United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
December 21, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 03-50985
____________
JAVIER PEREZ,
Plaintiff-Appellee,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellant
Appeal from the United States District Court
For the Western District of Texas
Before SMITH and GARZA, Circuit Judges, and VANCE*, District Judge.
EMILIO M. GARZA, Circuit Judge:
A jury returned a verdict in favor of Javier Perez in his emplo yment discrimination action
against his former employer, the Texas Department of Criminal Justice (“TDCJ”). Claiming that the
district court erroneously excluded evidence, misinstructed the jury and improperly denied its motion
for judgment as a matter of law, TDCJ appeals.
Perez was a lieutenant at the TDCJ’s Connally Unit. In August, 1996 Perez was arrested and
charged with felony assault for the off-duty stabbing of a fellow patron of Little Joe’s Bar in Victoria,
*
District Judge of the Eastern District of Louisiana, sitting by designation.
Texas. The victim, Santiago Ramos, was a former inmate at the Connally Unit.
Shortly after the stabbing incident Perez informed his supervisor, Warden Dayton Poppell,
of his arrest. Despite a Garrity warning, however, Perez refused to discuss the incident except to
proclaim his innocence.1 After cautioning Perez that agency policy required that he give a statement
and that failure to cooperate could result in disciplinary action, Poppell referred the matter to Internal
Affairs for investigation.2 The resultant Internal Affairs report (the “IA Report”) concluded that
Perez had violated agency rules by engaging in conduct that jeopardized the integrity of the agency.
Under agency guidelines, such a finding required a termination recommendation. After reviewing the
IA Report and conducting a disciplinary hearing in which Perez, on advise of counsel, again refused
to discuss the stabbing incident, Poppell recommended termination. Perez was discharged.3 The
criminal charges against Perez were later dismissed, apparently because Ramos would not cooperate.
Perez brought a claim under Title VII of the Civil Rights Act of 1964, which makes it
unlawful for an employer to discharge an employee because of his race. See 42 U.S.C. § 2000e-2(a).
Perez’s claim relied primarily on a disparate treatment theory; he claimed that TDCJ had treated him
more harshly than similarly situated non-Hispanic employees. See Wallace v. Methodist Hosp. Sys.,
271 F.3d 212, 220 (5th Cir. 2001) (explaining that an employee may rebut a non-discriminatory
1
Under Garrity v. New Jersey, 385 U.S. 493, 497 (1967), statements made by a police
officer under threat of termination generally cannot be used against him in a subsequent criminal trial.
See also Gulden v. McCorkle, 680 F.2d 1070, 1073 (5th Cir. 1982) (statements compelled by threat
of termination cannot be used in subsequent criminal trial).
2
The Internal Affairs Division is an independent investigative arm of the Texas Board of
Criminal Justice.
3
Perez’s father, a fellow corrections officer at the Connally Unit, was also arrested for the
stabbing incident and terminated by TDCJ. He is not, however, a party to this case.
2
explanation for termination with evidence of disparate treatment of similarly situated employees).
The jury agreed with Perez, finding that TDCJ had discriminated against Perez because of his race.
On appeal, TDCJ contends that the district court erred in: (1) excluding certain evidence
relating to Perez’s involvement in the stabbing; (2) misinstructing the jury on the standard for
determining whether TDCJ treated Perez more harshly than similarly-situated non-Hispanic
employees; and (3) denying TDCJ’s renewed motion for judgment as a matter of law (“JMOL”). We
consider the issues in the order they presented themselves at trial, beginning with the district court’s
evidentiary rulings.
I
TDCJ argues that the district court erred in (1) prohibiting cross-examination of Perez about
his guilt in the underlying stabbing and (2) excluding the contents of the IA report that prompted the
termination recommendation.4 “The trial court's discretion to admit or exclude evidence is generally
broad, but competent evidence cannot be excluded without a sound and acceptable reason.”
Davidson Oil Country Supply Co. v. Klockner, Inc., 908 F.2d 1238, 1245 (5th Cir. 1990). We
review the trial court’s evidentiary rulings only for abuse of discretion. Kelly v. Boeing Petroleum
Servs., 61 F.3d 350, 356 (5th Cir. 1995). An erroneous evidentiary ruling is reversible error only if
the ruling affects a party’s substantial rights. Id. at 361.
