No. 08-11115.
United
States Court of Appeals, Fifth Circuit.
Filed: March 24, 2010.
Before:
REAVLEY, JOLLY, and WIENER, Circuit Judges.
REAVLEY, Circuit Judge.[
1 ]

In the published opinion, we explain the reasons for our
judgment affirming the trial court’s judgment except for vacating the
award of punitive damages. Here we explain the holding that the evidence
was sufficient to support Smith’s claim of retaliation.

To
establish a retaliation claim under Title VII, a plaintiff must prove
that (1) she engaged in protected activity, (2) she suffered an adverse
employment action, and (3) there is a causal link between the protected
activity and the adverse employment action.[ 2 ] We are concerned only
with the third element in this case. Xerox argues that the jury could
not have found on the evidence presented either that Smith’s EEOC
complaint was a motivating factor for its decision to terminate her, or
that Xerox would not have terminated Smith even absent an improper
consideration of the EEOC charge. Xerox moved for judgment as a matter
of law (JMOL) at the conclusion of the evidence, but the district court
denied the motion.

We review the denial of a JMOL motion de novo.
Bryant v. Compass Group USA, Inc.[ 3 ] A JMOL is warranted when “a
party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.”[ 4 ] We consider
“all of the evidence from the record, draw all reasonable inferences in
favor of the nonmoving party, and may not make credibility
determinations or weigh the evidence.” E. Tex. Med. Ctr. Reg’l
Healthcare Sys. v. Lexington Ins. Co.[ 5 ] We must disregard all
evidence favorable to the moving party that the jury is not required to
believe. Reeves v. Sanderson Plumbing Prods., Inc.[ 6 ]

Xerox
argues that we must limit our inquiry to evidence of events occurring
after Smith filed her EEOC charge in November 2005. We disagree.
Although events following the EEOC complaint may be the most relevant to
the retaliation charge, Smith’s allegations cannot be parsed and
considered in a vacuum. Instead, all the evidence relevant to Smith’s
employment and interaction with Jankowski provides background and
context for the later termination decision and may be considered if the
jury could have drawn from it any inferences supporting its verdict.
Viewed in this light, we think the evidence in toto, even if not
overwhelming, was sufficient to support the retaliation claim.

Viewed
in the light most favorable to Smith, the evidence showed that Smith
excelled in her position in 2003. During that year she achieved well
over 100% of her plan numbers and was rewarded by Xerox with the
President’s Club award, which goes only to the top eight performing
employees in the nation. In 2004, Smith’s performance declined, but she
still achieved approximately 90% of her plan, and Smith’s manager
commended her for doing a good job. Then after Jankowski took over and
there were significant changes to Smith’s territory and the number of
agents that she supported, Smith struggled to make her plan numbers, and
she had a difficult relationship with Jankowski. The evidence suggests
that the relationship was strained from the start when Smith missed a
meeting Jankowski scheduled for a Sunday at the beginning of the year
prior to a national kickoff meeting in Virginia. Smith was unable to
travel from Texas to Virginia in time for the meeting, and Smith
believed Jankowski resented her for that.

Smith testified that
Jankowski ignored her in conference calls, gave her no feedback,
counseling, or coaching, and failed to openly discuss her performance
expectations beyond the need to simply “make plan.” According to Smith,
this situation persisted before she was placed in the Performance
Improvement Process even though Xerox’s written policies called for an
ongoing dialogue between employees and managers. Smith insisted that she
was never asked for input about performance expectations and was simply
told to “make plan.” Smith’s characterization of Jankowski’s management
style was supported by other evidence showing that Jankowski disliked
his employees asking questions. Other employees testified that Jankowski
was results- and process-oriented and could be a “hard ass.” One fellow
employee, Cindy Fowler, testified that Jankowski’s style was that he
ran the show and he insisted that employees do things his way, often
dismissing the ideas of others. She testified that Jankowski’s
management style was especially “intense” when dealing with women. She
had heard it said of Jankowski that he did not work well with female
employees, and she admitted that she may have also made that complaint.

