Knights v. Bank United of Texas

 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________ No. 98-20834 Summary Calendar _______________ GREGORY KNIGHTS, Plaintiff-Appellant, VERSUS BANK UNITED OF TEXAS FEDERAL SAVINGS BANK; DENNIS LAIRD; C.J. ANCIRA, Defendants-Appellees. _________________________ Appeal from the United States District Court for the Southern District of Texas (H-97-CV-0669) _________________________ August 13, 1999 Before JOLLY, SMITH, and WIENER, his position. In May 1992, United Savings Circuit Judges. (now called Bank United) appointed Knights manager of its Greens Road branch, where he JERRY E. SMITH, Circuit Judge:* worked until he was terminated in February 1996. He never received any disciplinary Gregory Knights appeals a judgment, measures or any other negative marks related following a jury verdict, denying him recovery to his employment before February 1996. in his race discrimination and retaliation Bank United terminated him, however, lawsuit against Bank United of Texas, Dennis following a specific incident. Laird, and C.J. Ancira (collectively “Bank United”). Finding no error, we affirm. A. On February 28, 1996, a substitute vault I. custodian at the Greens Road branch, Helen Knights, a black male, worked as a branch Jackson, told Knights that there was a $5,000 manager for San Jacinto Savings from 1988 to discrepancy in the vault balance recorded on 1991. After United Savings acquired San February 27. The vault balance on any given Jacinto Savings in 1991, Knights continued in day should equal the cash in the vault plus the cash delivered to the central vault. The February 27 “vault ticket,” however, showed that the vault teller on duty that day, Tami * Pursuant to 5TH CIR. R. 47.5, the court has Cruse, had placed $1,293 in a bag to ship to determined that this opinion should not be the central vault. According to Jackson, the published and is not precedent except under the February 27 vault ticket did not account for limited circumstances set forth in 5TH CIR. R. $5,000 in cash. 47.5.4. Knights called Cruse, who was off work on that she and Laird were willing to reconsider February 28, and asked how much money she their recommendation if Knights offered some had shipped to the central vault on explanation or information that they did not February 27. Cruse responded that she had know. Knights was not able to satisfy their shipped $6,293, including $5,000 in $100 bills concerns, however. In particular, Cruse’s and $1,293 in mutilated bills. Knights then telephone assurances did not provide sufficient tried to contact the central vault to have them verification to alter the vault ticket. confirm that the shipment contained $6,293. Unfortunately, the central vault had not yet Laird and Ancira offered Knights the option received the shipment and could not verify to resign or be terminated. Knights requested Cruse’s recollection. probation and asked that his good years of service be given consideration. Laird, Based on Cruse’s statement, Knights however, told Knights that Bank United no instructed Jackson to change the February 27 longer trusted him. Given the option of vault ticket to show that $6,293 had been termination or resignation, Knights tendered shipped. Knights signed the altered ticket as his resignation. “manager” and, with permission from Cruse, signed Cruse’s name on the space for “teller B. signature.” The next day, the central vault reported that the $6,293 had been properly accounted for and that there was no loss or discrepancy. Bank United’s area manager, Dennis Laird, directed Bank United’s head of corporate security to investigate. In a written report, the security officer concluded that Knights had “force balanced” the February 27 vault cash drawer. Force balancing occurs when someone manipulates or causes something to balance by adding or subtracting money. The report confirmed that there was no loss, no criminal intent, and no intent to falsify bank records to conceal a loss and that Knights understood the importance of not engaging in forced balancing. On request from Vickie Bargas, the human resources director, the operations department confirmed the security officer’s conclusion that Knights’s action constituted forced balancing. Based on this conclusion, Laird, Bargas, and Ancira (another senior human resources executive) recommended that Bank United terminate Knights’s employment. This recommendation was made to Ron Coben, Bank United’s regional manager, who held the ultimate authority to terminate. After making their recommendation, Laird and Ancira met with Knights to hear his account of the relevant events. Ancira testified 2 Knights sued Bank United, Laird, and Ancira in state court, alleging race A. discrimination and retaliation under title VII of Knights argues that the court should have the 1964 Civil Rights Act, 42 U.S.C. § 2000e, instructed the jury that, a matter of law, Bank et seq., race discrimination and retaliation United’s “resign or be terminated” demand is under the Texas Labor Code §§ 21.051 and a constructive discharge.1 The jury question 21.055; and state law causes of action for asked, “Do you find from a preponderance of slander, defamation, and intentional infliction the evidence that Bank United intentionally of emotional distress. Defendants removed to discriminated against Gregory Knights because federal court. of his race by discharging him from his Knights alleged that his termination was employment?” (Emphasis added.) Without an motivated by racial animus and discrimination. instruction