                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                      F I L E D
                          UNITED STATES COURT OF APPEALS
                                                                                       June 16, 2005
                                   FIFTH CIRCUIT
                                                                                   Charles R. Fulbruge III
                                         ____________                                      Clerk
                                         No. 04-40569
                                         ____________


               BRANDON L BRYANT,


                                             Plaintiff-Appellee-Cross-Appellant,

               versus


               COMPASS GROUP USA INC, individually, doing business as
               Chartwells,


                                             Defendant-Appellant-Cross-Appellee.



                          Appeal from the United States District Court
                               For the Eastern District of Texas



Before REAVLEY, JONES, and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

       Compass Group USA Inc., individually, doing business as Chartwells (“Chartwells”), appeals

the jury verdict in favor of Brandon Bryant (“Bryant”) for unlawful termination under Title VII of

the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq. Chartwells challenges the jury’s finding

that it terminated Bryant either because of his race or because he had filed an Equal Employment

Opportunity Commission (“EEOC”) charge of discrimination.
                                                  I

       Chartwells employed Bryant, a white male, as a cook at their Lamar University food services

operation. Chartwells provides food and beverage services to educational facilities as an independent

contractor.

       Bryant sought promotion at Chartwells to an open executive chef position, which was

ultimately filled by Ricardo Saldana, an Hispanic employee. One month later, Chartwells transferred

Francelia Madrigal, Saldana’s sister-in-law, to its Lamar operation. Bryant filed a discrimination

charge with the EEOC on March 26, 2002, alleging reverse race discrimination. Specifically, he

claimed that Chartwells subjected him to disparate terms and conditions of employment)) including

by Saldana and Madrigal))and that Chartwells’ management denied him a promotion to the

executive chef position because of his race.

       Ten days later, on April 6, 2002, Bryant, Madrigal, and Saldana worked at a bat mitzvah at

a recreational area on the Lamar Campus. After the event, Madrigal informed Saldana that she had

observed Bryant take an envelope from the gift table and suspected that he had disposed of the

envelope in the trash behind the dining hall. Madrigal claims she looked for the envelope, but it was

too dark to see anything, so she returned the following day and found three envelopes and three

checks in the trash. She informed Saldana about the checks and provided a statement to Max

Mitchell, the food services director for Chartwells at Lamar. Maria Ortiz, another Chartwells

employee who worked at the bat mitzvah the night before, gave a statement to Lamar University

police officer Daniel Bowden.

       Bryant was asked to speak with Bowden the following day when he arrived at work. Bryant

agreed to pay back the $26 that he claimed represented the missing cash from the envelopes but he


                                                -2-
included a note to the girl’s mother stating that he was paying the money under duress and that he

maintained his innocence. Bowden informed Chartwells that Bryant confessed to taking the money

and agreed to make restitution. Chartwells terminated Bryant’s employment, claiming the termination

was based on the police officer’s statement that Bryant confessed to the theft.

        Bryant filed suit asserting that Chartwells racially discriminated against him by subjecting him

to adverse terms and conditions of employment, denying him a promotion to executive chef, and

terminating his employment. Bryant further claimed that Chartwells unlawfully retaliated against him

for filing a discrimination charge with the EEOC by terminating his employment.1

        The district court submitted Bryant’s claims of unlawful reduction in work hours, denial of

promotion, and termination of employment claims to the jury.2 The jury found: (1) for Bryant on the

termination claim; (2) for Chartwells on the promotion claim; and (3) for Bryant on the unlawful

discrimination in the reduction in hours claim, but that Chartwells would have reduced Bryant’s hours

regardless of the unlawful motivation. The jury awarded Bryant: (1) $42,500 in actual damages; (2)

$160,000 in compensatory damages; and (3) $350,000 in punitive damages. In addition, the court

awarded Bryant $36,500 in attorneys’ fees and $3,093.16 in costs. The district court granted

Chartwells’ motion for judgment as a matter of law (“JMOL”) on punitive damages and granted a

remittitur on the compensatory damage award to $150,000 and actual damages to $32,556.22.

Bryant accepted the remittitur.




        1
          Bryant also claimed that Chartwells defamed him to the president of Lamar University, but abandoned this
claim before the beginning of trial.

        2
         The court granted Chartwells’ motion for JMOL as to certain claims of discriminatory terms and conditions
of employment at the close of Bryant’s evidence and several other claims of disparate terms and conditions of
employment at the close of Chartwells’ evidence.

