Alaniz v. Zamora-Quezada, et al

Filing 920091221

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 21, 2009 N o . 07-40325 Charles R. Fulbruge III Clerk

T H E L M A ALANIZ; NOELIA GALVAN SANTIAGO; M A R Y E TIPTON; ANGELICA SOLIS, P la in tiff s ­ A p p e lle e s , v. J O R G E C. ZAMORA-QUEZADA, Individually and doing business as McAllen A r t h r it is & Osteoporosis Center, Arthritis & Osteoporosis Centers and Jorge C . Zamora-Quezada, MD, MPH, PA, D e fe n d a n t­ A p p e lla n t.

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 7:03-CV-108

Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges. P R I S C I L L A R. OWEN, Circuit Judge: T h is is an appeal from a jury verdict rendered against Dr. Jorge ZamoraQ u e z a d a (Zamora) and his clinics for sex discrimination and retaliation against fo u r female employees. We affirm the judgments for three Appellees but reverse fo r insufficient evidence to support Noelia Galvan-Santiago's (Galvan) quid pro q u o claim. I D r . Jorge Zamora owns and operates an osteoporosis and arthritis practice

No. 07-40325 c o n s is tin g of two clinics. Four former employees, Thelma Alaniz, Galvan, Mary T ip t o n , and Angelica Solis, brought Title VII sexual harassment claims against Z a m o r a and the clinics. A Alaniz worked as a receptionist at one of the clinics. She alleged that Z a m o r a sexually harassed her on many occasions: he frequently asked her out, fo r c e d her to dance with him, and when learning she was pregnant, asked w h e t h e r her husband "gave [her] the chocolate." Zamora would also call her to h is office for private meetings where he would sit next to her and caress her h a n d while looking into her eyes and asking if she was afraid of him. A la n iz also alleged that Zamora's father-in-law and her supervisor, R o b e r t o Silva, consistently harassed her. Among other behaviors, Silva

in a p p r o p r ia t e ly stared at parts of Alaniz's body, repeatedly called her " m a m a c it a ," and suggested that she wear more revealing clothing. Zamora's conduct worsened after Alaniz returned from maternity leave. O n one occasion, he told her she was "looking pretty good" and not to get p r e g n a n t again. He also called her repeatedly to ask what color underwear she w a s wearing and during meetings in his office, Zamora would sometimes rub her t h ig h s and knees. Despite Alaniz's repeated complaints to the office manager, Z a m o r a 's behavior continued. On one occasion, when Alaniz went into his office, Z a m o r a grabbed her around the waist and kissed her on the lips. Zamora then informed Alaniz that there were some problems with her p e r f o r m a n c e but that she could keep her job if she had a sexual relationship with h im . Alaniz refused and submitted a written complaint to Galvan, the human r e s o u r c e s (HR) manager. Several days later, she initiated a complaint with the E q u a l Employment Opportunity Commission (EEOC). A fte r Alaniz missed a mandatory work meeting, Zamora instructed Galvan t o issue Alaniz a written reprimand. However, before the reprimand could be 2

No. 07-40325 g iv e n and after Zamora was informed of the EEOC complaint, he instructed G a lv a n to terminate Alaniz. Zamora claims Alaniz was fired for missing the m e e t in g , poor performance and attendance, conflicts with other employees, and r e c r u itin g witnesses for a lawsuit during business hours. B G a lv a n was initially hired as HR manager but she claims, and Zamora d is p u te s , that after Alaniz's termination she became an "office administrator." O n one occasion, Galvan met with Zamora in his office, and he began the m e e t in g by asking her to sit on his lap. When she refused, he explained she c o u ld make more money if she engaged in a sexual relationship with him. Z a m o r a then inquired about Galvan's marriage and whether she found Zamora a tt r a c t iv e or frightening. Ultimately, Galvan started crying. T h e next day, Zamora announced that another individual would be a s s u m in g the position of "office administrator," thus stripping Galvan of any r e s p o n s i b ilit ie s she may have had in that capacity. Galvan's salary, benefits, a n d role as HR manager were unchanged. The following workday, Zamora r e p r im a n d e d Galvan for some performance problems. The next day, he called h e r into his office where he informed her, in front of the office manager and the n e w administrator, that he was disappointed with her performance. Zamora t h e n instructed Galvan to relinquish all of her remaining responsibilities and e x p la in e d that he would take a couple of weeks to determine whether he would c o n tin u e to employ her. Galvan resigned the following day. C S ix months after Galvan's resignation, Zamora hired Tipton to serve as o ffic e manager. Tipton alleges that within the first week of starting her

e m p lo y m e n t , Zamora gave her a hug that involved running his hands up and d o w n her back and pushing his chest and pelvis up against hers. Although T ip t o n struggled to free herself, Zamora did not release her from his embrace 3

