United States Court of Appeals

For the Eighth Circuit 

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No. 22-2067

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Janice Hargrove Warren

 Plaintiff - Appellee

v.

Mike Kemp, in his official capacity as a Member of the Board of the Pulaski 

County Special School District and in his individual capacity; Linda Remele, in her 

official capacity as a Member of the Pulaski County Special School District and in 

her individual capacity; Shelby Thomas, in his official capacity as a Member of the 

Pulaski County Special School District and in his individual capacity; Alicia 

Gillen, in her official capacity as a Member of the Pulaski County Special School 

District and in her individual capacity; Eli Keller, in his official capacity as a 

Member of the Pulaski County Special School District and in his individual 

capacity; Brian Maune, in his official capacity as a Member of the Pulaski County 

Special School District and in his individual capacity; Pulaski County Special 

School District

 Defendants - Appellants

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No. 22-2169

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Janice Hargrove Warren

 Plaintiff - Appellant

v.

Mike Kemp, in his official capacity as a Member of the Board of the Pulaski 

County Special School District and in his individual capacity; Linda Remele, in her 
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official capacity as a Member of the Pulaski County Special School District and in 

her individual capacity; Shelby Thomas, in his official capacity as a Member of the 

Pulaski County Special School District and in his individual capacity; Alicia 

Gillen, in her official capacity as a Member of the Pulaski County Special School 

District and in her individual capacity; Eli Keller, in his official capacity as a 

Member of the Pulaski County Special School District and in his individual 

capacity; Brian Maune, in his official capacity as a Member of the Pulaski County 

Special School District and in his individual capacity; Pulaski County Special 

School District

 Defendants - Appellees

____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Central

____________ 

Submitted: June 15, 2023

Filed: August 22, 2023

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Before GRUENDER, KELLY, and GRASZ, Circuit Judges. 

____________

GRUENDER, Circuit Judge.

After being passed over for a superintendent role, Dr. Janice Warren sued her 

employer, Pulaski County Special School District (“PCSSD”), and its board 

members, for discrimination and retaliation in violation of Title VII and 42 U.S.C. 

§ 1981. A jury found in her favor on her Title VII and § 1981 retaliation claims and 

awarded damages, including punitive damages. The defendants appeal the district 

court’s denial of their motion for judgment as a matter of law and the punitive 

damages award. Dr. Warren cross-appeals the district court’s denial of her request 

for front pay, additional back pay, and equitable relief. We vacate the judgment for 

Dr. Warren.
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I.

Dr. Warren works for PCSSD. PCSSD has been under federal court 

supervision since 1982 when the predominately black Little Rock School District 

sued the predominately white PCSSD, North Little Rock School District, as well as 

the state of Arkansas. We ordered the schools to develop desegregation plans to 

establish unitary, racially integrated districts. Little Rock Sch. Dist. v. Pulaski Cnty. 

Special Sch. Dist., 778 F.2d 404, 434-36 (8th Cir. 1985). In 2000, the parties in that 

case reached an agreement (the “Plan 2000”) whereby PCSSD promised it would 

“prepare . . . a plan so that existing school facilities are clean, safe, attractive, and 

equal.”

In 2011, the district court found that PCSSD was not in compliance as to 

facilities because it had “devoted a disproportionate share of its facilities spending 

to predominantly white areas.” Little Rock Sch. Dist. v. Arkansas, 664 F.3d 738, 753 

(8th Cir. 2011). PCSSD then decided to build a new Mills High School in a 

predominantly black area and to convert Robinson High School to a middle school 

in a predominantly white area. 

In 2012, Dr. Warren was hired to be the director of PCSSD’s elementary 

education program. A year later, she also became the interim assistant 

superintendent for equity and pupil services. Then, in 2017, the PCSSD board 

(consisting of Alicia Gillen, Eli Keller, Mike Kemp, Brian Maune, Dr. Linda 

Remele, Shelby Thomas, and Tina Ward), hired Dr. Warren to be the interim 

superintendent for one year. Her contract stated that afterward, she would return to 

her previous position as assistant superintendent for equity and pupil services. 

At the end of August 2017, Dr. Warren was notified of significant differences 

between the construction of the Robinson Middle School and the Mills High School. 

