United States Court of Appeals
Fifth Circuit
F I L E D
June 6, 2003
UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
For the Fifth Circuit Clerk
No. 02-40406
JOANNA LAXTON,
Plaintiff-Appellant,
VERSUS
GAP INC., doing business as OLD NAVY,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas, Tyler Division
Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE*,
District Judge.
VANCE, District Judge:
*District Judge of the Eastern District of Louisiana, sitting by designation.
Plaintiff-Appellant Joanna Laxton appeals from the district
court's order granting defendant-appellee Gap, Inc. judgment as a
matter of law in this case brought under the Pregnancy
Discrimination Act. For the following reasons, we REVERSE and
REMAND.
I. BACKGROUND
Drawing all inferences in favor of the non-moving party, as
we must when reviewing the grant of judgment as a matter of law,
the factual background of this lawsuit is as follows. In March
1999, Gap recruited Laxton, the general manager of a Stein Mart
department store in Tyler, Texas, to become the general manager
of an Old Navy store that Gap intended to open in Tyler. Laxton
had worked for Wal-Mart for eight years, climbing the management
ranks and helping to open a Wal-Mart Super Center in Henderson,
Texas. She then became an assistant manager for Stein Mart and
was soon promoted to general manager. At first, Laxton declined
Gap's offer, but Gap persisted. Only after Gap offered her
$45,000 plus bonuses – $10,000 more than she made at Stein Mart –
did Laxton accept. Two Stein Mart employees followed her to the
new Old Navy store to become assistant managers.
After accepting the offer but before starting work, Laxton,
aged 39 at the time, learned that she was pregnant. On her first
day of work, March 29, 1999, she informed Lisa Haverstick, Gap's
Regional Assistant Manager, of her pregnancy. She informed her
2
direct supervisor, Karen Jones, of her pregnancy on June 1, 1999.
That was "the first real time [Laxton] was able to sit down with
[Jones] and talk to her." It was also the day before the Old
Navy store was due to open. Specifically, Laxton informed Jones
that she was pregnant and was due around Thanksgiving. Laxton
did not discuss with Jones her plans for maternity leave. She
had not yet thought through the issue and was not yet familiar
with Gap's maternity leave policy. Jones became visibly angry.
Laxton testified that Jones "didn't appreciate the fact, I guess,
that she was going to have to have someone come in during the
holidays and fill in for me." Jones said, "You realize this
means that I have to pull other management out of other stores to
cover your store, when, basically, you know, this store should
have been taken care of. What management do you think we're
supposed to use?" After this conversation, Jones was "usually
unpleasant" toward Laxton.
Under Laxton's management, the store timely opened on June
2, 1999. By all accounts, the store earned strong revenues. It
won a national tech vest sales contest, and Laxton received
monthly bonuses of over $1,000.
On July 8, 1999, the mall notified Laxton that it needed to
cut power to her store between 9:00 and 10:00 p.m. The store
usually closed at 9:00 p.m, after which time employees served the
customers that remained in the store, closed all the registers,
counted the money, and opened a back door to receive deliveries.
3
Laxton feared that problems could arise if the store's power was
cut while her employees were counting money because the back door
would be open for deliveries and the alarm system would be dead.
She called Jones to ask for permission to close the store 30
minutes early. Jones told Laxton to keep the store open. Laxton
decided to close the store early anyway. For this incident,
Jones gave Laxton a "Written Warning," the first strike in Gap's
"three-strikes-you're-out" policy.
On July 29, 1999, Jones and Carla Dotto, an employee at
Gap's corporate headquarters, told Laxton that a "Final Written
Warning" – strike two – was on its way. Mary Carr, the Zone
Human Resource Manager, also played a significant role in
preparing this warning. In the Final Written Warning, Gap
charged Laxton with four violations of company policies and
procedures: (1) exiting the store by the back door; (2)
displaying unacceptable behavior toward an employee, Kerri
Vallery, over the store's walkie-talkie system; (3) neglecting to
inform the regional office that she had taken a sick day; and (4)
hiring a bank robber. The supervisors did not discuss these
charges with Laxton in the July 29 conversation. Rather, Laxton
learned of the nature of the charges only when she received a
copy of the Final Written Warning by fax on Saturday, August 14,
1999, which was a day off for her. The warning alarmed and
frightened her, and she suspected that she was the target of
pregnancy discrimination. She believed that the asserted
4
violations were false, and that she "hadn't been able to air
[her] side of the story to anyone."
As to the allegation that she exited the store by the back
door, Laxton testified that once she learned that this was a
violation of store policy, she never did so again. As to the
walkie-talkie incident, Laxton testified that Vallery had
disobeyed her orders about where to place sales associates on the
floor of the store. As to the sick day, Laxton testified that
she called in to report the sick day, did not reach anyone, and
did not leave a message because she intended to talk with
headquarters again soon anyway. When she discovered that her
hours for the week had been entered improperly, she made efforts
to correct them. Regardless, Laxton, despite her pregnancy, was
working over 70 hours a week while being paid on a salary based
on 40 hours per week, and Gap produced no records indicating a
problem with Laxton's overall attendance at work. Finally,
Laxton testified that she never hired a bank robber. Vallery
recommended that Laxton invite the job applicant to an
orientation session. Before the orientation session, Laxton was
"amazed" to discover through a conversation with her husband that
the applicant was rumored to have robbed a bank. As soon as she
discovered the problem, the applicant withdrew his application
himself. At no time was the "bank robber" on Gap's payroll.
