     Case: 13-30919      Document: 00512734828         Page: 1    Date Filed: 08/15/2014




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


                                      No. 13-30919
                                                                                     FILED
                                                                               August 15, 2014
                                                                                Lyle W. Cayce
SANDRA A. PACE,                                                                      Clerk

                                                 Plaintiff - Appellant
v.

LIVINGSTON PARISH SCHOOL BOARD,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CV-234


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Sandra Pace appeals an order granting defendant Livingston Parish
School Board’s Rule 50(b) motion for judgment as a matter of law after a jury
returned a verdict in favor of her on her claims of race discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
For the following reasons, we REVERSE the judgment of the district court and
REMAND for further proceedings.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                           FACTS AND PROCEEDINGS
       On July 7, 2006, Sandra Pace applied for a newly-created position as the
Warehouse Manager for the Livingston Parish School Board (“LPSB”). 1 Pace
had been employed by the LPSB since March 4, 1985, and since 1990 she had
been employed as the LPSB’s Purchasing Agent. The warehouse manager
position would have meant a promotion and an increase in salary for her. Pace
is a white female. On September 7, 2006, the LPSB voted to appoint Ron Colar,
a black male, to the warehouse manager position. Randy Pope was the Parish
Superintendent for the LPSB, while David Tate and Julius Prokop III were
members of the LPSB.
       The events leading up to Colar’s selection were factually disputed at a
jury trial. After a call for applications, the process consisted of a committee of
three interviewers who would then give their recommendation to Terry
Hughes, the business manager. Superintendent Randy Pope would then make
a recommendation to the LPSB, which would make the final decision.
       While applicants for the position were required to possess a valid driver’s
license, a high school diploma, and five or more years of “warehouse
experience,” the term warehouse experience was not further defined. Pace
presented testimony of Terry Hughes, the business manager, that he had
created a list of thirteen job criteria which he used to determine “warehouse
experience,” and that Pace fulfilled these criteria. Pace presented evidence
that she and Colar were the only two candidates who were “strongly
considered” for the position of the seven candidates who applied. Pace testified
at her trial and presented evidence that her “warehouse experience” included:
   • Twenty-two years working in the school system.



       1These facts were stipulated at trial by both parties. The district court describes them
as “Uncontested Facts.”
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   • Sixteen years as a purchasing agent with the first three years as de facto
      warehouse manager.
   • Duties as a purchasing agent that included the business aspects of
      managing and overseeing the warehouse, ordering goods for the
      warehouse, receiving orders into the warehouse, reconciling inventory
      with purchase orders and accounts payable, and shipping of the
      inventory from the warehouse to the schools and departments.
   • Efforts expanding the warehouse to meet new school system demands by
      training new employees and modernizing the computer software to
      better track and deliver shipments into and out of the warehouse.
      Pace presented evidence that David Tate, a school board voting member,
received a phone call on the day of the LSPB’s vote from Randy Pope, the LSPB
superintendent, recommending that Tate appoint Ron Colar to the position
because the Livingston Parish Black Voters League had expressed concern
about a lack of black workers in supervisory positions. Pace also presented
evidenced that Superintendent Pope called Julius Prokop, another school
board voting member, before the vote to discuss his recommendation of Ron
Colar based on his concerns regarding the Livingston Parish Black Voters
League. The LPSB selected Ron Colar at the school board meeting.
      The LPSB’s race neutral explanation for the decision was that Pace was
unqualified for the position for lack of five years of “warehouse experience.” On
September 7, 2006, Terry Hughes prepared and presented to the LPSB a chart
which represented that Pace did not meet the “warehouse experience”
minimum requirements. The chart, however, included under the heading
“warehouse experience” Colar’s time as a “Truck Driver” and “Custodian.” It
also included under “warehouse experience” another applicant’s time working
at Toys “R” Us as a “Receiving and Sales Floor Supervisor” that included


