Smith v. Xerox Corp.

Case: 08-11115 Document: 00511061083 Page: 1 Date Filed: 03/24/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 24, 2010

No. 08-11115 Charles R. Fulbruge III
Clerk

KIM Y SMITH,

Plaintiff-Appellee
v.

XEROX CORP,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas

Before REAVLEY, JOLLY, and WIENER, Circuit Judges.
REAVLEY, Circuit Judge:
Xerox Corporation appeals following a jury verdict in favor of its former
employee, Kim Smith, finding that Xerox terminated Smith in retaliation for her
filing a complaint with the Equal Employment Opportunity Commission
(EEOC), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e-3(a). Xerox challenges the jury instructions on a mixed-motive
theory of causation, as well as the sufficiency of the evidence. We conclude that
the district court instructed the jury on the proper causation standard and that
the evidence was sufficient for the jury to assess liability but that the evidence
was insufficient to support an award of punitive damages. We therefore
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AFFIRM the district court’s judgment except to vacate the award of punitive damages.
I.
Kim Y. Smith was employed by Xerox Corporation for approximately 22
years before she was terminated in January 2006. During the time relevant to
this case, she worked as an Office Solutions Specialist (OSS), responsible for
supporting Xerox dealers, or “agents,” who placed and serviced copying
equipment in North Texas. For the majority of her employment, Smith received
positive evaluations. By all accounts she was a very good employee who only two
years before her termination was named to Xerox’s prestigious President’s Club,
an annual award that is bestowed on only the top eight performing employees
in the country.
In January 2005 Steve Jankowski took over as manager of Xerox’s Central
Region, which included the territory assigned to Smith. At the same time, the
sales territories within Smith’s region were realigned. As a result, Smith’s
territory and the number of agents that she supported were reduced. The
reduction was significant to Smith because the ability of a Xerox OSS to meet
sales goals is dependent in part on the number of agents with whom she works.
Smith and Jankowski clashed from the beginning over the size of Smith’s
territory and subsequent problems that Smith had in meeting her sales goals.
Smith alleged in her complaint that upon becoming her manager
Jankowski immediately began making negative employment decisions about her
based on Smith’s gender and age. She contended that while the size of her sales
territory was decreased, the size of her sales goals, or “plan,” was not adjusted
accordingly. She alleged that when she complained about these changes,
Jankowski gave her no support or guidance and instead simply insisted that she
“make plan.” But Smith was unable to meet the goals set for her. She
attributed her failure to the unreasonableness of the sales goals, which she
believed were not similarly required of other younger or male co-workers.

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By March 2005, Jankowski indicated to Smith that she was behind in her
goals and that he was concerned about Smith “making plan.” In June 2005
Jankowski sent Smith a formal warning letter, which outlined various
deficiencies in Smith’s performance and placed her on a 90-day warning period.
The letter indicated that Smith was currently at only 63% of her revenue goals
and that she was “below expectations” in several areas. Jankowski later revised
the letter to correct certain errors therein and re-started the warning period.
The 90-day period was the first step in Xerox’s Performance Improvement
Process (PIP) and was set to end on October 25, 2005. Smith refused to sign the
warning letter because she believed it was inaccurate. Instead, she sought a
meeting with Jankowski’s supervisor, Jack Thompson, and also complained to
a Xerox human resources manager, Joe Villa, all to no avail.
On October 27, 2005, at the conclusion of Smith’s warning period,
Jankowski placed Smith on a 60-day probationary term, which was to expire on
December 28, 2005. Jankowski’s letter to Smith informing her of the probation
stated in part that Smith had met approximately only 70% of her revenue plan
and had also failed in other performance areas. The letter warned Smith that
failure to meet a satisfactory performance level, including making up her entire
year’s shortfall and meeting 100% of her revenue plan, could result in
termination of employment at the conclusion of the probationary period, or
sooner if there were no evidence of improvement in the early stages of the period.
On November 4, 2005, Smith responded in writing to Jankowski’s letter.
She agreed that she was not at her plan goals but disagreed with Jankowski’s
assessment of other performance areas. She contended that the goals set for her
did not reflect the “real world sales environment,” including the decrease in her
territory, and that she was not being treated the same as other employees or
given the same amount of time usually offered when someone misses her sales
numbers. Smith asked Jankowski to reconsider the length of her time on

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probation. Jankowski indicated on November 8, 2005, that he did not believe he
was treating Smith differently from any other employee on the team and that he
would not reconsider his position on the length of Smith’s probation.
On November 17, 2005, Smith notified Jankowski that she had filed a
discrimination charge against Xerox with the EEOC. Smith charged in her
EEOC complaint that Jankowski had placed her in the Performance
Improvement Process with the intention of terminating her employment and
that he had done so based on her age, gender, and race. Smith’s letter advised
Jankowski of the law’s prohibition of an employer taking action against an
employee in retaliation for filing such charges.
Smith was terminated in January 2006 at the conclusion of her
probationary period, at which point she had achieved approximately 74% of her
revenue goals. Smith contends, however, that Jankwoski actually began the
termination process much sooner, only days after she filed her EEOC charge,
thereby truncating the probationary period in a way contrary to Xerox’s
established policies and procedures. For example, the record contains an
involuntary termination request form seeking Smith’s termination that appears
to follow a fax cover sheet to the human resources department dated November
29, 2005, only seven business days after Smith filed her EEOC complaint.1
On December 8, 2005, Jankowski sent Smith a written warning in the
form of a “letter of concern,” contending that Smith had submitted two
inaccurate expense reports in October and November. The letter of concern
accused Smith of submitting a reimbursement request for driving 161 business
miles on a day she was actually on vacation and of improperly requesting a $54

1
Xerox objected at trial, and continues to argue on appeal, that the fax cover sheet
concerned a different document and was apparently placed erroneously in Smith’s personnel
file immediately before the termination request. We discuss Xerox’s argument in greater
detail later, but note that the jury was not required to believe Xerox’s explanation of the
document.

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reimbursement for a car wash for her personal vehicle. Smith withdrew the
claim for the car wash reimbursement, stating that although she had washed
both her personal and company vehicles on the same day, she could not find the
receipt for the company vehicle and had mistakenly included the receipt for her
personal vehicle when she submitted the expense report. She also explained
that although she was on vacation on the day for which she requested mileage
reimbursement, she had also visited a customer and attended a company
sponsored conference, and she believed the miles should be considered business
miles. Joe Villa testified about the letter of concern that it would violate
company policy if Jankowski had sent it before speaking to Smith to get her
explanation. When asked if the letter appeared to be evidence of someone
lashing out or retaliating against Smith, Villa agreed that the letter was
suspicious.
Smith’s 60-day probationary period, during which she was expected to
meet 100% of her revenue plan, officially ended on December 28, 2005. The
involuntary termination request form, which appeared to follow the fax cover
sheet dated November 29, 2005, bears a date for Jankowski’s signature of
January 3, 2006. Villa purportedly signed the document on January 4, 2006.
Smith testified that revenue numbers typically are not available, however, until
five to ten working days following the conclusion of the month. Xerox submitted
Smith’s revenue numbers to the EEOC on a form compiled on January 7, 2006,
three days after Villa signed Smith’s termination form. Smith was informed of
her termination on January 13, 2006, while her EEOC charge was still pending.
She subsequently filed a retaliation charge with the EEOC.
The EEOC issued a right-to-sue letter, and Smith filed the instant lawsuit,
alleging that Xerox discriminated against her based on her gender and age and
then retaliated against her for filing her EEOC charges, in violation of Title VII.
The case proceeded to trial by jury. Over Xerox’s objection, the district court

