Billy Tratree v. BP North America Pipelines Inc

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 12, 2010 N o . 09-20472 Lyle W. Cayce Clerk

B I L L Y RAY TRATREE, P la in t iff - Appellant v. B P NORTH AMERICA PIPELINES, INC., D e fe n d a n t - Appellee

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:03-cv-954

B e fo r e JOLLY and GARZA, Circuit Judges, and STARRETT, District Judge.* P E R CURIAM:* * B illy Ray Tratree appeals a jury verdict in BP's favor on Tratree's Title VII r a c e discrimination and Age Discrimination in Employment Act (ADEA) claims. We conclude that Tratree's evidentiary challenges fail, and we affirm the jury's v e r d ic t .

District Judge, United States District Court for the Southern District of Mississippi, sitting by designation. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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No. 09-20472 I B illy Ray Tratree, who is African-American, worked for Amoco Pipeline C o m p a n y (Amoco) starting in 1978, and continued working for BP when BP and A m o c o merged in 1999. Beginning in 1995, he was a "Measurement Specialist I ," and he worked on a section of BP pipeline between Mexia and Texas City, T e x a s . In 2001, BP decided to eliminate one of the two positions on that section o f pipeline, and Kelly Gleason, the district manager, chose to eliminate Tratree's jo b instead of that of his coworker, Grayson Williams, who is a white male six y e a r s younger than Tratree and who was less senior than Tratree. Williams was c la s s ifie d as a "Field Specialist II," but performed approximately the same work a s Tratree.1 When he was terminated, Tratree was 49 years old and was three m o n th s away from turning 50, when he would have been eligible to retire. Tratree's Union (the Oil, Chemical, and Atomic Workers International, n o w "PACE") has a collective bargaining agreement (CBA) with BP. The CBA in c lu d e s a process called "bumping," whereby a Union member whose job p o s it io n has been eliminated has the right to take the position of a less senior e m p lo y e e if the terminated employee is qualified for the position, thus bumping t h e less senior employee out of his job. The employee who exercises his bumping r ig h t s retains his pay level, benefits, and seniority rights in the new position. The CBA states that employees may bump other employees in either new or old c la s s ific a t io n s . However, BP presented evidence that according to its "bumping g u id e lin e s ," as understood by both BP and the Union, an employee with a p o s it io n in the new classification system, such as Williams, could not be bumped

In 1996, Amoco started a "multi-skilling" program, later continued by BP, that created new job classifications. Employees were encouraged to become classified under the new system by performing training for the new positions, but they were not required to do so. Tratree was a Measurement Specialist I under the old system and was qualified to become a Field Specialist III, but chose not to change his classification. Williams completed his training and became a Field Specialist II (a level above Field Specialist III) in 2001.

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No. 09-20472 b y an employee classified under the old system, such as Tratree. W h e n his position was eliminated, Tratree was sent a bumping sheet, w h ic h listed the less senior employees whose positions Tratree had the option to t a k e . The bumping sheet did not include the option of bumping Williams. A c c o r d in g to the CBA, Tratree had five business days to sign the sheet before he w o u ld be terminated. He refused to sign it and instead complained that his b u m p in g options were incorrect because they did not include the option to bump W illia m s . As a result of his failure to sign the sheet, Tratree was let go on S e p t e m b e r 27, 2001. T r a t r e e sued BP in November 2002, alleging race discrimination and r e t a lia tio n under Title VII and §1981, and age discrimination and retaliation u n d e r the ADEA. The district court granted BP's motion for summary judgment o n the Title VII and §1981 claims and on the ADEA failure-to-promote claim. After Tratree presented his case on the ADEA discrimination and retaliation c la im s , the district court granted BP's motion for judgment as a matter of law. Tratree appealed the district court's orders of summary judgment and judgment a s a matter of law, and this court reversed the grant of summary judgment on h is race discrimination claims and reversed the judgment as a matter of law on t h e age discrimination claims, affirming the remaining judgments. Tratree v. BP N o r th American Pipelines (Tratree I), 277 F. App'x 390, 2008 WL 1924171 (5th C ir . 2008). On remand, the jury returned a verdict for BP on both claims. II T r a t r e e appeals the verdict based on several of the district court's e v id e n t ia r y rulings. The district court's evidentiary rulings are reviewed for an a b u s e of discretion. Price v. Rosiek Const. Co., 509 F.3d 704, 707 (5th Cir. 2007). Even if an abuse of discretion occurred, the ruling will be affirmed if the error w a s harmless; that is, if it did not affect the substantial rights of the c o m p la in in g party. Id. "An error does not affect substantial rights if the court 3

