IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-31061
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KATHY JEAN FORD,
Plaintiff-Appellant,
versus
HORSESHOE ENTERTAINMENT,
doing business as Horseshoe Casino & Hotel,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Louisiana
USDC No. 5:98-CV-676
_________________________________________________________________
November 28, 2001
Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:1
Kathy Jean-Ford is an African-American woman. She began
working for Horseshoe Entertainment in June 1994 as a clerk in the
gift shop. On March 4, 1996 she was transferred to the human
resources department. Horseshoe fired her on April 9, 1997. She
brought suit against Horseshoe under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, 42 U.S.C. § 1981, and Louisiana’s
employment discrimination statute. Ford’s claims were based on
1
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
alleged unequal pay, failure to promote and wrongful discharge.
The district judge dismissed Ford’s § 1981 claims for failure to
promote and unequal pay on statute of limitations grounds. A jury
found in favor of Ford on her unequal pay claim, but in favor of
Horseshoe on Ford’s wrongful discharge and failure to promote
claims. The district judge then granted Horseshoe’s motion for
judgment as a matter of law on the unequal pay claim, overturning
the jury’s verdict, and denied Ford’s motion for judgment as a
matter of law on the wrongful discharge and failure to promote
claims. Ford timely appealed. We reverse the grant of judgment as
a matter of law on Ford’s unequal pay claim and reinstate the
jury’s verdict. We affirm the district court’s rulings in all
other respects.
I
We first address the district court’s grant of judgment as a
matter of law to Horseshoe on Ford’s unequal pay claim. This court
reviews judgments as a matter of law de novo. Conkling v. Turner,
18 F.3d 1285, 1300 (5th Cir. 1994). A district court’s grant of
judgment as a matter of law will survive review “only if ‘the facts
and inferences point so strongly and overwhelmingly in favor of one
party that [this Court] believes that reasonable men could not
arrive at a contrary verdict.’” Arleth v. Freeport-McMoran Oil &
Gas Co., 2 F.3d 630, 636 (5th Cir. 1993), quoting Boeing Co. v.
Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). Whether
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judgment as a matter of law is appropriate depends on a number of
factors, including the “strength of the plaintiff’s prima facie
case, the probative value of the proof that the employer’s
explanation is false, and any other evidence that supports the
employer’s case and that properly may be considered on a motion for
judgment as a matter of law.” Reeves v. Sanderson Plumbing
Products, 530 U.S. 133, 148-49 (2000). “[A] prima facie case and
sufficient evidence to reject the employer’s explanation may permit
a finding of liability,” and the plaintiff need “[not] always
introduce additional, independent evidence of discrimination.” Id.
at 149.
The facts in this case were disputed. Ford contended that
Horseshoe policy was that an employee receive a pay raise after
ninety days in a new department at Horseshoe. On the other hand,
Horseshoe claimed that employees were eligible to receive a pay
raise after ninety days at Horseshoe, not after transfer to a new
department, and noted that Ford had already been working at
Horseshoe for over a year in a different department. Ford
presented evidence of two Caucasian employees in human resources
who received pay raises after ninety days in the department.
Horseshoe presented evidence that Ford had a write-up in her file
from December 1996 due to her unsatisfactory performance, but Ford
claimed she was unaware of this write-up. Horseshoe also pointed
to two other write-ups that Ford received shortly before her
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discharge for improperly processing employment applications.
Horseshoe alleged that its policy was to not give pay raises to
employees who were performing unsatisfactorily.
Although Ford’s evidence may be disputed, we believe that the
jury’s verdict is supported by sufficient evidence. The facts in
this case do not point so overwhelmingly in favor of Horseshoe that
judgment as a matter of law in Horseshoe’s favor is appropriate.
We therefore reverse the grant of judgment as a matter of law in
Horseshoe’s favor, and reinstate the jury’s verdict.
II
The district judge instructed the jury that in order for Ford
to prevail on her failure to promote claim, she had to establish
that she applied for the position (i.e., the newly created tax
credit representative position). Ford objected to this instruction
because the position was never posted, and argues that because the
position was not posted and she was not informed of its
availability, the district court erred in overruling her objection.
This court has stated that “[i]t is not legally sufficient or
legitimate for an employer to reject an employee who does not have
notice or an opportunity to apply for a promotion.” Bernard v.