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concluded that the case had been tried as a mixed-motive retaliation case and
instructed the jury on a mixed-motive theory of causation. Xerox argued that
the proper instruction should have required Smith to prove but-for causation,
but the district court disagreed.
The jury returned a verdict in favor of Xerox on the discrimination charge,
finding that Xerox had not discriminated against Smith on the basis of either
gender or age. On the retaliation claim, however, the jury found for Smith. It
concluded in a special interrogatory that Smith proved her EEOC charge was a
motivating factor in Xerox’s termination decision. It then found that Xerox
failed to show it would have made the same termination decision even if it had
not considered Smith’s EEOC charge. The jury awarded Smith $67,500 in
compensatory damages and $250,000 in exemplary damages. The district court
also awarded Smith her attorneys’ fees. Xerox moved for judgment as a matter
of law, but the court denied the motion.
II.
Xerox argues that the district court erroneously instructed the jury on the
burden of proof by allowing it to find for Smith on her retaliation claim with only
“motivating factor” rather than “but-for” causation, thereby improperly shifting
the ultimate burden of persuasion to Xerox. In reviewing the jury charge we ask
whether the jury charge properly stated the applicable law and, if not, whether
the challenged instruction affected the outcome of the case. Johnson v. Sawyer.2
Statutory framework of Title VII and burden shifting
In order to determine whether the district court gave a proper instruction
on the law, we must review what the law is in a Title VII retaliation case. Our

2
120 F.3d 1307, 1315 (5th Cir. 1997).

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task is complicated by the Supreme Court’s recent decision in Gross v. FBL
Financial Services, Inc.,3 to which we turn after examining the law up until now.
Title VII prohibits both discrimination 4 and retaliation 5 “because” of
protected factors. In Price Waterhouse v. Hopkins, the Supreme Court
established in the context of a Title VII discrimination case that a plaintiff could
show that discrimination was “because of” an impermissible factor by showing
that factor to be a “motivating” or “substantial” factor in the employer’s

3
129 S. Ct. 2343 (2009).
4
Title VII provides in relevant part:

It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment
in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, religion, sex, or national
origin.

42 U.S.C. § 2000e-2(a).

5
The statute provides:

It shall be an unlawful employment practice for an employer to discriminate
against any of his employees or applicants for employment, for an employment
agency, or joint labor-management committee controlling apprenticeship or
other training or retraining, including on-the-job training programs, to
discriminate against any individual, or for a labor organization to discriminate
against any member thereof or applicant for membership, because he has
opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under this
subchapter.

42 U.S.C. § 2000e-3(a).

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decision.6 Once the plaintiff made this showing, the Court said, the burden of
persuasion would shift to the defendant, who could avoid liability by showing
from a preponderance of evidence that it would have taken the same
employment action even without consideration of the prohibited factor.7
The Court’s “motivating factor” approach differed from the usual burden-
shifting framework of McDonnell Douglas Corp. v. Green,8 which requires the
plaintiff, after making a prima facie case followed by the employer’s articulation
of a nondiscriminatory reason for its action, to show that the employer’s stated
reason is a mere pretext.9 Whereas pretext cases involve discernment of the
true reason for the employer’s action, which is either legal or illegal, motivating
factor cases applying the Price Waterhouse test involve employment decisions
based on multiple factors, or mixed motives, at least one of which was
illegitimate and prohibited by statute and one of which may have been
legitimate.10
In 1991, Congress amended Title VII partially in response to Price
Waterhouse.11 It explicitly codified the holding that a Title VII discrimination
plaintiff could show an unlawful employment practice by demonstrating that a

6
Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S. Ct. 1775, 1795 (1989) (plurality
opinion); id. at 259–60, 109 S. Ct. at 1795 (White J., concurring); id. at 276–77, 109 S. Ct. at
1804 (O’Connor, J., concurring).
7
Id.
8
411 U.S. 792, 93 S. Ct. 1817 (1973).
9
See, e.g., McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007). In a
retaliation case, a prima facie case is shown if the plaintiff establishes that “(1) he participated
in an activity protected by Title VII; (2) his employer took an adverse employment action
against him; and (3) a causal connection exists between the protected activity and the adverse
employment action.” Id. at 557.
10
See Price Waterhouse, 490 U.S. at 260, 109 S. Ct. at 1796 (White, J., concurring)
(citing NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 400 n.5, 103 S. Ct. 2469, 2473 n.5 (1983)).
11
See Pub. L. No. 102-166, 105 Stat. 1071, 1075–76 (1991).

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prohibited factor was a “motivating factor” in the employment decision.12 But
it also limited the remedy if the employer shows that it would have taken the
same action without the prohibited factor.13
We have previously held that the allocation of the burden of proof in a
Title VII retaliation case depends on the nature of the plaintiff’s evidence.
Fierros v. Tex. Dep’t of Health.14 We said that if the plaintiff attempts to
establish causation by circumstantial evidence, the burden shifting approach of
McDonnell Douglas applies and the plaintiff must prove “but-for” causation.15

12
Congress achieved this end by adding 42 U.S.C. § 2000e-2(m), which provides:

Except as otherwise provided in this subchapter, an unlawful employment
practice is established when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated the practice.

13
In this regard, 42 U.S.C. § 2000e-5(g) provides in relevant part:

On a claim in which an individual proves a violation under section 2000e-2(m)
of this title and a respondent demonstrates that the respondent would have
taken the same action in the absence of the impermissible motivating factor, the
court--

(i) may grant declaratory relief, injunctive relief (except as provided in clause
(ii)), and attorney’s fees and costs demonstrated to be directly attributable only
to the pursuit of a claim under section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order requiring any admission,
reinstatement, hiring, promotion, or payment, described in subparagraph (A).

§ 2000e-5(g)(2)(B). Although Price Waterhouse permitted a complete defense by the employer
upon showing that the employer would have taken the same employment action without
considering the improper factor, § 2000e-5(g) restricted this defense by providing a limited
remedy to plaintiffs. See Garcia v. City of Houston, 201 F.3d 672, 676 (5th Cir. 2000) (“If an
employer can demonstrate that it would have taken the same action in the absence of the
impermissible motivating factor, the plaintiff’s relief is limited to injunctive and declaratory
relief, costs, and attorneys’ fees.”).
14
274 F.3d 187, 191 (5th Cir. 2001).
15
Id.

