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

                                                                            FILED
                                                                          March 14, 2012

                                       No. 11-10058                        Lyle W. Cayce
                                                                                Clerk

MARTHA ELLERBROOK,

                                                  Plaintiff - Appellant
v.

CITY OF LUBBOCK, TEXAS,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:09-CV-144


Before KING, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
        Martha Ellerbrook brought a Title VII retaliation lawsuit against the City
of Lubbock, alleging that the City failed to hire her in retaliation for her
assistance in her husband’s discrimination lawsuit against the City. The case
went to trial and the jury found that the City had retaliated against Martha and
awarded her $243,000 in damages. The district court then granted the City’s
renewed motion for judgment as a matter of law, conditionally granted the City’s
motion for a new trial, and entered final judgment for the City. On appeal,

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Martha asserts that the district court erred in granting the City’s renewed
motion for judgment as a matter of law and that the district court abused its
discretion in granting the City’s motion for a new trial. For the following
reasons, we REVERSE the district court’s judgment for the City, REVERSE the
court’s grant of a new trial, REVERSE the court’s order denying Martha’s
motion for attorney’s fees and costs, and REMAND the case to the district court
with instructions to enter judgment for Martha and to consider an amended
motion for attorney’s fees and costs.
              I. FACTUAL AND PROCEDURAL BACKGROUND
      From 1989 until 2003, Martha Ellerbrook (“Martha”)1 was an employee of
the City of Lubbock (the “City”). Her job titles included industrial wastewater
monitoring program coordinator, environmental inspection services coordinator,
and managing director of management services. During her fourteen years with
the City, Martha gained experience writing grants, preparing budgets, handling
customer complaints, and supervising employees. In 2003, the City eliminated
Martha’s position in a reduction in force.
          Martha’s husband, Terry Ellerbrook (“Terry”),2 has worked for the City
since 1982.      In January 2005, Tom Adams (“Adams”), the City’s Deputy
Manager, notified Terry that it was the City’s intent to terminate his
employment in ninety days. Terry filed a grievance with the City, and before the
grievance was heard by a hearing officer, the City changed Terry’s job title. In
June 2005, Terry filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). In April 2006, Terry filed a lawsuit against
the City. In May 2006, Terry filed a second charge with the EEOC, alleging that
the City had retaliated against him.

      1
        Because this opinion discusses both Terry and Martha Ellerbrook, husband and wife
with the same last name, this opinion refers to them by their first names.
      2
          Martha and Terry were married in 1993.

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      In connection with Terry’s EEOC charges and lawsuit, Martha assisted
her husband by speaking with the attorneys and with the EEOC, helping to
prepare production requests and letters to the EEOC, reviewing documents at
City Hall, and attending negotiation meetings.             Lee Ann Dumbauld
(“Dumbauld”), the City Manager, was aware of Terry’s litigation against the
City, and she stated that many other City employees knew of Terry’s lawsuit.
Dumbauld also testified that she was aware of Martha’s assistance in Terry’s
litigation, as she met Martha at a mediation.
      On November 27, 2006, while Terry’s case was still pending, Martha
submitted an application to the City for the position of water programs
coordinator.   The job posting stated that the water programs coordinator
“[a]ssists the Deputy City Manager and performs a variety of highly responsible
technical and administrative assignments related to Water Utilities.” The job
posting set forth several requirements, including “[a]ny combination of education
and experience equivalent to completion of a bachelor degree [sic] in Public
Administration,     Business   Administration,    Environmental      Engineering,
Chemistry, Biology, or a related field with an additional three years of
progressively responsible experience in management experience, including
supervisory and financial responsibility.”       Other requirements included
knowledge of contract administration and budget management; knowledge of
environmental laws pertaining to water and wastewater; ability to supervise the
work of others; and ability to prepare and administer budgets.
      Twenty-four individuals applied for the water programs coordinator
position. The Human Resources Department screened the applications for
minimum qualifications and referred twenty applications to Adams for further
consideration. Adams was responsible for filling the position of water programs
coordinator.   On December 12, 2006, Adams held a meeting with several
department heads to review the applications of the twenty candidates and to