Gulf Oil Corp., 841 F.2d 547, 580 (5th Cir. 1988). This court has
also found that an employer’s promotion and transfer policies as
applied can violate Title VII when “[h]ourly employees are not
notified of promotion opportunities nor are they notified of the
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qualifications necessary to get jobs.” Rowe v. General Motors
Corp., 457 F.2d 348, 358-59 (5th Cir. 1972). Although the district
court did err by instructing the jury that Ford had to show that
she applied for the position to prevail on her failure to promote
claim, this error was harmless. Horseshoe presented sufficient
evidence for the jury to find that Horseshoe’s stated legitimate,
non-discriminatory reasons for not promoting Horseshoe were true
and were not pretext. Even if the jury had been instructed that
Ford need not have applied for the position to prevail on her
failure to promote claim, it would not have had an effect on the
verdict.
III
Ford also contends that the district court erred in refusing
to expand the exhibit list to include a report by the Illinois
Gaming Commission which contained a letter in which Horseshoe’s
attorney asserted that Horseshoe “brutally treat[ed] African
Americans.” The district court entered a pretrial order on January
24, 2000 that the exhibit list could not be expanded. Ford’s
attorney admitted that he had received a copy of the report on
January 12, 2000, but he did not file a motion to expand the
exhibit list to include the report until April 14, 2000. This
motion was referred to a magistrate judge, and he denied it on
April 24. Ford did not appeal the magistrate judge’s order to the
district court. Therefore, we do not have jurisdiction to consider
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Ford’s contention. See FED. R. CIV. P. 72(a); Unida v. Levi Strauss
& Co., 986 F.2d 970, 976 n.4 (5th Cir. 1993) (declining to address
challenge to magistrate judge’s evidentiary ruling where appellant
did not appeal magistrate judge’s ruling to district court).
IV
At the close of Ford’s case, Horseshoe moved for judgment as
a matter of law against her on all claims. The district court
granted the motion only as to Ford’s claim for punitive damages.
Under Title VII, a plaintiff has a right to an award of punitive
damages if the employer “engaged in unlawful intentional
discrimination,” 42 U.S.C. § 1981a(a)(1), and if she “demonstrates
that the respondent engaged in a discriminatory practice or
discriminatory practices with malice or with reckless indifference
to the federally protected rights of an aggrieved individual.” 42
U.S.C. § 1981a(b)(1). In Kolstad v. American Dental Association,
the Supreme Court held that in order to discriminate “with malice
or with reckless disregard” to federally protected rights, “an
employer must at least discriminate in the face of a perceived risk
that its actions will violate federal law.” 527 U.S. 526, 536
(1999).
Horseshoe does not argue that Ford failed to present
sufficient evidence of the “malice or reckless disregard” standard,
but that Ford failed to provide sufficient evidence that punitive
damages liability for the acts of Horseshoe’s managerial agents are
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imputable to Horseshoe. Under Kolstad, when an employer is an
entity rather than an individual, if “an employer has undertaken .
. . good faith efforts [to comply with Title VII,] it demonstrates
that it never acted in reckless disregard of federally protected
rights.” Id. at 544 (citation omitted). Ford’s punitive damages
claim is based on her allegation that Horseshoe went too far in its
good-faith plan to seek minority applicants and to replace
departing African-Americans with new African-American employees, in
that this forced supervisors to become race-conscious and
engendered resentment. Ford never offered any support for this
argument, however. Horseshoe did present evidence of its good
faith efforts to comply with Title VII, including legal seminars,
compliance with state and federal employment laws, and efforts to
include minorities and women in every job classification. In the
light of Ford’s lack of evidence on this issue, we hold that it was
proper for the district court to grant Horseshoe’s motion for
judgment as a matter of law on Ford’s punitive damages claim.2
V
For the foregoing reasons, we REVERSE the district court’s
grant of judgment as a matter of law to Horseshoe on Ford’s unequal
pay claims and reinstate the jury’s verdict. We AFFIRM the
district court’s judgment in all other respects.
2
We have considered Ford’s other arguments on appeal and have
found them to be without merit.
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REVERSED IN PART AND AFFIRMED IN PART.3
3
Judge Garza concurs, with the single exception that, based on
evidence before the jury and the plaintiff’s final argument, he
would award only $501.02 in damages.
8