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If the plaintiff presents direct evidence of retaliation, however, the Price
Waterhouse mixed-motive approach applies, and the plaintiff may, by showing
a motivating factor, shift to the employer the burden of establishing that it
would have made the same decision without that factor.16
The Supreme Court dispelled the notion that direct evidence was required
to obtain a mixed-motive jury instruction in a Title VII discrimination case when
it decided Desert Palace, Inc. v. Costa.17 In Desert Palace, the Court concluded
that Congress’s addition of § 2000e-2(m) allowing for a motivating factor test in
a discrimination case, and its failure in that section to require a heightened
burden of proof, left little doubt that there was no special evidentiary showing
required in a Title VII discrimination case.18
Xerox argued in the district court that Desert Palace is inapplicable to a
Title VII retaliation case, and that the district court should not give a mixed-
motive instruction because Smith did not present direct evidence in support of
her claims. Xerox repeats this argument in its appellate brief. Before
addressing Xerox’s argument, however, we must first consider the Supreme
Court’s decision in Gross, which was decided after briefing but before oral
argument in this case, and determine whether the mixed-motive framework is
still applicable to Title VII retaliation cases.
Mixed-motive framework in Title VII retaliation cases
In Gross v. FBL Financial Services., Inc., the Supreme Court granted
certiorari to decide whether direct evidence of age discrimination is necessary
to obtain a mixed-motive jury instruction in a case brought under the Age

16
Id. at 192; see also Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.
2003).
17
539 U.S. 90, 92, 123 S. Ct. 2148, 2150 (2003).
18
Id. at 98–99, 123 S. Ct. at 2153–54.

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Discrimination in Employment Act (ADEA).19 The Court did not answer that
question, however, because it held that the kind of mixed-motive jury instruction
proper under Price Waterhouse in a Title VII case was never proper in an ADEA
discrimination case. Its reasoning was based on the text of the statute and a
comparison of Congress’s approach to Title VII and the ADEA.
First, the Court reasoned that the text of the ADEA differed from the text
of Title VII; unlike § 2000e-2(m) in Title VII, Congress did not authorize
motivating factor claims in the ADEA.20 Second, the Court noted that when
Congress amended Title VII in 1991 adding § 2000e-2(m), it had also amended
the ADEA in several ways yet chose not to include a similar motivating factor
provision.21 The Court presumed that Congress acted intentionally by omitting
motivating factor in age discrimination cases.22 The Court concluded, therefore,
that a plaintiff in an ADEA case “retains the burden of persuasion to establish
that age was the ‘but-for’ cause of the employer’s adverse action.”23
We recognize that the Gross reasoning could be applied in a similar
manner to the instant case. The text of § 2000e-2(m) states only that a plaintiff
proves an unlawful employment practice by showing that “race, color, religion,
sex, or national origin was a motivating factor.” 24 It does not state that
retaliation may be shown to be a motivating factor. Moreover, although
Congress amended Title VII to add § 2000e-2(m) in 1991, it did not include

19
129 S. Ct. at 2346.
20
Id. at 2349.
21
Id.
22
Id. (“When Congress amends one statutory provision but not another, it is presumed
to have acted intentionally.”).
23
Id. at 2351.
24
42 U.S.C. § 2000e-2(m).

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retaliation in that provision. These considerations are, of course, similar to the
Supreme Court’s reasoning in Gross, and Xerox understandably urged at oral
argument that Gross dictates the same conclusion here, i.e., a Title VII
retaliation plaintiff, like an ADEA discrimination plaintiff, may not obtain a
motivating factor jury instruction and must instead prove that retaliation was
the but-for cause for the adverse employment action. We believe, however, that
such a simplified application of Gross is incorrect.25
To state the obvious, Gross is an ADEA case, not a Title VII case. The
Gross Court cautioned that when conducting statutory interpretation, courts
“must be careful not to apply rules applicable under one statute to a different
statute without careful and critical examination.” 26 The Court’s comparison of
Title VII with the ADEA, and the textual differences between those two
statutory schemes, led it to conclude that Title VII decisions like Price
Waterhouse and Desert Palace did not govern its interpretation of the ADEA.27
But we are concerned with construing Title VII, albeit in the retaliation context,
so those decisions, along with our own precedent recognizing the application of
mixed-motive analysis in Title VII retaliation cases, are not unimportant.28

25
But see Fairley v. Andrews, 578 F.3d 518, 525–26 (7th Cir. 2009) (characterizing
Gross as holding that unless a statute provides otherwise a plaintiff must demonstrate but-for
causation “in all suits under federal law”), petition for cert. filed 78 U.S.L.W. 3375 (U.S. Dec.
21, 2009) (No. 09-745).
26
Gross, 129 S. Ct. at 2349 (internal quotation marks and citation omitted).
27
Id. at 2349 & n.2.
28
The dissent characterizes as “lame” our distinction between age discrimination cases
under the ADEA and retaliation cases under Title VII. See Dissenting op. at 2. If Gross
teaches anything, however, it is that Title VII and the ADEA are distinct statutory schemes.
As even the Supreme Court found cases under the Title VII regime inapplicable to its
consideration of the ADEA, we think our distinction is hardly the equivalent of the difference
between a red car and green car in a traffic accident. See id. The dissent also contends that
the Seventh Circuit has twice explained, in Fairley and Serwatka v. Rockwell Automation, Inc.,
591 F.3d 957, 961–62 (7th Cir. 2010), that a plaintiff must prove but-for causation in all suits
under federal law absent a contrary statutory provision. Dissenting op. at 2. We recognize

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In other words, the decision before us is how to proceed in light of Price
Waterhouse, which specifically provided that the “because of” language in the
context of Title VII authorized the mixed-motive framework, and Gross, which
decided that the same language in the context of the ADEA meant “but-for,” but
also refused to incorporate its prior Title VII decisions as part of the analysis.
We believe that under these circumstances, the Price Waterhouse holding
remains our guiding light. Although the dissent would extend Gross into the
Title VII context, we think that would be contrary to Gross’s admonition against
intermingling interpretations of the two statutory schemes.29
It is not our place, as an inferior court, to renounce Price Waterhouse as no
longer relevant to mixed-motive retaliation cases, as that prerogative remains
always with the Supreme Court. See Rodriguez de Quijas v. Shearson/American
Express, Inc.30 The Supreme Court recognized that Title VII and the ADEA are

that the Seventh Circuit has taken a broad view of Gross, but in both Serwatka, 591 F.3d at
958, and a Title VII retaliation case cited therein, McNutt v. Bd. of Trs. of the Univ. of Ill., 141
F.3d 706, 707 (7th Cir. 1998), the court was confronted with the effect of the remedy provision
of the 1991 amendments to the Civil Rights Act, § 2000e-5(g)(2)(B), when the jury found that
an improper factor was a motivating reason for the employment decision but that the
defendant employer had proven its affirmative defense. As we explain below, irrespective of
the remedies available under the 1991 amendments under those circumstances, we feel bound
by Price Waterhouse on the issue whether in a Title VII retaliation case the motivating factor
framework may be submitted to the jury in the first place.
29
See Gross, 129 S. Ct. at 2349 & n.2.
30
490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989) (stating that “the Court of Appeals
should follow the case which directly controls, leaving to [the Supreme] Court the prerogative
of overruling its own decisions”); see also Hopwood v. State of Tex., 84 F.3d 720, 722 (5th Cir.
1996) (Politz, C.J., and King, Wiener, Benavides, Stewart, Parker, and Dennis, JJ., dissenting
from the denial of rehearing en banc) (“The Supreme Court has left no doubt that as a
constitutionally inferior court, we are compelled to follow faithfully a directly controlling
Supreme Court precedent unless and until the Supreme Court itself determines to overrule
it. We may not reject, dismiss, disregard, or deny Supreme Court precedent, even if, in a
particular case, it seems pellucidly clear to litigants, lawyers, and lower court judges alike
that, given the opportunity, the Supreme Court would overrule its precedent.” (footnote
omitted)).