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seemingly non-warehouse activities such as customer service, cashiers,
returns, and counting registers.
       The case was tried to a seven-person jury from March 4–5, 2013 on
claims of gender and race discrimination. 2 At the close of the plaintiff’s case,
the LPSB moved for judgment as a matter of law under Federal Rule of Civil
Procedure 50 on the claims because Pace did not have the “five years of
warehouse experience” on the racial discrimination claim and on the gender
discrimination claim because no evidence of gender-based discrimination had
been presented.        The district court granted the motion as to gender
discrimination but permitted the case to proceed on the race discrimination
claim. The LPSB rested after its presentation of evidence and Pace did not
offer rebuttal evidence. The LPSB again moved for judgment as a matter of
law. The court deferred its ruling on the racial discrimination claim and
submitted the case to the jury for decision. During deliberations, the jury
returned with a question as to why they could not consider gender and age
discrimination as well, and the court clarified that those issues were not before
them and should not be considered.
       After additional deliberation, the jurors returned a verdict in favor of the
plaintiff. They found “that Sandra Pace was qualified for the position for which
she applied; namely, the position of warehouse manager.” They found that she
“was the subject of an adverse employment action,” that “more likely than not
[ ] race was a motivating factor in the selection of the warehouse manager
position,” and that “more likely than not [ ] Sandra Pace was treated less
favorably or was discriminated against for the position of warehouse manager
because she was Caucasian.”


       2 The jury was asked to self-identify their race and gender to the court during voir
dire. The jury consisted of four white females, a female who described herself as “Mexican,”
a black female, and an Asian male.
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      The court indicated it would consider the LPSB’s motion for judgment as
a matter of law upon renewal of the motion. The LPSB timely renewed its
motion pursuant to Rule 50(b), alleging that there was no legally sufficient
evidentiary basis for a reasonable jury to find for the plaintiff.        In the
alternative, the LPSB filed a motion for a new trial under Rule 59 “because the
jury’s verdict was against the great weight of the evidence.”
      On July 31, 2013, the district court granted the motion for judgment as
a matter of law dismissing the plaintiff’s racial discrimination claim.        It
reasoned that the plaintiff did not meet the requirement of presenting a prima
facie case of racial discrimination because “there was no dispute of material
fact as to whether she was qualified for the position according to the objective,
stated qualifications for the job” of five years of warehouse experience. While
noting the “unenviable position of attempting to second guess the school board
relative to the meaning of the term,” the district court concluded that the
LPSB’s requirement for “five years experience” was not the same as “five years
or equivalent” experience.     It further held that, even assuming Pace had
asserted a prima facie case of discrimination in her testimony and evidence,
Pace failed to establish that these reasons were “merely pretextual.” Pace
appeals the court’s ruling on the motion for judgment as a matter of law on the
racial discrimination claim.
                          STANDARD OF REVIEW
      “Our review of a district court’s ruling on a motion for judgment as a
matter of law is de novo.” Hartford Fire Ins. Co. v. City of Mont Belvieu, 611
F.3d 289, 294 (5th Cir. 2010). “Our standard of review with respect to a jury
verdict is especially deferential.” E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d
444, 451 (5th Cir. 2013) (en banc) (alteration omitted). “The jury verdict must
be upheld unless a reasonable jury would not have a legally sufficient


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evidentiary basis to find for the party on that issue.” Porter v. Epps, 659 F.3d
440, 444 (5th Cir. 2011) (internal quotation marks omitted).
                                  DISCUSSION
                                          I.
        “It shall be an unlawful employment practice for an employer . . . to fail
or refuse to hire . . . 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.” 42 U.S.C. § 2000e-2(a).
        Resolution of a claim involves a three-step, burden-shifting
        analysis. First, a plaintiff must raise a genuine issue of material
        fact on each element of his prima facie case. Second, if the plaintiff
        presents a prima facie case, the defendant must then give a
        legitimate, nondiscriminatory reason for the employment decision.
        Third, the plaintiff must raise a genuine issue of material fact that
        shows the defendant’s reason may be a pretext for discrimination.
Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003) (footnotes omitted).
“[W]e    apply   the   modified    McDonnell    Douglas      framework    in     racial
discrimination cases under Title VII.” Hammond v. Jacobs Field Servs., 499
F. App’x 377, 382 (5th Cir. 2012).
        Under the traditional framework, a plaintiff, having the burden of
        production shifted back to him, must show that the defendant’s
        reason was a pretext for unlawful discrimination. But under the
        modified framework, the plaintiff in this situation is required to
        show either that the defendant’s reason was pretextual, or that the
        reason, while true, was only one of the reasons for its adverse
        action, and that another ‘motivating factor’ for the action was the
        plaintiff’s protected characteristic.
Id.
        A plaintiff may make a prima facie case of discrimination by showing by
a preponderance of the evidence that 1) she is a member of a protected class,
2) she is qualified for a position, 3) she suffered an adverse employment action
and 4) she was replaced by someone outside the protected class, or treated less

