

Consequently, he filed a race discrimination charge with the EEOC.

While the charge was pending, in early 1996, a new district manager

was assigned to Brown’s region, and Brown again expressed to his

new manager his desire to be transferred/promoted to a “non-ethnic

store.” The manager told Brown that he would have to prove

himself. Because of this conversation, and Foot Locker’s continual

refusal to transfer/promote him, Brown resigned from Foot Locker.

B

On November 26, 1997, Brown filed this Ti tle VII action

against Foot Locker alleging intentional race discrimination. 3

Following a somewhat lengthy trial, the jury returned a verdict for

Brown finding intentional race discrimination and awarding him4 Specifically, the jury awarded Bro wn $39,833 for loss of

wages and benefits from the date of the defendant’s discriminatory

conduct until the present; $29,660 for loss of value of earning

capacity from this date into the future caused by the defendant’s

discriminatory conduct; $21,500 for emotional pain, suffering,

mental anguish and the loss of enjoyment of life; and $250,000 in

punitive damages.

7 $340,000 in damages. 4 Additionally, the court awarded Brown costs

and attorney’s fees in the amount of $148,339.44.

Foot Locker moved to set aside the verdict under Federal Rule

of Civil Procedure 50, and the court denied its request. Foot

Locker then filed this appeal. Foot Locker seeks review of: (1)

the district court’s failure to conduct a Batson inquiry following

its timely objection to Brown’s use of all of his peremptory

strikes on white jurors; (2) the grant of one of Brown’s B atson

challenges; (3) the denial of Foot Locker’s motion for judgment on

the issue of inten tional discrimination; (4) the denial of Foot

Locker’s motion for judgment on the issue of constructive

discharge; (5) a series of evidentiary ru lings centering on the

refusal of the court to allow Foot Locker to offer testimony

regarding its use of merchandising codes, and the reasons why Brown

was not promoted; (6) the entry of judgment for punitive damages

in the absence of any evidence of malice or reckless disregard; and

(7) the entry of judgment for damages for emotional distress in the

absence of any evidence of particular injuries suffered by Brown.8

Brown cross-appeals. He seeks review of the district court’s

reduction of punitive damages and denial of supplemental attorney’s

fees. If the case is reversed or remanded, Brown also seeks review

of the district court’s denial of his requested jury instruction on

spoliation.

II

Foot Locker challenges both the district court’s refus al to

conduct a full Batson inquiry in response to its challeng e of

Brown’s peremptory strikes, and the court’s decision to sustain

Brown’s Bat son challenge to Foot Locker’s peremptory strike of a

black juror.

A

We first address Foot Locker’s claim that the district court

failed to fulfill its duty to conduct a Batson inquiry. The law

is now well settled: “A party to a civil suit can challenge

another party’s use of a peremptory strike that excludes a

prospective juror on the basis of that juror’s race.” G rea ter

Pl ains Equipment, Inc. v. Koch Gathering Systems, Inc. , 45 F.3d

962, 964 (5th Cir. 1995)(citing Edmonson v. Leesville Concrete

Co. , 500 U.S. 614 (1991); B atson v. Kentucky

, 476 U.S. 79

(1986)). In B atson

, the Supreme Court held that equal protection

principles prohibit a prospective juror from being peremptorily

challenged on the basis of his or her race. S ee Batson

, 476 U.S.9

at 86-87 (stating that by denying a person participation in jury

service on account of race, the offending party

“unconstitutionally discriminated against the excl uded juror”).

The Batson Court reasoned that while it is clear that “[a]n

individual juror does not have a right to sit on any particular

petit j ury,. . . he or she does possess the right not to be

excluded from one on account of race.” U nited States v. Huey

, 76

F.3d 638, 640 (5th Cir. 1996)(citing Batson , 476 U.S. at 87).

We have developed a three-step process for evaluating Batson

challenges:

First, the complaining party must make a prima facie

showing that opposing counsel has exercised a peremptory

challenge on the basis of rac e. Once this showing has

been made, t he burden shifts to the striking party to

articulate a race-neutral explanation for the strike.

Thereafter, the court must determine whether the Batson

claimant has proven purposeful discrimination.

Great Plains Equipment

, 45 F.3d at 964-65 (citing United States v.

