IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20707 Summary Calendar
SHARON SPILLER,
Plaintiff-Appellant,
versus WAL-MART STORES, INC.,
Defendant-Appellee.
______________________________________
Appeal from the United States District Court for the Southern District of Texas (8H-99-CV-631) ______________________________________ November 21, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Sharon Spiller (“Spiller”) appeals the district court’s grant of judgment as a matter of law in
favor of Wal-Mart Stores, Inc. (“Wal-Mart”) on her Title VII retaliation and punitive damages claims.
Spiller also appeals the jury’s verdict for Wal-Mart on her discrimination claim. For the following
reasons, we affirm.
* Pursuant to CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstance set forth in 5th CIR. R. 47.5.4. FACTUAL AND PROCEDURAL HISTORY
This case involves an employment discrimination lawsuit arising out of Spiller’s employment
with Wal-Mart. On March 8, 1993, Joe Munoz (“Munoz”), a Wal-Mart pharmacy district manager,
hired Spiller, a black female, as a staff pharmacist. In November 1994, Spiller exhibited difficulties
with correct ly filling prescriptions and, as a result received, a coaching for prescription misfills.
Shortly thereafter, Spiller sought a manager position that had recently become vacant. However, the
position was filled by Gary Barnhill (“Barnhill”), a white male who had been employed with Wal-Mart
for a longer period of time than Spiller and who was previously a pharmacy manager. Thereafter,
Spiller was passed over for numerous manager positions because the other candidates were more
qualified, according to Wal-Mart.1 Finally, in February 1998, Munoz offered Spiller a manager
position. Spiller submitted a letter to Munoz, which contained demands she wanted fulfilled before
she would accept the position. The demands included: (1) a pay raise, (2) a weekly work schedule
of 9:00 a.m. to 6:00 p.m., (3) all weekends off, and (4) an extra week of vacation. Munoz did not
accept these demands and Spiller turned down the position.
In 1997, Spiller submitted a charge of discrimination to the Equal Employment Opportunity
Commission (“EEOC”). On May 30, 1998, Spiller received a “Notice of Right to Sue” letter from
the EEOC. On June 22, 1998, Spiller filed a lawsuit against Wal-Mart in federal district court alleging
violations of Title VII, 42 U.S.C. § 1981, and the Texas Commission of Human Rights Act. Spiller
also asserted a claim of intentional infliction of emotional distress. Spiller sought, among other
remedies, a promotion and punitive damages. At the close of Spiller’s case, the district court granted
Wal-Mart’s motion for judgment as a matter of law on the Title VII and punitive damages issues.
1 All of the candidates selected for the manager positions were non-African-American.
2 The jury found that Spiller failed to prove discrimination and entered judgment for Wal-Mart. This
appeal followed.
STANDARD OF REVIEW
We review a district court's evidentiary rulings for abuse of discretion. Celestine v. Petroleos
de Venezuella S.A., 266 F.3d 343, 349 (5th Cir. 2001).
DISCUSSION
Spiller filled a pro se brief raising the following issues: (1) whether the district court abused
its discretion in failing to allow the jury to consider her retaliation claim, (2) whether the district court
abused its discretion by failing to submit the issue of punitive damages to the jury, (3) whether the
district court’s error deprived Spiller of her right to due process, and (4) whether a rational factfinder
could have made a contrary decision if presented with a proper jury charge based on the excluded
evidence. We address each of Spiller’s contentions below.
I. Retaliation
To demonstrate a claim for retaliation in a race discrimination case, the plaintiff must prove
(1) that she engaged in a protected activity; (2) an adverse employment action occurred; and (3) there
is a causal connection between the participation in the activity and the adverse employment action.
Webb v. Cardiothroacic Surgery Ass’n, 139 F.3d 532, 540 (5th Cir. 1998).
The district court properly held Spiller’s retaliation claim was of no merit. “Title VII was
designed to address ultimate employment decisions, not to address every decision made by employers
that arguably might have some tangential effect upon those ultimate decisions.” Dollis v. Rubin, 77
F.3d 777, 781 (5th Cir. 1995). This court has found that ultimate employment decisions include acts
such as hiring, discharging, and promoting. Mattern v. Eastern Kodak Co., 104 F.3d 702, 707 (5th
3 Cir. 1997). Here, the only adverse employment action that Spiller can possibly assert is that she was
not promoted to manager. The district court correctly found that Spiller had not articulated a viable
cause of action for retaliation because she filed her lawsuit after she received the offer for a
promotion and turned down the offer after the lawsuit was filed. We agree with the district court that
Spiller has not presented sufficient evidence to support a retaliation claim, and therefore, affirm the
district court’s decision on this issue.