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choose several candidates with the best qualifications for interviews. Adams and
the department heads chose four finalists, including Martha.
      Given that Terry’s litigation was based on Adams’s alleged actions and
that Martha had applied for a position that Adams was required to fill,
Dumbauld and Adams agreed that the City should hire an outside employment
consultant to conduct the final interviews for the position. Dumbauld testified
that they wanted to avoid the appearance of impropriety, particularly
retaliation, if Martha was not selected for the position. Dumbauld instructed
Adams to work with Chris Hartung (“Hartung”) of Waters Consulting Group,
who had interviewed both Adams and Dumbauld for their positions with the
City. The consultant’s duties were to interview the candidates and make a
recommendation to the City regarding the best qualified candidate; the City
would still retain final authority over which candidate to hire.
      After Hartung was retained, Hartung asked Adams to create a “scoring
matrix” to assist in his evaluation of the candidates. Adams testified that he had
reviewed the candidates’ applications and resumes before he created the scoring
matrix. Adams conceded that he could have rigged the scoring matrix to favor
one of the candidates. However, Adams stated that he did not prepare the
scoring matrix to favor particular candidates, but instead prepared the matrix
according to the job description and job duties.
      On December 19, 2006, Adams sent Hartung the scoring matrix that he
had created.         The scoring matrix included weighted categories for
education (20%), experience (30%), computer skills (10%), leadership
skills (10%), interpersonal skills (10%), and technical skills (10%).3 With regard
to education, the matrix awarded (a) 20 points for a Bachelor’s degree, (b) 30
points for a Bachelor’s degree in Finance, Accounting, or a related field, (c) 20


      3
          We acknowledge that these percentages do not add up to 100%.

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points for a Master’s degree, and (d) 30 points for a Master’s degree in Finance,
Business Management, or a related field.                Thus, an applicant who had a
Bachelor’s degree in Chemistry received 20 points total, while an applicant who
had a Bachelor’s degree in Accounting and a Master’s degree in Finance received
100 points total. With regard to experience, the matrix awarded points for years
of experience in budget preparation, account management, financial planning
and analysis, water and wastewater, and management. For instance, with
respect to account management experience, the applicant received 0 points for
0 years of experience; 5 points for 1-3 years of experience; 10 points for 2-5 years
of experience; and 15 points for 6 or more years of experience.
      On January 23, 2007, Hartung interviewed the three finalists for the
water programs coordinator position: Martha, Linda Cuellar (“Cuellar”), and
Tammy Vander Kuy (“Vander Kuy”).4 On January 29, 2007, Hartung completed
the scoring matrix for each applicant. Vander Kuy ranked the highest of all
three applicants, receiving a score of 92.3%; Cuellar ranked second, receiving a
score of 73.3%; and Martha ranked third, receiving a score of 63.6%. Hartung
sent the results to Adams, and Adams hired Vander Kuy because she scored the
highest on the scoring matrix. On February 16, 2007, Martha received a letter
from the City explaining that she had not been chosen for the position and that
the City had hired a more qualified person.
      After filing a charge of discrimination with the EEOC and receiving a
right-to-sue letter from the EEOC, Martha timely filed a lawsuit against the
City, alleging retaliation under Title VII. 42 U.S.C. § 2000e–3(a). In her
complaint, Martha alleged that the City unlawfully retaliated against her—by
not hiring her for the position of water programs coordinator—because of her
assistance in Terry’s lawsuit against the City. On May 14, 2010, the City filed


      4
          One of the four finalists withdrew his application before the interview.

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a motion for summary judgment, arguing that: (1) Martha did not produce any
evidence that Hartung, the decision-maker, knew of her assistance in Terry’s
lawsuit, and thus she failed to establish her prima facie case of retaliation;
and (2) Martha failed to offer evidence that the City’s articulated, non-
retaliatory reason for not hiring Martha—that Vander Kuy was the best
qualified applicant for the position—was pretextual.
       With regard to the City’s first argument, the court found that Martha
produced enough evidence to demonstrate that Adams was the decision-maker.
Further, because there was evidence that Dumbauld knew of Martha’s
assistance in Terry’s litigation and that Adams and Dumbauld collaborated
about how to interview Martha in light of Terry’s litigation, the court concluded
that “[t]his is more than enough evidence to infer that Adams knew of [Martha’s]
participation with her husband’s suit.” Thus, the court found that Martha had
established her prima facie case.
       With regard to the City’s second argument, Martha asserted that the
City’s reason for not hiring her was pretextual because Adams had designed the
scoring matrix to prejudice Martha and benefit the other candidates. The court
found that Martha provided evidence that “the scoring matrix emphasized skill
sets and qualifications that were different from those listed in the job
applications materials.” Also, the court found that Martha presented evidence
that the scoring matrix was specifically designed to favor Cuellar and Vander
Kuy.    Further, Martha offered evidence that Adams had reviewed the
candidates’ applications before creating the scoring matrix, and therefore he
could have designed the matrix to prejudice Martha and favor the other
candidates. The district court denied the City’s motion for summary judgment.
       During a jury trial in October 2010, the jury heard testimony from
Dumbauld, Adams, Martha, and Terry, among others. At the close of Martha’s
presentation of the evidence, the City orally moved for judgment as a matter of