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No. 09-20472 is sure, after reviewing the entire record, that the error did not influence the j u r y or had but a slight effect on its verdict." Id. at 707­08 (quoting Kelly v. B o e in g Petroleum Svcs., Inc., 61 F.3d 350, 351 (5th Cir. 1995)). A T r a t r e e challenges the district court's exclusion of evidence relating to his r a c ia l discrimination claim, which he argues would have demonstrated a " c u lt u r e of discrimination" under Gleason. There were three types of excluded e v id e n c e : statistical evidence about the number of black employees and m a n a g e r s at BP, testimony from Tratree and other BP employees about d iffe r e n t ia l treatment of African-Americans in Gleason's district, and testimony a b o u t racial epithets uttered by Tratree's coworkers in the 1980s. T r a t r e e argues that the law-of-the-case doctrine applies to prevent the d is t r ic t court from excluding any of this evidence because this court, in Tratree's p r io r appeal, indicated that "culture of discrimination" evidence was relevant to h is claim. See Tratree I, 277 F. App'x at 394. "The law of the case doctrine, as fo r m u la t e d in this circuit, generally precludes reexamination of issues of law or fa c t decided on appeal." Alpha/Omega Ins. Svcs. v. Prudential Ins. Co. of Am., 2 7 2 F.3d 276, 279 (5th Cir. 2001) (quotation marks omitted). However, the d o c t r in e "applies only to those issues that were actually decided, rather than all q u e s t io n s in the case that might have been decided but were not." Id. Issues m a y be deemed to have been implicitly decided if they were "fully briefed to the a p p e lla te court and . . . necessary predicates to the [court's] ability to address the is s u e or issues specifically discussed." Id. (quoting In re Felt, 255 F.3d 220, 225 (5 t h Cir. 2001)). Tratree's law-of-the-case argument fails because the parties did n o t brief evidentiary issues in the prior appeal; the specific evidence at issue h e r e was not before the court; and the court did not decide any issues of a d m is s ib ility . Tratree's challenge to the exclusion of the statistical evidence fails. 4

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No. 09-20472 "[G ]ross statistical disparities may be probative of discriminatory intent, motive, o r purpose," but percentages that "fail to draw a comparison between the p e r c e n ta g e of minorities in the workforce and the percentage of qualified m in o r itie s in the relevant candidate pool" are less convincing. Scales v. Slater, 1 8 1 F.3d 703, 709 n.5 (5th Cir. 1992). Tratree did not offer any comparison that w o u ld put the percentages he offered in context--they were simply raw p e r c e n t a g e s of black employees and managers at BP. Given the lack of

c o m p a r a t ive statistics that would put the percentages in perspective by reference t o the number of African-Americans in the relevant applicant pool, the district c o u r t's exclusion was not an abuse of discretion. The percentages alone could not h a v e been very probative of discrimination, if at all, and any probative value w o u ld have been outweighed by the danger of unfair prejudice. See FED. R. EVID. 4 0 3 . Regardless, we are convinced that the raw percentages could not have had m o r e than a slight impact on the jury's verdict, so any error would have been h a r m le s s . T r a t r e e 's challenges to the district court's exclusion of testimony about d iffe r e n t ia l treatment under Gleason also fail. Evidence about a discriminatory c u ltu r e at BP or discriminatory acts of the decisionmakers who terminated T r a t r e e would certainly have been relevant and probative. See, e.g., Polanco v. C ity of Austin, 78 F.3d 968, 979­80 (5th Cir. 1996); Palasota v. Haggar Clothing C o ., 342 F.3d 569, 577 (5th Cir. 2003). However, the district court did not e x c lu d e the testimony as generally irrelevant. Instead, after questioning one of t h e witnesses outside of the jury's hearing, and examining the deposition t e s t im o n y of the other witness, the district court excluded the testimony because t h e witnesses either could not remember specific facts that would have made the p a s t incidents relevant to Tratree's claim (such as the circumstances su rrou n d in g Gleason's firing of other African-Americans), or would have testified a b o u t experiences that were too far removed from Gleason himself (for instance, 5

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No. 09-20472 o n e witness believed that a different supervisor acted through Gleason via "the a r t of Satan"). The court conducted a "careful, subjective consideration of the r e le v a n c e of each proffered witness's testimony" and did not abuse its discretion in excluding the testimony. See Kelly, 61 F.3d at 359. Further, the district court did not abuse its discretion in excluding t e s t im o n y regarding racial epithets in the 1980s. Tratree's coworkers,

s u p e r v is o r s , and managers had changed several times since the 1980s, so any m in im a l probative value of the 1980s evidence would have been outweighed by t h e danger of unfair prejudice. See FED. R. EVID. 403. Tratree argues that even if the evidence from the 1980s was too far removed in time to be probative of the c u ltu r e of discrimination in 2001, it was probative of why Tratree did not sign t h e bump sheet, which he contends he refused to sign in part because he was " fe d up" with being discriminated against at B.P. However, Tratree also testified t h a t he did not sign the bump sheet because his union chair advised him not to, a n d that he would have signed it had his union chair advised him to do so. The u n io n chair, to the contrary, testified that he did in fact advise Tratree to sign t h e bump sheet. The jury either believed the union chair's testimony, or else c o n c lu d e d that Tratree's reasons for signing the bump sheet were irrelevant to t h e question of discrimination, so the exclusion of the 1980s evidence was h a r m le s s . F in a lly , Tratree contends that these evidentiary rulings combined caused t h e "crushing majority" of his circumstantial evidence of race discrimination to b e excluded, citing Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 424 (5 t h Cir. 2006). In Brazos, the erroneous exclusion of evidence was reversible b e c a u s e it was "not merely cumulative"; no evidence on the issue had been p la c e d before the jury. Id. Here, on the other hand, Tratree was able to present e v id e n c e regarding racial animus and discrimination, including that he was s u b j e c t to racial slurs, that his supervisors did not protect him from the racial 6