No. 07-40325 a n d whispered that he knew that she would do a good job. On another occasion, Z a m o r a tried to kiss Tipton on the lips. While in daily meetings, Zamora would c a r e s s Tipton's hand and smell her hair, noting that it smelled "really good." Z a m o r a would also frequently ask what Tipton intended to wear the next day w h ile biting his lower lip, invite her dancing, call her "chiquita," compliment her b o d y , and tell her that she should wear short skirts. On one occasion, Zamora informed Tipton she could have anything she w a n t e d , depending on "how loyal and good she was." Another incident involved Z a m o r a urinating in his private bathroom with the door open while Tipton was in his office and reassuring her there was no reason to come back later because h e was not going to "do anything." Further, while working late with Tipton, Z a m o r a would inquire whether her husband was a jealous man because, as he e x p la in e d , Zamora was a handsome man who intimidated others. On one occasion, Zamora told Tipton to reprimand another female e m p lo y e e . This employee, in turn, reported to Tipton that Zamora had sexually h a r a s s e d her and that he was issuing the reprimand in retaliation. Tipton in v e s t ig a t e d these allegations and eventually reported them to Zamora, who d e n ie d the allegations and became upset about being confronted, questioning w h y Tipton took the allegations seriously. Tipton responded that she too felt s e x u a lly harassed by him in a similar manner, and at that time Tipton asked the H R manager to record an official sexual harassment complaint. A few days later, Zamora called Tipton a "sexual harassment spy" at a s t a ff meeting and warned other employees to remember that they were in the p r e s e n c e of an "American woman." According to Tipton, Zamora then assigned h e r two tasks with impossible deadlines that she failed to complete, resulting in a reprimand. The next day, Zamora told Tipton to take a few days off of work a n d maybe look for a new job. Zamora then promoted Solis, who was hired two d a y s prior as Zamora's executive secretary, to office manager of one of the clinics. 4

No. 07-40325 T h e next morning, Mrs. Zamora, who was meeting with several female e m p lo y e e s who had filed sexual harassment complaints, scheduled a meeting w it h Tipton. During this meeting, however, Mrs. Zamora told Tipton that Z a m o r a requested that she leave the clinic and that the police were called to e s c o rt her. Zamora and Tipton agree that she was effectively fired at this time. D S o lis also alleges that during private meetings, Zamora would place his h a n d over hers and caress it, while telling her not to be afraid. He also often in q u ir e d about her boyfriend. On one occasion, Zamora hugged her tightly and k is s e d her on the lips. Another time, Zamora offered Solis a luxurious

a p a r tm e n t, so that he could stay there with her whenever he was in town. On one occasion, Solis asked to speak to Zamora regarding work-related p r o b le m s involving another female employee. As Zamora was on his way to S o u th Padre Island, he suggested that Solis drive him there so they could talk o n the way. During the trip, Zamora would caress Solis's hand when she placed it on the gear shifter and told her he would cancel plans with his family to be w it h her. He also asked to stop at her apartment. When Solis said no, Zamora p r o p o s e d they go to a hotel. Solis again declined and explained that she was o n ly interested in a professional relationship. In response, Zamora inquired why S o lis could not be "extra nice" to him like some other female employees, but a n g r ily agreed to treat her as any other employee in the future. Solis alleged that after this incident, Zamora began unjustifiably r e p r im a n d i n g her. A month later, she was sent to a month-long office manager t r a i n i n g at another clinic. Her salary was unchanged. During this training p e r io d , Solis was told that Zamora did not want her at the office. On October 17, Z a m o r a eliminated the position of office manager and made Solis a marketing r e p r e s e n t a tiv e , again with salary and benefits unchanged. Considering this a d e m o t io n , on October 20, Solis filed a written sexual harassment complaint. The 5

No. 07-40325 n e x t day, Zamora fired Solis for allegedly stealing money and pharmaceuticals. E A l a n iz and Galvan brought hostile work environment, quid pro quo, and r e ta lia t io n claims against Zamora. Tipton and Solis later intervened. Alaniz, T ip t o n , and Solis submitted all three claims to the jury, while Galvan submitted o n ly her quid pro quo claim. The jury found Zamora liable on all claims,

a w a r d i n g past compensatory and punitive damages. 1 Additionally, the jury a w a r d e d Alaniz, Tipton, and Solis backpay damages. Zamora now appeals. II Z a m o r a first challenges the district court's denial of his motion for ju d g m e n t as a matter of law (JMOL) and his motion for a new trial. He asserts th a t the evidence does not support the verdict as to any of the Appellees' quid p r o quo claims nor Tipton's and Solis's hostile work environment claims. Z a m o r a does not challenge the verdict as to the retaliation claims and Alaniz's h o s tile work environment claim. " W e review the denial of a motion for judgment as a matter of law de novo a n d in accordance with the standards applied by the district court." 2 JMOL is p r o p e r when "a party has been fully heard on an issue during a jury trial and the c o u r t finds that a reasonable jury would not have a legally sufficient evidentiary b a s is to find for the party on that issue." 3 W e review a district court's denial of a motion for a new trial for abuse of d is cr e tio n .4 But, "[o]ur review is particularly limited when the trial court has

In accordance with 42 U.S.C. § 1981a(b)(3)(A), because Zamora is a small employer, the court reduced the compensatory and punitive damages awards to conform to statutory caps.
2

1

Stokes v. Emerson Elec. Co., 217 F.3d 353, 356 (5th Cir. 2000).
ED.

