     Case: 16-10598   Document: 00514000909       Page: 1   Date Filed: 05/19/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                   No. 16-10598                            FILED
                                                                       May 19, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                              Lyle W. Cayce
                                                                           Clerk
             Plaintiff–Appellee,

v.

EMCARE, INCORPORATED,

             Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas


Before SMITH, PRADO, and GRAVES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Following a six-day trial, a jury found that EmCare, Inc. (“EmCare”)
terminated three employees in retaliation for complaining of sexual
harassment in the workplace. The district court denied EmCare’s motion for
judgment as a matter of law. EmCare appeals the judgment with respect to
one employee, Luke Trahan. Specifically, EmCare contends that the Equal
Employment Opportunity Commission (“EEOC”) failed to present sufficient
evidence of a causal link between Trahan’s protected activity and termination
because there was no evidence that the individual who decided to terminate
Trahan was aware he had engaged in protected activity. Because we find there
was sufficient evidence to support the jury’s verdict, we AFFIRM.
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                              I. BACKGROUND
      Trahan worked for EmCare’s AnesthesiaCare division from November
2008 to August 7, 2009. EmCare provides physicians as well as physician
management services to hospitals and emergency centers. Trahan was hired
as a physician recruiter but was quickly promoted to recruiting manager.
During his time at EmCare, Trahan headed the credentials and billing
enrollment teams. At the time, AnesthesiaCare had only recently been
acquired by EmCare, and one of Trahan’s responsibilities was updating and
editing provider contracts to reflect the acquisition. For the first few months of
his employment, Trahan was supervised by Jim McKinney, the CEO of
AnesthesiaCare. Sean Richardson, the chief operating officer, became Trahan’s
supervisor in April 2009. The other characters in this case include: Karen
Thornton, EmCare’s vice president for human relations and head of
AnesthesiaCare’s     human     resources    (“HR”)    office;   Lewis    Johnson,
AnesthesiaCare’s HR manager; Gloria Stokes, McKinney’s executive assistant;
Yvonne Shaw, a senior credentialing coordinator; and Ken Thompson, another
credentialer. Johnson spoke to Thornton every day, and Thornton testified that
Johnson reported to her, that the two spoke every day, and that Johnson would
have made her aware of any complaint made by an AnesthesiaCare employee
regarding sexual harassment.
      This case arises from McKinney’s frequent and persistent sexual
remarks and gestures in the workplace. At trial, numerous witnesses testified
to various examples of the following conduct: McKinney constantly commented
on women’s bodies, asking them to lower their blouses, hike up their skirts,
show more cleavage, or turn around, he often referred to the size of women’s
breasts, made groping gestures, and sought intimate hugs, he made
inappropriate comments about his employees’ wives, and he offered
commentary on which female employees he regarded as “hott[ies].” One
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AnesthesiaCare employee told the EEOC investigator that she called
McKinney “the boob man” because he commented on women’s breasts so
frequently. Both Trahan and Shaw testified that Thornton and Johnson were
occasionally present for McKinney’s comments but never reprimanded
McKinney. Furthermore, Shaw testified that Richardson heard at least one
offensive comment and stated “one day” McKinney would “get [them] in
trouble.”
      Trahan, Shaw, and Stokes all testified that they complained to Thornton
and/or Johnson about McKinney’s behavior and the work environment it
created, but that they never heard of any investigative or remedial action
taken by EmCare. In addition, Trahan testified that every time he complained
to HR about McKinney, “McKinney would tell him shortly thereafter that he
‘needed to shape up and do things better’” but would not point out any
deficiencies when Trahan asked for specifics.
      The situation took a turn for the worse in June 2009, when
AnesthesiaCare hosted a “Bring Your Child to Work Day” (“BYCTW Day”).
Shaw brought her fifteen-year-old daughter to the office. She testified that
when she introduced her daughter to McKinney, McKinney stated, “[T]here is
no way she is 15 with breasts like that.” Shaw recalled that McKinney laughed
when Shaw became visibly upset. She then went to HR to complain,
accompanied by Trahan and Thompson. At this point in his employment,
Trahan had already complained to HR at least four times about McKinney’s
behavior. Johnson, who appeared distressed by their account, told them to
submit a formal complaint. Trahan did so that day.
      In July, Thornton suggested that Trahan’s and Shaw’s units be audited.
An employee from EmCare’s management services audited Trahan’s unit and
summarized her findings to Richardson. The reported listed several problems
with the unit’s performance that were caused by the failures of a regional vice
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president, an issue that Trahan had already reported to Richardson.
Nonetheless, the report was essentially positive regarding Trahan’s
performance, particularly as it compared to that of another recruiter who did
not get fired. Trahan never received any feedback from his superiors about the
audit. On August 7, 2009—six weeks after BYCTW Day and four days after
Richardson received the audit report—EmCare fired the three employees who
had complained on BYCTW Day: Trahan, Shaw, and Thompson. Thornton and
Richardson met with Trahan and told him he was being terminated because
“it was [not] working anymore.” Richardson testified that it was his decision to
terminate Trahan, but acknowledged that he discussed the decision with
Thornton and McKinney beforehand. Thornton entered Trahan’s termination
into the computer database, which she only did when there was a “backlog or
if [she] was personally involved in the transaction.”
      EmCare maintains that Trahan was fired due to the “quality of his work
and inaccuracies in his contracts.” Both parties acknowledge that in December
2008, shortly after Trahan began his employment, numerous errors arose with
regard to some of the company’s contracts in El Paso. Trahan characterized the
mistakes as the result of a computer glitch and testified that he resolved the
issue in a timely manner. EmCare concedes that the mistakes were corrected
and no business was lost but maintains that the incident caused McKinney to
become very upset and was part of an “ongoing problem” with Trahan’s
performance. At trial, Richardson testified that Trahan had difficulty editing
contracts, Trahan was verbally counseled at certain times to improve his
performance, and the audit performed following BYCTW Day was “not a
complimentary review.”
      By contrast, Trahan asserted that the limited feedback he received at
EmCare was positive. In February 2009, Trahan was given a 90-day
performance review during which McKinney told him to keep doing what he
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                                    No. 16-10598
was doing—a statement that was repeated to him by Richardson as late as
mid-July. According to Trahan, the only concrete example of a performance
issue he was made aware of was the incident with the El Paso contracts. 1
      The EEOC filed suit in federal district court on August 15, 2011, seeking
injunctive relief and monetary damages under Title VII on behalf of Gloria
Stokes, Luke Trahan, and Yvonne Shaw. The EEOC alleged that Stokes had
been subjected to a hostile work environment based on her sex and fired in
retaliation for her complaints; likewise, it alleged that Trahan and Shaw were
terminated in retaliation for their complaints about McKinney’s behavior.
EmCare did not seek dismissal or summary judgment, and in October 2014,
the case proceeded to a six-day jury trial. The jury found in favor of the EEOC
and awarded $167,000 in back pay for Trahan, $82,000 in back pay for Shaw,
and $250,000 in punitive damages for Stokes.
      The district court denied EmCare’s renewed motion for judgment as a
matter of law and motion for a new trial. Shaw and Stokes have settled their
claims. EmCare appealed the judgment in favor of Trahan.
                          II. STANDARD OF REVIEW
      This Court “review[s] the denial of a motion for judgment as a matter of
law de novo, . . . apply[ing] the same legal standard as the district court.” EEOC
v. Boh Bros. Constr. Co., 731 F.3d 444, 451 (5th Cir. 2013) (en banc). Judgment
as a matter of law is appropriate if the Court finds no “legally sufficient
evidentiary basis” to support the jury’s verdict. Fed. R. Civ. P. 50(a)(1). But “if
reasonable persons could differ in their interpretations of the evidence, then
the motion should be denied.” Bryant v. Compass Grp. USA Inc., 413 F.3d 471,
475 (5th Cir. 2005) (quoting Thomas v. Tex. Dep’t of Criminal Justice, 220 F.3d