For example, Robinson’s weight room was 2,700 square feet larger than the one at 

Mills. And Robinson had theater-style padded seats in its basketball arena while

Mills had “glorified folding chairs” in its gymnasium. 
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After investigating, Dr. Warren called the board members and PCSSD’s

attorney in the desegregation case to notify them of the differences. An upcoming

status hearing in the ongoing desegregation case had already been scheduled for 

early September, so PCSSD’s attorney updated PCSSD’s status report to include 

information about the differences in the facilities. After the report was filed, tension 

developed between Dr. Warren and some of the board members. For example, some 

board members alleged Dr. Warren revised and submitted the status report without 

them seeing it, and Dr. Remele was upset about the status report being published in 

the newspaper.

Before Dr. Warren’s interim superintendent contract expired, the board began 

to search for a permanent superintendent. There is conflicting evidence about 

whether the search began before or after the September status update. In any event, 

it was after the status update that the board hired Ray & Associates, a national

school-executive-search organization, to help find a permanent superintendent. 

Dr. Warren applied for the permanent superintendent position. Nine top 

candidates, including Dr. Warren, were selected for the board to review. After 

reviewing each candidate’s video presentation and application package, each board 

member completed a “consensus-building matrix.” Ray & Associates then ranked 

the candidates using the collective matrix scores, and the board chose three finalists 

to interview. Dr. Warren was not a finalist, though no one disputes that she was 

qualified for the position. Dr. Warren believes she was not a finalist because Gillen 

and Dr. Remele scored her very low when completing the matrix to bring her overall 

score down. Ultimately, the board hired someone else to be the superintendent, and 

Dr. Warren returned to her prior position. 

After being passed over for the superintendent position, Dr. Warren sued 

PCSSD and the board members in their individual capacities for discrimination and

retaliation under Title VII and § 1981 and for breach of contract. As to retaliation, 

she alleged that the defendants declined to interview or hire her because she reported

the disparity in the facilities. She requested back pay, front pay, compensatory 
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damages, punitive damages, pre- and post-judgment interest, and other equitable 

relief. The defendants moved for summary judgment, arguing that Dr. Warren did 

not engage in protected conduct for her retaliation claims. Their motion was denied. 

At trial, the defendants moved for judgment as a matter of law, raising the 

same purely legal questions as at summary judgment. Their motion again was

denied. The jury found in Dr. Warren’s favor only on her Title VII and § 1981 

retaliation claims for not being hired as superintendent. For those claims, the jury 

instructions contained a single retaliation instruction that did not distinguish between 

Title VII and § 1981. The jury awarded her back pay and other compensatory 

damages and also punitive damages against PCSSD, Dr. Remele, and Gillen. The 

district court then granted the defendants’ earlier motion for judgment as a matter of 

law as to punitive damages against PCSSD, agreeing that they are not available 

against political subdivisions like school districts.

Dr. Warren asked to be reinstated, for front pay, for an order to increase her 

salary, for pre- and post-judgment interest, and for other equitable and declaratory

relief. The defendants then renewed their motion for judgment as a matter of law on 

the protected-conduct issue. They also moved, in the alternative, to alter or amend 

the judgment, arguing that punitive damages cannot be awarded against Dr. Remele 

and Gillen. As to Dr. Warren’s motion, the district court denied her request for front 

pay, additional back pay, and other equitable relief, but it awarded her pre- and postjudgment interest on her lost wages and benefits. As to the defendants’ motion, the 

district court upheld the jury’s verdict and affirmed the award of punitive damages. 

The defendants appeal the denial of their motion for judgment as a matter of law. 

Dr. Warren cross-appeals, renewing her requests for increased back pay, front pay, 

and reinstatement.

II.

We begin with the defendants’ motion for judgment as a matter of law. We 

review the district court’s denial de novo, viewing the evidence in the light most 
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favorable to the jury’s verdict. Wedow v. City of Kansas City, 442 F.3d 661, 666 

(8th Cir. 2006). Judgment as a matter of law is appropriate if there is no “legally 

sufficient evidentiary basis” for a reasonable jury to find for the non-moving party. 

Fed. R. Civ. P. 50(a)(1). 