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“materially different with respect to the relevant burden of persuasion.”31
Because the Court recognized this difference but was not presented in Gross
with the question of how to construe the standard for causation and the shifting
burdens in a Title VII retaliation case, we do not believe Gross controls our
analysis here.
As noted above, we have previously recognized that the motivating factor
analysis and burden shifting scheme of Price Waterhouse may be applicable in
Title VII mixed-motive retaliation cases, although we have held that direct
evidence is necessary to shift the burden to the defendant.32 We are bound by
our circuit precedent, as we may not “‘overrule the decision of a prior panel
unless such overruling is unequivocally directed by controlling Supreme Court
precedent.’” Cain v. Transocean Offshore USA, Inc.33 Although Title VII and
Price Waterhouse provided the backdrop for its decision, the Gross Court made
clear that its focus was on ADEA claims.34 We conclude therefore that Gross did
not overrule our prior decisions addressing Title VII retaliation.35 Because we

31
Gross, 129 S. Ct. at 2348.
32
See Fabela, 329 F.3d at 415; Fierros, 274 F.3d at 192.
33
518 F.3d 295, 300 (5th Cir. 2008) (quoting United States v. Zuniga-Salinas, 945 F.2d
1302, 1306 (5th Cir. 1991) (emphasis added in Cain)).
34
See Gross, 129 S. Ct. at 2349 (“This Court has never held that this burden-shifting
framework [of Price Waterhouse] applies to ADEA claims. And, we decline to do so now.”).
The dissent insists that Gross has changed our law because Gross explained that the 1991
amendments to Title VII “should be read as limiting the mixed motive analysis to the
statutory provision under which it was codified—Title VII discrimination only.” Dissenting
op. at 3 (emphasis in original). The Gross Court made no such broad pronouncement. The
Court held that the 1991 amendments to Title VII confirmed that the Price Waterhouse
burden-shifting framework could not be transferred into the ADEA statutory scheme. Gross,
129 S. Ct. at 2351–52 & n.5. The Court did not address the continuing effect of Price
Waterhouse on Title VII retaliation.
35
See also Fener v. Operating Eng’rs Constr. Indus. & Miscellaneous Pension Fund
(Local 66), 579 F.3d 401, 408 (5th Cir. 2009) (“[W]hen the Supreme Court discusses a general
legal standard and cites its earlier caselaw on point, it does not necessarily overrule

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believe that Gross does not unequivocally control whether a mixed-motive jury
instruction may be given in a Title VII retaliation case, we must continue to
allow the Price Waterhouse burden shifting in such cases unless and until the
Supreme Court says otherwise. Therefore, we proceed to consider whether the
direct evidence requirement of our Title VII retaliation precedent remains valid.
In light of Desert Palace, we conclude that it does not.36
Direct or circumstantial evidence
The Desert Palace Court held that, in addition to the language of § 2000e-
2(m), a heightened showing is not required by direct evidence because the Court
was persuaded by Title VII’s silence with respect to the type of evidence
required.37 The Court noted that Congress has specifically provided for a
heightened standard of proof in other statutes and clearly knows how to require
such a showing.38 The Court also noted that the long-established rule in civil
litigation requires a plaintiff “to prove his case ‘by a preponderance of the
evidence’ . . . using ‘direct or circumstantial evidence.’” 39 Furthermore, the Court
noted that the reason for treating circumstantial and direct evidence the same
is deeply rooted in the notion that circumstantial evidence may often be more

intervening decisions of the lower courts.”).
36
In Septimus v. Univ. of Houston, 399 F.3d 601, 607 n.7 (5th Cir. 2005), we left open
the question of the standard for causation in mixed-motive retaliation cases because the
parties there agreed the case was a pretext case. Because, as discussed below, the issue
whether the instant matter is a mixed-motive or pretext case is disputed, we must resolve both
questions.
37
Desert Palace, 539 U.S. at 98–99, 123 S. Ct. at 2153–54.
38
See id. at 99, 123 S. Ct. at 2154 (citing 8 U.S.C. § 1158(a)(2)(B) and 42 U.S.C.
§ 5851(b)(3)(D)).
39
Id. (quoting Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3, 103
S. Ct. 1478 (1983)).

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persuasive.40 Moreover, even in criminal cases, where a conviction requires proof
beyond a reasonable doubt, circumstantial evidence is sufficient to support a
conviction.41 Finally, the Court observed that there was no other circumstance
evident where a litigant is restricted to the presentation of direct evidence
“absent some affirmative directive in a statute.”42
All of these considerations apply with equal force to litigants in Title VII
retaliation cases, and we conclude from these factors and the text of Title VII
that the kind of proof necessary for either discrimination or retaliation claims
should be the same. The specific text of the Title VII retaliation provision,
§ 2000e-3(a), prohibits an employer from discriminating “because” the employee
has, inter alia, made a charge against the employer.43 The statute provides no
indication of the type of evidentiary showing necessary to prove the retaliation

40
Id. at 99–100; see also Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81
S. Ct. 6, 11 (1960) (“Circumstantial evidence is not only sufficient, but may also be more
certain, satisfying and persuasive than direct evidence.”). We have also followed the rule, in
a variety of other contexts, that circumstantial evidence is sufficient to prove a plaintiff’s case.
See, e.g., Johnson v. Hosp. Corp. of Am., 95 F.3d 383, 392 (5th Cir. 1996) (plaintiff alleging
conspiracy under the Sherman Act “may rely on either direct or circumstantial evidence”);
Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786, 795 (5th Cir. 1983) (for proof of
secondary meaning in a trademark dispute “[b]oth direct and circumstantial evidence may be
relevant and persuasive on the issue”), abrogated on other grounds by KP Permanent Make-Up,
Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 125 S. Ct. 542 (2004); Merchants Truck Line,
Inc. v. NLRB, 577 F.2d 1011, 1014 (5th Cir. 1978) (“Because direct proof of motive is rarely
possible, the General Counsel has been forced to rely on circumstantial evidence, which may
be sufficient to carry his burden.”); Movible Offshore Co. v. Ousley, 346 F.2d 870, 874 (5th Cir.
1965) (rejecting defendant’s argument in a negligence case that jury should have been
instructed to evaluate circumstantial evidence differently from direct evidence where “[t]he
appellant has not cited us to any authority requiring a special instruction on circumstantial
evidence in civil cases and we have found none”); see also 1A J. WIGM ORE , WIGMORE ON
EVIDENCE § 26, at 961 (Tillers rev. 1983) (“that circumstantial evidence may be as persuasive
and as compelling as testimonial [or direct] evidence, and sometimes more so, is now generally
accepted”).
41
Desert Palace, 539 U.S. at 100, 123 S. Ct. at 2154.
42
Id.
43
See 42 U.S.C. § 2000e-3(a).