                                                       -3-
                                                  II

       Title VII prohibits an employer from “discharg[ing] an individual, or otherwise

discriminat[ing] against any individual . . . because of such individual’s race.” 42 U.S.C. § 2000e-

2(a)(1). Title VII also prohibits retaliation by employers against employees who have filed a charge

of discrimination. 42 U.S.C. § 2000e-3(a). The jury affirmatively answered a single question asking

them to determine whether Bryant’s race or retaliation for his filing of an EEOC charge of

discrimination was a substantial or motivating factor in his termination. Chartwells appeals the

judgment in favor of Bryant, arguing the district court’s denial of its motion for JMOL should be

reversed.

       We review a district court’s denial of a motion for JMOL de novo. Thomas v. Tex. Dep’t of

Criminal Justice, 220 F.3d 389, 392 (5th Cir. 2000). A motion for JMOL should be granted if “there

is no legally sufficient evidentiary basis for a reasonable jury to find for a party.” FED. R. CIV. P.

50(a). Thus, “if reasonable persons could differ in their interpretations of the evidence, then the

motion should be denied.” Thomas, 220 F.3d at 392 (citing Baltazor v. Holmes, 162 F.3d 368, 373

(5th Cir. 1998)). “A post-judgment motion for judgment as a matter of law should only be granted

when ‘the facts and inferences point so strongly in favor of the movant that a rational jury could not

reach a contrary verdict.’” Id. (quoting Waymire v. Harris County, Tex., 86 F.3d 424, 427 (5th Cir.

1996)). The jury’s verdict is afforded great deference. Thus, when evaluating the sufficiency of the

evidence, we view all evidence and draw all reasonable inferences in the light most favorable to the

verdict. Id.

       Chartwells argues that the district court erred in failing to grant its JMOL motion on Bryant’s

unlawful termination claim because there was insufficient evidence for a reasonable jury to find that


                                                 -4-
Bryant’s race or his EEOC claim was a motivating factor it its decision to terminate his employment.

Chart wells raises three arguments: (1) Bryant failed to establish a prima facie case of unlawful

termination; (2) Bryant did not offer sufficient evidence to establish that Chartwells’ reason for

termination was a pretext for discrimination or if true, was only one of the reasons for its conduct,

and another “motivating factor” was the plaintiff’s race or retaliation for his filing of an EEOC claim;

and (3) Chartwells offered sufficient evidence that it would have made the same adverse employment

decision regardless of any unlawful animus.

         “[W]hen, as here, a case has been fully tried on its merits, we do not focus on the McDonnell

Douglas3 burden-shifting scheme. Instead, we inquire whether the record contains sufficient evidence

to support the jury’s ultimate findings.” Smith v. Berry Co., 165 F.3d 390, 394 (5th Cir. 1999)

(footnoted added). See also Rutherford v. Harris County, 197 F.3d 173, 180-81 (5th Cir. 1999);

Vaughn v. Sabine County, 104 Fed.Appx. 980, 982 (5th Cir. 2004).                          “We need not parse t he

evidence into discrete segments corresponding to a prima facie case, an articulation of a legitimate,

nondiscriminatory reason for the employer’s decision, and a showing of pretext. ‘When a case has

been fully tried on the merits, the adequacy of a party’s showing at any particular stage of the

McDonnell Douglas ritual is unimportant.’” Vaughn, 104 Fed.Appx. at 982 (quoting Travis v. Bd.

of Regents of Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir. 1997)). Therefore, under a de novo

review, this court must determine whether the record contains sufficient evidence for a reasonable

jury to determine that Chartwells’ stated reason for terminating Bryant was pretext or that while true,

         3
            The McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), framework requires a plaintiff to first create
a presumption of discrimination by making out a prima facie case of discrimination. The burden of production then
shifts to the defendant to establish legitimate non-discriminatory reasons for its actions. The plaintiff then bears the
burden of persuading the trier of fact by a preponderance of the evidence that the employer intentionally discriminated
against the plaintiff because of the plaintiff’s protected status. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).


                                                          -5-
it was only one of the reasons for its conduct, and another “motivating factor” was the plaintiff’s race

or retaliation for his filing of an EEOC claim.