Before Laxton received the Final Written Warning on August
14, 1999, Laxton's supervisors sent Peg Inglis, a Zone Trainer,
5
to Laxton's store for a visit on August 9, 1999. Based on
conversations with three of the store's four assistant managers,
Inglis reported that the store suffered from low employee morale.
Inglis also reported violations of store policy, including: (1)
exceeding the $75 discretionary spending limit by paying $85 for
pizza for employees; (2) asking two employees to wear unpurchased
Old Navy tech vests during a sales promotion; and (3) failing to
permit employees to take lunch breaks. Inglis's report indicates
that termination was on Gap's mind, for she wrote that "if Laxton
stays in position. . . ." Inglis spoke with Laxton during the
store visit, but she did not raise with Laxton the issues of
employee morale or the asserted violations of store policy.
Instead, Inglis inquired as to Laxton's plans for maternity
leave.
At trial, Laxton provided explanations for the three
violations cited by Inglis: (1) she bought the pizza for
employees during a busy and profitable Tax Free Weekend after
Jones had directed her to "do whatever it takes" to make the
weekend a success; (2) she directed two employees to wear tech
vests during a nationwide tech vest sales contest that Laxton's
store won and, relatedly, Gap had "sent down a directive" to have
employees wear unpurchased backpacks to increase backpack sales;
and (3) Laxton explained that the breaks were not recorded
properly because the store's automated punch clock system was
broken and employees were too busy with Tax Free Weekend to fill
6
out time sheets manually.
Laxton had previously scheduled a vacation day for Monday,
August 16, 1999, the first business day for Gap after Laxton
received the Final Written Warning. Gap has a "Zero Tolerance"
policy against discrimination, instructing employees to call a
human resources representative with concerns. Gap also makes a
toll-free telephone line available for anonymous reports. On
August 16, Laxton called Chazz Pono, her human resources
representative, to discuss her suspicion that she was the target
of pregnancy discrimination. The record reflects that Pono took
no action.
On August 17, 1999, Carlos Licona, a Gap auditor,
arrived at Laxton's store unannounced. Licona testified that he
was not aware of Laxton's performance-related issues before his
store visit. Inglis's report, however, indicated that the report
would be forwarded to Licona. Licona discovered the same
violations of store policy that Inglis had identified – the pizza
money, the tech vests, and the lunch breaks. Like Inglis, Licona
did not discuss the violations with Laxton. He instead called
Carr, who, together with Dotto, directed Licona to terminate her.
This was the first time that Licona, a store auditor, had ever
been asked to fire an employee. Gap replaced Laxton with a male.
Laxton filed suit in federal district court on October 10,
2000, charging Gap with violating Title VII of the Civil Rights
Act of 1964, as amended by the Pregnancy Discrimination Act of
7
1978 (the "PDA"), 42 U.S.C. § 2000e, et seq. The district court
conducted a jury trial beginning on November 5, 2001. At the
close of Laxton's case, Gap moved for judgment as a matter of law
pursuant to Rule 50 of the Federal Rules of Civil Procedure. The
district court denied Gap's motion. The jury returned a verdict
in favor of Laxton, awarding $127,000 in back pay, $57,000 in
front pay, $100,000 in mental anguish, and $200,000 in punitive
damages. Gap timely filed a renewed motion for judgment as a
matter of law and an alternative, conditional motion for new
trial or remittitur. The district court granted the motion for
judgment as a matter of law on the issue of liability and did not
reach the issue of damages. The district court also granted the
conditional motion for a new trial and did not reach the issue of
remittitur. Laxton timely appeals.
II. STANDARD OF REVIEW
We review a district court's grant of judgment as a matter
of law de novo, applying the same standard as the district court.
See Wallace v. Methodist Hospital System, 271 F.3d 212, 218 (5th
Cir. 2001). Judgment as a matter of law is appropriate if "there
is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue." FED. R. CIV. P. 50(a).
This occurs when the "'facts and inferences point so strongly and
overwhelmingly in favor of one party that the Court believes that
reasonable men could not arrive at a contrary verdict.'"
8
Wallace, 271 F.3d at 219 (quoting Rubinstein v. Adm'rs of the
Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000)); see also
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). As we
review the record, we "'must draw all reasonable inferences in
favor of the nonmoving party, and [we] may not make credibility
determinations or weigh the evidence.'" Russell v. McKinney
Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120
S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000)). We must disregard
evidence favorable to the moving party that the jury is not
required to believe. See id. The court gives credence to
evidence supporting the moving party that is uncontradicted and
unimpeached if that evidence comes from disinterested witnesses.