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claim. Because the text of § 2000e-3(a) neither requires nor prohibits a specific
evidentiary showing, construing it to include the mixed-motive framework to be
shown by circumstantial evidence does no violence to the statute.44 Title VII
does not affirmatively require direct evidence from a plaintiff, whether in a
discrimination or retaliation context, and we can see no basis for requiring a
heightened evidentiary showing in order to obtain a motivating factor jury
instruction predicated only on the theory of liability alleged in the complaint
(discrimination versus retaliation). The view that no special evidentiary
showing is required absent a contrary statutory command is consistent with the
view of at least four members of the Supreme Court in Gross, who, based on the
analysis of Desert Palace, answered the question that the majority did not.45 We
therefore hold that to the extent we have previously required direct evidence of
retaliation in order to obtain a mixed-motive jury instruction in a Title VII case,
our decisions have been necessarily overruled by Desert Palace.46 Smith
therefore was not required to present direct evidence of retaliation in order to
receive a mixed-motive jury instruction.47

44
See Richardson v. Monitronics Int’l Inc., 434 F.3d 327, 334 (5th Cir. 2005) (holding
that mixed-motive framework applies, and direct evidence is not required, in a claim for
retaliation under the Family Medical Leave Act (FMLA) where, inter alia, text of the FMLA
“neither countenances nor prohibits the mixed-motive analysis”).
45
Gross, 129 S. Ct. at 2358 (Stevens, J., dissenting) (stating that “[o]ur analysis in
Desert Palace applies with equal force to the ADEA” and noting that “no language in the
ADEA imposes a heightened direct evidence requirement”). This court has also previously
read Desert Palace to mean that direct evidence is not required in the face of statutory silence.
See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 311 & n.8 (5th Cir. 2004).
46
Although the dissent suggests that we are being inconsistent by applying Desert
Palace but not Gross to Title VII retaliation cases, see Dissenting op. at 2 n.1, we believe that
where there is reasonable debate about the applicability of Gross we must follow the
submission of Price Waterhouse along with the clear evidentiary holding of Desert Palace.
47
See Hunter v. Valley View Local Schs., 579 F.3d 688, 692 n.2 (6th Cir. 2009) (stating
that the Price Waterhouse burden shifting standard “depends not on the type of evidence
presented (direct versus circumstantial), but on the type of claim brought (single-motive

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Was this a mixed-motive case?
Xerox argues, nevertheless, that the mixed-motive jury instruction was
erroneous because this was not tried as a mixed-motive case. It reasons that in
a mixed-motive case the employee must concede that discrimination was not the
sole reason for her termination, but that Smith never conceded Xerox had a
legitimate reason for discharging her. We are unpersuaded by this argument
and do not believe such a concession is necessary.
Xerox’s argument is based on our statement in Richardson that “[t]he
mixed-motive framework applies to cases in which the employee concedes that
discrimination was not the sole reason for her discharge, but argues that
discrimination was a motivating factor in her termination.” 48 This statement
articulated the mixed-motive framework generally and was not meant to
enumerate the required elements of a mixed-motive case.49
Requiring the plaintiff to concede at trial the legitimacy of the employer’s
stated reason for the discharge is contrary to the purpose of the mixed-motive
framework. As we have stated, “[a]lthough Price Waterhouse can be
characterized as a method to prove discrimination, the mixed-motives theory is
probably best viewed as a defense for an employer.” 50 This “defense” allows the

versus mixed-motive”).
48
Richardson, 434 F.3d at 333 (emphasis in original).
49
Xerox also cites our decision in Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589,
595 (5th Cir. 2007). The plaintiff there raised a mixed-motive theory for the first time on
appeal from the district court’s grant of summary judgment. We refused to consider the
argument because it was not raised in the district court, and we merely indicated in dicta that
the plaintiff’s failure to concede, even for argument’s sake, that the employer had a legitimate
reason for its action reinforced that the district court had no opportunity to address a mixed-
motive claim. See id.
50
Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1216 (5th Cir. 1995); see also Price
Waterhouse, 490 U.S. at 246, 109 S. Ct. at 1788 (“[T]he employer’s burden is most
appropriately deemed an affirmative defense.”); Richardson, 434 F.3d at 333 (stating that for
mixed-motive cases “the employer’s burden ‘is effectively that of proving an affirmative

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No. 08-11115

employer—once the employee presents evidence that an illegitimate reason was
a motivating factor, even if not the sole factor, for the challenged employment
action—to show that it would have made the same decision even without
consideration of the prohibited factor. But an employee who is discharged for
perceived discriminatory reasons will surely always believe the employer lacked
a legitimate reason for the termination, and the mixed-motive framework does
not require the plaintiff to concede that the employer’s stated reason was
legitimate. That is why we have juries.
As recognized by the plurality in Price Waterhouse, a case need not be
“correctly labeled as either a ‘pretext’ case or a ‘mixed-motives’ case from the
beginning in the District Court” because the distinction often will not be known
to the plaintiff prior to discovery.51 Instead, “[a]t some point in the proceedings,
of course, the District Court must decide whether a particular case involves
mixed motives.” 52 As explained by the en banc Ninth Circuit decision in Desert
Palace, “[o]nce at the trial stage, the plaintiff is required to put forward evidence
of discrimination ‘because of’ a protected characteristic. After hearing both
parties’ evidence, the district court must decide what legal conclusions the
evidence could reasonably support and instruct the jury accordingly. . . . [T]he
choice of jury instructions depends simply on a determination of whether the
evidence supports a finding that just one–or more than one–factor actually
motivated the challenged decision.” Costa v. Desert Palace, Inc.53 Put another

defense’” (citation omitted)).
51
Price Waterhouse, 490 U.S. at 247 n.12, 109 S. Ct. at 1789 n.12.
52
Id. (emphasis added).
53
299 F.3d 838, 856 (9th Cir. 2002) (en banc) (footnote omitted); see also Medlock v.
Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir. 1999) (“A mixed motive instruction is
therefore appropriate in any case where the evidence is sufficient to allow a trier to find both
forbidden and permissible motives.” (internal quotation and citation omitted)).