3

F

R. CIV. P. 50(a)(1).

4

Dotson v. Clark Equip. Co., 805 F.2d 1225, 1227 (5th Cir. 1986).

6

No. 07-40325 d e n ie d a motion for a new trial."5 Furthermore, [i]n such cases, all the factors that govern our review of [t h e trial court's] decision favor affirmance, and we m u s t affirm the verdict unless the evidence--viewed in t h e light most favorable to the jury's verdict--points so s tr o n g ly and overwhelmingly in favor of one party that t h e court believes that reasonable men could not arrive a t a contrary [conclusion].6 A Z a m o r a challenges the sufficiency of evidence supporting Tipton's and S o lis 's hostile work environment claims. A workplace environment is hostile w h e n it is "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's e m p lo y m e n t ." 7 However, not all harassment, including "simple teasing, offhand com m en ts, and isolated incidents (unless extremely serious)," will affect a "term, c o n d it i o n , or privilege of employment." 8 To be actionable, the working

e n v ir o n m e n t must be objectively hostile or abusive.9 "Whether an environment is hostile or abusive depends on the totality of the circumstances, including fa ct o r s such as the frequency of the conduct, its severity, the degree to which the c o n d u ct is physically threatening or humiliating, and the degree to which the

5

Id.

Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998) (alterations in original) (internal quotation marks omitted) (quoting Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982) and Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 987 (5th Cir. 1989)). Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations and quotation marks omitted). Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999) (internal citations and quotation marks omitted).
9 8 7

6

Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005).

7

No. 07-40325 c o n d u c t unreasonably interferes with an employee's work performance." 10 G iv e n the fact-specific nature of the inquiry, our prior holdings in this c o n te x t are instructive. In Shepherd v. Comptroller of Public Accounts, we d e t e r m in e d that the plaintiff could not withstand summary judgment on her h o s tile work environment claim where a male co-worker (1) told Shepherd that h e r elbows were the same color as her nipples; (2) told her that she had big t h ig h s while simulating looking under her dress; (3) on several occasions a t te m p t e d to look down her clothing; (4) often rubbed his hand from her shoulder t o her wrist; and (5) twice patted his lap to indicate where she should sit.1 1 But, S h e p h e r d also testified that the co-worker never propositioned her or asked her o u t, and that apart from the above instances the two had a friendly relationship a t , as well as outside of, work.1 2 Further, the conduct that Shepherd complained o f took place over a period of almost two years.1 3 We held that this conduct did n o t rise to the level of a Title VII violation, noting in particular (1) the in fr e q u e n c y of the conduct; (2) that the comments, although "boorish and o ffe n s iv e ," were not severe; (3) that Shepherd was never physically threatened; a n d (4) that the conduct did not interfere unreasonably with work performance.1 4 O n the other hand, in Farpella-Crosby v. Horizon Health Care, we upheld a jury verdict granting relief on the plaintiff's hostile work environment claim.1 5 I n Farpella-Crosby, the plaintiff's boss made offensive comments two to three

10

Id. (citing Harris, 510 U.S. at 21-22). Shepherd, 168 F.3d at 872-74. Id. at 872. Id. Id. at 874. 97 F.3d 803 (5th Cir. 1996).

11

12

13

14

15

8

No. 07-40325 t im e s a week, often in front of other co-workers.1 6 The comments centered a r o u n d the plaintiff's alleged proclivity to engage in sexual activity.1 7 The boss w o u ld comment that "he knew what she liked to do" and would often inquire w h e t h e r she had "got[ten] any" the night before.1 8 He also joked that the

p l a in t iff "doesn't know how to use condoms," and in another instance made very c r u d e sexual remarks about the smell emanating from her office.1 9 We focused o n the frequency and crudeness of the remarks, as well as the frequent inquiries a b o u t the plaintiff's sexual activity, and determined that this conduct was s u f fic ie n t ly severe and pervasive to create a hostile work environment, even w it h o u t evidence of propositioning or inappropriate touching.2 0 I n light of these holdings, we conclude that the facts are legally sufficient to support Tipton's and Solis's hostile work environment claims. Unlike in S h e p h e r d , Zamora repeatedly asked Tipton out, propositioned her, and c o m m e n t e d on her physical appearance and dress. Moreover, this conduct

o c c u r r e d over only 32 days; this frequency of harassment is similar to FarpellaC r o s b y , where comments occurred two to three times a week. Moreover, the r e c o r d contains evidence of repeated bodily contact. In regard to Solis, Zamora's harassment was worse than that involved in F a r p e lla -C r o s b y and far worse than that in Shepherd. Zamora initiated

u n w a n te d and inappropriate contact and directly propositioned Solis on multiple o c c a s io n s . Accordingly, the district court did not err in denying JMOL or abuse it s discretion by denying Zamora a new trial on these claims.