The jury found in Dr. Warren’s favor for retaliation. Because the jury 

instructions did not distinguish between the Title VII and § 1981 claims, we assume 

that the jury found for Dr. Warren as to both. 

Title VII bans discrimination with respect to “compensation, terms, 

conditions, or privileges of employment, because of [an] individual’s race, color, 

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In addition, Title VII 

“prevents employers from retaliating against employees who have acted to vindicate 

their statutorily protected rights by reporting harassment or discrimination in the 

workplace.” Brannum v. Mo. Dep’t of Corrs., 518 F.3d 542, 547 (8th Cir. 2008); 

see 42 U.S.C. § 2000e-3(a). 

Section 1981 provides that all persons shall have the same right to “make and 

enforce contracts . . . as is enjoyed by white citizens,” which includes the right to 

“the enjoyment of all benefits, privileges, terms, and conditions of the contractual 

relationship.” 42 U.S.C. § 1981(a)-(b). Section 1981 protects private employees 

who are discriminated against on the basis of race. Johnson v. Ry. Express Agency, 

Inc., 421 U.S. 454, 459-60 (1975). To prove a § 1981 discrimination claim, a 

plaintiff must establish membership in a protected class, discriminatory intent by the 

defendant, engagement in a protected activity (e.g., attempting to make a contract or 

having an existing contractual relationship), and interference with that activity. 

Gregory v. Dillard’s, Inc., 565 F.3d 464, 468-69, 473 (8th Cir. 2009) (en banc); 

Withers v. Dick’s Sporting Goods, Inc., 636 F.3d 958, 964 (8th Cir. 2011) (noting

that the plaintiffs did not attempt to make a contract or have an existing contractual 

relationship that constituted protected activity). It also encompasses claims of 

retaliation for an individual “attempting to vindicate the rights of minorities 

protected by § 1981.” Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1031 (8th Cir. 
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2013); see CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008) (holding that 

a plaintiff may bring a retaliation claim under § 1981 to vindicate the § 1981 rights 

of another). 

To establish retaliation under either Title VII or § 1981, a plaintiff must prove 

(1) he engaged in statutorily protected activity, (2) suffered an adverse employment 

action, and (3) that the engagement in a protected activity is the but-for cause of the 

adverse employment action. See Blackwell v. Alliant Techsystems, Inc., 822 F.3d 

431, 436 (8th Cir. 2016) (listing the elements of a Title VII retaliation claim); Kim 

v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997) (explaining that the elements 

of retaliation for Title VII and § 1981 are the same).

The defendants argue that judgment as a matter of law is appropriate because 

Dr. Warren’s reporting of the disparity in the facilities does not qualify as a protected 

activity, she did not suffer an adverse employment action, and there is insufficient 

evidence to find that she was not hired as superintendent because she reported the 

disparity in the facilities. We conclude that Dr. Warren did not engage in a protected 

activity, so we need not reach the defendants’ other arguments. 

We and other courts have held that an employee engages in a protected 

activity under § 1981 when the employee has opposed any practice made unlawful 

by Title VII involving race-based discrimination. See, e.g., Sayger, 735 F.3d at 

1030-31; Scott v. U.S. Bank Nat’l Assoc., 16 F.4th 1204, 1209 (5th Cir. 2021). Thus, 

cases interpreting opposition under Title VII are “instructive” in determining 

whether conduct “vindicated the rights of minorities” and is therefore protected 

under § 1981. Sayger, 735 F.3d at 1031 (brackets omitted). To be sure, protected 

activities under § 1981 might include conduct not also covered by Title VII because

§ 1981 prohibits discrimination in all contractual relationships. But the parties 

present this case as having a single protected-activity theory based on Title VII. 

There was a single jury instruction for both retaliation claims, and on appeal the 

defendants argue that Dr. Warren did not engage in protected conduct because she

did not report a discriminatory employment practice, again treating the claims as if 
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they are one. Dr. Warren responds without arguing that she has separate protectedactivity theories for each claim. We therefore accept the parties’ invitation to treat 

the claims as one. So we focus on whether her conduct is protected under Title VII. 

If it is not, we vacate the jury’s verdict in her favor on both retaliation claims.