The district court permitted TDCJ to cross-examine Perez about his arrest, his call to Poppell
after the arrest and his refusal, on advise of counsel, to discuss the incident with either Poppell or the
Internal Affairs investigator. But, the district court prohibited TDCJ from questioning Perez about
4
While our ruling, infra, that the district court erroneously instructed the jury requires that
we vacate the judgment, we nevertheless address the evidentiary issues because they are likely to
present themselves again in any retrial of Perez’s discrimination claim.
3
his actual involvement in the stabbing, sustaining Perez’s objection that what happened at Little Joe’s
Bar was irrelevant. TDCJ argues that the district court erred in so limiting its examination of Perez.
We disagree.
To be admissible, evidence must be relevant. See FED. R. EVID. 401. In determining whether
Perez was treated differently from similarly situated emplo yees because of his race, the issue is
whether Perez and his alleged comparator employees were similarly situated from the perspective of
their employer at the time of the relevant employment decisions. Cf. Hill v. Seaboard Coast Line R.
Co., 767 F.2d 771, 774 (11th Cir. 1985) (“[F]ailure to promote a plaintiff because the person actually
promoted was more qualified is a nondiscriminatory reason, but the articulation of that reason must
include the fact that the decision-maker knew that the promoted individual's qualifications were
superior at the time the decision was made.”); Sabree v. United Bhd. of Carpenters and Joiners
Local No. 33, 921 F.2d 396, 404 (1st Cir. 1990) (emphasizing the importance of focusing on the
employers rational at the time of the decision rather than post hoc rationalizations). Thus, the
evidence relevant to determining whether TDCJ treated Perez differently because of his race is
evidence that goes to what Poppell knew at the time he ordered the IA investigation and
recommended Perez’s termination. Examination of Perez about what actually happened the night of
the stabbing, as distinct from what he told Poppell and the IA investigator about what happened,
could not have added anything relevant to that inquiry.5 See Patrick v. Ridge, No. 04-10194, 2004
5
TDCJ also argues that it should have been permitted to cross–examine Perez about his
involvement in the stabbing because Perez proclaimed his innocence on the stand and the court’s
refusal to permit cross–examination left the jury with the impression that Perez was fired for
something he did not do. In fact, Perez testified only that he told the warden, after his arrest, that he
was innocent and had hired a lawyer. Perez never testified at trial that he was innocent. Moreover,
the jury heard testimony that Perez’s guilt was never adjudicated, that the charges were dropped only
because the victim disappeared and that IA investigator found sufficient evidence to believe Perez
4
WL 2898068 (5th Cir. December 15, 2004) (“As the ultimate issue is the employer’s reasoning at the
moment the questioned employment decision is made, a justification that could not have motivated
the employer’s decision is not evidence that tends to illuminate this ultimate issue and is therefore
simply irrelevant. . . .”) (emphasis in the original). Moreover, even if Perez’s testimony about his
involvement in the stabbing somehow met the low threshold for relevance, its minimal probative value
would have been outweighed by the danger of confusion and prejudice. See FED. R. EVID. 403.
TDCJ also appeals the district court’s exclusion of the contents of the IA Report. Unlike
Perez’s proposed testimony, the IA Report goes to the basis for Poppell’s termination
recommendation and is thus relevant. See FED. R. EVID. 401. The district court stated that it was
excluding the report because admitting it would drag out the trial and require going into the details
of each employee’s criminal conduct. The court also suggested that TDCJ did not need the IA
Report to show that Perez had been uncooperative because it had already introduced other testimony
to that effect. We take these statements to mean that the court excluded the IA Report as cumulative
and a waste of time. See FED. R. EVID. 403.
We need not decide whether the district court erred in excluding the contents of the IA report
because, even assuming the exclusion was erroneous, we are not persuaded that the exclusion
affected TDCJ’s substantial rights. See EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093 (5th Cir.
1994) (holding that to vacate a judgment based on an erroneous evidentiary ruling, the court must
find that the erroneous ruling affected the substantial rights of the parties).
At trial and again on appeal, TDCJ argues that the IA Report should be admitted because it
guilty. Thus, there is no support for TDCJ’s argument that the jury was left with the impression that
Perez was fired for something he did not do.