explaining that being asked to He argued that the “forced balancing” incident resign or be terminated is equivalent to a was a pretext and, had he not been black, he discharge, Knights claims that the jury felt would have been allowed to keep his job. He obligated to side with Bank United if it pointed out that since Bank United took over mistakenly believed that Knights’s resignation United Savings in 1991, all the black branch was not the same as a discharge. We find no managers in the Houston area had left and had error. been replaced by whites. He argued that white employees and branch managers, who had been guilty of more serious infractions of bank 1 policy, had been permitted to keep their jobs. Bank United claims that Knights failed to He also asserted that Bank United terminated preserve this objection under FED. R. CIV. P. 51, because Knights did not supply a proposed written him in retaliation for his involvement in a race instruction and failed to obtain a ruling from the discrimination lawsuit against Bank United by court on Bank United's proposed instruction. another terminated black employee. Knights replies that he did submit a proposed written instruction on constructive discharge in the The court granted summary judgment to all joint pretrial order. Further, he explains that the defendants on Knights’s retaliation and state words “Defendant contest” in bold type on the law claims and to Laird and Ancira on submitted instruction signify that the defendants Knights’s race discrimination claims under objected to its admission. title VII, 42 U.S.C. § 1981, and the Texas Labor Code. It denied summary judgment on We agree with Knights that it is hard to see how race discrimination claims, however, for Bank United can claim ignorance of this proposed defendant Bank United. jury instruction on constructive discharge when it specifically objected to its admission. Further, Knights is also correct that the lack of a written The parties went to trial on the race instruction “is not necessarily fatal to appellate discrimination claims, with Bank United as the review . . . so long as the trial court was only defendant. The jury returned a sufficiently advised of this instruction request.” unanimous verdict for Bank United, and the 9 JAMES W. MOORE ET AL., MOORE’S FEDERAL district court entered a final judgment PRACTICE § 51.11[1][b] (3d ed. 1999); Bender v. dismissing the lawsuit against all of the Brumley, 1 F.3d 271, 276 (5th Cir. 1993) (“We defendants. recognize that error is preserved for appeal so long as the complaining party states his assertion to the II. trial court prior to the time when the court invites Knights claims the court committed on-the-record objections to the charge.”). reversible error (1) by refusing to instruct the Finally, we reject Bank United’s claim that jury that he was constructively discharged; (2) Knights failed obtain a ruling from the court to by refusing to admit evidence about other preserve its objection. The court did issue a ruling alleged racial discrimination at Bank United; at the charge conference when it stated, in response and (3) by granting summary judgment on his to Knights’s questioning, that there was no factual retaliation claims. We consider each in turn. dispute on whether a termination occurred. 3 1. Coben’s unequivocal testimony, Knights We give district courts wide latitude in testified that “they forced me out. I mean, it’s drafting jury instructions, and we ignore an ultimatum. That’s what it is. 'You resign technical imperfections. Bender, 1 F.3d or we’re going to fire you.' So, I got fired.” at 276. On the other hand, “at a minimum the court’s instructions must give the jury Bank United did not argue to the jury that adequate guidance to intelligently determine Knights had voluntarily resigned or that the the questions presented.” 9 JAMES W. MOORE jury should base its decision on whether he had ET AL., MOORE’S FEDERAL PRACTICE § voluntarily resigned. Therefore, Knights’s 51.10[1] (3d ed. 1999). We conduct a two- attack on the jury instruction falls far short of step inquiry when reviewing a jury instruction. creating the “substantial and ineradicable First, we consider whether the charge “as a doubt” necessary for reversal. whole leaves us with substantial and ineradicable doubt whether the jury has been B. properly guided in its deliberations.” Kyzar v. Knights proffered evidence of what he Vale Do Ri Doce Navegacai, S.A., 464 F.2d alleged was an atmosphere of discrimination 285, 290 (5th Cir. 1972). Then, even if we against blacks at Bank United. Specifically, he determine that an error has occurred, “[w]e offered evidence that Bank United adopted a will not reverse if we find, based upon the discriminatory policy toward its customers and record, that the challenged instruction could refused to change this policy despite not have affected the outcome of the case.” complaints by its employees. After Middleton v. Harris Press & Shear, Inc., 796 considering this proffered evidence in a F.2d 747, 749 (5th Cir. 1986) (internal hearing outside of the jury’s presence, the quotations omitted). court excluded Knights’s evidence under FED. R. EVID. 401 for lack of relevance and FED. R. 2. EVID. 403 for potential prejudice and The court refused to give an instruction on confusion. constructive discharge, because it found there was no dispute as to whether Knights was We afford district courts great latitude fired or whether he resigned. Ron Coben, the when determining the admissibility of Bank United official who