Under Title VII, “protected activity” includes opposition to discriminatory 

employment practices prohibited under Title VII. Bakhtiari v. Lutz, 507 F.3d 1132, 

1137 (8th Cir. 2007). Such practices are those that discriminate with respect to 

“compensation, terms, conditions, or privileges of employment, because of [an]

individual’s race, color, religion, sex, or national origin.” § 2000e-2(a)(1). We have 

rejected Title VII retaliation claims where the plaintiff opposed conduct other than

a discriminatory employment practice. See, e.g., Bonn v. City of Omaha, 623 F.3d 

587, 591-92 (8th Cir. 2010) (holding that the plaintiff did not engage in a protected 

activity under Title VII by publishing a report exposing a police department’s 

policing tactics that were potentially discriminatory because the report did not 

implicate employment practices); Evans v. Kansas City, Mo. Sch. Dist., 65 F.3d 98, 

101 (8th Cir. 1995) (rejecting a Title VII retaliation claim based on “an allegation 

that [the principal’s] efforts to comply with a desegregation directive disregarded 

the needs of the black student population” because it “lies not with any allegation of 

a discriminatory employment practice”).1

 A plaintiff need not establish that the 

conduct he opposed was in fact prohibited under Title VII; rather, he need only 

demonstrate that he had a “good faith, reasonable belief that the underlying 

challenged conduct violated Title VII.” Bakhtiari, 507 F.3d at 1137 (brackets 

omitted). 

1

In Evans, the plaintiff also brought a § 1981 retaliation claim that we 

analyzed separately. The ground for rejecting that claim—that the plaintiff could 

not bring a § 1981 retaliation claim alleging that a third party’s rights were violated, 

Evans, 65 F.3d at 101—has since been rejected by the Supreme Court, see 

Humphries, 553 U.S. at 445, 457. Thus, contrary to the defendants’ arguments, 

Evans does not necessarily bar Dr. Warren’s § 1981 claim. But, as mentioned, Dr. 

Warren does not advance a theory for § 1981 retaliation independent from her Title 

VII theory.
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We conclude that Dr. Warren did not engage in a protected activity because 

she did not report an underlying discriminatory employment practice. Dr. Warren 

does not argue that her report itself was about an employment practice. Rather, she

argues that making the report was a required employment practice, so she engaged 

in a protected activity. 

But simply performing one’s job duties is not itself a protected activity under 

Title VII; a plaintiff must oppose a discriminatory employment practice. Her case 

is indistinguishable from Bonn and Evans, where we held that a plaintiff did not 

engage in a protected activity when opposing conduct that was not itself a 

discriminatory employment practice. Bonn, 623 F.3d at 591-92; Evans, 65 F.3d at 

101. Even if Warren was required as interim superintendent to report the disparity 

in the facilities, this conduct did not constitute opposition to a discriminatory 

employment practice because the disparity in the facilities had nothing to do with 

“compensation, terms, conditions, conditions, or privileges of employment.” See

§ 2000e-2(a)(1). Indeed, she agrees that her report was about a violation of the 

students’ rights, not employees’ rights. Thus, Dr. Warren did not engage in a 

protected activity by reporting the disparity in the facilities.2

Nor can we affirm on the ground that Dr. Warren had a good faith, reasonable 

belief that she was opposing an unlawful employment practice. See Bakhtiari, 507 

F.3d at 1137. The jury was never instructed to determine this issue, and Dr. Warren 

never testified that she believed she was reporting discrimination against employees. 

Further, there is no other evidence from which a jury could infer that she had a good2

At oral argument, Dr. Warren seemed to raise a new argument that, at least 

for § 1981, her report was about discrimination against employees too and the 

affected contractual relationship was her own and others’ employment contract. 

Whatever the merits of this theory, she never raised it in her complaint, to the district 

court, or in her appellate briefs, so we will not affirm on this basis. See Adamscheck

v. Am. Fam. Mut. Ins., 818 F.3d 576, 588 (10th Cir. 2016) (rejecting appellee’s 

proposed alternative basis for affirmance because it was unbriefed and raised for the 

first time at oral argument). Unlike the dissent, we do not address whether the 

evidence could have been sufficient to support Warren’s belated theory of the case.
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faith belief that she believed she reported discrimination against employees. At 

most, Dr. Warren testified that her concern for employees being treated fairly 

motivated her to file the EEOC complaint. As a whole, the evidence demonstrates 

that she believed she reported the disparity in the facilities as part of her duty to 

oversee compliance with the Plan 2000, which sought to rectify discrimination 

against students in public education. Though we do not rule out that the disparity in 

the facilities could affect employees too, there is simply no evidence here that Dr. 