See Wallace, 271 F.3d at 219. Finally, more than a mere
scintilla of evidence is required to render the grant of judgment
as a matter of law inappropriate. See id.
III. ANALYTICAL FRAMEWORK
Title VII makes it unlawful for an employer "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." 42 U.S.C. § 2000e-2(a). As amended by the
first clause of the PDA, Title VII defines the term "because of
9
sex" as including, but not limited to, "because of or on the
basis of pregnancy, childbirth, or related medical conditions."
42 U.S.C. § 2000e(k). The second clause of the PDA further
provides that "women affected by pregnancy, childbirth, or
related medical conditions shall be treated the same for all
employment-related purposes, including receipt of benefits under
fringe benefit programs, as other persons not so affected but
similar in their ability or inability to work." Id. The Supreme
Court has held that the first clause of the PDA is not limited by
the specific language in the second clause. California Fed. Sav.
and Loan Ass'n v. Guerra, 479 U.S. 272, 285, 107 S.Ct. 683, 691,
93 L.Ed.2d 613 (1987); Newport News Shipbuilding and Dry Dock
Company v. EEOC, 462 U.S. 669, 678 n.14, 103 S.Ct. 2622, 2628
n.14, 77 L.Ed.2d 89 (1983). Congress intended the PDA to provide
relief for working women and to end discrimination against
pregnant workers. See Guerra, 479 U.S. at 286, 107 S.Ct. at 692.
The PDA does not, however, "'protect a pregnant employee from
being discharged for being absent from work even if her absence
is due to pregnancy or to complications of pregnancy, unless the
absences of nonpregnant employees are overlooked.'" Stout v.
Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002)
(quoting Dormeyer v. Comerica Bank-Ill., 223 F.3d 579, 583 (7th
Cir. 2000)); see also Wallace, 271 F.3d at 223 (noting that the
PDA requires an employer to ignore an employee's pregnancy, but
10
not her absence from work, unless the employer overlooks
comparable absences of non-pregnant employees).
A claim brought under the PDA is analyzed like any other
Title VII discrimination claim. Urbano v. Continental Airlines,
Inc., 138 F.3d 204, 206 (5th Cir. 1998). Title VII
discrimination can be established through either direct or
circumstantial evidence. See Wallace, 271 F.3d at 219. Laxton's
case is built on the latter, which means that it is analyzed
under the familiar McDonnell-Douglas framework. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). Under this framework, the plaintiff must
first create a presumption of discrimination by making out a
prima facie case of discrimination. See Wallace, 271 F.3d at
219. The burden then shifts to the employer to produce a
legitimate, nondiscriminatory reason for her termination. See
id. This causes the presumption of discrimination to dissipate.
See id. The plaintiff then bears the ultimate burden of
persuading the trier of fact by a preponderance of the evidence
that the employer intentionally discriminated against her because
of her protected status. See id.
To carry this burden, the plaintiff must produce substantial
evidence indicating that the proffered legitimate
nondiscriminatory reason is a pretext for discrimination. See
Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. The plaintiff must
11
rebut each nondiscriminatory reason articulated by the employer.
Wallace, 271 F.3d at 220. A plaintiff may establish pretext
either through evidence of disparate treatment or by showing that
the employer's proffered explanation is false or "unworthy of
credence." Id.; Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. An
explanation is false or unworthy of credence if it is not the
real reason for the adverse employment action. See Sandstad v.
CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002).
Evidence demonstrating that the employer's explanation is false
or unworthy of credence, taken together with the plaintiff's
prima facie case, is likely to support an inference of
discrimination even without further evidence of defendant's true
motive. Id. at 897; Russell, 235 F.3d at 223. No further
evidence of discriminatory animus is required because "once the
employer's justification has been eliminated, discrimination may
well be the most likely alternative explanation...." Reeves, 530
U.S. at 147-48, 120 S.Ct. at 2108-09. The "rare" instances in
which a showing of pretext is insufficient to establish
discrimination are (1) when the record conclusively reveals some
other, nondiscriminatory reason for the employer's decision, or
(2) when the plaintiff creates only a weak issue of fact as to
whether the employer's reason was untrue, and there was abundant
and uncontroverted evidence that no discrimination occurred. See
Russell, 235 F.3d at 223 (citing Reeves, 530 U.S. at 148, 120
12
S.Ct. at 2109); Rubinstein, 218 F.3d at 400. A decision as to
whether judgment as a matter of law is appropriate ultimately
turns on "'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.'" Wallace, 271 F.3d at 220 (quoting Reeves, 530
U.S. at 148-49, 120 S.Ct. at 2109).
IV. APPLICATION OF THE ANALYTICAL FRAMEWORK
The parties do not dispute on appeal that Laxton made out a
prima facie case of pregnancy discrimination.1 Instead, the
parties dispute whether Laxton produced substantial evidence of
pretext. Evidence is "substantial" if it is "'of such quality
and weight that reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions.'" Long v.
Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996)(quoting
Boeing, 411 F.2d at 374).