Bentley

- Smith

, 2 F.3d 1368, 1373 (5th Cir. 1993)). Once a court

has called on counsel to provide race-neutral jus tifications for

the use of peremptory strikes, we review only the district court’s

finding of discrimination, not whether the party has made a prima

facie case. U nited States v. Forbes

, 816 F.2d 1006, 1010 (5th

Cir. 1987). If the trial court determines that a party failed to

mak e a prima facie showing, however, opposing counsel is not10

required to come forward with a neutral explanation for the

challenges. S oria v. Johnson

, 207 F.3d 232, 239 (5th Cir. 2000).

To establish a prima facie case, a party is required to show

that the circumstances surrounding the peremptory challenges raise

an inferen ce of purposeful discrimination. B atson

, 476 U.S. at

96; Soria

, 207 F.3d at 237. The trial court should co nsider all

relevant circumstances in determining whether a prima facie Batson

violation can be established. M cGinnis v. Johnson

, 181 F.3d 686,

691 (5th Cir. 1999). Factors that give rise to an inference of

discrimination include, among others, a pattern of strikes against

jurors of a certain race and the party’s statements and questions

during voir dire. U nited States v. Branch

, 989 F.2d 752, 755 (5th

Cir. 1993). “A prima facie case of racial discrimination requires

a defendant to ‘come forward with facts, not just numbers alone.’”

Id. (quoting United States v. Moore

, 895 F.2d 484, 485 (8th Cir.

1990)). In this circuit, a trial court’s determination that a

party has failed to make a prima facie showing is accorded a

“presumption of correctness, which can only be rebutted by ‘clear

and convincing evidence.’” S oria

, 207 F.3d at 238. See also

Branch

, 989 F.2d at 755 (“a finding that appell a nts did not make

a prima facie case of discrimination under Batson

. . . is

reviewed for clear error”).11

A party that does not raise facts or make timely B at son

claims in the distr ict court waives the right to raise them on

appeal. See B ranch

, 989 F.2d at 755 n.2 (“On appeal, appellants

have noted facts in alleged support of their Batson claim. We may

not consider them.

. . . [T]he failure to enunciate these facts

in the district court amount[s] to a waiver”). Thus, it is

important that the district court afford the parties ample

opportunity to create a Batson record. As the Eighth Circuit has

noted,

a defendant who requests a prima facie find ing of

purposeful discrimination is obligated to develop a

record, beyond nu mbers, in support of the asserted

violation. And the district court . . . must give the

defendant a reasonable opportunity to do so. Such a

record will allow the appellate court to review the

findings at issue.

United States v. Dawn

, 897 F.2d 1444, 1448-49 (8th Cir. 1990).

B

On appeal, Foot Locker argues that the district court

committed reversible error by completely disregarding the

three-step procedure for evaluating Batson claims and by summarily

denying its challenge. Specifically, Foot Locker argues that it

raised a timely objection, that it made a prima facie case of

discrimination, and that the judge erred by failing to require

Brown to give race-neutral reasons for his peremptory strikes.5 By not giving Foot Locker a full opportunity to make a Batson

record to establish its prima facie case, and by n ot making any

findings of its own, the district court did not discharge its duty

under Batson . As the Ninth Circuit found in a similar case,

the district court[] clear[ly] disregard[ed] . . . even

the most basic of Batson safeguards in summarily

overruling, with absolutely no inquiry or discussion [the

12 Brown responds by arguing that Foot Locker failed to carry its

burden under the fi rst prong of the B atson test, that is, Foot

Locker failed to make a prima facie showing that the challenges

were exercised on the basis of race. Brown argues that by failing

t o require race-neutral explanations, the court made a

determination that Foot Locker did not make a prima facie case of

discrimination.

In truth, the trial court made no explicit findings at all.

It summarily dismissed Foot Locker’s Batson claim without allowing

Foot Locker to attempt to make a prima facie case. In response to

Foot Locker’s Batson challenge for Br own’s use of peremptory

c hallenges against four white jurors, the court’s only resp onse

was, “Well, that objection is overruled .” Because the district

court made no explicit findings and did not allow F oot Locker to

state the reasons for its objection, there is no record on which to

rely to determine whether Foot Locker made a prima facie case.