Warren believed she was complaining about a discriminatory employment practice. 

Thus, a jury could not conclude that Dr. Warren had a good faith belief that she was 

reporting a discriminatory employment practice. 

III.

For the foregoing reasons, we vacate the judgment and remand the case to the 

district court to enter judgment as a matter of law for the defendants. We therefore 

need not address the remaining arguments the defendants raise or Dr. Warren’s 

cross-appeal.

KELLY, Circuit Judge, dissenting.

PCSSD appeals the district court’s denial of its post-verdict motion for 

judgment as a matter of law. See Fed. R. Civ. P. 50(b). Under the applicable 

standard of review, we cannot set aside the jury verdict finding in favor of Warren 

on her Title VII retaliation claim3 unless we conclude that, in light of the evidence 

presented, “no reasonable jury” could have made factual determinations sufficient 

to render Warren’s conduct statutorily protected. Hopman v. Union Pac. R.R., 68 

F.4th 394, 399 (8th Cir. 2023); see Bayes v. Biomet, Inc., 55 F.4th 643, 648 (8th Cir. 

2022) (“When reviewing a [Rule 50(b)] motion . . . , our analysis reflects our 

3

In light of the district court proceedings and the parties’ arguments on appeal, 

I agree with the court that our analysis of Warren’s Title VII and § 1981 retaliation 

claims “is the same.” Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1030 (8th Cir. 

2013).
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hesitancy to interfere with a jury verdict.” (cleaned up)). Because the evidence at 

trial was “legally sufficient . . . to support” the jury’s verdict here, Bavlsik v. Gen. 

Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017), I would affirm the judgment.

To prove her retaliation claim, Warren had to establish, among other things, 

that she “engaged in a protected activity.” Bonn v. City of Omaha, 623 F.3d 587, 

590–91 (8th Cir. 2010). Title VII “shields” employees from retaliation for having 

“opposed a practice made unlawful by” the statute, Barker v. Mo. Dep’t of Corr., 

513 F.3d 831, 834 (8th Cir. 2008), which includes making statements in opposition 

to discriminatory “conditions . . . of employment,” 42 U.S.C. § 2000e-2(a)(1). See

id. § 2000e-3(a). Accordingly, the question presented by this appeal is whether there 

was a “legally sufficient evidentiary basis,” Fed. R. Civ. P. 50(a)(1), for the 

conclusion that Warren’s complaints about disparate school facilities within PCSSD 

concerned, at least in part, an unlawful employment practice. And a review of the 

trial record here shows sufficient evidence from which a reasonable jury could have 

determined that Warren’s complaints did, in fact, implicate certain 

“conditions . . . of employment,” 42 U.S.C. § 2000e-2(a)(1)—namely, those faced 

by a predominantly Black staff4 working at a school in a predominantly Black 

community that had facilities that were undisputedly inferior to those enjoyed by the 

staff at a school in a predominantly white community. 

At trial, Warren testified about the “[v]ery, very disturbing phone call” she 

received from a parent in August 2017 regarding the obvious disparities between the 

athletic facilities at Mills High School and those at Robinson Middle School. 

Warren explained that after that call, she requested video footage of the two schools’ 

facilities, which confirmed that Mills’s sport complex, while “nice,” was “nothing 

compared to” Robinson’s. And after viewing the footage, Warren reported the 

disparities to PCSSD’s board.