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law under Federal Rule of Civil Procedure 50(a), and the district court denied
the motion. At the close of all evidence, the City again moved for judgment as
a matter of law, and the court denied the motion. The jury found that the City
retaliated against Martha by hiring another person for the water programs
coordinator position because Martha had assisted in Terry’s protected activities.
The jury awarded Martha $243,000 in damages. After the jury verdict, the
district court ordered post-verdict motions. On October 28, 2010, the City filed
a post-verdict motion for judgment as a matter of law or for a new trial. Martha
filed motions for entry of judgment and for an award of attorney’s fees.
      On December 10, 2010, the district court granted the City’s renewed
motion for judgment as a matter of law, conditionally granted the City’s motion
for a new trial, and denied Martha’s motions for entry of judgment and for
attorney’s fees. The court granted the City’s renewed motion for judgment as a
matter of law on two alternative bases. First, the court analyzed whether
Martha established a prima facie case of retaliation. The court found that
Martha did not present sufficient evidence at trial of Adams’s knowledge of her
assistance in Terry’s litigation, and thus the court held that she failed to
establish a causal connection between her assistance and the City’s failure to
hire her. The court reasoned that “Adams emphatically denied having any
knowledge of [Martha’s] assistance, and [Martha] presented no direct evidence
of such.”   The court examined the circumstantial evidence that Martha
presented—including Dumbauld’s knowledge of Martha’s assistance and
Dumbauld’s collaboration with Adams about hiring an outside consultant—but
concluded that this evidence was “less than substantial” and “speculative at
best.” The court held that Martha’s retaliation claim failed as a matter of law.
      Second, “out of an abundance of caution,” the district court assumed that
Martha established her prima facie case and then assessed whether Martha
established that the City’s reason for not hiring her was a pretext for retaliation.

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The City’s articulated, non-retaliatory reason for not hiring Martha was that
Vander Kuy was the most qualified candidate based on the results of the scoring
matrix. The court noted that Martha attempted to establish pretext at trial by
arguing that she was clearly better qualified for the position. The court also
noted that Martha argued that Adams’s scoring matrix was designed to
“preclude[] her from scoring high enough to get” the position.
      To determine whether Martha established pretext, the district court
proceeded to analyze the results of the scoring matrix. With regard to education,
Martha argued at trial that the City relied on a previously unmentioned job
requirement—applicants having degrees in a business-related field. The court
rejected this argument, stating that this was not a “requirement.” Furthermore,
the district court rejected Martha’s argument that the education category was
determinative. The court adopted the City’s argument that “even removing the
education criterion from the equation, . . . and adding together all the remaining
categories of the matrix as Hartung scored them, [Martha] still would have
scored the lowest of all the interviewees.”
      With regard to experience, Martha argued at trial that Adams
manipulated this category by giving great weight to experience in budgets,
accounting, and finance, and that these areas were “not fairly represented in
the . . . job description and posting.” However, the district court credited the
testimony of City employees who stated that the position was in a transition to
become “more focused on budgetary and financial issues.” The court found
Vander Kuy “to be a credible witness,” who testified to “having extensive
experience in budget preparation and financial account management.” The court
stated that “Vander Kuy either outscored or tied [Martha] in every category of
the matrix” and that therefore “no jury could have reasonably concluded that
[Martha] was clearly more qualified than Vander Kuy” for the position. Thus,



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the court found that Martha failed to establish pretext and that her retaliation
claim failed as a matter of law.
      Next, the court conditionally granted the City’s motion for a new trial,
reasoning that, based on its above analysis, the verdict as to liability was against
the great weight of the evidence. Furthermore, the court concluded that the
verdict as to damages was against the great weight of the evidence “in that it
[did] not reflect [Martha’s] failure to properly mitigate her damages.” The
district court denied Martha’s motion for attorney’s fees as moot. Martha timely
appealed the district court’s order and judgment.
                                II. DISCUSSION
A. The District Court’s Grant of Judgment as a Matter of Law
      1. Standard of Review
      “We review a district court’s grant of judgment as a matter of law de novo,
applying the same standard as the district court.” See Laxton v. Gap Inc., 333
F.3d 572, 577 (5th Cir. 2003) (citation omitted). Pursuant to Federal Rule of
Civil Procedure 50, judgment as a matter of law is appropriate if “the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to
find for the party on that issue.” FED. R. CIV. P. 50(a). This standard is satisfied
when “the facts and inferences point so strongly and overwhelmingly in favor of
one party that the [c]ourt believes that reasonable men could not arrive at a
contrary verdict.” Laxton, 333 F.3d at 577 (citations and internal quotation
marks omitted).
      In making this determination, “[t]he jury’s verdict is afforded great
deference.” Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 475 (5th Cir. 2005).
In “review[ing] all of the evidence in the record,” we “must draw all reasonable
inferences in favor of the nonmoving party, and [we] may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000) (citations omitted). Thus, we “must disregard all

