     Case: 13-40867       Document: 00512807843          Page: 1     Date Filed: 10/20/2014




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

                                                                                    FILED
                                                                               October 20, 2014
                                       No. 13-40867
                                                                                 Lyle W. Cayce
                                                                                      Clerk
PARKER PERRET; PATRICIA PENN PIERRE AS EXECUTRIX OF THE
ESTATE OF MELVIN PIERRE, SR., DECEASED,

               Plaintiffs - Appellants Cross-Appellees

v.

NATIONWIDE MUTUAL INSURANCE COMPANY,

               Defendant - Appellee Cross-Appellant



                   Appeals from the United States District Court
                         for the Eastern District of Texas




Before KING, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
       A    jury    found     that    Nationwide       Mutual       Insurance      Company
(“Nationwide”) constructively discharged Parker Perret because of his age, and
constructively discharged Melvin Pierre, Sr. 1 because of his age and race, in
violation of the Texas Commission on Human Rights Act (“TCHRA”). Because
we find insufficient evidence to support the verdict of constructive discharge,
we reverse.


       1 Pierre passed away after this case was appealed. His claims are now presented on
behalf of his estate through the executrix named for his estate, his surviving spouse, Patricia
Penn Pierre.
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                     I. Factual and Procedural Background
      Perret and Pierre (collectively “Plaintiffs”) were insurance sales
managers employed at Nationwide, and worked for the same supervisor, Brian
McCulloch. They were the two oldest managers in their region, and Pierre was
the only African-American manager in the region. At trial, Plaintiffs produced
evidence showing that although they were at or near the top of their region in
sales, in November 2009 they were placed on coaching plans.           Plaintiffs
contended that the coaching plans were based on minor or trivial performance
issues, included vague and subjective criteria that were impossible to meet,
and did not comply with company policies regarding such plans. Perret and
Pierre became suspicious that the purpose of the coaching plans was to lead to
termination. Nationwide contended that the plans were based on performance
deficiencies.
      On April 22, 2010, McCulloch notified Perret that due to his failure to
improve in accordance with the coaching plan, he was being placed on a
Performance Improvement Plan (“PIP”), which Perret testified was the final
stage in Nationwide’s process for terminating employees. Perret qualified for
a sales bonus for meeting his first quarter sales goals, but Nationwide withheld
Perret’s bonus because he was on a PIP. Perret resigned on May 24, 2010.
Similarly, Pierre was placed on a PIP around April 2010. Almost immediately
after being placed on the PIP, Pierre took medical leave. After being on leave
for over two months, Pierre resigned on July 3, 2010.         Because Pierre’s
resignation would adversely impact the disability payments Pierre was
receiving, McCulloch testified that he asked Pierre to rescind his resignation,
but Pierre declined to do so.
      Plaintiffs separately filed lawsuits against Nationwide under the
TCHRA. Nationwide removed the suits to federal court. The district court
joined the two cases for trial. Perret contended at trial that his coaching plan
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and PIP were pretexts for age discrimination and that Nationwide singled him
out for termination because he was one of the two oldest managers in the
region. Pierre contended that his coaching plan and PIP were pretexts for age
and race discrimination and that Nationwide singled him out for termination
because he was one of the two oldest managers and the only African-American
manager in the region, although he conceded at trial that he was treated
identically to Perret, who is white.          The jury found that Nationwide
constructively discharged Perret because of his age, and constructively
discharged Pierre because of his age and race. However, the jury also found
that Nationwide proved it would have placed Perret and Pierre on coaching
plans and PIPs even if it had not considered age or race. This mixed motives
verdict precluded Plaintiffs from receiving monetary damages under Texas
law. See Texas Labor Code § 21.125(b). The district court denied Nationwide’s
motion for judgment as a matter of law, awarded costs to Plaintiffs, and denied
Plaintiffs’ motion for attorneys’ fees.
      Perret and Pierre appeal, and challenge the district court’s limitation of
the testimony of a previous Nationwide employee and the district court’s denial
of attorneys’ fees. Nationwide cross-appeals, and challenges the district court’s
denial of its motion for judgment as a matter of law.
                                    II. Discussion
      We review the district court’s denial of Nationwide’s motion for judgment
as a matter of law de novo, but the standard with respect to a jury verdict is
“especially deferential.” EEOC v. Serv. Temps Inc., 679 F.3d 323, 336 (5th Cir.
2012) (quotation omitted). We reverse only if “‘no reasonable jury could have
arrived at the verdict.” Id. (quotation omitted); see Fed. R. Civ. P. 50(a)(1).
      “In determining whether an employer’s actions constitute a constructive
discharge we ask whether ‘working conditions [became] so intolerable that a
reasonable person in the employee’s position would have felt compelled to
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resign.’” Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 480 (5th Cir. 2008)
(quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004)); see
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 805 (Tex. 2010). We have
previously identified several factors relevant to constructive discharge,
including:
      (1) demotion; (2) reduction in salary; (3) reduction in job
      responsibilities; (4) reassignment to menial or degrading work; (5)
      badgering, harassment, or humiliation by the employer calculated
      to encourage the employee’s resignation; or (6) offers of early
      retirement that would make the employee worse off whether the
      offer were accepted or not.