16

Id. at 806. Id. at 805. Id. Id. Id. at 806.

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18

19

20

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No. 07-40325 B Z a m o r a also challenges the sufficiency of the evidence on all of the A p p e lle e s ' quid pro quo claims. To establish a Title VII quid pro quo claim, a p l a in t iff must show that the acceptance or rejection of a supervisor's alleged s e x u a l harassment resulted in a "tangible employment action."2 1 "`A tangible e m p l o y m e n t action constitutes a significant change in employment status, such a s hiring, firing, failing to promote, reassignment with significantly different r e s p o n s ib ilit ie s , or a decision causing a significant change in benefits.'" 22 In a d d i t io n , a plaintiff must show a "causal nexus" between the acceptance or r e je c t io n of the sexual advances and the tangible employment action. T h i s sufficiency claim only has a material effect on the judgment as to G a lv a n , who asserted only quid pro quo harassment by Zamora. This claim is n o t supported by sufficient evidence since she has not demonstrated that she s u ffe r e d a tangible employment action. Even assuming that Galvan did at one t im e hold the office administrator position, her reassignment to HR manager d o e s not constitute a tangible employment action. Galvan's salary, benefits, and H R duties remained unchanged, and she has not demonstrated that the a d m in is tr a to r position was objectively superior so that her reassignment could b e considered a demotion. Zamora's placement of Galvan on a two-week paid probationary period s im ila r ly does not rise to the level of tangible employment action. The action w a s not an "ultimate employment decision," 2 3 and it did not result in a

21

La Day v. Catalyst Tech., Inc., 302 F.3d 474, 481 (5th Cir. 2002). Id. at 481-82 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

22

See McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (quoting Green v. Adm'rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)); see also id. (concluding that "placing [the employee] on paid leave--whether administrative or sick--was not an adverse employment action").

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10

No. 07-40325 s ig n ific a n t change in benefits. And although Galvan eventually quit because she b e lie v e d that she would be terminated, there is no evidence that her employment r e s p o n s ib ilit ie s were permanently altered prior to her departure.2 4 C W it h respect to Alaniz, Tipton, and Solis, whether legally sufficient e v id e n c e supports their quid pro quo claims is irrelevant, because Zamora has n o t challenged his liability for retaliation, and their claims for sexual h a ra s s m e n t are fully supported. Nevertheless, Zamora argues that if we find the e v id e n c e insufficient to support the verdict on any of these three Appellees' c la im s , a new trial on damages would be necessary because the jury was not a s k e d to apportion damages among the different theories of liability. He claims th a t it is impossible to parse the amount of damages awarded for each claim if c e r ta in verdicts are overturned. Zamora cites cases where a new trial was necessary because we could not t e ll how the jury ruled on a general verdict encompassing different theories of lia b i lit y , not because the jury failed to apportion damages among various claims, e a c h framed by a specific interrogatory.2 5 In this case, the jury's verdict on each t h e o r y of liability was clear. A new trial on damages is not necessary since, ir r e sp e c t iv e of the quid pro quo claims, the verdict for retaliation constitutes a p r e d i ca t e for backpay and the verdicts for retaliation and harassment support t h e other damages awards.26

24

See La Day, 302 F.3d at 482.

See, e.g., Reeves v. AcroMed Corp., 44 F.3d 300, 302-03, 307 (5th Cir. 1995); Jamison Co., Inc. v. Westvaco Corp., 530 F.2d 34, 37 (5th Cir. 1976). Zaffuto v. City of Hammond, 308 F.3d 485, 491 (5th Cir. 2002) (holding that a new trial on compensatory damages was not necessary even though one of the claims was improperly submitted to the jury because the properly submitted claim formed an independent basis to support the award).
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25

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No. 07-40325 III Z a m o ra also argues that the district court committed numerous errors that d e n ie d him a fair trial by: (1) allowing all four Appellees to present their claims in a single trial; (2) admitting hearsay and "me too" evidence; (3) charging the ju r y with inconsistent questions; (4) allowing Appellees' attorney to proceed with a n improper closing argument; and (5) allowing punitive damages to be awarded p a r tia lly based on harm allegedly caused to non-litigants. A T h e district court denied Zamora's motion for separate trials pursuant to F e d e r a l Rule of Civil Procedure 42(b). Zamora argues that this resulted in u n fa ir prejudice because it allowed four different plaintiffs with "discrete, u n iq u e , individualized and independent" claims to "bolster" each other's cases b y presenting irrelevant evidence and unrelated allegations. A district court's denial of a motion for separate trials is reviewed for a b u s e of discretion.2 7 Rule 42(b) provides that a district court may order

s e p a r a te trials to expedite and economize, for convenience, or to avoid p re ju d ice .2 8 Whether to conduct separate trials under the Rule is "a matter left t o the sound discretion of the trial court on the basis of circumstances of the lit ig a t io n before it." 2 9 While we acknowledge the potential for jury confusion

in this case, we conclude that it was outweighed by considerations of judicial e c o n o m y and that Zamora suffered no real prejudice given the similarities b e t w e e n the cases involved. All of the Appellees' claims center on allegations of

27

United States v. 449.472 Acres of Land, 701 F.2d 545, 549-50 (5th Cir. 1983).
ED.