held the evidence, and we review such decisions only decisionmaking authority for Knights’s for abuse of discretion. Kelly v. Boeing termination, testified that he decided to Petroleum Servs., Inc., 61 F.3d 350, 356 (5th terminate Knights. The court relied on Cir. 1995). Additionally, an evidentiary ruling Coben’s undisputed testimony to hold that will not be the basis for a reversal unless it is “there is not a disputed issue as to whether his erroneous and substantial prejudice results. decision to leave Bank United was voluntary Mooney v. Aramco Services Co., 54 F.3d or not.” 1207, 1220 (5th Cir. 1995). The party who offers the evidence has the burden of showing Knights points to a number of statements that substantial prejudice results from its and documents implying that he resigned exclusion. Id. voluntarily. For instance, at opening argument, Bank United’s counsel stated that Knights appeals the exclusion of his “Bank United had a valid non-discriminatory evidence that Bank United treated Nigerian reason for asking Mr. Knights to resign . . . .” customers differently from other classes of Other documents described how Knights was customers. According to testimony by given the opport unity to resign or be Knights and his colleague Helen Jackson, terminated. Bank United’s security chief Richard Carr announced separate procedures to screen We do not agree that these statements customers of Nigerian background when seriously misled the jury into believing that opening new accounts. Knights testified that Knights resigned voluntarily. In addition to he strongly disagreed with this policy, because 4 it treated Nigerians differently from other not offer any evidence that the screening customers. policy toward Nigerians was in actuality a policy designed to screen all customers of After considering evidence of this policy, as African descent. Therefore, the court was well as other proffered evidence of an correct when it excluded this evidence as atmosphere of discrimination, the court irrelevant concluding that the alleged screening excluded Knights’s evidence under rules 401 policy “is discrimination on the basis of and 403, explaining that (1) there was no national origin, [and not] discrimination on the evidence that the alleged Nigerian screening basis of race.” policy was a procedure of the decisionmaker who terminated Knights; and (2) the alleged Further, the court relied on its authority policy involved discrimination on the basis of under rule 403 to exclude even relevant national origin and is not the same kind of evidence if it has a tendency to confuse, discrimination alleged by Knights. mislead, inflame, or waste the time of the jury. The court conducted a balancing analysis In Kelly, this court faced a similar challenge between the weak probative value of evidence to a decision to exclude evidence about an of the alleged screening policy and the alleged atmosphere of discrimination. The confusion such evidence would cause by Kelly plaintiff sued his employer for creating a new line of inquiry in the trial. The discriminating on the basis of his disability and court reasoned that Bank United would have then offered evidence about his supervisor’s to explain its policies for dealing with fraud in insensitive actions against minority and opening new accounts and measures it used in disadvantaged groups as well as against the dealing with such problems to defend itself disabled. The district court excluded in limine against Knights’s allegations. We find these any evidence about discrimination against non- considerations persuasive, and we therefore disabled minority groups, and we affirmed. refuse to see the district court’s alternative basis for exclusion under rule 403 as an abuse Unlike cases in which the proffered of discretion. evidence related to the same kind of discrimination and in which bigoted Finally, even if we assumed, arguendo, that superiors directly made or participated the evidence was relevant and that its in the employment decisions complained probative value was not substanti ally of, the court’s ruling regarding outweighed by its potential for unfair anecdotal incidents of unrelated kinds of prejudice, Knights has not shown how the prejudice cannot be labeled an abuse of exclusion of this evidence affected his discretion when considered within the substantial rights. The evidence strongly framework of this case. supported the jury’s finding that Knights was terminated as a result of the “forced balancing” Kelly, 61 F.3d at 358. We find this reasoning incident. Knights’s proffered evidence would equally applicable in this case.2 Knights did have focused the jury’s attention on statements by Carr, a non-decisionmaker, regarding a request that did not involve employment 2 decisions, and that at best showed a different Knights directs our attention to Polanco v. kind of discrimination. Unlike evidence that City of Austin, 78 F.3d 968, 969 (5th Cir. 1996), Bank United would have disciplined a non- for the proposition that evidence of a hostile atmosphere is probative in termination cases. We black employee differently for the same errors do not disagree with this general statement but reject its applicability to this case. Polanco involved a review of the sufficiency of the evidence (...continued) for a jury determination and not a trial court’s hostile atmosphere in Polanco involved the same evidentiary ruling. Additionally, the evidence of a group (Hispanics) alleging discriminatory (continued...) employment treatment. 