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favorably than other similarly-situated employees outside the protected class.
Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004). “The ultimate
burden of persuasion remains with the plaintiff.” Johnson, 351 F.3d at 622.
      An employer can defeat a plaintiff’s prima facie case “by establishing
that the plaintiff is not qualified for the coveted position. An employer may
establish job requirements, and rely on them in arguing that a prima facie case
is not established because the employee is not ‘qualified.’ However, only
objective requirements may be used in making this argument.” Id.
                                       II.
      Whether it was reasonable for the jury to find that Sandra Pace
possessed the required qualifications for the warehouse manager position is
the critical issue. The point was argued vigorously by both sides at trial. Pace
and her lawyers contended that she was eminently qualified for the position.
The LPSB argued the opposite, telling the jury, “The law says that it’s an
employer’s prerogative to set the qualifications for the job.        Ms. Hughes
testified that she was the person who set the qualifications. The qualifications
were five years warehouse experience. . . Does she have five years warehouse
experience? No.”     The jury returned a verdict which included the explicit
finding that Pace was qualified.
      The case of Johnson v. Louisiana is not dispositive of the issue before us.
In that case, a group of six “grouped plaintiffs” and a woman named Gail
Cooper alleged racial discrimination under Title VII for the employer’s hiring
of two “under-qualified Caucasian women.” Johnson, 351 F.3d at 618-19. The
district court granted summary judgment for the employer finding that the
plaintiffs failed to establish a prima facie case of employment discrimination
“because the plaintiffs were not qualified for the coveted positions” by looking
solely at the “objective requirements” for the positions. Id. at 619. One of the
employment positions required “a bachelor’s degree with twenty-four semester
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hours in accounting and three years professional level experience in accounting
or financial auditing” while the other required “a bachelor’s degree with
twenty-four semester hours in accounting and two years professional level
experience in administrative services, accounting, auditing, purchasing, or
staff development.” Id. The plaintiffs “lacked the education and experience
requirements,” so “their names did not appear on a list of eligibles for the job
openings, and they were not considered for the positions.” Id. at 620. Plaintiff
Cooper, though, “was qualified for both positions at the time of hiring,” but
dispute existed over whether Cooper had supplemented her employment file in
such a way that the hiring committee would know that she was so qualified at
the time of hiring. Id. at 625. On appeal, we upheld the grant of summary
judgment for the six unqualified plaintiffs. Id. at 626. We reversed the grant
of summary judgment as it pertained to Cooper, since a genuine issue of
material fact remained in dispute. Id.
      The focus in that opinion (and the cases it analyzed) was the fact that
the employer ultimately hired employees who were also not qualified under the
minimum qualifications set forth by the employer, and the impact that fact had
on the admittedly unqualified grouped plaintiffs who were not hired. Id. at
622-23 (“The primary contention of Grouped Plaintiffs is that [the employer]
cannot rely on its objective requirements because Defendant did not apply
those standards to the employees actually hired.”). It was uncontested that
the grouped plaintiffs did not meet the objective minimal job requirements. Id.
However, Pace’s argument to the district court and throughout the trial was
that she had five years of “warehouse experience,” if that undefined term was
construed broadly, and that “[s]he was the best qualified.”
      While we may be sympathetic to the district court’s conclusion that the
undefined phrase “warehouse experience” should be construed narrowly, jury
verdicts must be “upheld unless a reasonable jury would not have a legally
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sufficient evidentiary basis to find for the party on that issue.” Porter, 659 F.3d
at 444.   In light of the ambiguity in the phrase, the jury considered the
employer’s argument that Pace did not have the requisite experience, and
found she did.     They could have relied on her presentation of evidence
including: 1) her twenty-two years working in the school system, 2) her sixteen
years as a purchasing agent with the first three years as a de facto warehouse
manager, 3) her duties as purchasing agent including the business aspects of
managing and overseeing the warehouse, ordering goods for the warehouse,
receiving orders into the warehouse, reconciling inventory with purchase
orders and accounts payable, and shipping of the inventory from the warehouse
to the schools and departments, and/or 4) her efforts in expanding the
warehouse by training new employees and modernizing the computer software
to better track and deliver shipments into and out of the warehouse.            In
addition, the jury received the testimony from Brent Bencaz, Pace’s supervisor,
that he believed her to be qualified, and Terry Hughes’s testimony that Pace
met the thirteen job criteria that she believed the position required. This
testimony proved enough to convince the jury, and nothing in the record
suggests that this decision was irrational or unreasonable.
                                       III.
      The jury also rejected the LPSB’s race neutral explanation for the
adverse employment action, finding that Pace “was the subject of an adverse
employment action,” that “more likely than not [ ] race was a motivating factor
in the selection of the warehouse manager position,” and that “more likely than
not [ ] Sandra Pace was treated less favorably or was discriminated against for
the position of warehouse manager because she was Caucasian.”
      Reeves v. Sanderson Plumbing Products, Inc. addressed “the kind and
amount of evidence necessary to sustain a jury’s verdict that an employer
unlawfully discriminated.” 530 U.S. 133, 137 (2000). In that case an employee
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brought an action against his employer “contending that he had been fired
because of his age.” Id. at 138. The company responded that the plaintiff had
been fired because he failed to “maintain accurate attendance records” for
employees in his department. Id. The plaintiff introduced evidence that he
had kept accurate records and that one of his superiors exhibited “age-based
animus in his dealings” with the plaintiff.     Id.   The district court denied
motions for judgment as a matter of law by the employer. Id. The jury found
for the plaintiff. Id. at 139. The employer appealed and the circuit court
reversed, “holding that petitioner had not introduced sufficient evidence to
sustain the jury’s finding of unlawful discrimination.” Id. The Supreme Court
reversed, holding that “a plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is false, may permit
the trier of fact to conclude that the employer unlawfully discriminated.” Id.
at 148. “It is permissible for the trier of fact to infer the ultimate fact of
discrimination from the falsity of the employer’s explanation.” Id. at 147.
      This is not to say that such a showing by the plaintiff will always
      be adequate to sustain a jury’s finding of liability. Certainly there
      will be instances where, although the plaintiff has established a
      prima facie case and set forth sufficient evidence to reject the
      defendant's explanation, no rational factfinder could conclude that
      the action was discriminatory. For instance, an employer would be
      entitled to judgment as a matter of law if the record conclusively
      revealed some other, nondiscriminatory reason for the employer's
      decision, or if the plaintiff created only a weak issue of fact as to
      whether the employer’s reason was untrue and there was
      abundant and uncontroverted independent evidence that no
      discrimination had occurred.
Id. at 148.
      The LPSB argued at trial that Superintendent Pope’s phone calls were
inconsequential in the ultimate decision to hire Colar for the position. They
told the jury that “whatever those phone calls were, they made no difference