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evidence favorable to the moving party that the jury is not required to believe.”
Id. at 151 (citation omitted). Further, we give credence to “evidence supporting
the moving party that is uncontradicted and unimpeached, at least to the extent
that that evidence comes from disinterested witnesses.”        Id. (citation and
internal quotation marks omitted).
      2. Title VII Retaliation Claim
      In this case, Martha asserted a Title VII retaliation claim against the
City—that the City failed to hire her for the water programs coordinator position
because of her assistance in Terry’s protected activities. Because Martha
presented only circumstantial evidence to prove her Title VII retaliation claim,
the McDonnell Douglas burden-shifting framework initially applied to assess her
claim. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n.13 (1973);
Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002). Under this
framework, a plaintiff must first establish a prima facie claim of unlawful
retaliation, which consists of three elements: (1) the employee engaged in
activity protected by Title VII; (2) the employer took an adverse employment
action against that individual; and (3) a causal connection exists between the
protected activity and the adverse employment action. See Adams v. Groesbeck
Indep. Sch. Dist., 475 F.3d 688, 690-91 (5th Cir. 2007) (citation omitted). If the
plaintiff meets this showing, the burden then shifts to the defendant to
articulate a legitimate, non-retaliatory reason for its decision. See Raggs, 278
F.3d at 468. If the defendant meets this burden, the plaintiff must then offer
sufficient evidence to prove that the defendant’s reason is pretextual. Id.
      However, after trial, the McDonnell Douglas framework “becomes moot,
and the question is whether legally sufficient evidence supported the jury’s
finding.” Adams, 475 F.3d at 691 (citation omitted). In a Title VII retaliation
case, “[t]he ultimate determination is whether, ‘but for’ the protected conduct,
the employer would not have engaged in the adverse employment action.”

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Douglas v. DynMcDermott Petroleum Operation Co., 144 F.3d 364, 372 (5th Cir.
1998) (citations omitted); see Vadie v. Miss. State Univ., 218 F.3d 365, 374 (5th
Cir. 2000) (“[D]oes the evidence support a finding that ‘but for’ [plaintiff’s]
protected activity, he would have gotten the job?”).
      In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the
Supreme Court held 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 [retaliated].” Id. at
148. The Court reasoned that “once the employer’s justification has been
eliminated, [retaliation] may well be the most likely alternative explanation.”
Id. at 147. However, the Court stated that such a showing would be insufficient
to sustain a jury’s finding of liability (1) when the record conclusively established
some other, legitimate reason for the employer’s conduct, or (2) when 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 [retaliation] had occurred.” Id. at 148 (citations omitted). “Whether
judgment as a matter of law is appropriate in any particular case will depend on
a number of factors[,]” including “the strength of the plaintiff’s prima facie case,
the probative value of the proof that the employer’s explanation is false, and any
other evidence that supports the employer’s case and that properly may be
considered on a motion for judgment as a matter of law.” Id. at 148-49.
      3. The District Court Erred in Applying the Standard of Review
      On appeal, Martha asserts that the district court did not apply the correct
standard of review in determining whether to grant the City’s renewed motion
for judgment as a matter of law. She argues that the court considered evidence
it was required to disregard, made credibility determinations, and failed to
construe the facts and all reasonable inferences from the facts in the light most
favorable to Martha. We agree.

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      First, the district court erred by considering evidence it was required to
disregard. Under the applicable standard of review, the court “must disregard
all evidence favorable to the moving party that the jury is not required to
believe.” Reeves, 530 U.S. at 151 (citation omitted). In its order, the district
court assessed whether Martha produced substantial evidence at trial regarding
Adams’s knowledge about Martha’s assistance in Terry’s protected activities. In
its analysis, the court stated that “[a]t trial, Adams emphatically denied having
any knowledge of [Martha’s] assistance.” However, the jury was not required to
believe Adams’s testimony, as he was not a disinterested witness, and therefore
the district court erred in considering his testimony in its analysis.
      Second, the district court erred by making credibility determinations. See
Reeves, 530 U.S. at 150 (stating that “the court . . . may not make credibility
determinations”).    Several times in the court’s order, the district court
impermissibly credited the testimony of several City employees. In addition to
crediting the testimony of Adams regarding his knowledge of Martha’s protected
activity, the district court credited the testimony of “[v]arious City employees,
both former and current, [who] testified at trial to the notion that the [water
programs coordinator] position was in transition from a technical position . . . to
one more focused on budgetary and financial issues of the water department.”
Both Adams and Dumbauld testified to this notion, and the jury was not
required to believe their testimony, as these City employees were not
disinterested witnesses. Additionally, the district court improperly credited the
testimony of Vander Kuy regarding her credentials, when the court stated that
it found Vander Kuy “to be a credible witness.”
      Third, the district court did not construe the facts and draw all reasonable
inferences from the facts in Martha’s favor. See Reeves, 530 U.S. at 150 (stating
that “the court must draw all reasonable inferences in favor of the nonmoving
party”). Importantly, on the issue of whether Martha established pretext, the