5 committed by Knights, the proffered evidence evidence that Coben, the ul timate could not overcome the substantial evidence decisionmaker on Knights's employment, knew that Bank United terminated Knights for a of Knights's involvement in the Spearman suit. legitimate, non-discriminatory reason. In fact, Coben swore in his affidavit that he did not have any such knowledge. C. Knights attacks the summary judgment for Second, the court reasoned that even if, as Bank United on his claim of retaliation. Knight claims, circumstantial evidence showed Specifically, he argues that he raised a factual that Laird and Ancira knew of Knights's issue sufficient to defeat summary judgment on involvement in the suit, this evidence alone whether Bank United terminated him because cannot create a fact issue on whether Knights's of his participation in an unrelated race name appearing in the suit was causally linked discrimination lawsuit (“the Spearman to his termination. lawsuit”) against the bank. Knights is correct when he argues that 1. Cobden's lack of knowledge about Knights's When a district court grants summary protected activity does not resolve the issue of judgment, we review the determination whether there was a causal connection. This de novo, employing the same standards as did court will not require a direct causal the district court. See Urbano v. Continental connection between termination and the Airlines, Inc., 138 F.3d 204, 205 (5th Cir.), decisionmaker in a discrimination lawsuit cert. denied, 119 S.Ct. 509 (1998). Summary where the decisionmaker follows a judgment is appropriate when, viewing the recommendation by someone who does have evidence in the light most favorable to the a causal connection.3 nonmoving party, the record reflects that no genuine issue of material fact exists, and the Knights is less persuasive, however, when moving party is entitled to judgment as a he argues that as long as he can show that matter of law. See Celotex Corp. v. Catrett, Laird and Ancira probably had knowledge of 477 U.S. 317, 322-24 (1986); see also FED. R. his involvement in the Spearman lawsuit, he CIV. P. 56(c). has raised a fact issue as to whether racial animus played a role in their recommendation to terminate him. To establish a genuine fact 2. issue necessary to avoid summary judgment on To establish a prima facie case of unlawful this causal link, it is true that Knights “need retaliation, Knights had to establish that (1) he not prove that [his] protected activity was the engaged in activity prot ected by title VII, sole factor motivating the employer's (2) an adverse employment action occurred, challenged decision . . . .” Long, 8 F.3d at 305 and (3) a causal link existed between the n.4. Still, this court has required more than protected activity and the adverse action. mere knowledge of protected activity on the Long v. Eastfield College, 88 F.3d 300, 304 part of supervisors to find a fact issue. (5th Cir. 1996). The district court assumed that Knights's name appearing in the Spearman lawsuit is a protected activity and that his termination was an adverse employment 3 action. To survive summary judgment, See Equal Employment Opportunity Comm'n however, Knights also had to raise a fact issue v. Manville Sales Corp., 27 F.3d 1089, 1092 (5th Cir. 1994) (admitting evidence of supervisor's as to a causal connection between his discriminatory remarks even though supervisor did involvement in the Spearman lawsuit and his not make employment decision); Long, 88 F.3d termination. at 307 (remanding summary judgment when employees established causal link between The court based its summary judgment on protected activity and immediate supervisors' two grounds. First, it observed that there is no recommendations for termination). 6 In Long, the court found that plaintiffs asserting a title VII retaliation claim had raised a fact issue on the causal link between their protected activities and their terminations when (1) the plaintiffs had filed complaints directly against their supervisors; (2) the supervisors had knowledge of these complaints; and (3) t he supervisors recommended terminating the plaintiffs after learning of the complaints. Id. at 306. Knights, however, has provided only weak circumstantial evidence that Laird and Ancira knew that his name had been listed in the Spearman lawsuit. He provides no evidence that they knew that he had taken any action to aid Spearman. In fact, Knights did not take, and never did take, any action that aided the Spearman lawsuit. Therefore, while it is possible Laird and Ancira knew that Knights had been named in the Spearman lawsuit as a possible witness, there is no evidence that they had any knowledge that he had participated in any meaningful way in the suit. In Long, the plaintiffs offered affidavits swearing that action was taken against them immediately after they filed their complaints. In contrast, Knights has offered no timeline or evidence establishing that Laird or Ancira acted as a result of his involvement in the Spearman lawsuit. It is certainly true that Knights need not establish that his minimal participation in the Spearman lawsuit was the “but-for” factor motivating his termination. See Long, 88 F.3d at 305 n.4. Knights, however, has failed to raise provide even a “scintilla” of evidence that Laird and Ancira knew of his involvement or that they acted in any way as a result of his being named in the suit. Mere knowledge of possible protected activity is not enough to raise a fact issue on the necessary causal link for a retaliation claim. AFFIRMED. 7