28

F

R. CIV. P. 42(b).

9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2388 (3d ed. 2008) (collecting cases); see also Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) ("Rule 42(b) merely allows, but does not require, a trial court to bifurcate cases in furtherance of convenience or to avoid prejudice." (internal quotation marks omitted)).

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No. 07-40325 c o n t in u o u s sex discrimination involving the same modus operandi. Further, A p p e lle e s ' claims are based on a similar series of transactions that were c o m m it t e d by the same defendant over a relatively short time span. Accordingly, e a c h Appellee's claim and evidence presented was relevant to the others' a lle g a t io n s , while prejudice to the defendant, if any, was minimal. At least one o th e r circuit has held that separate trials were not necessary in similar c ir c u m s t a n c e s .3 0 The district court did not abuse its discretion in denying

Z a m o r a 's Rule 42(b) motion. B 1 D o v e t a ilin g with his previous claim, Zamora argues that the district c o u r t's failure to separate the trials allowed Appellees--by testifying about their o w n circumstances--to subvert Federal Rule of Evidence 404(b), which prohibits t h e introduction of evidence of other alleged acts of harassment to prove that the p la in tiff was also harassed. Zamora also objects to the testimony of two nonp a r ty employees, Angelica Ruiz and Mari Adama, on these grounds. W e review a district court's evidentiary rulings for abuse of discretion.3 1 T h e Federal Rules of Evidence do not allow the introduction of "character e v id e n c e "-- e v id e n c e of other "crimes, wrongs, or acts"--"to show action in

See Alexander v. Fulton County, Ga., 207 F.3d 1303, 1324-25 (11th Cir. 2000) (affirming the district court's refusal to order separate trials where 18 plaintiffs alleged a systematic pattern of racial discrimination by one particular supervisor, even though the plaintiffs complained of different adverse employment decisions and had different work histories), overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); cf. EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998) (affirming the district court's Rule 42 consolidation of claims of two plaintiffs alleging employment discrimination as (1) the cases had common questions of law and fact; (2) both plaintiffs sought to present similar evidence about a climate of racial hostility; (3) the same evidence was relevant to both plaintiffs in establishing why one was fired and why the other perceived a climate of racial discrimination).
31

30

Abner v. Kan. City S. R.R. Co., 513 F.3d 154, 168 (5th Cir. 2008).

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No. 07-40325 c o n f o rm it y therewith." 3 2 But, evidence of prior bad acts is admissible for other p u r p o s e s , including proof of intent, plan, motive, knowledge, and absence of m is ta k e or accident.3 3 This rule is equally applicable to discrimination cases.3 4 E v id e n c e that Zamora harassed other parties was admissible for purposes o th e r than "propensity." At trial, the Appellees' portrayed Zamora as an

in t im id a t in g boss with a particular modus operandi in making sexual overtures t o female subordinates. This evidence is admissible to demonstrate either plan, m o t iv e , or absence of mistake. The testimony of the two non-party employees, R u iz and Adama, is admissible for similar reasons. Zamora also objects to the introduction of testimony regarding Silva's h a r a s s m e n t. This evidence was admissible because Zamora was sued in his c a p a c it y as an employer and Appellees presented evidence that Zamora c o n t in u o u s ly ignored complaints of Silva's harassment. Notably, Zamora does n o t raise on appeal any issues regarding a possible Ellerth/Faragher defense,3 5 w h e t h e r Silva was in fact an employee or supervisor, or sufficiency of notice.

32

F

ED.

R. EVID. 404(b).

33

Id.

See, e.g., Hitt v. Connell, 301 F.3d 240, 249-50 (5th Cir. 2002) (holding that evidence of discriminatory firing of third parties was admissible as proof of motive in plaintiff's firing). If an employer has not taken a tangible employment action against an aggrieved employee, the employer may have an affirmative defense to a claim of vicarious liability for sexual harassment carried out by a supervisor with authority over the employee. To satisfy the affirmative defense, the employer must show: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
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No. 07-40325 Z a m o r a asserts that even if this evidence was admissible under Rule 4 0 4 (b ), its admission violates Federal Rule of Evidence 403 because its probative v a l u e was substantially outweighed by the danger of unfair prejudice.36 T h e evidence of Zamora's harassment of other parties was highly probative t o demonstrating a systemic pattern of discrimination at the clinics and relevant t o all Appellees. Accordingly, we cannot say that the district court abused its d is c r e t io n by weighing the relevant considerations and determining that the p r o b a t iv e value of the evidence outweighed any potential of unfair prejudice.3 7 2 Z a m o r a also objects to a number of evidentiary rulings on hearsay g r o u n d s . For instance, Ricardo Arrioja, a non-party former employee of the HR d e p a r t m e n t , testified to a third-party's account of Silva's harassment. He also t e s tifie d to allegations of harassment of an unidentified party that he heard from y e t another employee. In addition, Appellees provided hearsay testimony about a lle g e d harassment of former employees who did not testify at trial. Hearsay is not admissible if offered solely for the truth of the matter a s s e r t e d unless it is defined as non-hearsay or falls within an exception.3 8 A n u m b e r of instances that Zamora complains of, however, do not involve t e s tim o n y that was offered to prove that Zamora harassed other individuals. R a t h e r , it was offered to demonstrate (1) that other individuals had filed h a r a s s m e n t claims through proper channels but that no action was taken, or

