Natt v. Wal-Mart Stores Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 9, 1999
• Docket: 98-20071
• Status: Unpublished

Opinion

1 UNITED STATES COURT OF APPEALS 2 FOR THE FIFTH CIRCUIT 3 _______________ 4 5 m 98-20071 _______________

Angela NATT, Plaintiff-Appellee, VERSUS

WAL-MART STORES, INC., Defendant-Appellant. _________________________

Appeal from the United States District Court for the Southern District of Texas (CA-H-94-3848) _________________________

November 9, 1999

Before GARWOOD, SMITH, and error, we AFFIRM. BENAVIDES, Circuit Judges. I. JERRY E. SMITH, Circuit Judge:* Wal-Mart hired Natt in 1988 as an invoice clerk in the automotive department of its Wal-Mart Stores, Inc. (“Wal-Mart”), Beechnut store in Houston, Texas. In early appeals a judgment entered on a jury verdict 1991, Wal-Mart promoted her to merchandise awarding damages for race and sex assistant, which involved some management discrimination and retaliation under title VII.1 responsibilities, including ordering products It seeks reversal on three grounds. First, it and paperwork. In 1992, Natt expressed to alleges that plaintiff Angela Natt exercised her her district manager, Terry Nagle, her interest peremptory challenges improperly to exclude in going into management, and in May 1993, jurors on the basis of sex. Second, it requests Nagle recommended her for management a new trial on grounds of newly discovered training. She completed the program evidence and unfair surprise at trial. Finally, it successfully and, in August, accepted a claims the district court applied the wrong management position over the tire, lube, and legal standards for determining mental anguish express department at Wal-Mart’s store in and punitive damages. Finding no reversible Texas City, Texas.

Wal-Mart terminated Natt on * Pursuant to 5TH CIR. R. 47.5, the court has November 19, 1993. According to Nagle, determined that this opinion should not be Natt had allowed non-authorized personnel published and is not precedent except under the access to cash register keys in violation of limited circumstances set forth in 5TH CIR. Wal-Mart’s key control policy. Natt alleged R. 47.5.4. that these claims were concocted as a way to discriminate and retaliate against her. 1 42 U.S.C. § 2000e et seq. In addition to her termination, Natt alleged their race or sex.2 When counsel objects that several instances of discrimination during her a peremptory strike has been exercised for tenure with Wal-Mart. In May 1991, she impermissible reasons, the trial court must overheard a district manager, Norman Rose, undertake a three-step inquiry. make a highly offensive racial remark. She reported it, and Rose was disciplined. First, the opponent of the peremptory Afterwards, some Wal-Mart associates called challenge must make a prima facie case of her a “black bitch,” and in November 1993, race or sex discrimination. Then, the burden someone placed a “black monkey doll” on the of production shifts to the strike proponent to security camera in her work area at the Texas present a race- or sex-neutral explanation. If City store. one is tendered, the court must then decide whether the asserted explanation is pretextual Additionally, Natt alleges, WalMart delayed and the strike was motivated in fact by promoting her into the management training improper purposes. See Purkett v. Elem, program because of her sex; her proof was 514 U.S. 765, 767 (1995); Hernandez v. New that Nagle warned her that a manager’s long York, 500 U.S. 352, 358-59 (1991). hours would be hard on a woman. Furthermore, Natt complained that, during her management training, other managers treated her like an outcast and thereby interfered with her training.

Natt requested a management assignment at a new Wal-Mart location in the Houston area that had yet to be built, but instead was assigned to Texas City. Her car allegedly was vandalized by Wal-Mart employees. Finally, she alleged that, while she was on a two-week leave of absence shortly before her termination, merchandise in her department was over-ordered and stacked up in the stock room to make it appear as though she was a poor manager.

A jury found in favor of Natt and awarded compensatory and punitive damages. The court entered judgment after reducing the jury verdict to comply with the statutory caps, see 42 U.S.C. § 1981a(b)(3)(D), and awarding attorney’s fees.

II. Under the Supreme Court’s jurisprudence in Batson and its progeny, the equal protection component of the Due Process Clause of the Fifth Amendment prohibits litigants from 2 See Batson v. Kentucky, 476 U.S. 79 (1986) exercising peremptory challenges to exclude (barring use of race to exclude jurors by potential jurors from jury service because of prosecutor); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (extending Batson to private litigants in civil trials); J.E.B. v. Alabama, 511 U.S. 127 (1994) (extending Batson to juror exclusion on basis of sex).