4

In her brief in opposition to PCSSD’s Rule 50(b) motion, Warren explained 

that in 2017, 67 percent of the administrators at Mills High School were Black, 

“including the principal and athletic director,” and that 58 percent of the school’s 

staff was Black. Nothing in the trial record contradicts this assertion.
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By that point in the trial, those disparities had already been presented to the 

jury in detail. For instance, jurors heard testimony from Margie Powell, a federal 

court expert who was directed in September 2017 to “report on whether the sports 

complex at Mills High School [was] equal to the one located on the site of the 

Robinson Middle School campus.” Powell testified that during her investigation, 

she “found inequities” between the two schools, “some of” which “were rather 

gross.” According to Powell, the staff members working at Mills’s sports complex 

did not have “nearly the space to work with that Robinson had.” Mill’s complex 

also had a “smaller” equipment room than the one at Robinson, the “furniture was 

different,” and the complex was “difficult to get to.” Powell’s report, which was 

admitted into evidence, stated that Mills’s athletic director, who was Black, “d[id] 

not have an office” in the new sports complex, while his counterpart at Robinson 

“ha[d] a separate office” that “include[d] a restroom.” And the report further noted 

that while Robinson’s athletic director “was invited (at least twice) to provide input 

on what he felt was important with respect to [the] design and specific attributes of 

his school’s complex,” Mills’s athletic director “was not allowed the same 

privilege.”

The jury also heard from Curtis Johnson, PCSSD’s director of operations, who 

testified that “Mills High School was inferior in scope of work and design to that of 

the Robinson Middle School project.” Johnson explained that due to budget 

shortfalls, the classrooms at Mills—that is, the spaces in which staff members were 

expected to teach—were the smallest size permitted under state standards. He noted 

that Robinson had “masonry walls,” while Mills “had gypsum board or regular 

sheetrock walls,” which could be more easily punctured and were less safe “in times 

of storms.” And Johnson further noted that the sports complex at Robinson was 

likewise “made of masonry brick walls,” while the complex in which Mills’s athletic 

staff was expected to work was “almost like a metal tin building.” A project manager 

for the architectural firm that was hired to design Mills’s new buildings testified 

about how PCSSD asked the firm to “scale back th[e] project” to cut costs, which 

resulted in Mills having “gypsum board walls,” narrower hallways, less natural 

lighting, and ceilings that were two feet shorter than originally planned. And, 
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crucially, jurors viewed the video footage comparing the athletic facilities at Mills 

and Robinson, which allowed them to see firsthand the extent of the disparities about 

which Warren complained, and to draw their own inferences about how the inferior 

facilities at Mills would affect that school’s community—including the employees 

who worked there. 

As Warren expressly argued to the district court in opposing PCSSD’s 

Rule 50(b) motion, this evidence “provided the jury with” a legally sufficient basis 

“for inferring” that PCSSD’s “discriminatory construction” of facilities at a school 

in a predominantly Black community “adversely affect[ed] the employment 

conditions of” that school’s “predominantly black administrators, teachers, and 

staff.” And the district court agreed, explaining in its order denying the Rule 50(b) 

motion that PCSSD had failed to meet its burden of showing “a complete absence 

of probative facts to support the conclusion reached by the jury.” See Browning v. 

President Riverboat Casino-Mo., Inc., 139 F.3d 631, 634 (8th Cir. 1998) (“Judgment 

as a matter of law is proper only when the evidence is such that . . . there is a 

complete absence of probative facts to support the verdict.”).

On appeal, PCSSD attempts to portray its argument in support of reversal as 

one that raises a “narrow” question of law—namely, whether Warren “engage[d]” 

in activity that was protected “under the relevant statutes.” And it contends that 

“Warren’s reporting about discriminatory conditions” at Mills was not so protected 

because such “opposition to racial discrimination on behalf of students . . . did not 

relate to an employment practice.” But PCSSD’s framing of the relevant facts fails 

to account for the trial record as a whole. In other words, PCSSD’s argument 

presumes that Warren’s complaints about inferior school facilities were, as a factual 

matter, limited exclusively to concerns about the impact that those facilities would 

have on Black students. Or, at the very least, its argument presumes that Warren’s 

complaints in no way implicated the effect that those same facilities would also have 

on the predominantly Black staff members who would work in them. See 42 U.S.C. 

§ 2000e-2(a)(1) (prohibiting discrimination on the basis of race with regard to the 

“terms, conditions, or privileges of employment” (emphasis added)); see also
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Wedow v. City of Kansas City, 442 F.3d 661, 671–72 (8th Cir. 2006) (explaining 

that the provision of discriminatory workplace “facilities” can be unlawful under 

Title VII if it creates “conditions” of employment that “jeopardize” an employee’s 

“ability to perform the core functions of her job in a safe and efficient manner”).