On appeal, Foot Locker only argues that it established a prima

facie case. It does not argue either that the district court did

not a fford it an opportunity to make a prima facie case 5 or thatplaintiff’s] Batson objection

. . . In so doing, the

district court precluded [the plaintiff] from stating,

let alone proving, what appears evident from the

defendants’ use of

. . . their . . . peremptory

challenges . . .

Montiel v. City of Los Angeles , 2 F.3d 335, 340 (9th Cir. 1993).

13 the district court made no finding on the issue. As such, we must

review whether Foot Locker made a prima facie case when it

presented its claim to the district court. The district court’s

determination is entitled to a presumption of correctness.

At the time of the Batson objection, Foot Locker objected only

on the basis that Brown used his four peremptories on white jurors.

Standing alone, these numbers do not make a prima facie case. Foot

Locker did not present other facts that could have led the court to

find an inference of discrimination. Although the facts in this

case--a white supervisor accused of discrimination against a black

salesman on the basis of race, the fact tha t race was an issue

during voir dire, and the fact that the plaintiff used all four of

its strikes on white jurors (the jury pool consisted of 12 whites,

3 blacks, and 1 Hispanic)--suggest that Foot Locker might have made

a more convincing showing for a prima fac ie case, it did not

present and argue these facts in support of its claim. Instead,

Foot Locker raised only the race of the struck jurors. On this

basis, we cannot say that the district court was clearly erroneous

in rejecting the Batson challenge. Although the record before us14

contains no articulated findings by the distric t court and no

argumen t by counsel on the issue, we can only conclude that the

district court considered that 75 percent of the jury pool was

white and found no inference of discrimination from the scant facts

t o which counsel alluded--strikes against four white jurors.

Therefore, the district court’s finding that Foot Locker failed to

make a prima facie case of discriminati on was not clearly

erroneous.

C

Foot Locker also appeals the trial court’s decision to sustain

Brown’s Batson challenge to Foot Locker’s peremptory strike of one

of three black jurors on the pa nel. During jury selection, Foot

Locker first attempted to strike two of the black jurors for cause,

stating that one of the jurors, juror Sims, believe d that he had

been the defendant in a frivolous lawsuit, and that the other juror

had worked for the first juror, who might unduly influence her.

After the court refused the cause challenge, Foot Locker used two

of its four peremptories to strike juror Sims and the other black

juror on the sixteen person venire, juror Brown, who had not been

challenged for cause. After Brown challenged the strike on B atson

grounds, the court asked Foot Locker to state its reasons for

striking the jurors. Foot Locker articulated a reason for striking

juror Sims--he had been involved in a lawsuit and would be hostile15

to litigants--but the district court found it pretextual, and

sustained the Batson challenge. Finding that Foot Locker’s neutral

reasons were adequate with respect to juror Brown, however, the

court allowed the juror to be struck.

Although explanations are generally c onsidered to be raceneutral unless the discriminatory intent is inherent in the

explanation, this determination depends in significant part on an

evaluat ion of the credibility and demeanor of the attorney

exercising the challenge. Thus, the district court’s determination

that a party used peremptory strikes in a discriminatory manner is

entitled to deference, and should not be overturned a bsent clear

error. U nited States v. Kelley

, 140 F.3d 596, 606 (5th Cir. 1998).

On the record before us, we cannot say that the district court

was clearly erroneous in concluding that Foot Locker’s explanation

for challenging juror Sims was pretextual. Foot Locker challenged

all three black venire members, either by peremptory strike or for

cause. Although Foot Locker claimed that it used its peremptory to

strike juror Sims because it was worried that his prior experiences

with litigation would influence him, it did not challenge two white

jurors who had also been parties to litigation. Given these facts,

we will not disturb the district court’s finding that Foot Locker

evinced purposeful discrimination in striking juror Sims. We now

turn to the merits of the appeal.6 The district court’s jury instruction read as follows:

It is unlawful for an employer to discharge or otherwise

discriminate against an employee because of the

employee’s race. In order for Mr. Brown to prevail on

his claim against Foot Locker, he must prove by a

preponderan ce of the evidence that his race was a

motivating fact or in any of Foot Locker’s adverse

employment decisions. An adverse employment decision is

any decision by an employer such as Foot Locker that

negatively affects an employee such as Mr. Brow n with

respect to compensation, tenure, conditions or privileges

of employment. Taking adverse employment action toward

an employee who is black is not illegal if the reasons

for doing so are unrelated to the employe e’s race.