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district court gave no credence to her evidence at trial that Adams manipulated
the scoring matrix to benefit the other candidates and to prejudice Martha. See
id. at 152 (“[T]he court disregarded critical evidence favorable to
petitioner—namely,      the    evidence     .   .    .   undermining     respondent’s
nondiscriminatory explanation.”). The court did not view the evidence in the
light most favorable to Martha, particularly her evidence that several categories
of the scoring matrix closely aligned with the credentials and experience of
Cuellar and Vander Kuy. Instead, the court impermissibly viewed the evidence
in the light most favorable to the City—that the water programs coordinator
position was now a financial position and that Adams’s scoring matrix
appropriately reflected this change.
      In conclusion, in determining whether to grant the City’s renewed motion
for judgment as a matter of law, the district court impermissibly weighed the
evidence, made credibility determinations, and construed the facts against the
jury’s verdict. See id. at 150-51.
      4. The Evidence Was Legally Sufficient to Support the Jury’s Verdict
      On appeal, Martha asserts that the evidence presented at trial was legally
sufficient to support the jury’s finding that the City unlawfully retaliated against
Martha because she assisted in Terry’s protected activities. Applying the proper
standard of review, we agree that the evidence was sufficient to support the
jury’s verdict. In its renewed motion for judgment as a matter of law, the City
made two arguments: (a) that no reasonable jury could find a causal connection
between Martha’s protected activity and the City’s failure to hire her because
there was insufficient evidence to show that Adams knew of Martha’s assistance
in Terry’s protected activities; and (b) that no reasonable jury could find that the
City’s legitimate, non-retaliatory reason to hire Vander Kuy—that she was the
best qualified candidate for the position—was a pretext for retaliation. Each of
these arguments will be addressed in turn.

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              a. Adams’s Knowledge of Martha’s Assistance in Terry’s Litigation
       The City argues that a rational jury could not have concluded that the City
unlawfully retaliated against Martha for her assistance in Terry’s litigation
because the decision-maker, Adams, did not know of her protected activity. The
City contends that the evidence presented at trial only allowed jurors to
impermissibly speculate to reach the conclusion that Adams knew of Martha’s
assistance in Terry’s protected activities. However, viewing the evidence and the
inferences therefrom in the light most favorable to Martha, a reasonable jury
could have inferred that Adams was aware of her assistance in Terry’s protected
activities. Dumbauld, the City Manager and Adams’s supervisor, testified that
she was aware of both Terry’s litigation against the City and Martha’s assistance
in his litigation, as she saw Martha at a mediation. Additionally, Dumbauld and
Adams discussed the issue of interviewing Martha during Terry’s pending
litigation and agreed that the City should hire an outside employment
consultant to conduct the final interviews for the position. From these facts, it
was reasonable for the jury to infer that Dumbauld told Adams of Martha’s
assistance in Terry’s litigation. Indeed, even the district court, in its order
denying the City’s motion for summary judgment, concluded that a reasonable
person could infer that Adams knew of Martha’s assistance in Terry’s protected
activities based on this circumstantial evidence. Thus, based on the evidence
presented at trial, we conclude that a reasonable jury could have inferred that
Adams knew of Martha’s assistance in Terry’s protected activities.5


       5
         We note that, while this case was pending on appeal, the Supreme Court decided
Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), where the Court held that
an employee who suffered an adverse employment action could bring a Title VII retaliation
claim based on the protected activity of a co-worker who was also a close family member. Id.
at 868-70. This Title VII retaliation claim was based on the employer’s retaliation against the
close family member. Id. at 867. However, the instant case was not tried under Thompson’s
legal theory, as Martha’s claim is that the City retaliated against her, not Terry. Therefore,
Thompson is not directly applicable to our analysis.

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             b. The City’s Reason Was a Pretext for Retaliation
      The parties dispute whether Martha produced substantial evidence to
demonstrate pretext at trial. A plaintiff may establish pretext by showing that
the employer’s articulated reason for its conduct is false or unworthy of credence.
See Laxton, 333 F.3d at 578. As explained above, “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 [retaliated].” Reeves, 530 U.S. at 148. Therefore, whether Martha
established pretext is important to our determination of whether the evidence
supports the jury’s verdict that the City unlawfully retaliated against Martha.
      A plaintiff can demonstrate that an employer’s reason is pretextual in
various ways. See Patterson v. McLean Credit Union, 491 U.S. 164, 187 (1989)
(“The evidence which petitioner can present in an attempt to establish that
respondent’s stated reasons are pretextual may take a variety of forms.”)
(citations omitted), superseded on other grounds by statute, Civil Rights Act of
1991, 42 U.S.C. § 1981; see also Ramos v. Roche Prods., Inc., 936 F.2d 43, 48 (1st
Cir. 1991) (“Pretext can be exposed in several different ways.”). In the failure-to-
promote context, the Supreme Court has instructed that a plaintiff may seek to
demonstrate that an employer’s reason was pretextual by, for instance, “showing
that she was in fact better qualified than the person chosen for the position.”
Patterson, 491 U.S. at 187-88. However, the Court held that “[t]he District Court
erred . . . in instructing the jury that in order to succeed [plaintiff] was required
to make such a showing. There are certainly other ways in which [plaintiff]
could seek to prove that respondent’s reasons were pretextual.” Id. at 188. The
Court concluded that a plaintiff “may not be forced to pursue any particular
means of demonstrating that respondent’s stated reasons are pretextual.” Id.
      In the failure-to-hire context, courts have recognized many different ways
that a plaintiff may establish pretext. For instance, a plaintiff can demonstrate