But a court reviewing a Rule 50(b) motion must (1) “consider the evidence in 

the light most favorable to” the party that prevailed at trial, (2) “assume that all 

conflicts in the evidence were resolved in favor of” that prevailing party, (3) “assume 

as proved all facts that the prevailing party’s evidence tended to prove,” and 

(4) “give the prevailing party the benefit of all favorable inferences that may 

reasonably be drawn from the facts proved.” Ryan Data Exch., Ltd. v. Graco, Inc., 

913 F.3d 726, 732–33 (8th Cir. 2019) (quoting Washington v. Denney, 900 F.3d 

549, 558–59 (8th Cir. 2018)). Once the trial record is so construed, the court must 

then “determine whether there was legally sufficient evidence to support the jury’s 

liability finding.” Bavlsik, 870 F.3d at 805. And as just explained, the evidence in 

the trial record here was legally sufficient to support the conclusion that Warren’s 

reporting of disparate school facilities implicated in part the “conditions . . . of 

employment” faced by Mill’s predominantly Black staff. 42 U.S.C. § 2000e-2(a)(1). 

Framing the question presented here as a purely legal one also overlooks what 

took place in the district court. At summary judgment, PCSSD treated the material 

facts regarding Warren’s conduct as settled and then argued that those facts did not, 

as a legal matter, amount to “protected conduct” under Title VII’s anti-retaliation 

provision. The district court denied PCSSD’s motion, concluding that “genuine 

issues of fact” regarding Warren’s retaliation claim remained “in dispute.” At the 

close of Warren’s evidence at trial, PCCSD filed a motion for judgment as a matter 

of law, see Fed. R. Civ. P. 50(a), arguing that Warren’s report about substandard 

school facilities in a predominantly Black community was “not protected activity 

under Title VII” because such complaints concerned “student-based issues and the 

District’s compliance with” federal desegregation orders rather than an unlawful 

employment practice. The district court summarily denied that motion too, 
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explaining that “there [was] sufficient evidence in the [trial] record” for Warren’s 

retaliation claim “to go to the jury.”

These decisions indicate that the question of whether Warren’s complaints 

addressed only “student-based” issues or instead an “unlawful employment practice” 

that affected the conditions or privileges of employment was a factual one for the 

jury to decide. PCSSD, however, did not raise this as a disputed factual issue to the 

jury in closing argument. Moreover, the jury instructions for Warren’s retaliation 

claim simply asked jurors to find whether Warren “reported a disparity between the 

construction of Mills High School and Robinson Middle School to PCSSD, its 

lawyer, or the court”—an instruction that presupposed such conduct qualified as 

protected activity under Title VII. Yet PCSSD did not object.5

 See Riggs v. Gibbs, 

66 F.4th 716, 719 (8th Cir. 2023) (noting that “objections to jury instructions are 

waived, absent a showing of plain error” if a party does not object to the instructions 

at trial). Nor did it seek a special verdict asking the jury to specifically find whether 

Warren’s complaints about the inferior facilities at Mills related to an unlawful 

employment practice.

The evidence in this case was sufficient for a jury to make a reasonable 

inference that PCSSD’s discriminatory approach to the construction of facilities at a 

school in a predominantly Black community affected the conditions and privileges 

of employment for that school’s predominantly Black staff. “Judgment as a matter 

of law is appropriate only when the record contains no proof beyond speculation to 

support the verdict.” Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 462 

5

To the contrary, the instructions proffered by PCSSD would have asked the 

jury to find that Warren “complained about facility inequalities at Mills High School 

and that the facilities were being constructed in a discriminatory manner based on 

race,” and that she “reasonably believed that Mills High School students were being 

discriminated against on the basis of race.” These proposed instructions not only 

presuppose that complaints about disparate school facilities qualify as protected 

activity under Title VII, but also that complaints about racial discrimination towards 

students do as well, which directly contradicts the argument that PCSSD now 

advances on appeal. 
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(8th Cir. 2013) (cleaned up) (quoting Wilson v. Brinker Int’l, Inc., 382 F.3d 765, 

770 (8th Cir. 2004)). Because that is not the case here, I respectfully dissent.

______________________________