See FED. R. EVID. 403 (providing that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence"). See Hitt, 301 F.3d at 249-50 (determining that the admission of evidence that a supervisor discriminated against third-parties was probative to motive and did not run afoul of FED. R. EVID. 403).
38 37

36

See FED. R. EVID. 801-07.

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No. 07-40325 (2 ) that an employee's decision to investigate a harassment claim caused Zamora t o retaliate. These statements were admissible for these purposes.39 B u t , the district court did erroneously admit hearsay testimony--some of w h ic h involved multiple layers--on several other occasions. A district court a b u s e s its discretion when it admits evidence based on an error of law.4 0 H o w e v e r, because the harmless error doctrine applies, the district court's d e c i s io n "will be affirmed unless . . . a substantial right of the complaining party w a s affected." 4 1 "An error does not affect substantial rights if the court is sure, a ft e r reviewing the entire record, that the error did not influence the jury or had b u t a very slight effect on its verdict." 42 A f t e r a thorough review of the record, we cannot conclude that the a d m it t e d hearsay testimony had more than a slight effect on the jury's verdict. T a k e n together, the improperly admitted testimony involved allegations of Z a m o r a 's harassment of four non-parties who did not testify at trial. However, s i x other witnesses testified that Zamora had harassed them personally. In a d d it io n , a number of witnesses testified to events they observed--and thus had p e r s o n a l knowledge of--corroborating much of the hearsay testimony. A c c o rd i n g ly , the district court's error is not reversible.

See Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 660 (5th Cir. 2002) (holding that testimony of three other complaints of sexual harassment was not hearsay because it was offered to prove that the employer was on notice rather than for the truth of the matter asserted), abrogation on other grounds recognized by McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007).
40

39

United States v. Buck, 324 F.3d 786, 791 (5th Cir. 2003).

Price v. Rosiek Constr. Co., 509 F.3d 704, 707 (5th Cir. 2007) (quoting Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 265 (5th Cir. 2007)). Id. at 707-08 (quoting Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 361 (5th Cir. 1995)).
42

41

16

No. 07-40325 C Z a m o r a raises a number of issues related to the submitted jury questions. B e c a u s e Zamora did not object in district court, we review for plain error.4 3 R e v e r s a l is appropriate if the error is (1) plain, (2) affects the appellant's s u b s ta n tia l rights, and (3) seriously affects the fairness, integrity, or public r e p u t a t io n of judicial proceedings.4 4 An error is "plain" if it is clear or obvious.4 5 1 Z a m o r a asserts that it was plain error to submit both the hostile work e n v ir o n m e n t and the quid pro quo claims to the jury. Zamora relies on Casiano v . AT&T Corp.,4 6 which he argues clearly stands for the proposition that an e m p lo y e r may not be found liable on both theories of liability. Casiano, however, n e v e r addressed this question; it merely provided a framework for analyzing w h e t h e r an employer can avail itself of the Ellerth/Faragher defense.4 7 In that c o n te x t, Casiano stated that the threshold question is whether the employee s u ffe r e d a tangible employment action, and based on the answer, the claim is c la s s ifie d as either a hostile work environment or a quid pro quo claim.4 8 Then, d e p e n d i n g on how the claim is classified, the affirmative defense may or may not b e available to the employer.4 9 Casiano said nothing about whether employers c a n be held liable on both theories of liability. We need not resolve this question, particularly since any error in this
43

See Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120, 1123 (5th Cir. 1997). Id. at 1124. Id. at 1125. 213 F.3d 278 (5th Cir. 2000). Id. at 283-84. Id. at 283. Id. at 283-84.