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No. 09-20472 s l u r s , and that his supervisors gave training priority to his white coworker. Even if any of the other racial discrimination evidence was excluded improperly, T r a t r e e 's "crushing majority" argument fails, and the combined exclusions were h a r m le s s . B N e x t , Tratree argues that the district court improperly excluded evidence o f age discrimination. He challenges the exclusion of several exhibits relating t o Amoco's, and later, BP's, "multi-skilling" program, which he says would have s h o w n that the program had the goal of discriminating against retiremente lig ib le workers. However, the exhibits were properly excluded because they w e r e not relevant to age discrimination. They relate to overall severance targets (v o lu n t a r y and involuntary) and do not mention targeting older or retiremente lig ib le employees for involuntary severance. Tratree also challenges the exclusion of testimony from an employee that t h e multi-skilling program continued to operate under BP. te st im o n y did not address whether the multi-skilling The proffered program was

d is c r im in a t o r y , and would not have been relevant at all without the multis k illin g exhibits, which were properly excluded. The district court did not abuse it s discretion in excluding the testimony. C T r a t r e e challenges the district court's exclusion of two items of evidence t h a t he argues would have tended to show that BP's proffered reason for t e r m in a t in g Tratree was pretextual. The court properly excluded testimony from Tratree's supervisor, Bowden, t h a t sometime in 2000, Bowden would not allow Tratree time off to attend his m o t h e r 's funeral because Bowden believed that Williams was not qualified to r e lie v e Tratree. However, BP's proffered explanation for releasing Tratree

fo c u s e d on his and Williams's formal classifications in 2001, not on their relative 7

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No. 09-20472 s k ill levels in 2000. Further, Tratree does not brief how the exclusion affected h is substantial rights other than to assert that it did. We conclude that the e x c lu s io n was not an abuse of discretion, and was in any event harmless. I n addition, the court properly excluded evidence that BP paid large b o n u s e s to Gleason and other district managers for their performance in 2001, w h ic h Tratree argues would have rebutted BP's claim that it eliminated T r a t r e e 's position because of a "downturn in business in the pipeline" in his r e g io n . The bonus evidence was minimally relevant to the overall economic s it u a t io n of the pipeline; further, Tratree had already presented evidence on the p e r fo r m a n c e of the pipeline and the fact that it continued to operate after he had b e e n terminated, so the bonus evidence would have been cumulative. Any m in im a l probative value would have been outweighed by the likelihood of danger o f unfair prejudice. See FED. R. EVID. 403. The district court did not abuse its d is c r e t io n , and the exclusion in any event was harmless. D F in a lly , Tratree challenges the admission of evidence regarding the in t e r p r e t a t io n of the CBA. The CBA states that an employee whose job is e lim in a t e d may bump another employee of less seniority "within the new or old c la s s ific a t io n ," but BP's justification for terminating Tratree instead of Williams w a s that, according to its usual bumping protocol, employees in old classification p o s it io n s (like Tratree) could not bump employees in new classification positions (lik e Williams). Tratree argues that admission of the evidence (and presentation o f the issue to the jury) violated the law of the case. In Tratree's prior appeal, t h is court noted that "BP's argument that it has a policy of favoring new over old c la s s ific a t io n s is not grounded in written company policy and is belied by the t e r m s of the CBA," which "supports an inference that when BP eliminated T r a t r e e 's position and refused to allow Tratree to `bump' Williams, it acted c o n t r a r y to the terms and spirit of the CBA that BP shall not favor employees 8

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No. 09-20472 in new classifications over those with old classifications." Tratree I, 277 F. App'x a t 394. However, this reference to the CBA came as the court was examining all e v id e n c e "in the light most favorable to [Tratree], drawing all reasonable in fe r e n c e s in his favor, and disregarding all evidence adverse to him that a jury w o u ld not be required to believe." Id. at 393. Therefore, the court's description o f the CBA cannot be considered a factual determination that became the law of t h e case. Further, the CBA's meaning as a matter of law was not before the c o u r t. The law of the case doctrine did not prevent BP from introducing evidence o n remand that contradicted the Tratree I court's description of the CBA and s u p p o r t e d BP's proffered explanation for firing Tratree.2 III F o r the foregoing reasons, the jury verdict and judgment in favor of BP is AFFIRMED.

Tratree also cursorily asserts that admission of the evidence regarding the CBA violated the parol evidence rule. The admission did not violate the parol evidence rule. The evidence regarded both parties' conduct after contracting and illustrated a modification to the CBA, agreed to by both the Union and BP.

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