5
showed the basis for Poppell’s termination recommendation. But the district court did admit into
evidence the IA Report’s conclusion that Perez’s off-duty conduct undermined the integrity of the
agency, which under TDCJ’s own theory of the case required Poppell’s termination
recommendation.6 Moreover, TDCJ points to no portion of the record in which Perez denies that,
under agency policy, the IA Report’s conclusion required a termination recommendation.7 Thus, the
exclusion of the IA Report’s contents did not prevent TDCJ from establishing that Poppell’s
termination recommendation was required in light of the IA Report’s conclusion. Nor was TDCJ
prevented from establishing that Perez refused to cooperate with the Poppell or the IA investigator,
since both Poppell and the investigator testified to that effect at trial. In sum, TDCJ has not shown
a reasonable likelihood that the exclusion affected its substantial rights. See Johnson v. William C.
Ellis Sons Iron Works, Inc., 609 F.2d 820, 823 (5th Cir. 1980) (stating that “if there is a reasonable
likelihood that a substantial right was affected, we should not find the error harmless.”).
II
The crux of this case, however, is not the evidentiary rulings discussed in Part I, supra, but
rather the undergirding legal standard to which that evidence must be applied. TDCJ argues that the
district court misinstructed the jury on the legal standard for determining whether the employees to
whom Perez sought to compare himself were in fact similarly situated. In relevant part, the trial court
instructed the jury that,
6
TDCJ’s states that, “[f]or a Level One violation such as Internal Affairs found, there is no
other recommendation warden Poppell could have made consistent with agency policy.” Appellant’s
Brief at 15.
7
Indeed, TDCJ states in its brief that Perez “conceded at trial that warden Poppell made the
only decision he could make, given the Internal Affairs finding.” Appellant’s Brief at 15.
6
To establish discrimination by using indirect evidence in this case, the
plaintiff must prove by a preponderance of the evidence that one or
more similarly situated non–Hispanic employees who engaged in
criminal activity were treated more favorably. In comparing the
nature of the offense at issue and the nature of the discipline imposed,
the quantity and quality of the other employees’ misconduct must be
of comparable seriousness to the misconduct of the plaintiff.
(emphasis added). TDCJ argues that the “comparable seriousness” language, without more,
instructed the jury to apply too lenient a standard in determining whether the employees being
compared were similarly situated because it suggest ed that the jury should focus solely on the
seriousness of the employees’ misconduct rather than the comparability of their overall
circumstances.8
“The district court has broad discretion in formulating the jury charge, and we therefore
review [its] instructions with deference.” Deines v. Tex. Dep’t of Protective and Regulatory Servs.,
164 F.3d 277, 279 (5th Cir. 1999). TDCJ must show that the instruction creates a “substantial and
ineradicable doubt whether the jury [was] properly guided in its deliberations.” Id. (quoting Mooney
v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995). We will not reverse even an erroneous
instruction if, upon review of the “entire record, the challenged instruction could not have affected
the outcome of the case.” Id.
The district court took the “comparable seriousness” requirement in the above quoted jury
instruction from the Supreme Court’s decision in McDonald v. Santa Fe Trail Transp. Co., 427 U.S.
273 (1976). In McDonald, white and black employees were accused of stealing a shipment of
8
TDCJ filed a written pre-trial objection on this basis and proposed a replacement
instruction. TDCJ renewed its objection at trial and the court ruled. Thus, contrary to Perez’s
argument on appeal, TDCJ preserved the issue for appeal. See Taita Chem. Co. v. Westlake Styrene,
LP, 351 F.3d 663, 667 (5th Cir. 2003).
7
antifreeze from their employer, Santa Fe Trail Transportation Co. (“Santa Fe”). Id. at 275. Santa
Fe terminated the white employees but not the black employee. Id. at 275-76. In a footnote, the
Supreme Court rejected Santa Fe’s contention that the plaintiff-white employees were required to
plead with particularity the degree of similarity in culpability. The Court explained, “precise
equivalence in culpability between employees is not the ultimate question: as we indicated in
McDonnell Douglas, an allegation that other ‘employees involved in acts against (the employer) of
comparable seriousness. . .were nevertheless retained. . .’ is adequate to plead an inferential case that
the employer’s reliance on his discharged employee’s misconduct as grounds for terminating him was
merely a pretext.” Id. at 283 n.11 (quoting McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973)
(emphasis added) (ellipses in the original).