A. PROFFERED LEGITIMATE REASON FOR DISCHARGE
Gap proffers that Laxton repeatedly violated store policy
1
In the district court, the parties agreed that Laxton's
prima facie case required that (1) she was a member of a
protected class, (2) she was qualified for the position she lost,
(3) she suffered an adverse employment action, and (4) she was
replaced by an employee who is not in the protected class, or, in
cases of employment discipline, that others similarly situated
were more favorably treated. Joanna Laxton v. Gap, Inc. d/b/a
Old Navy, No. 6:00-CV-605, slip op. at 5 (E.D.Tex. Oct. 31,
2001).
13
and alienated those who worked for her, the cumulative effect of
which justified her termination. (Appellee's Brief, at 10.) The
conduct occurred over a six-week period from July 8, 1999 to
August 17, 1999. First, Gap cites the store-closing incident
that took place on July 8. Second, Gap cites the violations
listed in the Final Written Warning – the back door exit, the
walkie-talkie incident, the sick day, and the bank robber.
Third, Gap cites the complaints of assistant managers, primarily
those reported by Inglis. Fourth, and finally, Gap cites the
alleged violations of store policy identified by Inglis and
Licona – the pizza money, tech vests, and lunch breaks. Gap
asserts that Laxton's multiple violations were "too much, too
soon." (Id. at 26.)
B. EVIDENCE OF PRETEXT
Turning to Laxton's showing of pretext, we begin by defining
the contours of our inquiry. Our inquiry is "'whether [Gap's]
perception of [Laxton's] performance, accurate or not, was the
real reason for her termination.'" Evans v. City of Houston, 246
F.3d 344, 355 (5th Cir. 2001) (quoting Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 408-09 (5th Cir. 1999)). It is not
whether Gap's proffered reason was an incorrect reason for her
discharge. Sandstad, 309 F.3d at 899. Our concern is whether
the evidence supports an inference that Gap intentionally
discriminated against Laxton, an inference that can be drawn if
14
its proffered reason was not the real reason for discharge.
Therefore, to survive Gap's motion for judgment as a matter of
law, Laxton must produce evidence permitting the jury to
disbelieve that Gap's proffered reason was its true motivation.
"'The factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination.'"2
Reeves, 530 U.S. at 147, 120 S.Ct at 2108 (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125
L.Ed.2d 407 (1993)).
Laxton rebuts Gap's proffered justification for her
discharge with evidence that it is false or unworthy of credence.
Wallace, 271 F.3d at 220. She concedes that certain violations
of store policy took place. She admits to closing the store
early (although she testified that doing so was justified) and to
exiting out the back door (although she testified that when she
did so she did not know this violated store policy). Gap,
however, did not terminate her for these violations. It proffers
that it terminated Laxton for the "cumulative effect" of many
2
Gap asserts that the jury may find that its proffered
justification is "unworthy of credence" only if Laxton proves
"mendacity." This overstates Laxton's burden. As the Supreme
Court noted in Reeves, a plaintiff need only bring evidence that
enables the jury to disbelieve that the employer's proffered
justification truly motivated the adverse employment action.
Reeves, 530 U.S. at 147, 120 S.Ct. at 2108.
15
violations, and Laxton casts doubt on this proffered
justification in two ways. First, she brings evidence
challenging the substance of violations, i.e., evidence
demonstrating their falsity. Second, she brings other evidence
that undermines the overall credibility of Gap's proffered
justification.
First, Laxton rebuts the substance of violations asserted by
Gap, including the allegation that Laxton hired a bank robber.
Laxton invited the applicant to an orientation on the
recommendation of Vallery. Before the session, however, Laxton
was "amazed" to learn through her own inquiry that the applicant
was rumored to have robbed a bank. The applicant subsequently
withdrew his application and was never on Gap's payroll.
A second charge that the jury could have reasonably found to
be false is that of employee complaints. Jones testified that
she made multiple calls to assistant managers and that employees
lodged numerous complaints against Laxton. Yet Gap produced no
contemporaneous written documentation of any employee complaints,
despite testimony that the corporation abides by rigorous record-
keeping policies. Gap did not even produce written documentation
of the walkie-talkie incident referred to in the Final Written
Warning. Further, even assuming that there were complaints (such
as those reported by Inglis), Laxton testified that a good,
strong manager will draw employee complaints. The walkie-talkie
16
incident presents a perfect example. On that occasion, Vallery
allegedly lodged a complaint against Laxton after being rebuked
over the store's walkie-talkie system for attempting to override
Laxton's decision as to where to place sales employees on the
floor. Notably, Jones, who gave Laxton a Written Warning for not
following orders when Laxton closed the store early, gave Laxton
a Final Written Warning for disciplining an assistant manager for
not following her orders. The jury may well have construed
Laxton's rebuke of the assistant manager to be appropriate.
Moreoever, Laxton's ability to manage employees is corroborated
by the fact that two employees followed Laxton from Stein Mart to
Gap.