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that she is the “clearly better qualified” candidate. See Moss v. BMC Software,
Inc., 610 F.3d 917, 923 (5th Cir. 2010). Also, a plaintiff may prove pretext by
showing “[a]n employer’s reliance on a previously unmentioned job requirement
to justify a challenged hiring decision.”        Id. at 926 (citations omitted).
Additionally, “[a]n employer’s violation of its own normal hiring procedure may
be evidence of pretext.” Bass v. Bd. of Cnty. Comm’rs, 256 F.3d 1095, 1108 (11th
Cir. 2001) (citation omitted), overruled on other grounds by Crawford v. Carroll,
529 F.3d 961 (11th Cir. 2008). Furthermore, a plaintiff may establish pretext by
showing that an employer emphasized qualifications not pertinent to the job in
selecting a candidate. See Courtney v. Biosound, Inc., 42 F.3d 414, 421 (7th Cir.
1994). However, as indicated above, a plaintiff “is not limited to presenting
evidence of a certain type” to establish pretext. Patterson, 491 U.S. at 187.
      In the present case, the City’s articulated, non-retaliatory reason for not
hiring Martha was that Vander Kuy was the best qualified candidate, as
indicated by the results of Adams’s scoring matrix. At trial, Martha offered two
strands of evidence to establish that the City’s reason was pretextual. First, she
argued that the City’s reason was false because Adams manipulated the scoring
matrix to prejudice Martha and benefit the other candidates, thereby artificially
making Vander Kuy the best qualified candidate. Second, she argued that she
was clearly better qualified than Vander Kuy for the water programs coordinator
position.
      With regard to Martha’s first argument as to pretext, viewing the evidence
and the inferences therefrom in the light most favorable to Martha, a reasonable
jury could have inferred that Adams intentionally manipulated the scoring
matrix to benefit the other candidates and prejudice Martha. Martha produced
evidence at trial that Terry’s discrimination lawsuit against the City was
premised on the actions of Adams, his supervisor, who notified Terry that it was
the City’s intent to terminate his employment in ninety days. As explained

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                                        No. 11-10058

above, there was evidence from which the jury could have concluded that Adams
had knowledge of Martha’s assistance in Terry’s lawsuit. Thus, the jury could
have inferred a motive on the part of Adams to manipulate the scoring matrix
to Martha’s detriment. Additionally, Adams testified that he reviewed the
candidates’ applications before creating the scoring matrix and conceded that he
could have manipulated the scoring matrix to favor one candidate over another.6
       Martha       also     presented        evidence       that     Adams       emphasized
qualifications—especially finance and business qualifications—in the scoring
matrix that were not fairly represented in the official job description or the job
posting. For instance, the scoring matrix awarded extra points for degrees in a
business-related field.7 The job posting lists as a qualification any combination
of education and experience equivalent to the completion of a Bachelor’s degree
in Public Administration, Business Administration, Environmental Engineering,
Chemistry, Biology, or a related field. Evidence introduced at trial indicated
that if the City had a preference for certain educational requirements, such as
degrees in a business-related field, these qualifications should have been listed
in the preferences section of the job posting. Here, the job posting listed no such
preferences. Additionally, Sherry Stephens, a former City employee who was
involved in creating the job description for the water programs coordinator
position, testified that only a Bachelor’s degree was required for the position and
that a Master’s degree was unnecessary. However, under Adams’s scoring


       6
        Also, Martha introduced evidence at trial that Adams initially told a City employee
that he did not review the candidates’ applications before creating the scoring matrix, from
which the jury could have inferred that Adams was attempting to cover up his actions.
       7
         The scoring matrix awarded (a) 20 points for a Bachelor’s degree, (b) 30 points for a
Bachelor’s degree in Finance, Accounting, or a related field, (c) 20 points for a Master’s degree,
and (d) 30 points for a Master’s degree in Finance, Business Management, or a related field.
Thus, an applicant who had a Bachelor’s degree in Biology, like Martha, received 20 points
total, while an applicant who had a Bachelor’s degree in Business Administration and a
Master’s degree in Management, like Vander Kuy, received 100 points total.