Therefore, the fact that Mr. Brown is black and Foot

Locker took adverse employment actions towards him is not

sufficient, in and of itself, to establish his claim

under the law. Similarly, the fact that Foot Locker may

have mistreated the Plaintiff or made an unwise decision

regarding the Plaintiff’s employment is not sufficient to

establish the Plaintiff’s claim under the law. Finally,

simply because you do not agree with the employment

decisions made by Foot Locker or the manner in which the

decisions were made i s not sufficient to establish

Plaintiff’s claims under the law. You must find that an

16 III

As an initial matter, we must examine the essence of Brown’s

claims. Brown claims that Foot Locker intentionally discriminated

against him based on his race during the course of his employment.

The facts, as presented by Brown, encompass both a failure to

promote (or transfer) claim, and a constructive discharge claim.

These two claims, however, were n ot clearly separated at trial.

The same evidence was presented to support both claims. The jury

instructions on the issue of intentional discrimination did not

discuss the elements of constructive discharge; 6 to be sure,adverse employment decision was made by Foot Locker

because of Mr. Brown’s race in order to answer “yes” to

Question One.

17 constructive discharge was not addressed until the instruction on

the award of damages. The verdict form did not distinguish the

two issues for the jury; it asked “[d]o you find from a

preponderance of the ev idence that Defendant Foot Locker

discriminated against Mr. Brown based on his race?” Despite this

consolidation of failure to promote and constructive discharge at

trial, we must separate these two jury issues to determine whether

there is sufficient evidence to support the jury award.

Foot Locker contends that the district court erred in denying

its motion for judgment on the issues of, first, in tentional

discrimination, which we interpret as failure to promote, and

second, constructive disc harge. Foot Locker argues that Brown

provided no evidence to show that Foot Locker’s reasons for failing

to promote Brown were pretextual, or to show that Foot Locker made

a calculated effort to pressure him into resignation.

We review the denial of a party’s motion fo r judgment as a

matter of law de novo, applying the same standard that the district

court used. R utherford v. Harris County, Texas

, 197 F.3d 173, 178

(5th Cir. 1999). “The district court properly grants a Rule 50

motion for judgment as a matter of law only where the facts and

inferences indica te a particular outcome so strenuously that18

reasonable minds could not disagree.” A guillard v. McGowen

, 207

F.3d 226, 228-29 (5th Cir. 2000). In deciding a Rule 50 motion,

the court should consider all the evidence in the light most

favorable to th e non-moving party. I d. at 228. “A jury verdict

must be upheld unless ‘there is no legally sufficient evidentiary

basis for a reasonable jury to find’ as it did.” V adie v.

Mississippi State Univ.

, 218 F.3d 365, 372 (5th Cir. 2000) (quoting

Fed. R. Civ. P. 50( a)(1)). Even if this court would reach a

different conclusion as trier of fact, “we are not free to reweigh

the evidence or to re-evaluate credibility of witnesses.” H iltgen

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

A

We start with the basics. To succeed on his Title VII

intentional discrimination claim, Brown must prove by a

preponderance of the evidence that he was denied employment

opportunities because of his race. “An employer is entitled to

judgment as a matter of law on this ultimate question ‘if the

evidence taken as a whole would not allow a jury to infer that the

actual reason for the [employer’s decision] was discriminatory.’”

Vadie , 218 F.3d at 372 (quoting Rhodes v. Guiberson Oil Tools , 75

F.3d 989, 994 (5th Cir. 1 996) (en banc)). After a case has been

fully tried on the merits, as has this one, the inquiry shifts from

a focus on whether the plaintiff has made a prima facie case of19

race discrimination to the question of whether the record contains

sufficient evidence to support the jury’s finding of race

discrimination. H arrington v. Harris

, 118 F.3d 359, 367 (5th Cir.

1997). Thus, th e question is whether the evidence was sufficient

for the jury to find that Brown was not promoted because of his

race.