44

45

46

47

48

49

17

No. 07-40325 r e g a r d is harmless. We note merely that the two theories of liability are not w h o l ly inconsistent with one another. Thus, the district court did not commit a c le a r and obvious error by submitting both questions to the jury. 2 Z a m o r a argues that the jury questions relating to the quid pro quo claims a n d retaliation claims were erroneous because they required the jury to find two " s o le causes" of the Appellees' termination. The jury answered "yes" to both: D id Plaintiff . . . suffer an adverse employment action a s a result of engaging in protected activity under Title V I I ? (retaliation) D id Defendant terminate Plaintiff . . . because she r e je c te d sexual advances, requests, or demands by Dr. Z a m o ra ? (quid pro quo). T h e retaliation instruction, in turn, stated that the plaintiff must demonstrate t h a t the adverse employment action "would not have occurred `but for' [the] p r o t e c t e d activity." Zamora interprets this instruction as requiring the jury to fin d the reporting of sexual harassment as the sole cause of the termination for r e t a lia tio n purposes. He then concludes that the jury's answers are inconsistent b e c a u se it cannot be that the Appellees were terminated solely because of filing a claim, but then also because they rejected Zamora's sexual advances. Z a m o r a 's argument fails because a "but for" cause is simply not s y n o n y m o u s with "sole cause." 5 0 The district court did not clearly err by

s u b m it t in g both questions and the instruction to the jury, nor is a new trial w a r r a n t e d on the grounds that the jury's answers are inconsistent.

See Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984) ("Whether or not there were other reasons for the employer's action, the employee will prevail only by proving that `but for' the protected activity she would not have been subjected to the action of which she claims.").

50

18

No. 07-40325 3 Z a m o r a 's third challenge goes to the jury instructions on the basis of the p u n it iv e damages award. We do not address this argument because Zamora ra ise d it for the first time in his reply brief.51 D Z a m o r a argues that he should be granted a new trial because the opposing c o u n s e l's closing argument employed tactics designed to arouse the jury's bias, p a s sio n , and prejudice, resulting in a verdict inconsistent with substantial ju s t ic e . Zamora asserts that opposing counsel appealed to the jury by invoking e th n i c bias against Zamora, who is Mexican. For instance, counsel stated that Z a m o r a "wants to benefit financially from the American system and capitalism b u t does not expect that the laws governing American work places apply to him." C o u n s e l also reminded the jury that Zamora referred to the Appellees as " g rin g a s ," stating: "Call us what you want. We'll be the first to admit that we do t h in g s differently in the United States." Zamora also argues that counsel's a r g u m e n t inflamed the jury by noting that the Appellees were wives, mothers, a n d daughters, and that statements such as "[w]e will not tolerate the abuse and in t im id a t io n of female employees based upon their sex," amounted to improper " c o n s c ie n c e of community" arguments. Z a m o r a also asserts that counsel improperly argued outside of the scope o f the record by stating that Zamora believed that the women he harassed were " a s k in g for it" and by noting the price of Zamora's medical equipment. In a d d it io n , Zamora argues that counsel made statements of personal opinion to the ju r y during closing argument. For example, counsel stated that (1) she could not r e c o n c i l e the way Zamora was acting; (2) she believed that the evidence p r e s e n te d by Zamora was a "smoke screen" designed to distract the jury from the

51

See Peteet v. Dow Chem. Co., 868 F.2d 1428, 1437 (5th Cir. 1989).

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No. 07-40325 t r u th ; and (3) that worry and fear can steal "our hope, expectations and c o n fid e n c e ." Z a m o r a did not object to counsel's closing argument in the trial court. "O u r disinclination to review [errors raised for the first time on appeal] is e s p e c ia l when the errors assertedly lie in counsel's closing remarks."5 2 " [I ]m p r o p e r argument may be the basis for a new trial where no objection has b e e n raised only `where the interest of substantial justice is at stake.'" 5 3 Absent a timely objection, reversal is generally not warranted based on counsel's im p r o p e r statements alone.5 4 Rather, we consider "the comments of counsel, the c o u n s e l 's trial tactics as a whole, the evidence presented, and the ultimate v e r d ic t." 5 5 W e have found it particularly important whether or not statements made in closing argument were based on evidence in the record; it is a "particularly in d e fe n s ib le tactic" to use "closing arguments to bring before the jury damaging fa ct s not in evidence and never established." 5 6 For example, in Hall v. Freese, c o u n s e l (1) made patently false statements; (2) repeatedly made assertions that t h e plaintiff's drug-use was a possible cause of her injuries; and (3) painted the p l a in t iff as a "big-city" resident "who was trying to take advantage of the good p e o p le of rural northern Mississippi."5 7 We ordered a new trial because, as none

52

Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 286 (5th Cir. 1975). Hall v. Freese, 735 F.2d 956, 961 (5th Cir. 1984) (quoting Edwards, 512 F.2d at 286). Id. at 962. Mills v. Beech Aircraft Corp., Inc., 886 F.2d 758, 765 (5th Cir. 1989). Edwards, 512 F.2d at 284. 735 F.2d at 960.

