               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                             ____________
                                            No. 98-20834
                                          Summary Calendar
                                          _______________

                                     GREGORY KNIGHTS,
                                                              Plaintiff-Appellant,
                                               VERSUS

              BANK UNITED OF TEXAS FEDERAL SAVINGS BANK;
                       DENNIS LAIRD; C.J. ANCIRA,
                                                      Defendants-Appellees.
                                    _________________________

                            Appeal from the United States District Court
                                for the Southern District of Texas
                                         (H-97-CV-0669)
                                 _________________________

                                            August 13, 1999

Before JOLLY, SMITH, and WIENER,                      his position. In May 1992, United Savings
  Circuit Judges.                                     (now called Bank United) appointed Knights
                                                      manager of its Greens Road branch, where he
JERRY E. SMITH, Circuit Judge:*                       worked until he was terminated in February
                                                      1996. He never received any disciplinary
    Gregory Knights appeals a judgment,               measures or any other negative marks related
following a jury verdict, denying him recovery        to his employment before February 1996.
in his race discrimination and retaliation            Bank United terminated him, however,
lawsuit against Bank United of Texas, Dennis          following a specific incident.
Laird, and C.J. Ancira (collectively “Bank
United”). Finding no error, we affirm.                                      A.
                                                         On February 28, 1996, a substitute vault
                      I.                              custodian at the Greens Road branch, Helen
   Knights, a black male, worked as a branch          Jackson, told Knights that there was a $5,000
manager for San Jacinto Savings from 1988 to          discrepancy in the vault balance recorded on
1991. After United Savings acquired San               February 27. The vault balance on any given
Jacinto Savings in 1991, Knights continued in         day should equal the cash in the vault plus the
                                                      cash delivered to the central vault. The
                                                      February 27 “vault ticket,” however, showed
                                                      that the vault teller on duty that day, Tami
   *
      Pursuant to 5TH CIR. R. 47.5, the court has     Cruse, had placed $1,293 in a bag to ship to
determined that this opinion should not be            the central vault. According to Jackson, the
published and is not precedent except under the       February 27 vault ticket did not account for
limited circumstances set forth in 5TH CIR. R.        $5,000 in cash.
47.5.4.
    Knights called Cruse, who was off work on           that she and Laird were willing to reconsider
February 28, and asked how much money she               their recommendation if Knights offered some
had shipped to the central vault on                     explanation or information that they did not
February 27. Cruse responded that she had               know. Knights was not able to satisfy their
shipped $6,293, including $5,000 in $100 bills          concerns, however. In particular, Cruse’s
and $1,293 in mutilated bills. Knights then             telephone assurances did not provide sufficient
tried to contact the central vault to have them         verification to alter the vault ticket.
confirm that the shipment contained $6,293.
Unfortunately, the central vault had not yet               Laird and Ancira offered Knights the option
received the shipment and could not verify              to resign or be terminated. Knights requested
Cruse’s recollection.                                   probation and asked that his good years of
                                                        service be given consideration.         Laird,
   Based on Cruse’s statement, Knights                  however, told Knights that Bank United no
instructed Jackson to change the February 27            longer trusted him. Given the option of
vault ticket to show that $6,293 had been               termination or resignation, Knights tendered
shipped. Knights signed the altered ticket as           his resignation.
“manager” and, with permission from Cruse,
signed Cruse’s name on the space for “teller                                  B.
signature.” The next day, the central vault
reported that the $6,293 had been properly
accounted for and that there was no loss or
discrepancy.

   Bank United’s area manager, Dennis Laird,
directed Bank United’s head of corporate
security to investigate. In a written report, the
security officer concluded that Knights had
“force balanced” the February 27 vault cash
drawer.      Force balancing occurs when
someone manipulates or causes something to
balance by adding or subtracting money. The
report confirmed that there was no loss, no
criminal intent, and no intent to falsify bank
records to conceal a loss and that Knights
understood the importance of not engaging in
forced balancing.