Foot Locker conte nds that the evidence indisputably showed

that Brown had not performed well enough to qualify for a promotion

to a higher volume store, that he was les s qualified than the

individual who did get the promotion, and that he would not have

been well placed in a lower volume store. Furthermore, Foot Locker

argues that the cases indicate that courts should be deferential to

the judgm ent of employers in making promotion decisions in their

businesses. See O dom v. Frank

, 3 F.3d 839, 847 (5th Cir. 1993)

(noting that judges should be reluctant to substitute their own

views unless disparities are “so apparent as virtually to jump off

the page and slap us in the face”). Brown counters Foot Locker’s

claim with evidence of strong evaluations, and more years of

management experience than the individual who was selected. Brown

also testified that, although not spoken at the time, he would have

been willing to accept a pay cut to manage the smaller non-ethnic

store.7 The evidence on promotion to non-ethnic stores was primarily

anecdotal, because most of Foot Locker’s documentation on the

ethnic classification of stores was destroyed, allegedly pursuant

to Foot Locker’s document retention policies.

20 Brown al so introduced evidence attempting to show that Foot

Locker’s method of promoting managers systematically treated black

candi d ates differently. The evidence showed that, for

merchandising purposes, Foot Locker classified its stores based on

the racial makeup of each store’s customer base. The evidence also

showed that, generally, black managers were not promoted to

management positions in non-ethnic stores. 7 There was testimony,

conclusionary in nature, that also suggested that white managers

were promoted more frequently and that black managers w ere

evaluated more harshly.

Brown a lso introduced evidence to show that Foot Locker’s

reasons for failing to promote Brown out of the ethnic store--that

the alternative stores were either too big or too small for his

experience level--were pretextual. Brown testified that Foot

Locker offered to promote him to a 1.4 to 1.6 million dollar ethnic

store, but refused to promote him to either a 900,000 dollar or a

300,000 to 500,000 dollar non-ethnic store. Another Brown witness

corroborated this testimony. Foot Locker presented evidence that

it never offered him management of the 1.4 million dollar store,

directly contradicting Brown’s testimony.21

Although much of the evidence is conflicting, it is legally

sufficient for a jury to find intentional discrimination. The

jury, exercising its function of determining facts and weighing

credibility, was free to belie ve Brown’s testimony and evidence

over the evidence offered by Foot Locker. Brown introduced

evidence that white managers with similar evaluations were promoted

to non-ethnic stores, and evidence suggesting that black managers

were generally not chosen to manage non-ethnic stores. Brown

testified that despite requesting positions at non-ethnic stores on

multiple occasions, he was denied the opportunity to manage a nonethnic store, although he was apparently promotable to ethnic

stores. Based on that, and similar evidence, the jury could have

concluded that Foot Locker’s claim that Brown was not qualified for

the higher volume store was pretextual, and that Foot Locker

intentionally discriminated against Brown by not promoting him to

a non-ethnic store.

B

Foot Locker also appeals the district court’s denial of Foot

Locker’s motion for judgment on constructive discharge. As we

pointed out earlier, Brow n was not discharged. He resigned. A

resignation is actionable under Title VII, allowing the plaintiff

to seek compensatory damages for events after the resignation, only

if the resignation qualifies as a constructive discharge. To prove22

a constructive discharge, a “plaintiff must establish that working

conditi ons were so intolerable that a reasonable employee would

feel compelled to resign.” F aruki v. Parsons , 123 F.3d 315, 319

(5th Cir. 1997). In determining whether a reasonable employee

would feel compelled to resign, we have considered the relevancy of

the following events:

(1) demotion; (2)reduction in salary; (3) reduction in

job responsibilities; (4) reassignment to menial or

degrading work; (5) reassignment to work under a younger

supervisor; (6) badgering, harassment, or humiliation by

the employer calculated to encourage the employee’s

resignat ion; or (7) offers of early retirement [or

continued em ployment on terms less favorable than the

employee’s former status] . . .

Brown v. Bunge Corp.

, 207 F.3d 776, 782 (5th Cir. 2000) (alteration

in original) (quoting Barrow v. New Orleans Steam ship Ass’n , 10

F.3d 292, 297 (5th Cir. 1994)). Constructive discharge requires a

greater degree of harassment than that required by a hostile

environment claim. B enningfield v. City of Houston

, 157 F.3d 369,

378 (5th Cir. 1998). Discrimination alone, without aggravating

factors, is insufficient for a claim of constructive discharge, as

is a discriminatory failure to promote. Boze v. Branstetter , 912

F.2d 801, 805 (5th Cir. 1990); Landgraf v. USI Film Productions

,

968 F.2d 427, 429-30 (5th Cir. 1992), aff’d, 511 U.S. 244 (1994).

Brown contends that he resigned becau se he was repeatedly

denied promotions and transfer opportu nities. He also contends

that his 1993 transfer to the Fort Worth Town Center Mall was23

actually a demotion--not the promotion he was promised--because the

store was continually losing money. Because the Fort Worth Town

Center Mall store lost revenue while he was manager, Brown further

testified that he lost ten to fifteen thousand dollars in salary

and bonuses.