2 Only intentional discrimination is court that Natt would have kept a female oil prohibited,3 and the burden to prove improper and gas workerSSand having failed to motivation rests with the opponent of the demonstrate clear error by that strike. See Purkett, 514 U.S. at 768. Whether courtSSWal-Mart alternatively asserts that, counsel has asserted a race- and sex-neutral because the objection was premised solely on justification is a credibility determination for a sex-related criterion, counsel did not state a the court and is thus reviewed on appeal only sex-neutral justification and thus could not for clear error. See Hernandez, 500 U.S. at survive step two of Batson. Moreover, Wal- 364-65. Mart seeks de novo review, rather than review for clear error, on the ground that the district Wal-Mart objected to three of Natt’s court misapplied the Batson three-step inquiry peremptory strikes. The district court when it found Natt’s sex-related grounds committed no error in allowing Natt to strike sex-neutral and shifted the burden to Wal- Jurors 8 and 10 (both male) on the ground that Mart to prove pretext.5 they were in management and therefore might be biased against claims made by any We reject Wal-Mart’s contention that employee. Natt’s stated ground for striking Juror 11 was insufficient to satisfy Batson step two. The A bit more attention is required to dispose presence of merely sex-related considerations of Wal-Mart’s objection to striking Juror 11 does not transform a valid peremptory strike (male). Natt justified eliminating him on the into a Batson offense. Counsel offends equal ground that anyoneSSmale or femaleSSwho protection only if the juror was excluded works in the male-dominated oil and gas because he is a member of a protected class. industry would be biased against a claim of sex Juror 11 may have been eliminated on grounds discrimination.4 Having failed to convince the of sex-related considerations but not on grounds of his sex, and only the former is prohibited under Batson. 3 Though disparate impact may be used to infer intent to discriminate, see Hernandez, 500 U.S. at 362; Washington v. Davis, 426 U.S. 229, 242 (1976), Wal-Mart has made no such claim here. 4 The colloquy regarding Juror 11 was as follows: MR. KRENEK [Wal-Mart’s attorney]: We were concerned about Juror Number 11, he was in the oil and gas industry, petrochemical industry, and based upon that we had concerns about his ability to judge fairly claims brought by a female in what was an oil and gas man-dominated intensified field. (...continued) THE COURT: She’s not in the oil and gas THE COURT: I can’t say that these are industry, the plaintiff is not in the oil and untrue reasons or that they’re improper gas industry. reasons, Mr. Wrotenbery. 5 MR. KRENEK No, she’s not, your Honor, See United States v. Huey, 76 F.3d 638, 641 but because of the gender profile for the oil (5th Cir. 1996) (finding reversible error where and gas industry we had concerns about “district court failed to discharge its clear duty that. either to elicit a race-neutral explanation for the peremptory challenges or to deny the use of those (continued...) challenges”).