In instructing the jury only that the employees’ underlying misconduct must be comparably
serious, the district court failed to take into account the important factual and procedural distinctions
between McDonald and the present case. In McDonald, the employees in question were all
participants in the same theft. Id. at 282. Aside from race, the only arguable distinction between
them was their degree of culpability. In addressing the pleading standard under the McDonnell
Douglas burden-shifting analysis on McDonald’s facts, the Supreme Court did not intend to
articulate, nor did it, the entirety of the plaintiff-employee’s burden of proof in cases where, as here,
the plaintiff-employee seeks to compare his own treatment to that of employees involved in unrelated
but arguably similar misconduct.
We, however, have specifically addressed the plaintiff-employee’s burden of proof in disparate
treatment cases involving separate incidents of misconduct and have explained consistently that for
employees to be similarly situated those employees’ circumstances, including their misconduct, must
8
have been “nearly identical.” See Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). See
also Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990) (per curiam). In Smith,
a Wal-Mart employee claimed that she was terminated for violating the company’s fraternization
policy while a male employee was not terminated for a similar violation of company policy. This
court explained that “[i]n order for her claim of disparate treatment to succeed under Title VII, Smith
would have to show that [the male emplo yee] and she had been similarly situated. To this end
Smith’s burden is to show ‘that the misconduct for which she was discharged was nearly identical to
that engaged in by a male employee whom [the company] retained.’” Id. (quoting Davin v. Delta Air
Lines, Inc., 678 F.2d 567, 570 (5th Cir. Unit B 1982) (internal citation omitted) (third alteration in
the original).
In Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296 (5th Cir. 2000) the plaintiff argued that
his employer terminated him for rude and abusive conduct but did not terminate a younger employee
for similar behavior. We held that in order to establish a claim of disparate treatment the plaintiff-
employee had to show that he was treated differently “under ‘nearly identical’ circumstances.” Id.
at 304 (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). We then found that
the striking differences between the two men’s situations more than account ed for the differential
treatment they had received. Id. at 305.
Likewise, in Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995) we explained that
a black plaintiff-employee claiming disparate treatment of white employees had to show that the white
employees were treated differently “under circumstances ‘nearly identical’ to his.” Id. at 1090
(quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). See also Wallace, 271 F.3d
at 221 (summarizing our case law requiring that the comparator employees’ circumstances and
9
misconduct be “nearly identical” to that of the plaintiff-employee); Barnes v. Yellow Freight Sys. Inc.,
778 F.2d 1096, 1101 (5th Cir. 1985) (holding that a presumption of discriminatory intent is raised
for purposes of a disparate treatment claim where “a supervisor of one race treats employees of the
same race more favorably than similarly situated employees of another race under circumstances that
are essentially identical.”).
In instructing, without more, that the employees’ underlying misconduct must be comparably
serious, the district court erroneously suggested that comparably serious misconduct was by itself
enough to make employees similarly situated. A correctly worded instruction would have made clear
that the jury must find the employees’ circumstances to have been nearly identical in order to find
them similarly situated.
Having found the jury instruction erroneous, we must determine whether the error could have
affected the outcome of the case. See Deines, 164 F.3d at 279. In support of his disparate
treatment claim, Perez pointed to two fellow corrections officers as comparator employees. The first,
Shannon Clover (“Clover”), was a lieutenant at another TDCJ unit when he was arrested for
involuntary manslaughter. Clover was driving under the influence of alcohol when he struck another
vehicle, killing the driver. He ultimately pled guilty to misdemeanor driving while intoxicated. Clover
transferred to Poppell’s unit after his arrest but before his guilty plea. Under agency rules, conviction
of a misdemeanor is a “Level Four” violation, for which an employee may not be terminated. Clover
was reprimanded and placed on probation. No Internal Affairs investigation was initiated while the
charges against Clover were pending.
Perez’s second comparator employee, Arlen Parma (“Parma”), and his brother were
employees at another TDCJ unit when they initiated a drunken assault of their mother’s boyfriend.
10
Parma entered into a plea bargain and received deferred adjudication. Like Clover, Parma was
transferred to Poppell’s unit after his arrest and, like Clover, no Internal Affairs investigation of the
incident was initiated while the charges against Parma were pending. At the subsequent disciplinary
hearing, Poppell reprimanded Parma for conviction of a misdemeanor.
Poppell, who ordered the IA investigation and recommended that Perez be terminated,
conceded at trial that Perez, Parma and Clover were accused of comparably serious crimes and that
Parma and Clover were nevertheless treated more leniently than Perez. Given the jury instruction’s
focus on comparable seriousness and Poppell’s testimony, there can be little surprise that the jury
returned a verdict in favor of Perez.