53

54

55

56

57

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No. 07-40325 o f these statements had any basis in the record, we could conclude that they w e r e "made for no reason other than to unfairly prejudice the jury."58 B y contrast in Mills v. Beech Aircraft Corporation, Inc., we determined t h a t the verdict was not inconsistent with substantial justice even though c o u n s e l referred to the other party's expert witness as a "city slicker from C o n n e c t ic u t or California earning more money than any of us ever heard of" and w h o wanted to "tell these Mississippi folks [about the facts of the accident] and t h e y 'll believe me."5 9 Counsel also pointed out the opposing party's ability to a ffo r d a high priced expert.6 0 We distinguished Hall by noting that in this case c o u n s e l's remarks were "supported by the record and concerned--at least ta n g e n tia lly -- th e credibility of plaintiffs' experts and their testimony." 61 A lt h o u g h we do not applaud counsel's statements regarding Zamora's e th n ic ity , they were sufficiently based on the record and more than tangentially r e la t e d to Appellees' claims. Specifically, evidence was presented that Zamora m a d e derogatory statements about American women, told his employees that M e x ic a n women habitually sleep with their bosses and that they were smart to d o so for purposes of their security, and warned his employees that there was an " A m e r i c a n woman spy" present after a harassment complaint was filed. With t h is evidence, the Appellees sought to demonstrate that Zamora made such e th n ic statements in order to denigrate and pressure Appellees to accept his a d v a n c e s and that he justified his behavior by noting these cultural differences.

Id. at 961; see also Edwards, 512 F.2d at 284-85 (holding that the jury's verdict was swayed by passion or prejudice because counsel, in addition to a variety of other improper arguments, falsely stated that a defense witness made a critical admission).
59

58

Mills, 886 F.2d at 765-66. Id. at 765. Id. at 766.

60

61

21

No. 07-40325 W e disagree with Zamora's contention that counsel's statements regarding Z a m o r a 's belief that Appellees wanted his attention and the references to Z a m o r a 's medical equipment were based on evidence outside the record. Zamora h im s e lf introduced testimony suggesting that Solis would "flaunt" herself to him, w h ile noting her previous employment as a "Bud Light Girl," and personally t e s t i fie d that his equipment was expensive. Moreover, these were isolated s ta te m e n ts , unrelated to the general themes of the closing argument. Finally, Appellees seem to concede the impropriety of counsel's allusion to t h e ir roles as mothers and daughters, as well as statements noting what b e h a v i o r "we" will not tolerate and what "we" lose as victims of sex-based d is c r i m in a t io n . But, we agree with the Appellees that these three statements w e r e not an important part of the closing argument. Similarly, counsel's

com m en tary regarding the quality of Zamora's evidence, although inappropriate, n e it h e r suggested any special knowledge, nor, viewed in the context of the p r o c e e d in g s as a whole, affected Zamora's opportunity for a fair trial. These s ta t e m e n t s neither permeated counsel's argument, nor were they so calculated t o prejudice the defendant.6 2 In light of the entire record and the jury's ultimate v e r d ic t , we cannot say that "manifest injustice" has occurred.63 E Z a m o r a argues that the jury unconstitutionally considered harm caused t o nonparties in imposing punitive damages because the district court admitted e v id e n c e of harassment of nonparties and Appellees' counsel stated during c lo s in g argument that Zamora should be punished for harm he allegedly caused

Cf. Edwards, 512 F.2d at 286 (determining that a new trial was warranted where the district court found the jury to be prejudiced and inappropriate remarks "so permeated counsel's argument, and were so calculated to prejudice the defendants"). Cf. Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 278 (5th Cir. 1998) (noting that a large verdict accompanied with improper appeals to the jury leads to the conclusion that such appeals had an influential impact on the jury's deliberations).
63

62

22

No. 07-40325 to women who "did not have the courage to stand and face him." W e review the constitutionality of punitive damage awards de novo.6 4 " [T ] h e Constitution's Due Process Clause forbids a State to use a punitive d a m a g e s award to punish a defendant for injury that it inflicts upon n o n p a r tie s . . . ." 6 5 On the other hand, "[e]vidence of actual harm to nonparties c a n help to show that the conduct that harmed the plaintiff also posed a s u b s t a n t i a l risk of harm to the general public, and so was particularly r e p r e h e n s ib le ."6 6 Thus, a constitutional violation does not occur simply because e v id e n c e of harm to nonparties is admitted; the relevant question is whether the ju r y impermissibly relied on this evidence to reach its punitive damage award.6 7 I n addition, "the Due Process Clause requires States to provide assurance that ju r ie s are not asking the wrong question, i.e., seeking, not simply to determine r e p r e h e n s ib ility , but also to punish for harm caused strangers"; accordingly, it is "constitutionally important for a court to provide [this assurance]." 68 T h e jury instructions and questions clearly indicated that the jury was to a s s e s s punitive damages specifically as to each Appellee. The jury, in turn, a n sw e r e d the relevant question for each individual Appellee and awarded a d i ffe r e n t amount to each. The instructions and the varying awards evidence t h a t the jury understood that the punitive damage awards were supposed to be b a s e d on the individual's harm rather than generalized harm to nonparties. A c co r d in g ly , Zamora's due process rights were not violated by the jury's award. * * *

64

Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001). Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007). Id. at 355. See id. Id.

65

66

67

68

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No. 07-40325 F o r the foregoing reasons, we REVERSE the judgment in favor of Galvan, b u t AFFIRM the judgment in all other respects.

24