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No. 08-11115

way, if the district court has before it substantial evidence supporting a
conclusion that both a legitimate and an illegitimate (i.e., more than one) motive
may have played a role in the challenged employment action, the court may give
a mixed-motive instruction.
That is our precedent, but the reality is that the defendant will always
prefer a pretext submission that requires the plaintiff to prove that there was
no legitimate motivation (but-for) while the plaintiff will always prefer a mixed-
motive submission with the burden on the defendant. Illogical or not, that is the
law we follow.
Here, the district court determined that this was a mixed-motive case.
Smith contended that she was terminated for discriminatory reasons, but Xerox
insisted that Smith was a poor performing employee who failed to “make plan.”
Smith agreed with Jankowski that she failed to “make plan,” but she contended
that her sales goals were unreasonable and that her termination was based on
her age, her gender, and retaliation for her EEOC complaint. We see no error
by the district court in submitting this case to the jury as a mixed-motive case
based on the evidence presented at trial.
Xerox presented undisputed evidence showing that in 2005 Smith was
behind in her plan numbers by a wide margin prior to her warning and
probationary periods, and she failed to make up the shortfall by the end of the
year. It also presented evidence that several agents that Smith supported
complained about her product and technical knowledge and her ability to add
value to their business. There was also testimony from Smith’s fellow employees
who said Smith was argumentative and negative on conference calls with
Jankowski. These employees also testified that Jankowski was a tough but fair
manager who was results and process oriented. Taken together, this evidence
could support a finding by the jury that Xerox had a legitimate reason for
terminating her.

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We emphasize could because there was also competing evidence that
Jankowski could have also improperly considered Smith’s EEOC charge when
seeking her termination. In other words, in addition to evidence that Jankowski
naturally would demand that Smith meet high standards, the failure of which
could lead to adverse consequences, there was also evidence from which to infer
that Smith’s EEOC charge was a motivating factor in the termination decision.
Smith’s termination form was arguably faxed to the human resources
department only days after Smith filed the EEOC charge. Jankowski then
issued the letter of concern only a few weeks after the EEOC charge. Villa, the
human resources manager, agreed that the letter of concern could be viewed as
retaliation by Jankowski if Jankowski failed to speak with Smith before issuing
it, which Smith contended he failed to do. There is also the fact that Xerox
policies permit, and arguably encourage, lesser actions such as reassignment or
demotion, rather than termination, for an employee with a tenure and track
record as lengthy as Smith’s. Xerox Human Resources personnel agreed at trial
that demotion or reassignment ordinarily could be considered, yet Smith was
terminated after a single poor performing year, only two years removed from
being among the top performing employees in the country. We conclude from
this evidence that the district court had before it substantial evidence of both
legitimate and illegitimate motives for Smith’s termination and properly
concluded that this was a mixed-motive case. The court therefore properly
instructed the jury on the mixed-motive framework. We therefore turn to
Xerox’s claims concerning the sufficiency of the evidence.
III.
Sufficiency of the evidence
In the unpublished section of our opinion we explain the holding that the
evidence was sufficient to support Smith’s claim of retaliation.

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No. 08-11115

Punitive damages
Xerox argues that the evidence was insufficient to support the jury’s award
of punitive damages. We agree and conclude that the jury’s award must be
vacated to the extent of the punitive amount.
Punitive damages in a Title VII case are recoverable if the plaintiff shows
that the defendant acted “with malice or with reckless indifference to the
federally protected rights of an aggrieved individual.” 54 This standard is higher
than the showing necessary for compensatory damages. Kolstad v. Am. Dental
Ass’n.55 We have cautioned that “not every sufficient proof of pretext and
discrimination is sufficient proof of malice or reckless indifference.” Hardin v.
Caterpillar, Inc.56 Nevertheless, a plaintiff need not show the defendant’s
conduct was especially egregious, as “[t]he availability of punitive damages turns
on the defendant’s state of mind, not the nature of the defendant’s egregious
conduct.” EEOC v. E.I. Du Pont de Nemours & Co.57 This is a subjective inquiry
and focuses on whether the employer “at least discriminate[d] in the face of a
perceived risk that its actions will violate federal law.” 58 For example, an
employer that is unaware of the relevant federal prohibition or that acts with a
justifiable belief that its discrimination is lawful will not be liable for punitive
damages.59 Moreover, under a “good faith” exception, an employer will not be
liable for punitive damages based on the discriminatory actions of its managerial

54
42 U.S.C. § 1981a(b)(1).
55
527 U.S. 526, 534, 119 S. Ct. 2118, 2124 (1999) (“Congress plainly sought to impose
two standards of liability–one for establishing a right to compensatory damages and another,
higher standard that a plaintiff must satisfy to qualify for a punitive award.”).
56
227 F.3d 268, 270 (5th Cir. 2000).
57
480 F.3d 724, 732 (5th Cir. 2007) (citing Kolstad, 527 U.S. at 535, 119 S. Ct. at 2124).
58
Kolstad, 527 U.S. at 536, 119 S. Ct. at 2125.
59
Id. at 537, 119 S. Ct. at 2125.

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agents if those actions are contrary to the employer’s good faith efforts to comply
with Title VII. See Hatley v. Hilton Hotels Corp.60
Neither party in this case addresses the punitive damages issue in terms
of the subjective inquiry framework, i.e., whether the evidence supports a
conclusion that Xerox’s decision makers were both aware of Title VII’s
prohibitions against retaliation and were aware that the decision to terminate
Smith risked violating federal law. Xerox simply asserts that, for the same
reasons it believes the evidence was insufficient to show that the termination
occurred because of Smith’s EEOC complaint, there was insufficient evidence
that it acted maliciously or recklessly.61
In response, Smith relies on much of the same evidence discussed above
allowing an inference that retaliation was a motivating factor in her termination
as support for the jury’s finding of malice or reckless indifference. In this regard,
she points to Xerox’s failure to follow its written polices and procedures,
presumably meaning Xerox’s PIP policies and the attendant requirements for
documentation. She also asserts that Joe Villa, as a human resources manager,
did not participate in the investigation of her EEOC complaint despite company
policy to the contrary, and he did not review her personnel file prior to his
deposition in this case. She further asserts that Xerox claimed during the course
of this litigation to have lost relevant evidence, including the laptop computers
used by her and Jankowski.
We have noted that there is no “useful litmus for marking the point at
which proof of violation sufficient to impose liability becomes sufficient to also

60
308 F.3d 473, 477 (5th Cir. 2002) (citing Kolstad, 527 U.S. at 545, 119 S. Ct. at 2118).
61
In its post-judgment motion for judgment as a matter of law in the district court,
Xerox arguably attempted to assert the “good faith” exception to punitive damages. Because
it fails to make any similar argument on appeal, however, that issue is deemed waived, and
we do not consider it. See Tex. Democratic Party v. Benkiser, 459 F.3d 582, 594 (5th Cir. 2006)
(arguments not raised in appellant’s opening brief are waived).