Laxton challenges the tech vest violation and the pizza
money violation on the grounds that they involved conduct that
Gap authorized and that is so trivial as to be unworthy of
credence. Gap directed Laxton to have employees wear unpurchased
backpacks to increase backpack sales, but then cited Laxton for
directing two employees to wear unpurchased tech vests during a
tech vest sales contest in which her store placed first in the
nation. Additionally, in preparation for Tax Free Weekend, Jones
directed Laxton to "do whatever it takes." Laxton therefore
exceeded her $75 discretionary spending authority by a minimal
amount by spending $85 on pizza for employees. The jury could
have inferred, as did Laxton, that Jones authorized this
17
spending.
The jury could have also reasonably concluded that Laxton
made an adequate effort to report her sick day. She testified
that she called a supervisor that day, but that when nobody
answered she did not leave a message. She testified that she
attempted to correct her hours after she learned that they had
been improperly entered. Finally, the jury could have reasonably
concluded that Laxton permitted employees to take lunch breaks.
Laxton testified that her employees took breaks but that the
breaks were not recorded properly because the store's automated
punch clock system was broken and employees were too busy with
Tax Free Weekend to fill out time sheets manually. Further
undermining this allegation is that the employees allegedly did
not take lunch breaks over Tax Free Weekend, which was the same
weekend that Laxton purchased pizza for lunch.
Second, in addition to her attack on the substance of these
violations, Laxton brings evidence that undermines the
credibility of Gap's proffered justification for her discharge.
The evidence indicates that if Gap were genuinely concerned about
Laxton's asserted performance-related problems, it would have
permitted Laxton the opportunity to explain or to improve her
conduct, but it did not do so. Jones testified to the common
sense notion that, from a business standpoint, it makes sense to
try to utilize corrective action with an under-performing general
manager before firing her. Yet, as the alleged violations of
18
store policy occurred, Laxton's supervisors, including Jones,
Carr and Dotto, did not discuss them with her. Supervisors
discussed only a single employee complaint with her – the
arguably justified walkie-talkie incident. Notably, no
supervisor ever discussed with Laxton the problem of lunch
breaks, which Carr testified was of particular concern to the
company. Laxton did not even receive a copy of the Final Written
Warning until Saturday, August 14, just one working day before
her discharge. Perhaps most telling in this regard was Inglis's
store visit. During the visit, Inglis failed to discuss with
Laxton the "serious" problems of employee morale that she
discovered. Instead, Inglis discussed Laxton's plans for
maternity leave.
Only six weeks elapsed between Laxton's first Written
Warning and her termination, and during that time her supervisors
never gave her the chance to explain her conduct or improve it.
Had Gap bothered to do so, progress might have been made. For
example, as soon as Laxton learned that exiting by the back door
violated store policy, she did not do so again.3
3
The district court reduced Laxton's showing of pretext to
the argument that Gap violated its own corrective action policy,
which calls on supervisors to discuss violations of store policy
with the employee. The district court noted, correctly, that an
employer's disregard of its policies "does not of itself
conclusively establish that. . . a nondiscriminatory explanation
for an action is pretextual." EEOC v. Texas Instruments Inc.,
100 F.3d 1173, 1182 (5th Cir. 1996). Laxton, however, does not
assert that Gap's failure to follow its own policy is of itself
evidence of pretext. Rather, Gap's failure to discuss alleged
19
Further, the jury may have determined that Gap's witnesses
lacked credibility. The record indicates that Jones may have
come across as a difficult witness and that Licona was not
credible. Licona testified that he did not know that Laxton was
pregnant on the day that he terminated her. On that day, Laxton
was visibly pregnant, as a contemporaneous photograph confirms.
Licona also identified handwriting on his store visit log as that
of Laxton, from which the jury could have inferred that Laxton
was on notice of the violations that he found. Laxton, however,
denied that it was her handwriting, and her testimony was
corroborated by that of an assistant manager who testified that
it was her handwriting and not Laxton's. Finally, Licona
testified that he did not see a copy of Inglis's report before he
visited Laxton's store. The jury may have reasonably inferred
that he had seen a copy because the report indicated that a copy
should be forwarded to him and because he identified the exact
violations of store policy that Inglis cited in the report.
Upon consideration of all of the evidence, the jury may have
reasonably concluded that Jones, Carr and Dotto solicited and
exaggerated complaints from Laxton's assistant managers, issued a
Written Warning and a Final Written Warning, and dispatched
violations with a recently-hired general manager of a successful
store despite its admission that this makes business sense casts
doubt on its proffered reason regardless of Gap's policy in this
regard. That Gap violated its own policy to that effect is
merely icing on the cake.
20
Inglis and Licona for store visits in an effort to compile a
laundry list of violations to justify a predetermined decision to
terminate Laxton. This would explain why Gap asserted some
violations that are false and others that involved conduct that
was arguably authorized. It would also explain why Gap, a
company whose goal is to earn a profit, took issue with conduct
like the tech vests and the pizza money that helped it to achieve
its overarching goal. It would also explain Inglis's revealing
statement in her report that "if Laxton remains in position. . .