Properly instructed, however, the jury could have concluded that Poppell’s testimony, even
if taken as conceding the serio usness issue, was not dispositive on the question of whether the
comparator employees were similarly situated. This is because TDCJ presented a number of other
potentially significant distinctions between Perez, Parma and Clover’s respective circumstances.
Specifically, TDCJ argued that only Perez had refused to explain his actions in response to TDCJ
inquiries and that only Perez was accused of assaulting an ex-inmate. Regarding the involvement of
a former inmate, Poppell testified that he was concerned that an assault on an ex-inmate might
suggest illegal activity within the prison.9 These factors, TDCJ claimed, explained why an IA
investigation was initiated for Perez but not Clover and Parma.10 The need to initiate an Internal
9
TDCJ had earlier investigated Perez for involvement in the Mexican Mafia, but IA could
not substantiate the rumors that prompted the investigation.
10
TDCJ also argued that the employees worked under different supervisors at the time of
their arrests and that it would have been unusual for Poppell to initiate Internal Affairs investigations
of Parma and Clover when their original supervisors had not initiated investigations.
11
Affairs investigation in turn explained the differences in punishment, TDCJ contended, since under
agency policy the IA Report’s conclusion that Perez had engaged in off-duty conduct that undermined
the integrity of the agency required a termination recommendation.
The distinctions proffered by TDCJ, while seemingly not relevant under the rubric of
comparable seriousness, could be relevant to the question of whether Perez, Parma and Clover’s
respective circumstances were nearly identical. Because a jury applying the correct legal standard
could have found TDCJ’s proffered distinctions significant, we cannot say that the district court’s
instruction prohibiting their consideration could not have affected the outcome of the case.
III
Finally, TDCJ argues that the district court erred in denying its renewed JMOL motion
pursuant to FED. R. CIV. P. 50. TDCJ contends that the evidence co nclusively proves that the
employees’ circumstances were not nearly identical and that TDCJ lacked discriminatory intent.11
We review the district court’s denial of a renewed JMOL motion de novo. Travis v. Bd. of
Regents of Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir. 1997). This court must review the entire
record, “drawing all reasonable inferences in favor of the nonmoving party, but making no credibility
determinations or weighing any evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 135 (2000). Thus, although we must review the record as a whole, we “must disregard all
evidence favorable to the moving party that the jury is not required to believe.” Id. Reviewing the
record in this light, TDCJ’s JMOL motion should be granted if “the facts and inferences point so
11
TDCJ also argues that it conclusively established an affirmative defense, but it waived this
issue by failing to object to the absence of a jury charge. See McDaniel v. Anheiser Busch, Inc., 987
F.2d 298, 306 (5th Cir. 1993) (pretrial request for instructions is ordinarily insufficient to preserve
error).
12
strongly in favor of [TDCJ] that a rational jury could not arrive at a contrary verdict.” Waymire v.
Harris County, 86 F.3d 424, 427 (5th Cir. 1996) (quoting London v. MAC Corp. of Am., 44 F.3d
316, 318 (5th Cir. 1995)).
Considering all evidence and construing all reasonable inferences in the light most favorable
to Perez, we do not find that the facts and inferences point so strongly in favor of TDCJ that a
rational jury, properly instructed, could not return a verdict in favor Perez. Poppell was at times
equivocal in his testimony about the significance of the distinction between an assault on a former
inmate and an assault on a member of the public. Similarly, Perez’s counsel sought to impeach
Poppell’s testimony that Perez was less cooperative than Parma and Clover by reference to Poppell’s
pre-trial statements on the issue. Given the disputed testimony, we cannot say that a reasonable jury
could not have found Perez, Parma and Clover similarly situated. A jury finding that Perez, Parma
and Clover were treated differently despite being similarly situated could therefore find that TDCJ
discriminated against Perez because of his race. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
511 (1993) (“rejection of the defendant’s proffered reasons will permit the trier of fact to infer the
ultimate fact of intentional discrimination.”) (emphasis in the original).
IV
We hold that the district court erroneously instructed the jury on the law and that this
erroneous instruction could have affected the outcome of the trial. Accordingly, we VACATE the
district court’s judgment and REMAND the case for further proceedings consistent with this opinion.
13