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No. 08-11115

support a finding of malice or reckless indifference.” 62 But based on our review
of the evidence, we are not convinced that such a threshold has been met in this
case. Smith’s arguments in support of the punitive damages focus on the alleged
egregiousness of Xerox’s conduct rather than the subjective state of mind of its
managers. Although egregious or outrageous conduct can support an inference
of “evil motive,” 63 that showing is not present here. For example, despite Smith’s
focus on the disciplinary policies and procedures, Smith was placed in the
disciplinary process long before she filed her EEOC complaint. Smith may have
disagreed with the allegations of the letters placing her on the 90- and 60-day
warning and probation periods, but the letters described in detail management’s
perceived deficiencies in Smith’s performance and Smith’s need to meet her sales
goals. It is undisputed that Smith did not do so, or that the letter placing her on
probation warned that she could be terminated. There was also evidence,
although contested by Smith, of contemporaneous complaints by Xerox agents
about Smith’s product knowledge and level of support.
In light of the competing evidence that impugned Smith’s performance, we
cannot say that the evidence supports a finding that Xerox managers acted with
malice or reckless indifference to the possibility that her termination could
violate federal law. We therefore hold that, although the evidence was sufficient
to find that retaliation was a motivating factor in the termination, the punitive
damages award based on malice or reckless indifference to federal rights cannot
stand. That portion of the district court’s judgment must be vacated.64

62
Hardin, 227 F.3d at 270.
63
Kolstad, 527 U.S. at 538, 119 S. Ct. at 2126.
64
Xerox presents as a separate issue in its brief the argument that the district court
erroneously denied its motion for a new trial. Its arguments merely reiterate the same points
it makes in support of its argument that the district court erroneously denied its motion for
judgment as a matter of law. Because our conclusions above adequately dispose of all of
Xerox’s issues, we need not further address its argument for a new trial.

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The district court’s judgment is affirmed but modified to vacate the
punitive damages award.
AFFIRMED as MODIFIED.

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No. 08-11115

E. GRADY JOLLY, Circuit Judge, Dissenting:
For the following two reasons I respectfully dissent. First, the majority
effectively creates an unnecessary split in the circuits by failing properly to
apply the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc. As
the Seventh Circuit has correctly reasoned, without statutory language
indicating otherwise, the mixed-motive analysis is no longer applicable outside
of Title VII discrimination, and consequently does not apply to this retaliation
case. Second, the majority errs in treating this case as a mixed-motive case.
This case is pretext, pure and simple: it was tried as a pretext case and relies on
pretext evidence.
I.
In Gross, the Supreme Court held, in the context of the ADEA, that the
“ordinary meaning” of the statutory words “because of,” which is the specific
language in the discrimination statute before us, requires a showing that the
adverse employment action would not have occurred but-for the prohibited
discriminatory motive. 129 S. Ct. 2343, 2350 (2009). The Court went on to hold
that unless there is a statutory indication to the contrary, this but-for
showing—not a mere showing of a discriminatory motive in combination with
legal motives—must be made by the plaintiff. Id. at 2351. Thus, applying the
law as set out in Gross, to prevail Smith must show more than she has shown
here—merely that discrimination was a factor in her discharge; she must show
that she would never have been discharged but for the illegal motive of Xerox;
that is, she would have kept her job notwithstanding her alleged poor
performance. Stated still another way, Smith cannot prevail by simply showing
that illegal discrimination was only one of a combination of reasons that resulted
in her discharge.
In its treatment of Gross, the majority acknowledges that the statutory
language in this Title VII retaliation case is “because” and that “the Gross

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reasoning could be applied . . . to the instant case.” Maj. op. at 11. In my view,
by any fair standard the majority must apply it in this case. The majority
disagrees, however, asserting the lame distinction that, although the language
is identical, Gross was an age discrimination case under the ADEA and the case
today is a retaliation case under Title VII. Given the uniform principle set out
in Gross, the majority’s distinction is the equivalent of saying that a principle of
negligence law developed in the wreck of a green car does not apply to a
subsequent case because the subsequent car is red—a meaningless distinction
indeed. As the Seventh Circuit has twice explained, after Gross, “unless a
statute . . . provides otherwise, demonstrating but-for causation is part of the
plaintiff’s burden in all suits under federal law.” Serwatka v. Rockwell
Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010) (emphasis added) (ADA)
(citing Fairley v. Andrews, 578 F.3d 518, 525-26 (7th Cir. 2009) (42 U.S.C. §
1983)).1
The majority also focuses on the Supreme Court's admonition in Gross not
“to apply rules applicable under one statute to a different statute without careful

1
In Serwatka an employee sued her former employer under the Americans with
Disabilities Act, alleging she was discharged because her employer considered her disabled.
The jury returned a mixed-motive verdict in favor of the employee and the district court
awarded various forms of relief. On appeal, the employer challenged whether the relief
afforded by the district court was permissible under the ADA. The Seventh Circuit found that,
in the light of Gross, the predicate question of “the applicability of the mixed-motive
framework [was] the only argument that [it] need[ed] to address.” 591 F.3d at 961. The court
went on to conclude that:

Although the Gross decision construed the ADEA, the importance that the court
attached to the express incorporation of the mixed-motive framework into Title VII
suggests that when another anti-discrimination statute lacks comparable language, a
mixed-motive claim will not be viable under that statute.

Id. at 961. Because “[t]here is no provision in the governing version of the ADA akin to Title
VII's mixed-motive provision,” the Seventh Circuit concluded motivating factor causation is
not available in the ADA and plaintiffs carry the burden of demonstrating but-for causation
in every case. Id. at 962.

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and critical examination.” Gross, 129 S. Ct. at 2349 (internal quotation marks
and citation omitted). The majority reads only the first half of this statement
without undertaking the “careful and critical examination” as instructed by the
Court; instead, it opts for the perfunctory ADEA–Title VII distinction identified
above. A careful and fair consideration of the principles underlying the decision
in Gross would require the majority to grapple with two realities that mirror the
very basis for the decision in Gross: (1) Title VII’s retaliation section, at issue
here, lacks the provision of Title VII’s discrimination section that allows mixed-
motive cases, and (2) Congress neglected, in 1991, to provide for motivating
factor causation in Title VII retaliation even though it amended Title VII in
other ways. The majority would have to explain, not gloss over, why these
differences between Title VII’s retaliation provision and Title VII’s
discrimination provision—differences that were determinative in Gross—are
now immaterial in resolving this case involving identical language and the same
absence of a proviso authorizing mixed-motive claims. It is only by avoiding a
“careful and critical examination” that the majority concludes that Gross does
not control our analysis today.
The majority can only further argue that our pre-Gross precedent controls
our analysis. But it could hardly be clearer that our prior precedent is
predicated on an interpretation of Congress’s 1991 amendments that was
rejected as plainly wrong by the Court in Gross. 2 Before Gross, the Supreme
Court had interpreted the words “because of” to “to condemn even those
decisions based on a mixture of legitimate and illegitimate considerations,”
Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989), and we interpreted
Congress’s 1991 amendments as approving of this mixed-motive analysis

2
I cannot help but observe that the majority is more than willing to rely on the broad
language of Desert Palace to extend its application from Title VII discrimination to Title VII
retaliation, but balks at applying a similar treatment to the broad language in Gross.