These facts, without more, are insufficient for a finding that

a reasonable employee in Brown’s position would have felt compelled

to resign, particularly in light of the fact that he was pursuing

an EEOC remedy that could have addressed any discrimination he

suffered in failing to be promoted or transferred. Although, in

hindsight, it is clear that Brown’s transfer to the Fort Worth Town

Center Mall did not result in t he benefits of a promotion, Brown

did not lose responsibilities by moving to that store. He was

indeed the manager of a larger store initially, which deteriorated

only under his management (for which, it is true, he may not have

been wholly blameworthy). His work was not degrading or menial,

and he was not subjected to badgering or harassment designed to

encourage his resignation. In fact, Brown himself testified that

he wa s offered a promotion to a 1.4 million dollar store shortly

before he resigned. In essence, Brown’s resignation, as a matter

of law, was not justified by working conditions that had become so

intolerable that no reasonable person could have worked there under

those conditions. We therefore reverse the district court’s denial24

of Foot Locker’s motion for judgment as a matter of law on the

issue of constructive discharge and any damages resulting

therefrom.

This reversal, however, does not affect our holding affirming

liability on Brown’s failure to promote claim. Although the jury

verdict form did not separate Brown’s failure t o promote and

constructive discharge claims--instead, simply finding Foot Locker

liable for racial discrimination--the constructive discharge aspect

of the claim is supported only by the evidence concerning Brown’s

failure to be transferred or promoted. Brown claimed that he was

construct i vely discharged because he was denied transfers and

promotions to non-ethnic stores. Thus, in finding that Foot Locker

intentionally discriminated against Brown, the jury necessarily

found that Brown was denied transfers and promotions, or other

advancement opportunities, based on his race. As we have earlier

noted, the evidence supports such a finding. The jury verdict is

therefore sufficient to uphold Foot Locker’s liability on Brown’s

failure to promote claim. The compensatory damage award, however,

obviously included damages relating to both t he constructive

discharge claim and the failure to promote claim. No compensatory

damages that may be based on the claim of constructive discharge

can stand. Thus, the case must be remanded for a new trial on

compensatory damages.25 IV

Furthermo re, Foot Locker specifically appeals the award of

both punitive damages and damages for emotional distress. In this

appeal, however, we will not address these specific damage awards.

Because we have overturned the finding of constructive discharge,

all damages, including punitive and emotional, must be supported by

the failure to promote or transfer claim alone. A new

determination of the compensatory injuries that flow from the claim

may fundamentally affect a jury’s determination of emotional and

punitive damages. See H ardin v. Caterpillar

, 227 F.3d 268, 272-73

(5th Cir. 2000) (noting the “practical inseparability of the issues

of intent, of damages for emotional injury, and of punitive

damages” and that legal systems reflect the “linkage of actual and

punitive damages in locating caps for punitive awards”). Thus, all

damages must be reconsidered. We therefore remand for a retrial on

the issue of compensatory, punitive and emotional damages that flow

from the failure to promote.

V

Finally, we find no reversible error in the evidentiary issues

contested by Foot Locker. We have affirmed the district court’s

judgment on liability for intent i onal discrimination based on

failure to promote, thus, there is also no need to address Brown’s

proposed jury instruction on spoliation. We will not address26

Brown’s request for additio nal attorney’s fees, the final issue

presented in this appeal. The appropriateness of additional

attorney’s fees will be more properly addressed at the conclusion

of this remand.

VI

Because we find that the district court properly denied Foot

Locker’s motion for judgment as a matter of law on the issue of

failure to promote, but should have granted Foot Locker ’s motion

for j udgment as a matter of law on the issue of constructive

discharge, we AFFIRM in part, REVERS E in part, and REMAND for a

retrial on the issue of damages.

AFFIRMED in part; REVERSED in part; and REMANDED.