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in the selection of the candidate.” The district court cited evidence presented
at trial that Colar was “hard-working and [had a] ‘proven track record’ of doing
well in the warehouse” during his “approximately fifteen years experience as a
‘warehouseman’” and that these were the reasons for his hiring. While the
testimony of David Tate could be read to conclude that he was considering race
in his vote, he also said he couldn’t recall whether the upcoming election and
the racial concerns surrounding it “affected his decision.” The jury resolved
the ambiguities in the witnesses’ testimony in Pace’s favor.
      The LPSB implies that Pope’s calls were too attenuated from the LPSB’s
vote to be imputed to them.         Although the LPSB was the ultimate
decisionmaker, “discriminatory animus of a manager can 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.” Laxton v. GAP Inc., 333
F.3d 572, 584 (5th Cir. 2003) (internal quotation marks and citations omitted).
The relevant inquiry is whether Pope “had influence or leverage over” the
LPSB’s decisionmaking. See id. The jury could have inferred that Pope had
influence or leverage over the LPSB based on Pope’s status as Superintendent
and Pope’s acts of calling board members to press his recommendation. See,
e.g., id. (reversing judgment as a matter of law where there was evidence that
a supervisor who made a discriminatory remark had influence over the
individuals responsible for terminating the plaintiff); Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 228 (5th Cir. 2000) (reversing judgment as a
matter of law where there was evidence that a co-worker who made a
discriminatory remark “wielded sufficiently great informal power” within the
organization and over the decisionmakers).           Pope’s conduct provides
circumstantial evidence that the LPSB may have been influenced by race. At
the least, the jurors heard evidence that the Parish Superintendent, Pope, was
calling board members and urging them to vote in favor of Colar because of
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political concerns based on race.     They also heard evidence that racial
considerations were at play in the mind of one of the board members.
      Again, while we may be sympathetic to the possibility that race was not
a motivating factor in this selection, the jury’s determination and the great
deference we give to it guides our decision. We cannot say that “no rational
factfinder could conclude that the action was discriminatory.” Reeves, 530 U.S.
at 148 (emphasis added). Likewise, we cannot say that “there was abundant
and uncontroverted independent evidence that no discrimination had
occurred.” Id. The jury’s inferences and ultimate conclusions cannot be said
to be wholly unreasonable or irrational.
                               CONCLUSION
      For the foregoing reasons, we REVERSE the judgment of the district
court and REMAND for further proceedings.




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