One
incident showing the relationship between Smith and Jankowski is
particularly telling of an animus by Jankowski. One of Jankowski’s
concerns about Smith’s performance was her handling of the so-called
“Low Hanging Fruit” procedure, which concerned the facilitation of sales
to existing customers. The warning letter that Jankowski issued to
Smith specifically pointed out his concern. Smith presented testimony
from Steven Webster, a sales manager for one of the Xerox agents, who
said that Smith did what she was supposed to do with respect to low
hanging fruit. Bonnie Dooley, another Xerox agent that Smith supported,
testified that Smith’s level of support was “very good” and that she put
a lot of effort into the low hanging fruit procedure. But more
important, in response to Jankowski’s criticism about her handling of
low hanging fruit, Smith sent an e-mail to some of her co-workers asking
for their help and information on how they handled the procedure. After
Jankowski found out about Smith’s request, he sent an e-mail message to
those employees but apparently copied Smith by mistake. Jankowski then
used a procedure to electronically re-call the e-mail so that it could
not be viewed by the recipients. However, Smith was able to capture part
of the message, which supports a conclusion that Jankowski instructed
the other employees not to assist Smith.[ 7 ]

Against this
backdrop, we turn to the letters Jankowski issued Smith placing her on a
90-day warning period and then on a 60-day probationary period. Both
letters informing Smith of these actions were detailed in their
descriptions of Smith’s deficiencies, including her failure to meet her
plan numbers. There was significant dispute at trial as to whether the
letters accurately stated any deficiencies other than Smith’s falling
below her plan numbers, or whether Jankowski provided the level of
support and assistance he promised to give to help Smith improve. What
was not disputed, however, was that Xerox’s policies generally state
that counseling and coaching of employees should occur prior to the
issuance of formal warning letters, yet Xerox offered no documentation
supporting Jankowski’s claim that he did counsel Smith before placing
her on probation. Joe Villa agreed that Xerox policies for the
disciplinary process contemplate a great deal of additional
documentation prior to issuance of a letter placing an employee in the
Performance Improvement Process, but that such additional documentation
was absent in Smith’s case.[ 8 ]

Smith filed her EEOC complaint
alleging discrimination on November 17, 2005. She immediately notified
Jankowski about the complaint that same day. Smith’s personnel file,
which was produced and paginated by Xerox as part of this litigation,
shows a fax cover sheet dated November 29, 2005, immediately preceding
the written request for Smith’s termination. Smith argues that this
document shows Xerox began the termination process only days after the
EEOC charge. Xerox argues that there are two identical copies of the
November 29, 2005 fax cover sheet in Smith’s file. It contends that the
copy preceding the termination request was simply an additional copy
that was placed out of order in the file. It also contends that the
termination request shows that it was made in January 2006 after Smith’s
probation ended.

The exact nature of the fax transmittal form is
unclear because of several inconsistencies on the face of the document
and in the record. Xerox is correct that the first page of the
termination form is stamped as received on January 4, 2006. The form is
dated as signed by Villa on that date and by Jankowski on January 3,
2006. The bottom of the last page of the form contains fax transmittal
information showing a fax date of January 4, 2006. This transmittal
information is missing from the bottom of the first page of the form,
however, leaving one to wonder how or when the first page was
transmitted. Xerox is incorrect that the two fax cover sheets that are
dated on November 29, 2005, are identical, as a close inspection reveals
otherwise.[ 9 ] We are unable to conclude whether the November 29, 2005
fax cover sheet transmitted the termination request. We are able to
say, however, that the two cover sheets were written at different times
with the same date, and the exhibit confusion is left for the jury to
resolve. See Boeing Co. v. Shipman.[ 10 ]

Within a matter of only
weeks from Smith’s EEOC charge, Jankowski issued a letter of concern to
Smith for allegedly making false claims on two expense reports. Smith
claimed reimbursement for a car wash of a company vehicle, even though
the receipt turned out to be for her personal vehicle, and she claimed
reimbursement for mileage driven for company purposes even though she
had also taken a vacation day for that date. The evidence, again viewed
in the light most favorable to Smith, was that this letter could support
a charge of expense account fraud, a serious accusation that could be
reported to corporate security. As it turned out, Smith had a reasonable
explanation for the claimed expenses. The car wash was apparently a
simple mistake, and the mileage request was arguably compensable.[ 11 ]
However, rather than seek Smith’s explanation for the expenses,
Jankowski issued the letter of concern chastising Smith for her actions.