." Finally, it would explain why Gap rushed to fax Laxton a copy
of the Final Written Warning on Saturday, August 14, which was a
day off for Laxton. The jury may have inferred that Gap wanted
Laxton to have the warning in hand before Licona's store visit on
August 17, 1999, because Gap knew that it was going to terminate
Laxton on that day regardless of what violations Licona
discovered.
Gap's proffered justification becomes even less credible
when viewed in light of the strength of Laxton's prima facie
case. The factfinder may consider evidence establishing Laxton's
prima facie case, as well as inferences properly drawn therefrom,
in its determination of whether Gap's proffered explanation is
pretextual. Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. Part of
Laxton's prima facie case is that she was qualified for the
position of general manager. Before joining Gap, she had a
21
successful career in retail with Wal-Mart and Stein Mart. When
Gap recruited Laxton away from Stein Mart to open the new Old
Navy store, Laxton declined. Only after Gap offered her a
considerable raise did Laxton accept. Laxton's store opened on
time and, under her direction, earned strong revenues. Gap
rewarded her with monthly bonuses of over $1,000. By mid-August,
when she was fired, the store had already surpassed the month's
quota to qualify for a bonus. In short, the store had just
opened, Laxton was working more than 70 hours a week, and she was
instructed by her supervisors to do whatever it takes. If the
store's revenues are any indication, that is exactly what she was
doing. It was a stressful but successful environment. Yet,
despite Laxton's qualifications as a general manager and despite
her success in making the new Old Navy store profitable, Gap
proffers that it terminated her for a laundry list of
questionable violations, virtually none of which Gap bothered to
discuss with her. Conveniently, Gap left itself just enough time
to permit a new general manager to settle into the job before the
busy holiday season. Based on the evidence presented, the jury
could have reasonably concluded that Gap's proffered reason for
discharge was not its real reason.
C. ADDITIONAL EVIDENCE OF DISCRIMINATION
Although Laxton's showing of pretext is, under Reeves,
sufficient for her to survive Gap's motion for judgment as a
22
matter of law, she supplements her case of discrimination with an
oral statement of her supervisor, Karen Jones. When Laxton
informed Jones that she was pregnant and was due around
Thanksgiving, Jones became visibly angry. Laxton testified that
Jones "didn't appreciate the fact, I guess, that she was going to
have to have someone come in during the holidays and fill in for
me." Jones said, "You realize this means that I have to pull
other management out of other stores to cover your store, when,
basically, you know, this store should have been taken care of.
What management do you think we're supposed to use?"
An oral statement exhibiting discriminatory animus may be
used to demonstrate pretext or, as is the case here, it may be
used as additional evidence of discrimination. Russell, 235 F.3d
at 225. The remark must, first, demonstrate discriminatory
animus and, second, be made by a person primarily responsible for
the adverse employment action or by a person with influence or
leverage over the formal decisionmaker.4 Id.; see also Sandstad,
309 F.3d at 899.
4
Before Reeves, this court applied the four-part test
articulated in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir.
1996), to determine whether a remark constitutes evidence of
discrimination. We continue to apply the CSC Logic test when a
remark is presented as direct evidence of discrimination apart
from the McDonnell-Douglas framework. See Auguster v. Vermilion
Parish Sch. Bd., 249 F.3d 400, 404-05 (5th Cir. 2001). Citing
Reeves, however, the Russell court did not apply the CSC Logic
test to a remark introduced as additional evidence of
discrimination. Russell, 235 F.3d at 226.
23
As to the first inquiry, the jury is permitted to infer
discriminatory animus from Jones's remark. In Maldonado v. U.S.
Bank, 186 F.3d 759, 767 (7th Cir. 1999), the plaintiff notified
her employer that she was pregnant and that she was due to give
birth during the busy summer months. Her employer terminated her
the next day. The employer proffered that it fired her not
because she was pregnant, but because her pregnancy-induced
absence would make her unavailable to work at a busy time. After
noting that the PDA permits an employer to fire a pregnant
employee for excessive absenteeism, the Seventh Circuit held that
the PDA bars an employer from discharging an employee based on an
unjustified presumption that the employee's pregnancy will render
her unable to fulfill her job expectations. The Maldonado court
held that an employer cannot take anticipatory action unless it
has "a good faith basis, supported by sufficiently strong
evidence, that the normal inconveniences of an employee's
pregnancy will require special treatment." Maldonado, 186 F.3d
at 767; see also Troy v. Bay State Computer Group, Inc., 141 F.3d
378, 381 (1st Cir. 1998) (affirming jury verdict in favor of
terminated pregnant employee where employer might have acted on
unlawful, stereotypical speculation that pregnant women are poor
attendees); Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 437
(8th Cir. 1998) (affirming jury verdict in favor of terminated
pregnant employee where employer may have "discriminatorily
24
assumed [the plaintiff] was suffering a condition that would
interfere with her job"). When Jones made her remark on June 1,
she did not know what the impact of Laxton's pregnancy would be.