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                                  No. 11-10058

matrix, fifty points out of the total of one hundred points in the education
category were reserved for applicants with Master’s degrees.
      Furthermore, Martha presented evidence that some of the categories of the
scoring matrix aligned very closely with the resume and experience of the other
candidates. For example, both of the other candidates had degrees in a business-
related field and Martha did not—resulting in the other candidates receiving two
to five times more points in the education category.         Martha argued that
Adams’s manipulation of the education category was determinative—even if
Martha received full credit in every other category of the scoring matrix, she still
would not have had the highest score of the candidates. Also, the scoring matrix
gave many points to a candidate who had six or more years of experience in
account management, which closely aligned with Vander Kuy’s resume and was
not specifically listed in the job posting. From this circumstantial evidence,
viewed in the light most favorable to Martha, a reasonable jury could have
inferred that Adams rigged the matrix so that Martha could not score the
highest among the three candidates. Cf. Vadie, 218 F.3d at 374-75 (holding that
sufficient evidence supported the jury’s verdict that the employer retaliated
against an applicant, because the jury could have inferred that the employer
changed the position requirements to exclude that particular applicant from
consideration).
      Given our conclusion that a reasonable jury could have inferred pretext
based on Martha’s first argument that Adams rigged the matrix, we need not
reach Martha’s second, more difficult argument that she was clearly better
qualified. In conclusion, a reasonable jury could have found that the City’s
reason for not hiring Martha was pretextual based on evidence indicating that
Adams manipulated the scoring matrix to prejudice Martha and favor the other
candidates. Under Reeves, because Martha presented substantial evidence at
trial to establish her prima facie case and to establish pretext, a reasonable jury

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                                       No. 11-10058

could have concluded that the City unlawfully retaliated against her. See
Reeves, 530 U.S. at 148.8 “Ever mindful of the recent mandate of Reeves ‘not to
substitute [the court’s] judgment for that of the jury and not to unduly restrict
a plaintiff’s circumstantial case of [retaliation],’” we hold that the City’s evidence
“is not of such magnitude that a reasonable jury could only find in [its] favor.”
Laxton, 333 F.3d at 585-86 (first alteration in original) (citation and internal
quotation marks omitted). Based on the foregoing analysis, we reverse the
district court’s grant of judgment as a matter of law.
B. The District Court’s Grant of a New Trial
       1. Standard of Review
       We review a district court’s grant of a new trial for abuse of discretion. See
Laxton, 333 F.3d at 586 (citation omitted). “A decision to grant a new trial
is . . . accorded less deference than a decision denying the grant of a new trial.”
Id. (citation omitted). “And where a new trial is granted on the ground that the
verdict is against the weight of the evidence, we exercise particularly close
scrutiny, to protect the litigants’ right to a jury trial.” Shows v. Jamison
Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982) (citation omitted). A district
court may grant a new trial if the jury verdict was against the great weight, and
not merely the greater weight, of the evidence. Laxton, 333 F.3d at 586 (citation
omitted). In making this determination, the “district court weighs all of the
evidence, and it need not view it in the light most favorable to the nonmoving
party.” Id. (citation omitted). “This does not mean that a judge may order a new
trial simply because he disagrees with the jury verdict.” Shows, 671 F.2d at 930.


       8
         The instant case does not involve “a ‘rare’ exception to Reeves where (1) the evidence
conclusively reveals some other, nondiscriminatory reason for the [employer’s action] or (2) the
plaintiff’s showing as to pretext is weak and the employer brings ‘abundant and
uncontroverted’ evidence that its decision was not motivated by [retaliatory] animus.” Laxton,
333 F.3d at 585 (citations omitted).


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                                   No. 11-10058

      We review the evidence closely to ensure that this difficult standard has
been satisfied. Id. Three factors guide our review: (1) the simplicity of the
issues, (2) the extent to which the evidence is in dispute, and (3) the absence of
any pernicious or undesirable occurrence at trial. Id. at 930-31 (citations
omitted). “When all three factors are present, our deference to the jury is
reinforced by our confidence in its ability to understand the issues, to evaluate
credibility and sort through conflicting testimony, and to act reasonably and
fairly in the absence of prejudicial influences.” Id. at 931. “In this situation
there is little, if any, need to defer to the judge as against the jury, and we will
not affirm an order granting a new trial unless on review we are satisfied,
independently, that the jury verdict was against the great weight of the
evidence.” Id. “When one or more of these factors are absent, however, our great
deference to the court’s firsthand experience of the witnesses, their demeanor,
and the context of the trial, takes on special importance, and we will affirm a
new trial order even if on our own review of the ‘cold record’ we are not
convinced that the jury verdict was against the great weight of the evidence.”
Id. (citation and internal quotation marks omitted). “[W]hether or not the three
factors referred to above are present,” the “‘great weight of the evidence’
standard is not easily met,” and “our standard of review on appeal . . . [is] a strict
one.” Id.
      2. The District Court Abused its Discretion in Granting a New Trial
      In the present case, the district court conditionally granted the City’s
motion for a new trial because it found that the jury’s findings on liability and
damages were against the great weight of the evidence. With regard to liability,
the court reasoned that Martha failed to introduce evidence to establish her
retaliation claim. With respect to damages, the court concluded that the verdict
did not reflect Martha’s “failure to properly mitigate her damages.”
      We must first determine whether any of the three Shows factors are