Most
damaging to Xerox with respect to this letter was the testimony of Joe
Villa, the human resources manager. Villa testified that before
Jankowski issued such a letter of concern he should have spoken to Smith
to obtain her explanation and he should have sought the participation
of the human resources department. Villa agreed on direct examination
that Jankowski did not do so. Smith also presented Villa’s deposition
testimony about the letter of concern, in which he agreed that if
Jankwoski issued the letter without speaking to Smith it would look like
Jankowski was lashing out or retaliating against Smith. Villa’s
testimony was tantamount to an admission of retaliation.[ 12 ]

Xerox
argues that the letter of concern is irrelevant because Smith did not
claim in her EEOC complaint that it was an adverse employment action. It
also contends that the letter is similar to a memorandum that we found
insufficient to show pretext in Bryant.[ 13 ] We disagree. In Bryant a
memorandum merely memorialized past transgressions by the employee, and
we concluded that there simply was no evidence linking the memorandum or
the past transgressions with the employee’s termination.[ 14 ] Here,
the letter of concern, sent without prior discussion with Smith,
involved new allegations of wrongdoing, one of which Smith conceded to
be a simple mistake over receipts (the carwash) and the other of which
was arguably not error by Smith (the miles). In light of Villa’s
testimony, the jury was not required to accept that this letter was just
a simple memorialization of inaccuracies in an expense report.
Following so closely on the heels of Smith’s EEOC complaint, the letter
was certainly probative of Jankwoski’s attitude toward Smith and
provided further context for Jankowski’s decision to seek Smith’s
termination. Cf. Burlington N. & Santa Fe Ry. Co. v. White.[ 15 ]

Relying
on Clark County School District v. Breeden,[ 16 ] Xerox argues that we
can draw no inference of causation between Smith’s EEOC complaint and
her subsequent termination because Smith had been placed on probation
months before the termination and it was not required to cancel or
freeze disciplinary proceedings. In Clark County, the plaintiff was
transferred to a new position only one month after filing a lawsuit, and
her retaliation claim relied solely on this temporal proximity. The
evidence showed, however, that plaintiff’s transfer was contemplated by
the manager before he knew about the suit. The Supreme Court held that
employers “need not suspend previously planned transfers upon
discovering that a Title VII suit has been filed, and their proceeding
along lines previously contemplated, though not yet definitively
determined, is no evidence whatever of causality.”[ 17 ] Under Clark
County, Xerox is correct that it need not have ceased its disciplinary
procedures upon learning of Smith’s EEOC complaint. But Smith’s
placement in the disciplinary process prior to her EEOC complaint, while
certainly relevant, is not the only consideration. If it were, we could
easily conclude from this circumstance alone that Smith’s retaliation
claim fails. However, the existence of a causal link between protected
activity and an adverse employment action is a “highly fact specific”
and difficult question. Nowlin v. Resolution Trust Corp.[ 18 ] We have
previously said that indicia of causation may be seen in factors such
as: (1) the employee’s past disciplinary record, (2) whether the
employer followed its typical policy and procedures in terminating the
employee, and (3) the temporal proximity between the employee’s conduct
and termination.[ 19 ] Smith, unlike the plaintiff in Clark County, has
not presented evidence only of temporal proximity. Smith was a
long-tenured employee with no disciplinary history prior to 2005 who was
subjected not only to termination shortly following the EEOC complaint
but also to suspicious new charges of wrongdoing for arguably minor
incidents following that complaint. Cf. Shirley v. Chrysler First, Inc.[
20 ]

We think the evidence was sufficient for the jury to
conclude that Jankowski’s animus toward Smith boiled over due to the
filing of the EEOC complaint, which provided a motivating factor for the
termination. In sum, Jankowski failed to follow Xerox policies as far
as documentation prior to placing Smith in the disciplinary process; the
termination process itself was set in motion by the transmittal of the
termination request within days of the EEOC charge even though Smith was
supposed to be on probation for 60 days; a subsequent letter of concern
followed closely after the EEOC charge and leveled new and potentially
serious accusations for incidents that were arguably minor and easily
explained; and Villa admitted that the letter of concern was suspicious
and indicative of retaliatory motivation.