Not even Laxton knew, as she "really hadn't given [maternity
leave] a lot of thought because we were just trying to make it
through getting the store opened." She was not yet familiar with
Gap's maternity leave policy. It is reasonable to infer from
Jones's negative reaction to the news of Laxton's pregnancy that
she harbored a stereotypical presumption about Laxton's ability
to fulfill job duties as a result of her pregnancy. Gap's
reliance on Wallace is off-the-mark, for in that case the
employee's supervisor expressed frustration with the employee's
third pregnancy, stating that "I don't know how to classify you
because you were gone three months and you'll be gone three
months again." Wallace, 271 F.3d at 222. By contrast, Jones had
no knowledge as to how long Laxton would take maternity leave.
Discriminatory animus can be inferred from Jones's willingness to
assume the worst.
As to the second inquiry, Laxton produced sufficient
evidence to enable the jury to conclude that Jones influenced
Carr and Dotto, the individuals principally responsible for the
adverse employment action. Courts do not "blindly accept the
titular decisionmaker as the true decisionmaker." Russell, 235
F.3d at 227. Rather, the discriminatory animus of a manager can
25
be imputed to the ultimate decisionmaker if the decisionmaker
"acted as a rubber stamp, or the 'cat's paw,' for the subordinate
employee's prejudice." Id. (citing Shager v. Upjohn, Co., 913
F.2d 398, 405 (7th Cir. 1990)). The relevant inquiry is whether
Jones "had influence or leverage over" Carr and Dotto's
decisionmaking. Id. at 226. Jones issued Laxton's Written
Warning. Carr issued Laxton's Final Written Warning, but Carr
testified that Jones served as her primary source of information.
Gap makes the somewhat implausible assertion that Carr and Dotto
did not rely on the two warnings when they decided to terminate
Laxton, but instead relied solely on the "independent
investigations" of Inglis and Licona. This position is
inconsistent with Gap's proffered justification for Laxton's
discharge, namely, the cumulative effect of violations of company
policy including those cited in the Written Warning and Final
Written Warning. The degree to which Carr and Dotto relied on
the "independent investigations" is a question of fact for the
jury. Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001). Given
that the Written Warning and the Final Written Warning represent
Strikes One and Two in Gap's "three-strikes-you're-out policy,"
the jury could have reasonably concluded that these warnings
influenced Carr and Dotto's decisionmaking.
Gap's reliance on Wallace for the proposition that Jones did
not influence the final decisionmakers is, again, off-the-mark.
26
Like Jones, the declarant in Wallace was the terminated
employee's direct supervisor. Also like Jones, the Wallace
declarant participated in the factfinding leading to the
plaintiff's termination. In both cases, the supervisors'
discriminatory animus arguably colored their factfinding. The
final decisionmakers in Wallace, however, did not rely on the
Wallace declarant's factfinding to terminate the plaintiff
because the plaintiff in that case freely admitted to the final
decisionmakers that she committed the violation for which they
fired her. Wallace, 271 F.3d at 218. Here, by contrast, Laxton
never admitted to Carr and Dotto that she committed the
violations charged in the Final Written Warning. Indeed, Carr
herself testified that she relied on Jones for the facts
underlying these violations. The jury could have therefore
reasonably inferred that Jones "had influence or leverage over"
Carr and Dotto, such that it would have been proper for the jury
to impute Jones's discriminatory animus to Carr and Dotto.
Russell, 235 F.3d at 226.
D. MORE THAN A MERE SCINTILLA
We find that the parties presented the jury with two
competing versions of Laxton's termination. Laxton produced
evidence of pretext and a discriminatory remark from which the
jury could reasonably infer that intentional discrimination took
place. This is legally sufficient evidence that amounts to more
27
than a mere scintilla. It is the province of the jury to judge
the credibility of witnesses and resolve conflicts in the
evidence, and we will not second-guess its rejection of Gap's
proffered justification. Russell, 235 F.3d at 225.
Gap asserts that Laxton's case must fail because she
produced no evidence that discriminatory animus motivated her
termination. Since Reeves, however, when a plaintiff makes a
sufficient showing of pretext, no further evidence of
discriminatory animus is required to withstand a motion for
judgment as a matter of law. Reeves, 530 U.S. at 147-48, 120
S.Ct. at 2108-09. This is not a "rare" exception to Reeves where
(1) the evidence conclusively reveals some other,
nondiscriminatory reason for the discharge or (2) the plaintiff's
showing as to pretext is weak and the employer brings "abundant
and uncontroverted" evidence that its decision was not motivated
by discriminatory animus. Russell, 235 F.3d at 223; see also
Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002)
(dicta); Rubinstein, 218 F.3d at 400. The first exception does
not apply because the evidence does not conclusively reveal some
other reason for discharge. The second exception does not apply
because Laxton's showing of pretext is not weak. Further, there
is not "abundant and uncontroverted" evidence that there was no
discrimination. Gap asserts that the number of supervisors
identifying Laxton's performance-related problems mitigates
28
against the possibility that Gap's decision was discriminatory.
Although this may be true, it is insufficient to warrant a
departure from Reeves.