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                                  No. 11-10058

present in this case.    With regard to the first factor, Martha’s Title VII
retaliation claim presents a relatively simple issue. Cf. Woodhouse v. Magnolia
Hosp., 92 F.3d 248, 256 n.6 (5th Cir. 1996) (finding that an age discrimination
claim was a “relatively simple” issue). With regard to the second factor, our
caselaw indicates that this factor is present when only critical issues are in
dispute. See Conway v. Chem. Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th
Cir. 1980) (“In certain critical respects, the evidence was highly conflicting, but
in many other respects it was undisputed.”); see also Carbo Ceramics, Inc. v.
Keefe, 166 F. App’x 714, 717 (5th Cir. 2006) (“[A]lthough the evidence in this case
was disputed, there were numerous areas of agreement between the parties.”).
In the instant case, several critical factual issues were disputed, such as whether
Adams rigged the matrix, but there were many areas of agreement among the
parties about the underlying facts. Thus, the second Shows factor is present.
With regard to the third factor, the trial was devoid of any pernicious occurrence.
Thus, because the Shows factors are present, we need not “defer to the judge as
against the jury,” and we should not affirm the district court’s order granting a
new trial unless, upon our independent review, we are satisfied that the jury’s
verdict was against the great weight of the evidence. Shows, 671 F.2d at 931.
      With regard to the jury’s verdict on liability, we hold that the verdict was
not against the great weight of the evidence. Based on our independent review
of the record and on our analysis above, we find that Martha presented
substantial circumstantial evidence from which a reasonable jury could have
concluded that the City unlawfully retaliated against Martha. See Laxton, 333
F.3d at 586 (reversing the district court’s grant of new trial in a discrimination
lawsuit because, contrary to the district court’s conclusion, the plaintiff “did
indeed rebut the proffered nondiscriminatory reason for her termination”).
      With regard to damages, a Title VII plaintiff suing for back pay has a duty
to mitigate damages, meaning that the plaintiff “must use reasonable diligence

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                                     No. 11-10058

to obtain ‘substantially equivalent’ employment.” Sellers v. Delgado Coll., 902
F.2d 1189, 1193 (5th Cir. 1990) (citations omitted). “[T]he employer has the
burden of proving failure to mitigate.” Id. (citation omitted). The jury awarded
Martha $243,000 in damages—three years of back pay plus benefits—which was
the total amount that Martha requested. Therefore, the jury implicitly found
that Martha did not fail to mitigate her damages.
      After an independent review of the record, we hold that the jury’s verdict
on damages was not against the great weight of the evidence. At trial, there was
conflicting evidence about whether Martha performed a diligent job search. The
City provided evidence that between March 2007 and September 2009, Martha
did not apply for any position in the City, county, or private business sector.
However, Martha testified that she was looking for employment, but because she
could not find substantially comparable job openings, she did not apply for any
positions. The jury had the “power . . . to believe or disbelieve portions of the
testimony of various witnesses.” Conway, 610 F.2d at 367. The jury was
entitled to credit Martha’s testimony that she did not apply for jobs because she
could not find substantially comparable employment. Therefore, based on
Martha’s testimony, there was sufficient evidence to support the jury’s implicit
conclusion that Martha properly mitigated her damages. The jury’s verdict on
damages was “not against any great evidentiary weight.” Id.; see id. (“On this
record, the jury’s conclusions are at least as likely to be true as any others . . . .”).
      In sum, the district court abused its discretion in determining that the
jury’s verdict was against the great weight of the evidence. Therefore, we
reverse the district court’s grant of a new trial and remand the case to the
district court with instructions to enter judgment for Martha in accordance with
the jury’s verdict.
C. The District Court’s Denial of Martha’s Motion for Attorney’s Fees
      In its order, the district court denied Martha’s motion for attorney’s fees

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                                 No. 11-10058

and costs as moot, because the court had granted the City’s renewed motion for
judgment as a matter of law. Because we reverse the court’s grant of judgment
as a matter of law, reverse the court’s grant of a new trial, and remand the case
to the district court with instructions to enter judgment for Martha, Martha’s
motion for attorney’s fees and costs is no longer moot. Thus, we reverse the
court’s denial of Martha’s motion and, upon remand, instruct the district court
to consider an amended motion from Martha regarding attorney’s fees and costs.
                             III. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s judgment,
REVERSE the court’s grant of a new trial, REVERSE the court’s order denying
Martha’s motion for attorney’s fees and costs, and REMAND the case to the
district court with instructions to enter judgment for Martha and to consider an
amended motion for attorney’s fees and costs. The City shall bear the costs of
this appeal.




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