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generally, even though, by their terms, the amendments were limited to Title
VII discrimination. We relied on this interpretation in recognizing the mixed-
motive analysis in other statutory provisions using the “because of” language,
including Title VII retaliation. See Fabela v. Socorro Independent School Dist.,
329 F.3d 409, 415 (5th Cir. 2003) (Title VII retaliation); see also Mooney v.
Aramco Services Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (permitting mixed-
motive causation in ADEA claims), abrogated by Gross v. FBL Financial
Services, Inc., 129 S. Ct. 2343, 2351-52 (2009).
But the Supreme Court, in Gross, has now rejected this interpretation of
the 1991 amendments and in doing so has changed our law. The Supreme Court
explained that the “careful[ly] tailor[ed]” amendments made to Title VII in 1991
should be read as limiting the mixed-motive analysis to the statutory provision
under which it was codified—Title VII discrimination only, which excludes
retaliation, the claim here. Gross, 129 S. Ct. at 2351 n.5.3 As the Supreme Court
admonished, to read the 1991 amendments as generally blessing the Price
Waterhouse analysis would “ignore Congress’ decision” to provide motivating
factor causation in only specific types of cases, not in all cases. Id. at 2349. The
“because of” language requires a plaintiff to demonstrate but-for causation. This
is the standard that claimants under Title VII’s retaliation provision must meet
in the post-Gross world. There is no reason to dismiss this Supreme Court
ruling just to be obstinate or to claim some special exemption for the Fifth
Circuit.4

3
The Gross Court explained that if Congress intended only to limit Price Waterhouse’s
affirmative defense but leave intact Price Waterhouse’s interpretation of the words “because
of,” it would not have felt the need to add § 2000e-2(m); § 2000e-5(g)(2)(B) would have sufficed.

4
The majority errs in suggesting we would have to renounce Price Waterhouse in order
to reverse our precedent on Title VII in the light of Gross. Price Waterhouse addresses Title
VII’s discrimination provision, not Title VII’s retaliation provision. However, I should note
that the Supreme Court said in Gross that, with respect to Price Waterhouse’s mixed-motive

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II.
The second error of the majority is its erroneous conclusion that the case
before us is, under any standard, a mixed-motive case. The record shows that
Smith challenged Xerox’s asserted reasons for her termination, as pretextual, at
every stage of the proceedings. She then relied on this allegation and evidence
of pretext to argue that retaliation was a motivating factor for the discharge. In
other words, she relied on pretext evidence and arguments to prevail on a mixed-
motive theory. The reason for proceeding in this manner is obvious—by doing
this she avoided both her burden under McDonnell-Douglas of showing but-for
causation and her burden under Price Waterhouse of bringing forth substantial
evidence of discriminatory animus. In affirming this approach, the majority fails
to set out any distinction between mixed-motive and pretext cases. The
consequence is that our opinion today thoroughly confuses our precedent on
types of cases and methods of proof in Title VII cases, because it allows virtually
every pretext case to be given to the jury as a mixed-motive case.
In attempting to distinguish between mixed-motive and pretext cases, the
majority states, and, may I respectfully say, not in a particularly helpful way:
Whereas pretext cases involve discernment of the true reason for
the employer’s action, which is either legal or illegal, motivating
factor cases applying the Price Waterhouse test involve employment
decisions based on multiple factors, or mixed motives, at least one
of which was illegitimate and prohibited by statute and one of which
may have been legitimate.
Maj. op. at 8. I would observe that most decisions, of any kind or sort, are
prompted by a melody of motivations from which a dominant motive usually
arises to dictate the action taken. This observation includes pretext analysis in

analysis, it is “difficult to apply” and “far from clear that the Court would have the same
approach were it to consider the question today in the first instance.” Gross, 129 S. Ct. at
2351-52. The Supreme Court was absolutely correct in its observation that the Price
Waterhouse analysis is difficult to apply, as indicated by this case. Even the majority shows
signs of frustration: “Illogical or not, that is the law we follow.” Maj. op. at 20.

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No. 08-11115

discrimination cases, which can encompass a spattering of mixed motives; the
employer often alleges several non-prohibited motives for the termination
(absenteeism, tardiness, insubordination, prior work—all in the same case),
while the employee alleges that each of these motives were illegal because they
constitute a pretextual shield for discrimination. In short, the majority is hardly
correct in concluding that a search for the one “true reason” characterizes a
pretext case. Id.
In any event, pretext and mixed-motive cases are distinctly two different
methods of proving discrimination. What is a pretext case? It is a
circumstantial case in which the plaintiff prevails by showing that the reason or
reasons given for the employer’s adverse action were spurious, which requires
no specific showing of illegal animus toward the employee, but only a showing
that the employer’s reasons are false or otherwise unsupportable. Because the
employer is in the best position to explain the termination, the jury is entitled
to infer discrimination once the employer’s explanation is proven false. What is
a mixed-motive case? It is a case in which, although reasons for discharge are
valid, i.e., not pretextual, the plaintiff prevails by showing that, notwithstanding
the validity of the employer’s stated motives for its actions, still a factor—in
combination with valid factors—for the discharge was the motive to illegally
discriminate. Given that the alleged pretextual motives are valid, this theory
requires a showing of a specific illegal animus toward the employee that factored
into the discharge, i.e., not “direct evidence,” but evidence establishing
specifically an illicit motive.
Smith’s entire claim in this case was presented to the jury as pretext.
Smith alleged that every reason given by Xerox for her termination was pretext
for age and gender discrimination or, alternatively, pretext for retaliating
against her because of her EEOC charge. Smith did not argue or acknowledge
that the reasons for her discharge were valid; she argued that the employer’s

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No. 08-11115

reasons were pretextual, i.e., false, an illegal sham. And, both with respect to
discrimination and retaliation, the jury was instructed accordingly: “If you
disbelieve the reason(s) Defendant has given for its decision, [i.e., pretext,] you
may infer Defendant terminated Plaintiff because she engaged in protected
activity.” 5 In short, if discrimination in an alleged mixed-motive case must be
shown by pretext, it is not a mixed-motive case at all, it is a pretext case.6 It
should be that short and simple.
In sum, I would reverse and vacate the judgment and send the case back
to the district court for retrial.

5
If nothing else this language in the jury charge makes obvious that this was presented
to the jury as a pretext case.

6
Accordingly, we have long required plaintiffs who ask for a mixed-motive instruction
to acknowledge the employer’s legitimate motives for discharge. Richardson v. Monitronics
Intern., Inc., 434 F.3d 327, 333 (5th Cir. 2005) (“The mixed-motive framework applies to cases
in which the employee concedes that discrimination was not the sole reason for her discharge,
but argues that discrimination was a motivating factor in her termination.”) (first emphasis
added). If the inference raised by disputing the employer’s justification for termination were
competent evidence to justify a mixed-motive instruction, then plaintiffs would, in every case,
be able to bootstrap into a mixed-motive instruction without putting forward any additional
evidence of discriminatory animus. Every pretext case would be a mixed-motive case, as the
majority seems to acknowledge. Maj. op. at 20.

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