    On request from Vickie Bargas, the human
resources director, the operations department
confirmed the security officer’s conclusion that
Knights’s action constituted forced balancing.
Based on this conclusion, Laird, Bargas, and
Ancira (another senior human resources
executive) recommended that Bank United
terminate Knights’s employment.            This
recommendation was made to Ron Coben,
Bank United’s regional manager, who held the
ultimate authority to terminate.

   After making their recommendation, Laird
and Ancira met with Knights to hear his
account of the relevant events. Ancira testified

                                                    2
   Knights sued Bank United, Laird, and
Ancira in state court, alleging race                                           A.
discrimination and retaliation under title VII of          Knights argues that the court should have
the 1964 Civil Rights Act, 42 U.S.C. § 2000e,           instructed the jury that, a matter of law, Bank
et seq., race discrimination and retaliation            United’s “resign or be terminated” demand is
under the Texas Labor Code §§ 21.051 and                a constructive discharge.1 The jury question
21.055; and state law causes of action for              asked, “Do you find from a preponderance of
slander, defamation, and intentional infliction         the evidence that Bank United intentionally
of emotional distress. Defendants removed to            discriminated against Gregory Knights because
federal court.                                          of his race by discharging him from his
   Knights alleged that his termination was             employment?” (Emphasis added.) Without an
motivated by racial animus and discrimination.          instruction explaining that being asked to
He argued that the “forced balancing” incident          resign or be terminated is equivalent to a
was a pretext and, had he not been black, he            discharge, Knights claims that the jury felt
would have been allowed to keep his job. He             obligated to side with Bank United if it
pointed out that since Bank United took over            mistakenly believed that Knights’s resignation
United Savings in 1991, all the black branch            was not the same as a discharge. We find no
managers in the Houston area had left and had           error.
been replaced by whites. He argued that white
employees and branch managers, who had
been guilty of more serious infractions of bank             1
policy, had been permitted to keep their jobs.                 Bank United claims that Knights failed to
He also asserted that Bank United terminated            preserve this objection under FED. R. CIV. P. 51,
                                                        because Knights did not supply a proposed written
him in retaliation for his involvement in a race        instruction and failed to obtain a ruling from the
discrimination lawsuit against Bank United by           court on Bank United's proposed instruction.
another terminated black employee.                      Knights replies that he did submit a proposed
                                                        written instruction on constructive discharge in the
    The court granted summary judgment to all           joint pretrial order. Further, he explains that the
defendants on Knights’s retaliation and state           words “Defendant contest” in bold type on the
law claims and to Laird and Ancira on                   submitted instruction signify that the defendants
Knights’s race discrimination claims under              objected to its admission.
title VII, 42 U.S.C. § 1981, and the Texas
Labor Code. It denied summary judgment on                   We agree with Knights that it is hard to see how
race discrimination claims, however, for                Bank United can claim ignorance of this proposed
defendant Bank United.                                  jury instruction on constructive discharge when it
                                                        specifically objected to its admission. Further,
                                                        Knights is also correct that the lack of a written
   The parties went to trial on the race                instruction “is not necessarily fatal to appellate
discrimination claims, with Bank United as the          review . . . so long as the trial court was
only defendant.       The jury returned a               sufficiently advised of this instruction request.”
unanimous verdict for Bank United, and the              9 JAMES W. MOORE ET AL., MOORE’S FEDERAL
district court entered a final judgment                 PRACTICE § 51.11[1][b] (3d ed. 1999); Bender v.
dismissing the lawsuit against all of the               Brumley, 1 F.3d 271, 276 (5th Cir. 1993) (“We
defendants.                                             recognize that error is preserved for appeal so long
                                                        as the complaining party states his assertion to the
                       II.                              trial court prior to the time when the court invites
    Knights claims the court committed                  on-the-record objections to the charge.”).
reversible error (1) by refusing to instruct the            Finally, we reject Bank United’s claim that
jury that he was constructively discharged; (2)         Knights failed obtain a ruling from the court to
by refusing to admit evidence about other               preserve its objection. The court did issue a ruling
alleged racial discrimination at Bank United;           at the charge conference when it stated, in response
and (3) by granting summary judgment on his             to Knights’s questioning, that there was no factual
retaliation claims. We consider each in turn.           dispute on whether a termination occurred.