3 We also reject quickly the claim that the inconsistent answers regarding her marital final makeup of the jurySSall womenSSeither status. Pre-trial, she swore she was unmarried. evinces or constitutes in and of itself a Batson At trial, Natt claimed her marriage had failed violation. This outcome was driven in large because of Wal-Mart. part by the fact that the first seven venire members, and eight of the first nine, were After trial, Wal-Mart determined that Natt women. Moreover, Wal-Mart has no right to was not married; Natt now explains that hers a jury consisting of a fair cross-section of the was o nly a common law marriage. This community; it may demand only that the jury discovery is relevant not only for impeachment selection process not be tainted by improper purposes, but also perhaps to diminish Natt’s exclusionary motives.6 claim for damages. But the fact that her marriage was at common law was not unfair Therefore, the court committed no clear surprise, for her deposition put Wal-Mart on error in allowing Natt to eliminate Jurors 8, notice that she had been counseled through her 10, and 11 (all male), even though doing so marital difficulties by Reverend Robert meant an all-female jury would decide the Jefferson. case. The court accepted Natt’s sex-neutral (though sex-related) justifications as sincere, It was up to Wal-Mart to determine and we see no cause for disturbing the court’s whether it had an argument in response based credibility determination on appeal.7 on the nature of Natt’s marital relationship. For the same reasons, presenting Jefferson as III. a witness at trial was also not unfair surprise. Although it presents a number of factual Moreover, that Natt’s marriage was allegations not made at trial but that might recognized only at common law is a fact have been helpful to its case, Wal-Mart fails to unlikely to have affected the outcome of trial. show why it is entitled to a new trial on these grounds. To determine whether newly Natt also provided an incomplete history of discovered evidence warrants a new trial, a her employment after leaving Wal-Mart. district court should consider whether the Specifically, she did not disclose that, after her evidence (1) would probably have changed the employment with Wal-Mart, she was not only outcome of the trial; (2) could have been hired but then also discharged by the Houston discovered earlier with due diligence; and (3) Public Library for cause, the reasons for which is merely cumulative or impeaching. Diaz v. included a criminal conviction for assaulting Methodist Hosp., 46 F.3d 492, 495 (5th Cir. her supervisor. Such evidence was of course 1995). The refusal to grant a new trial is useful for impeachment, but of little help to the reviewed for abuse of discretion. Lancaster v. issue of mitigation of damages; after all, Natt Presley, 35 F.3d 229, 231 (5th Cir. 1994). already had admitted to having a transitory employment record, well-established even Wal-Mart claims that Natt provided absent the library termination. And in any case, this information was within Wal-Mart’s grasp, for Natt had revealed in a timely fashion 6 that she had worked at the library. See Batson, 476 U.S. at 85-86; Strauder v. West Virginia, 100 U.S. 303, 305 (1880). Natt also alleged racial discrimination 7 against the library and included in her Pursuant to FED. R. APP. P. 28(j), Natt allegations a remarkably similar accusation that supplements her defense to Wal-Mart’s Batson challenge by claiming that, as a corporation, Wal- her car was vandalized for discriminatory Mart “cannot claim to be a member of the reasons. This goes only to her credibility, constitutionally protected class alleged excluded however, and again was discoverable with due from the jury, i.e., males. We do not reach this diligence. issue, because we find no improper motive underlying the peremptory strikes. Wal-Mart argues that, taken as a whole, all 4 the newly discovered evidence substantially with Title VII.” Id. at 2129. Here, however, affected its ability to impeach Natt’s Natt’s allegation that Wal-Mart failed to credibility. We may or may not agree, but in correct its managers’ race- and any case, it does not rise to an abuse of sex-discriminatory conduct was sufficient to discretion for the court to have held Wal-Mart, negate such a defense. Therefore, the award rather than Natt, accountable for failing to of mental anguish and punitive damages was present the trier of fact with all the facts, for not an abuse of discretion. due diligence might have provided Wal-Mart the simplest remedy. It was also not an abuse AFFIRMED. of discretion for the court, on presentation of the newly discovered evidence, to reverse its reinstatement ruling while denying Wal-Mart’s broader motion for a new trial.

IV. Wal-Mart claims the district court improperly assessed mental anguish and punitive damages. Mental anguish damages are reviewed for abuse of discretion. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046 (5th Cir. 1998). The testimony of a plaintiff alone may in some cases be sufficient to justify such compensation. Id. at 1046-47; Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 809 (5th Cir. 1996). In any case, Natt’s own testimony, combined with the corroborating testimony of Reverend Jefferson, was sufficient to support monetary recovery for mental anguish.

We review punitive damages only for abuse of discretion. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 942 (5th Cir. 1996). After the parties filed briefs in this case, the Supreme Court made clear that a title VII plaintiff need not prove egregious conduct by the employer to win punitive damages. See Kolstad v. American Dental Ass’n, 119 S. Ct. 2118, 2126 (1999). Rather, punitive damages are available against any employer who intentionally “discriminates in the face of a perceived risk that its actions will violate federal law.” Id. at 2125. Only a good faith belief that its conduct is legal will protect an employer from exemplary damages. Id.

Wal-Mart may have denied the fact of its alleged misconduct, but it did not deny its illegality. It is true that an employer will not be vicariously liable for the intentional conduct of its agents if that misconduct is “contrary to the employer’s good-faith efforts to comply 5