II. Punitive Damages
Spiller also argues that the district court erred in failing to submit the issue of punitive
damages to the jury. To recover punitive damages under Title VII or § 1981, a plaintiff must prove
that the adverse party acted with malice or reckless indifference. Kolstad v. Am. Dental Ass'n, 527
U.S. 526, 535-36 (1999). When determining whether punitive damages are appropriate, the district
court should evaluate "the nature of the conduct in question, the wisdom of some form of pecuniary
punishment, and the advisability of a deterrent.” Jones v. Western Geophysical Co., 761 F.2d 1158,
1162 (5th Cir. 1985). Here, the district court properly considered all o f the evidence, in the light
most favorable to Spiller, and concluded that there was insufficient evidence to base a claim for
punitive damages. Spiller maintains that the record clearly reflects discrimination on the bases of
race. We disagree. After reviewing the record, we are unable to find any evidence that Wal-Mart
discriminated against Spiller. Thus, the district court properly granted judgment as a matter of law
to Wal-Mart on this issue.
III. Due Process
Spiller contends that her due process rights were violated because the district court failed to
submit all of the issues pled in her complaint to the jury. A district court may not grant judgment
4 as a matter of law “unless a party has been fully heard on an issue and there is no legally sufficient
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20707 Summary Calendar
SHARON SPILLER,
Plaintiff-Appellant,
versus WAL-MART STORES, INC.,
Defendant-Appellee.
______________________________________
Appeal from the United States District Court for the Southern District of Texas (8H-99-CV-631) ______________________________________ November 21, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Sharon Spiller (“Spiller”) appeals the district court’s grant of judgment as a matter of law in
favor of Wal-Mart Stores, Inc. (“Wal-Mart”) on her Title VII retaliation and punitive damages claims.
Spiller also appeals the jury’s verdict for Wal-Mart on her discrimination claim. For the following
reasons, we affirm.
* Pursuant to CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstance set forth in 5th CIR. R. 47.5.4. FACTUAL AND PROCEDURAL HISTORY
This case involves an employment discrimination lawsuit arising out of Spiller’s employment
with Wal-Mart. On March 8, 1993, Joe Munoz (“Munoz”), a Wal-Mart pharmacy district manager,
hired Spiller, a black female, as a staff pharmacist. In November 1994, Spiller exhibited difficulties
with correct ly filling prescriptions and, as a result received, a coaching for prescription misfills.
Shortly thereafter, Spiller sought a manager position that had recently become vacant. However, the
position was filled by Gary Barnhill (“Barnhill”), a white male who had been employed with Wal-Mart
for a longer period of time than Spiller and who was previously a pharmacy manager. Thereafter,
Spiller was passed over for numerous manager positions because the other candidates were more
qualified, according to Wal-Mart.1 Finally, in February 1998, Munoz offered Spiller a manager
position. Spiller submitted a letter to Munoz, which contained demands she wanted fulfilled before
she would accept the position. The demands included: (1) a pay raise, (2) a weekly work schedule
of 9:00 a.m. to 6:00 p.m., (3) all weekends off, and (4) an extra week of vacation. Munoz did not
accept these demands and Spiller turned down the position.
In 1997, Spiller submitted a charge of discrimination to the Equal Employment Opportunity
Commission (“EEOC”). On May 30, 1998, Spiller received a “Notice of Right to Sue” letter from
the EEOC. On June 22, 1998, Spiller filed a lawsuit against Wal-Mart in federal district court alleging
violations of Title VII, 42 U.S.C. § 1981, and the Texas Commission of Human Rights Act. Spiller
also asserted a claim of intentional infliction of emotional distress. Spiller sought, among other
remedies, a promotion and punitive damages. At the close of Spiller’s case, the district court granted
Wal-Mart’s motion for judgment as a matter of law on the Title VII and punitive damages issues.
1 All of the candidates selected for the manager positions were non-African-American.
2 The jury found that Spiller failed to prove discrimination and entered judgment for Wal-Mart. This
appeal followed.
STANDARD OF REVIEW
We review a district court's evidentiary rulings for abuse of discretion. Celestine v. Petroleos
de Venezuella S.A., 266 F.3d 343, 349 (5th Cir. 2001).