Aryain, 534 F.3d at 481 (quoting Hunt v. Rapides Healthcare Sys., LLC, 277
F.3d 757, 771-72 (5th Cir. 2001)).
      In addition, a plaintiff may be constructively discharged if the employer
gives the employee an ultimatum to quit or be fired. See Faruki v. Parsons
S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997); Jenkins v. State of La., Through
Dep’t of Corrs., 874 F.2d 992, 996 (5th Cir. 1989); Davis v. City of Grapevine,
188 S.W.3d 748, 766 (Tex. App. 2006). However, in these ultimatum cases,
courts have required something beyond the employee’s subjective belief that
termination was inevitable. For example, in Davis, the plaintiff presented
evidence that his managers informed him that “it would be in his best interest
if he decided to resign rather than be terminated because future employers
may ask the City whether Davis resigned or was terminated.” Davis, 188
S.W.3d at 766. Likewise, in Faruki, the plaintiff presented testimony that his
supervisor had told him he should find another job, and that he had one week
before he would be placed on indefinite unpaid leave. Faruki, 123 F.3d at 319;
see also Stephens v. C.I.T. Grp./Equip. Fin., Inc., 955 F.2d 1023, 1027-28 (5th
Cir. 1992) (holding that employee “reasonably could have believed that his
demotion was a harbinger of dismissal” where there was a demotion,

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continuing limitations on the employee’s salary and responsibility, and a
supervisor repeatedly asked him whether he was going to quit his job).
      Plaintiffs contend that Perret and Pierre were pre-selected for
termination because of their age and/or race, that Nationwide did not fairly
evaluate their compliance with the coaching plans and PIPs, and that the
result of the coaching plans and PIPs was intended to be and would inevitably
have been termination. However, while there is evidence that Plaintiffs’ 2010
first quarter bonuses were withheld because they were on PIPs, Plaintiffs
produced no evidence of any of the other factors we have deemed relevant to
constructive discharge. See Aryain, 534 F.3d at 481. There is no evidence of
demotion, reassignment, reduction in responsibilities, harassment, or
humiliation, and no evidence that any supervisor or manager ever advised
plaintiffs to resign or asked them whether they would resign. See id.; Faruki,
123 F.3d at 319; Davis, 188 S.W.3d at 766. Indeed, Pierre was on medical leave
for the two months prior to his resignation, making it difficult to find that he
was subjected to “working conditions so intolerable that a reasonable person
would have felt compelled to resign.” Suders, 542 U.S. at 147; see Aryain, 534
F.3d at 480. There is likewise no evidence showing that PIPs inevitably lead
to termination of managers in Perret’s or Pierre’s position. Absent something
more, we cannot conclude that Nationwide’s use of employee improvement
plans created a situation in which a reasonable employee would have felt
compelled to resign.
      Because there is insufficient evidence of constructive discharge, we
reverse the district court’s denial of Nationwide’s motion for judgment as a




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matter of law. Is it thus unnecessary for us to address any further issues raised
by the parties on appeal. 2
                                         III. Conclusion
       The judgment is REVERSED, and we remand to the district court with
instructions to enter judgment for Nationwide.




       2  Plaintiffs challenged the district court’s limitation of the testimony of Brad Carducci,
former Associate Vice-President of Sales of the Central Plains region at Nationwide. The
district court allowed Carducci to testify about his experience with coaching plans and PIPs,
including how the company trained him to implement such tools. However, the district court
excluded Carducci’s opinions evaluating Perret and Pierre’s coaching plans and PIPs as
expert testimony that had not been properly noticed before trial. On appeal, Plaintiffs argued
that Carducci’s excluded testimony was not expert testimony, and that Carducci’s additional
testimony would have supported their position that the coaching plans and PIPs were
pretexts for discrimination. To the extent Plaintiffs’ arguments regarding Carducci’s
testimony could be construed as an argument that Carducci’s additional testimony would
have supported a finding of constructive discharge, we find that the district court did not err
in limiting Carducci’s testimony, for substantially the reasons given by the district court in
its denial of Nationwide’s motion for a new trial.
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