                                                    3
                       1.                              Coben’s unequivocal testimony, Knights
   We give district courts wide latitude in            testified that “they forced me out. I mean, it’s
drafting jury instructions, and we ignore              an ultimatum. That’s what it is. 'You resign
technical imperfections. Bender, 1 F.3d                or we’re going to fire you.' So, I got fired.”
at 276. On the other hand, “at a minimum the
court’s instructions must give the jury                   Bank United did not argue to the jury that
adequate guidance to intelligently determine           Knights had voluntarily resigned or that the
the questions presented.” 9 JAMES W. MOORE             jury should base its decision on whether he had
ET AL., MOORE’S FEDERAL PRACTICE §                     voluntarily resigned. Therefore, Knights’s
51.10[1] (3d ed. 1999). We conduct a two-              attack on the jury instruction falls far short of
step inquiry when reviewing a jury instruction.        creating the “substantial and ineradicable
First, we consider whether the charge “as a            doubt” necessary for reversal.
whole leaves us with substantial and
ineradicable doubt whether the jury has been                                  B.
properly guided in its deliberations.” Kyzar v.            Knights proffered evidence of what he
Vale Do Ri Doce Navegacai, S.A., 464 F.2d              alleged was an atmosphere of discrimination
285, 290 (5th Cir. 1972). Then, even if we             against blacks at Bank United. Specifically, he
determine that an error has occurred, “[w]e            offered evidence that Bank United adopted a
will not reverse if we find, based upon the            discriminatory policy toward its customers and
record, that the challenged instruction could          refused to change this policy despite
not have affected the outcome of the case.”            complaints by its employees.             After
Middleton v. Harris Press & Shear, Inc., 796           considering this proffered evidence in a
F.2d 747, 749 (5th Cir. 1986) (internal                hearing outside of the jury’s presence, the
quotations omitted).                                   court excluded Knights’s evidence under FED.
                                                       R. EVID. 401 for lack of relevance and FED. R.
                       2.                              EVID. 403 for potential prejudice and
    The court refused to give an instruction on        confusion.
constructive discharge, because it found there
was no dispute as to whether Knights was                  We afford district courts great latitude
fired or whether he resigned. Ron Coben, the           when determining the admissibility of
Bank United official who held the                      evidence, and we review such decisions only
decisionmaking authority for Knights’s                 for abuse of discretion. Kelly v. Boeing
termination, testified that he decided to              Petroleum Servs., Inc., 61 F.3d 350, 356 (5th
terminate Knights. The court relied on                 Cir. 1995). Additionally, an evidentiary ruling
Coben’s undisputed testimony to hold that              will not be the basis for a reversal unless it is
“there is not a disputed issue as to whether his       erroneous and substantial prejudice results.
decision to leave Bank United was voluntary            Mooney v. Aramco Services Co., 54 F.3d
or not.”                                               1207, 1220 (5th Cir. 1995). The party who
                                                       offers the evidence has the burden of showing
   Knights points to a number of statements            that substantial prejudice results from its
and documents implying that he resigned                exclusion. Id.
voluntarily.    For instance, at opening
argument, Bank United’s counsel stated that               Knights appeals the exclusion of his
“Bank United had a valid non-discriminatory            evidence that Bank United treated Nigerian
reason for asking Mr. Knights to resign . . . .”       customers differently from other classes of
Other documents described how Knights was              customers.     According to testimony by
given the opport unity to resign or be                 Knights and his colleague Helen Jackson,
terminated.                                            Bank United’s security chief Richard Carr
                                                       announced separate procedures to screen
   We do not agree that these statements               customers of Nigerian background when
seriously misled the jury into believing that          opening new accounts. Knights testified that
Knights resigned voluntarily. In addition to           he strongly disagreed with this policy, because