        Chartwells asserts that it terminated Bryant’s employment for a legitimate, non-discriminatory

reason))namely that he was suspected of committing theft or that he committed theft. Chartwells

claims that it maintained a policy, as stated in its General Rules and Provisions, that provided for

immediate termination for “theft, reasonable suspicion of theft or accessory to theft.” Bryant argues

that Chartwells’ reason is mere pretext for its actual motive for terminating his employment))namely

that he had filed an EEOC charge alleging reverse race discrimination only three weeks prior to the

events that resulted in his termination. “[T]he factfinder’s rejection of the employer’s legitimate,

nondiscriminatory reason for its action does not compel judgment for the plaintiff . . . [although] it

is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the

employer’s explanation.” Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 146-47 (2000)

(emphasis in original).

        Bryant relies heavily on the close proximity of time between the events to demonstrate that

Chartwells’ reason for his termination was pretextual. In addition, Bryant claims that management’s

decision to have Saldana memorialize Bryant’s past transgressions also demonstrates that its true

reason for terminating him was retaliation for his filing of the EEOC claim. There is no evidence,

however, that this memorandum or Bryant’s alleged past transgressions was the basis for his

termination.

        Bryant’s remaining arguments focus on his innocence and that his confession came under




                                                  -6-
duress. The critical issue is not what Bryant told the officer4 and under what circumstances Bryant

confessed, but what the officer relayed to Chartwells’ management and what reasons Chartwells

relied on in terminating Bryant. Of primary importance on this issue is the uncontroverted testimony

of a disinterested third party, officer Bowden. The record indicates that he informed Chartwells

management that Bry ant confessed to the theft.5 Bryant offers no evidence to demonstrate why

Chartwells’ explanation that it relied on this evidence for termination is pretext. Therefore, there is

no legally sufficient evidentiary basis for a reasonable jury to find that Chartwells unlawfully

terminated Bryant in retaliation for filing an EEOC charge of discrimination.

       Bryant also asserted several theories to demonstrate that Chartwells’ true “motivating factor”

behind its decision was Bryant’s race. First, Bryant argues that there was a conspiracy between the

Hispanic employees))Saldana, Madrigal, and Ortiz))to get him fired and that management knew,

or should have known, about this framing. Bryant concedes that none of these individuals were

official decisionmakers at Chartwells and that none of them had authority to terminate his

employment. However, “[i]f an employee can demonstrate that others had influence or leverage over

the official decisionmaker, and thus were not ordinary coworkers, i t is proper to impute their

discriminatory attitudes to the formal decisionmaker . . . . ‘If the [formal decisionmakers] acted as



       4
        Bowden testified at trial that Bryant never directly admitted to him that he took the cards or money:
       Q: Lt. Bowden, I thought you told me that Mr. Bryant didn’t admit to taking the money?
       A: The words “I did it,” no, you’re right, he never said that.
       5
        Q: What did you tell Mr. Mitchell?
       A: I told Mr. Mitchell that Brandon agreed to pay back the money.
       Q: What else did you tell Mr. Mitchell?
       A: Well, I don’t remember exactly what it was, but it did - - I’m sure I told him that he admitted to doing it
       and that he would pay the money back.
       Q: Right. And you did tell Mr. Mitchell that he confessed to taking the money, didn’t you?
       A: Yes.

                                                       -7-
the conduit of [the employee’s] prejudice))his cat’s paw))the innocence of the [decisionmakers]

would not spare the company from liability.’” Russell v. McKinney Hosp. Venture, 235 F.3d 219,

226-27 (5th Cir. 2000) (citing Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)). Bryant’s

“cat’s paw” theory is that Saldana, Madrigal, and Ortiz had unlawful racially motivated intent and

that, because the decisionmakers relied on tainted information from these employees, the termination

decision itself was tainted.

         Bryant offered little evidence at trial to demonstrate a conspiracy. He claims that: (1) Saldana

and Madrigal showed up at the bat mitzvah despite not being scheduled to work; (2) Bryant did not

see Saldana although she claimed to have seen him take the card from the gift table; (3) Madrigal did

not immediately report the theft; (4) Ortiz’s son reported seeing Bryant empty the cards into the trash

behind the dumpster but did not see him take the cards from the table; and (5) Madrigal claims to

have found the cards in the trash, but proceeded to work the rest of the day. Even if we assume that

the three Hispanic co-workers were conspiring against Bryant, he offers no evidence to demonstrate

that the conspiracy was racially motivated. Similarly, Bryant does not argue that the three Hispanic

employees were motivated by retaliatory intent because none of them knew t hat he had filed an

EEOC claim. Again, he simply relies on the fact that the other employees are Hispanic and he is

white.