DISCUSSION
Spiller filled a pro se brief raising the following issues: (1) whether the district court abused
its discretion in failing to allow the jury to consider her retaliation claim, (2) whether the district court
abused its discretion by failing to submit the issue of punitive damages to the jury, (3) whether the
district court’s error deprived Spiller of her right to due process, and (4) whether a rational factfinder
could have made a contrary decision if presented with a proper jury charge based on the excluded
evidence. We address each of Spiller’s contentions below.
I. Retaliation
To demonstrate a claim for retaliation in a race discrimination case, the plaintiff must prove
(1) that she engaged in a protected activity; (2) an adverse employment action occurred; and (3) there
is a causal connection between the participation in the activity and the adverse employment action.
Webb v. Cardiothroacic Surgery Ass’n, 139 F.3d 532, 540 (5th Cir. 1998).
The district court properly held Spiller’s retaliation claim was of no merit. “Title VII was
designed to address ultimate employment decisions, not to address every decision made by employers
that arguably might have some tangential effect upon those ultimate decisions.” Dollis v. Rubin, 77
F.3d 777, 781 (5th Cir. 1995). This court has found that ultimate employment decisions include acts
such as hiring, discharging, and promoting. Mattern v. Eastern Kodak Co., 104 F.3d 702, 707 (5th
3 Cir. 1997). Here, the only adverse employment action that Spiller can possibly assert is that she was
not promoted to manager. The district court correctly found that Spiller had not articulated a viable
cause of action for retaliation because she filed her lawsuit after she received the offer for a
promotion and turned down the offer after the lawsuit was filed. We agree with the district court that
Spiller has not presented sufficient evidence to support a retaliation claim, and therefore, affirm the
district court’s decision on this issue.
II. Punitive Damages
Spiller also argues that the district court erred in failing to submit the issue of punitive
damages to the jury. To recover punitive damages under Title VII or § 1981, a plaintiff must prove
that the adverse party acted with malice or reckless indifference. Kolstad v. Am. Dental Ass'n, 527
U.S. 526, 535-36 (1999). When determining whether punitive damages are appropriate, the district
court should evaluate "the nature of the conduct in question, the wisdom of some form of pecuniary
punishment, and the advisability of a deterrent.” Jones v. Western Geophysical Co., 761 F.2d 1158,
1162 (5th Cir. 1985). Here, the district court properly considered all o f the evidence, in the light
most favorable to Spiller, and concluded that there was insufficient evidence to base a claim for
punitive damages. Spiller maintains that the record clearly reflects discrimination on the bases of
race. We disagree. After reviewing the record, we are unable to find any evidence that Wal-Mart
discriminated against Spiller. Thus, the district court properly granted judgment as a matter of law
to Wal-Mart on this issue.
III. Due Process
Spiller contends that her due process rights were violated because the district court failed to
submit all of the issues pled in her complaint to the jury. A district court may not grant judgment
4 as a matter of law “unless a party has been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue.” Fitzgerald v.Weasler
Eng’g Inc., 258 F.3d 326, 337 (5th Cir. 2001). In the instant case, Wal-Mart moved for judgment
as a matter of law after Spiller rested. Thus, Spiller was fully heard on both the retaliation and the
punitive damages issues. For the reasons stated previously, the district court correctly found that
based on the evidence, a reasonable jury could not have rendered a verdict in Spiller’s favor.
Accordingly, we find that the district court did not violate Spiller’s due process rights in not
submitting these issues to the jury.
IV. Sufficiency of the Evidence
Rule 28(a) of the Federal Rules of Appellate Procedure lists the information that must be
contained within an appellant’s brief. This rule states that an appellant’s brief must provide an
argument section, which contains “appellant's contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant relies.” FED. R. APP. P. 28(a)(9)(A).
Regarding issue four, Spiller simply argues that “the [district court] judge erroneously
excluded all of the witnesses from [Spiller’s] case in chief.” Spiller does not elaborate on how the
exclusion was erroneous and does not provide any authority to support her position. Therefore, we
find that because Spiller has failed to sufficiently argue this issue, it is waived. Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993). "Although we liberally construe the briefs of pro se appellants, we
also require that arguments must be briefed to be preserved." Id. (citing Price v. Digital Equip. Corp.,
846 F.2d 1026, 1028 (5th Cir.1988)).
CONCLUSION
For the reasons stated above, we AFFIRM.
5 AFFIRM.