                                                   4
it treated Nigerians differently from other                not offer any evidence that the screening
customers.                                                 policy toward Nigerians was in actuality a
                                                           policy designed to screen all customers of
   After considering evidence of this policy, as           African descent. Therefore, the court was
well as other proffered evidence of an                     correct when it excluded this evidence as
atmosphere of discrimination, the court                    irrelevant concluding that the alleged screening
excluded Knights’s evidence under rules 401                policy “is discrimination on the basis of
and 403, explaining that (1) there was no                  national origin, [and not] discrimination on the
evidence that the alleged Nigerian screening               basis of race.”
policy was a procedure of the decisionmaker
who terminated Knights; and (2) the alleged                   Further, the court relied on its authority
policy involved discrimination on the basis of             under rule 403 to exclude even relevant
national origin and is not the same kind of                evidence if it has a tendency to confuse,
discrimination alleged by Knights.                         mislead, inflame, or waste the time of the jury.
                                                           The court conducted a balancing analysis
    In Kelly, this court faced a similar challenge         between the weak probative value of evidence
to a decision to exclude evidence about an                 of the alleged screening policy and the
alleged atmosphere of discrimination. The                  confusion such evidence would cause by
Kelly plaintiff sued his employer for                      creating a new line of inquiry in the trial. The
discriminating on the basis of his disability and          court reasoned that Bank United would have
then offered evidence about his supervisor’s               to explain its policies for dealing with fraud in
insensitive actions against minority and                   opening new accounts and measures it used in
disadvantaged groups as well as against the                dealing with such problems to defend itself
disabled. The district court excluded in limine            against Knights’s allegations. We find these
any evidence about discrimination against non-             considerations persuasive, and we therefore
disabled minority groups, and we affirmed.                 refuse to see the district court’s alternative
                                                           basis for exclusion under rule 403 as an abuse
   Unlike cases in which the proffered                     of discretion.
   evidence related to the same kind of
   discrimination and in which bigoted                        Finally, even if we assumed, arguendo, that
   superiors directly made or participated                 the evidence was relevant and that its
   in the employment decisions complained                  probative value was not substanti ally
   of, the court’s ruling regarding                        outweighed by its potential for unfair
   anecdotal incidents of unrelated kinds of               prejudice, Knights has not shown how the
   prejudice cannot be labeled an abuse of                 exclusion of this evidence affected his
   discretion when considered within the                   substantial rights. The evidence strongly
   framework of this case.                                 supported the jury’s finding that Knights was
                                                           terminated as a result of the “forced balancing”
Kelly, 61 F.3d at 358. We find this reasoning              incident. Knights’s proffered evidence would
equally applicable in this case.2 Knights did              have focused the jury’s attention on statements
                                                           by Carr, a non-decisionmaker, regarding a
                                                           request that did not involve employment
    2
                                                           decisions, and that at best showed a different
      Knights directs our attention to Polanco v.          kind of discrimination. Unlike evidence that
City of Austin, 78 F.3d 968, 969 (5th Cir. 1996),          Bank United would have disciplined a non-
for the proposition that evidence of a hostile
atmosphere is probative in termination cases. We           black employee differently for the same errors
do not disagree with this general statement but
reject its applicability to this case. Polanco
involved a review of the sufficiency of the evidence       (...continued)
for a jury determination and not a trial court’s           hostile atmosphere in Polanco involved the same
evidentiary ruling. Additionally, the evidence of a        group (Hispanics) alleging discriminatory
                                    (continued...)         employment treatment.