         Furthermore, Bryant’s conspiracy theory fails because he offered no evidence that the official

decisionmakers were involved in the conspiracy, knew about the conspiracy, or should have known

about the conspiracy. Testimony at trial indicated that Chartwells relied on the police officer’s report

that Bryant admitted to the theft, as discussed above, in making its decision. In fact, it is Bryant who

alleges that Chartwells’ management failed to properly investigate the events surrounding the bat


                                                   -8-
mitzvah that would have revealed this potential conspiracy. While the prudent action may have been

to discuss the event with Bryant and obtain his side of the story before terminating him, evidence that

the employer’s investigation merely came to an incorrect conclusion does not establish a racial

motivation behind an adverse employment decision. Management does not have to make proper

decisions, only non-discriminatory ones. See Little v. Republic Refining Co., 924 F.2d 93, 97 (5th

Cir. 1991) (“even an incorrect belief that an employee’s performance is inadequate constitutes a

legitimate, non-discriminatory reason” for termination). Employment discrimination laws are “not

intended to be a vehicle for judicial second-guessing of business decisions, nor . . . to transform the

courts into personnel managers.” Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir.

1988).

         Bryant also argues that Chartwells’ reason for terminating his employment was pretextual

because similar conduct on the part of an Hispanic employee, Ortiz, was not disciplined in the same

manner. Disparate treatment of similarly situated employees is one way to demonstrate unlawful

discrimination and retaliation. See Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990).

To raise an inference of discrimination, the plaintiff may compare his treatment to that of nearly

identical, similarly situated individuals. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th

Cir. 1995). To establish disparate treatment, Bryant must show that Chartwells gave preferential

treatment to another employee under “nearly identical” circumstances. Okoye v. Univ. of Tex.

Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001).

         The district court concluded, in denying Chartwells’ JMOL, that Bryant established disparate

treatment since he and Ortiz were similarly situated employees in the minds of the jury, both being

“among the low level hourly employees.” The district court stated that


                                                 -9-
        There was evidence that Max Mitchell, [Chartwells’] food director at Lamar at the time, and
        one of the three individuals who made the decision to fire Bryant, had been aware that Ms.
        Ortiz, a Hispanic, had pilfered food, alcoholic beverages, and/or table decorations. No action
        was taken, and [Chartwells] presented no credible evidence that Ms. Ortiz did not do these
        things, that any disciplinary action was administered, or that there was good reason for not
        administering disciplinary action. On the other hand, Bryant, who in [Chartwells’] view, was
        a similar, low level, hourly employee, but a Caucasian, was fired.

A reasonable jury could conclude that Bryant and Ortiz were “similarly situated” low level hourly

employees. However, the alleged theft of alcohol, party decorations, and table decorations is not the

same as stealing money from a client’s gift table at a catered event. The allegations leveled against

Ortiz involved an internal situation compared to the allegations of theft from a client in Bryant’s

situation. A key distinction is that the latter can result in a significant loss of business and clients for

Chartwells due to the devastating effect such actions would have on its reputation as well as exposing

it to civil legal liability. Moreover, since Ortiz never admitted the theft to the police or anyone else,

no reasonable jury could conclude that the two events are “nearly identical.”

        Bryant also argues that he was subject to disparate treatment because Chartwells did not

terminate Ortiz’s employment after they learned she was not authorized to work in the United States.

However, when Chartwells learned that Ortiz’s Social Security information was invalid, they gave

her forty-eight hours to provide the proper information, as company policy dictated, and when she

was unable to do so, she was discharged. Again, this fails to demonstrate disparate treatment.

        The record does no t contain evidence sufficient to support the jury’s ultimate findings.

Therefore, the district court improperly denied Chartwells’ motion for JMOL and the judgment

should be vacated.

                                                    III

        Since Bryant failed to elicit evidence at trial so that a reasonable jury could conclude that his


                                                   -10-
race or retaliation for his filing of an EEOC claim was a substantial or motivating factor in his

termination, we REVERSE the district court judgment and RENDER take nothing judgment against

Bryant.6




        6
          Because we reverse the judgment for Bryant, we need not consider his claim that the elimination of the jury
awarded punitive damages based on his acceptance of a remittitur of actual damages was improper. It is also
unnecessary to consider Chartwells’ appeal of the compensatory damages, actual damages, and attorneys’ fees and costs
awarded Bryant.

                                                       -11-