Gap makes two additional arguments that are equally
unavailing. First, Gap asserts that Carr, a key final
decisionmaker, did not know that Laxton was pregnant. This
argument is flatly contradicted by Carr's own testimony that she
reviewed Inglis's report, in which Laxton's plans for maternity
leave were discussed. (We note that Gap's position in this
regard contradicts its earlier position that Carr relied entirely
on the independent investigations of Inglis and Licona and did
not rely on Jones.) Second, and finally, Gap asserts that
Laxton's case amounts to impermissible second-guessing of its
business judgment. See Mato, 267 F.3d at 452 (noting that anti-
discrimination laws are not vehicles for judicial second-guessing
of business decisions). Were Laxton to assert that Gap should
not have terminated her for the cumulative effect of her
violations, she would be second-guessing its business judgment.
But that is not Laxton's argument. Instead, she brings evidence
that Gap did not terminate her for that reason. This argument
does not impermissibly challenge Gap's business judgment. It
permissibly challenges Gap's credibility.
Ever mindful of the recent mandate of Reeves "not to
substitute [the court's] judgment for that of the jury and not to
29
unduly restrict a plaintiff's circumstantial case of
discrimination," Russell, 235 F.3d at 223 n.4, we conclude that
“[Gap’s] evidence is not of such magnitude that a reasonable jury
could only find in their favor.” Id. at 225. Accordingly, we
reverse the district court's grant of judgment as a matter of law
on the issue of liability.
In the district court, Gap moved for judgment as a matter of
law on each of the three types of damages awarded: punitive
damages, mental anguish, and back pay and front pay. The
district court did not reach these arguments and the parties do
not urge us to decide them on appeal.5 We therefore remand to
the district court to address whether the evidence supports the
jury's damage awards.6
V. MOTION FOR NEW TRIAL OR REMITTITUR
Gap moved for a new trial or, in the alternative,
remittitur. This court has held that when a jury verdict results
from passion or prejudice, a new trial is the proper remedy.
Brunnemann v. Terra Int'l., Inc., 975 F.2d 175, 178 (5th Cir.
1992). When a damage award is merely excessive or so large as to
5
Aside from jurisdictional questions, we do not generally
consider arguments that have not been urged by the parties on
appeal. Crowe v. Smith, 151 F.3d 217, 237 n.30 (5th Cir. 1998).
6
Our determination as to liability should not be construed
to suggest that the evidence supports an award for punitive
damages. See, e.g., Kolstad v. Am. Dental Ass'n, 527 U.S. 526,
119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); Hardin v. Caterpillar,
Inc., 227 F.3d 268 (5th Cir. 2000).
30
appear contrary to right reason, remittitur is the appropriate
remedy. See id. The district court below granted Gap's motion
for a new trial and did not reach the issue of remittitur.
Joanna Laxton v. Gap, Inc. d/b/a Old Navy, No. 6:00-CV-605
(E.D.Tex. Mar. 1, 2002).
The grant of a new trial is reviewed for abuse of
discretion. See Thomas v. Texas Dep't of Criminal Justice, 297
F.3d 361, 368 (5th Cir. 2002). A decision to grant a new trial
is, however, accorded less deference than a decision denying the
grant of a new trial. See Brady v. Fort Bend Cty., 145 F.3d 691,
713 (5th Cir. 1998). Courts grant a new trial when "'it is
reasonably clear that prejudicial error has crept into the record
or that substantial justice has not been done.'" Sibley v.
Lemaire, 184 F.3d 481, 487 (5th Cir. 1999) (quoting Del Rio
Distributing, Inc. v. Adolph Coors Co., 589 F.2d 176, 179 n.3
(5th Cir. 1979)). In granting a new trial, the district court
weighs all of the evidence, and it need not view it in the light
most favorable to the nonmoving party. See Smith v. Transworld
Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985). A new trial is
warranted if the evidence is against the great, and not merely
the greater, weight of the evidence. See Shows v. Jamison
Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982).
The district court granted Gap's motion for a new trial for
two reasons. First, the district court found that Laxton "failed
31
to rebut the nondiscriminatory reasons for her termination
advanced by [Gap] by pointing to departures from company policy."
Joanna Laxton v. Gap, Inc. d/b/a Old Navy, No. 6:00-CV-605 at 3
(E.D.Tex. Mar. 1, 2002). We have already determined that Laxton
did indeed rebut the proffered nondiscriminatory reason for her
termination. Second, the district court found that Laxton did
not show that pregnancy-based animus motivated the alleged
departures from company policy. In light of Laxton's showing of
pretext and the Supreme Court's decision in Reeves, the district
court's insistence on evidence of discriminatory animus
constitutes an abuse of discretion. Reeves, 530 U.S. at 147-48,
120 S.Ct. at 2108-09; Sandstad, 309 F.3d at 897. We therefore
reverse the district court's grant of a new trial.7
VI. CONCLUSION
The district court's grant of judgment as a matter of law
and its grant of a new trial are reversed. We remand for
proceedings consistent with this opinion.
REVERSED.
7
The district court did not reach the issue of a remittitur,
but may do so on remand pending its determination of Gap's motion
for judgment as a matter of law on the damage awards.
32