                                                       5
committed by Knights, the proffered evidence            evidence that Coben, the ul timate
could not overcome the substantial evidence             decisionmaker on Knights's employment, knew
that Bank United terminated Knights for a               of Knights's involvement in the Spearman suit.
legitimate, non-discriminatory reason.                  In fact, Coben swore in his affidavit that he did
                                                        not have any such knowledge.
                        C.
   Knights attacks the summary judgment for                Second, the court reasoned that even if, as
Bank United on his claim of retaliation.                Knight claims, circumstantial evidence showed
Specifically, he argues that he raised a factual        that Laird and Ancira knew of Knights's
issue sufficient to defeat summary judgment on          involvement in the suit, this evidence alone
whether Bank United terminated him because              cannot create a fact issue on whether Knights's
of his participation in an unrelated race               name appearing in the suit was causally linked
discrimination lawsuit (“the Spearman                   to his termination.
lawsuit”) against the bank.
                                                           Knights is correct when he argues that
                       1.                               Cobden's lack of knowledge about Knights's
   When a district court grants summary                 protected activity does not resolve the issue of
judgment, we review the determination                   whether there was a causal connection. This
de novo, employing the same standards as did            court will not require a direct causal
the district court. See Urbano v. Continental           connection between termination and the
Airlines, Inc., 138 F.3d 204, 205 (5th Cir.),           decisionmaker in a discrimination lawsuit
cert. denied, 119 S.Ct. 509 (1998). Summary             where the decisionmaker follows a
judgment is appropriate when, viewing the               recommendation by someone who does have
evidence in the light most favorable to the             a causal connection.3
nonmoving party, the record reflects that no
genuine issue of material fact exists, and the             Knights is less persuasive, however, when
moving party is entitled to judgment as a               he argues that as long as he can show that
matter of law. See Celotex Corp. v. Catrett,            Laird and Ancira probably had knowledge of
477 U.S. 317, 322-24 (1986); see also FED. R.           his involvement in the Spearman lawsuit, he
CIV. P. 56(c).                                          has raised a fact issue as to whether racial
                                                        animus played a role in their recommendation
                                                        to terminate him. To establish a genuine fact
                       2.                               issue necessary to avoid summary judgment on
   To establish a prima facie case of unlawful          this causal link, it is true that Knights “need
retaliation, Knights had to establish that (1) he       not prove that [his] protected activity was the
engaged in activity prot ected by title VII,            sole factor motivating the employer's
(2) an adverse employment action occurred,              challenged decision . . . .” Long, 8 F.3d at 305
and (3) a causal link existed between the               n.4. Still, this court has required more than
protected activity and the adverse action.              mere knowledge of protected activity on the
Long v. Eastfield College, 88 F.3d 300, 304             part of supervisors to find a fact issue.
(5th Cir. 1996). The district court assumed
that Knights's name appearing in the Spearman
lawsuit is a protected activity and that his
termination was an adverse employment                     3
action. To survive summary judgment,                        See Equal Employment Opportunity Comm'n
however, Knights also had to raise a fact issue         v. Manville Sales Corp., 27 F.3d 1089, 1092 (5th
                                                        Cir. 1994) (admitting evidence of supervisor's
as to a causal connection between his                   discriminatory remarks even though supervisor did
involvement in the Spearman lawsuit and his             not make employment decision); Long, 88 F.3d
termination.                                            at 307 (remanding summary judgment when
                                                        employees established causal link between
  The court based its summary judgment on               protected activity and immediate supervisors'
two grounds. First, it observed that there is no        recommendations for termination).

                                                    6
   In Long, the court found that plaintiffs
asserting a title VII retaliation claim had raised
a fact issue on the causal link between their
protected activities and their terminations
when (1) the plaintiffs had filed complaints
directly against their supervisors; (2) the
supervisors had knowledge of these
complaints; and (3) t he supervisors
recommended terminating the plaintiffs after
learning of the complaints. Id. at 306.
Knights, however, has provided only weak
circumstantial evidence that Laird and Ancira
knew that his name had been listed in the
Spearman lawsuit. He provides no evidence
that they knew that he had taken any action to
aid Spearman. In fact, Knights did not take,
and never did take, any action that aided the
Spearman lawsuit. Therefore, while it is
possible Laird and Ancira knew that Knights
had been named in the Spearman lawsuit as a
possible witness, there is no evidence that they
had any knowledge that he had participated in
any meaningful way in the suit.

   In Long, the plaintiffs offered affidavits
swearing that action was taken against them
immediately after they filed their complaints.
In contrast, Knights has offered no timeline or
evidence establishing that Laird or Ancira
acted as a result of his involvement in the
Spearman lawsuit.

   It is certainly true that Knights need not
establish that his minimal participation in the
Spearman lawsuit was the “but-for” factor
motivating his termination. See Long, 88 F.3d
at 305 n.4. Knights, however, has failed to
raise provide even a “scintilla” of evidence that
Laird and Ancira knew of his involvement or
that they acted in any way as a result of his
being named in the suit. Mere knowledge of
possible protected activity is not enough to
raise a fact issue on the necessary causal link
for a retaliation claim.

   AFFIRMED.




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