      1 Similarly, Shaw and Thompson testified that no supervisor ever criticized their
performance until they were fired.
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                                  No. 16-10598
389, 392 (5th Cir. 2000)). “[W]hen evaluating the sufficiency of the evidence,
we view all evidence and draw all reasonable inferences in the light most
favorable to the verdict.” Id. This Court is “especially deferential” to jury
verdicts; the verdict should be affirmed “unless the facts and inferences point
so strongly and overwhelmingly in the movant’s favor that reasonable jurors
could not reach a contrary conclusion.” Boh Bros., 731 F.3d at 451 (internal
quotation marks omitted) (quoting SMI Owen Steel Co. v. Marsh U.S.A., Inc.,
520 F.3d 432, 437 (5th Cir. 2008) and Baisden v. I’m Ready Prods., Inc., 693
F.3d 491, 498 (5th Cir. 2012)).
                              III. DISCUSSION
      To prove retaliation under Title VII, the plaintiff must establish: “(1) the
employee engaged in activity protected by Title VII; (2) the employer took
adverse employment action against the employee; and (3) a causal connection
exists between that protected activity and the adverse employment action.”
Thomas, 220 F.3d at 394. When there has been a trial on the merits, however,
a court can bypass “the familiar McDonnell Douglas burden-shifting” analysis
and “proceed to the ultimate question of whether the plaintiff presented
enough evidence for a jury to find that [retaliation] occurred.” Zamora v. City
of Houston, 798 F.3d 326, 333 (5th Cir. 2015) (alteration in original) (quoting
Thomas, 220 F.3d at 393). EmCare acknowledges that Trahan engaged in
protected activity—making complaints to HR—and that he was terminated.
Accordingly, the only issue on appeal is whether the EEOC presented legally
sufficient evidence of a causal link between Trahan’s complaints and his
termination.
      “[T]o establish the causation prong of a retaliation claim, the employee
should demonstrate that the employer knew about the employee’s protected
activity.” Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003).
Generally, this requires some showing that the decisionmaker—the individual
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                                  No. 16-10598
“who actually made the decision or caused the decision to be made”—was
aware of the activity. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227
(5th Cir. 2000). A decisionmaker’s awareness may be established by
circumstantial evidence. See Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir.
2002); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994);
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). Resting its
argument on this narrow issue, EmCare maintains that there is no evidence
Sean Richardson, the person who decided to terminate Trahan, was aware of
Trahan’s complaints. Thus, EmCare implicitly makes two claims: (1) there is
no evidence that Richardson knew about Trahan’s complaints and (2) there is
no evidence that anyone other than Richardson decided to fire Trahan.
EmCare characterizes the evidence on these points as uncontroverted and
unequivocally established at trial.
      EmCare contends that any evidence suggestive of Richardson’s
knowledge amounts to speculation. Demonstrating that a decisionmaker was
aware of an employee’s protected activity certainly requires “more evidence
than mere curious timing coupled with speculative theories.” Raney v. Vinson
Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997). For example, we have
found that evidence of generalized discussions between a decisionmaker and
someone with knowledge of the plaintiff’s protected activity creates only a
speculative inference regarding the decisionmaker’s awareness. See Lee v. Kan.
City S. Ry., 574 F.3d 253, 258 (5th Cir. 2009); Turner v. Jacobs Eng’g Grp.,
Inc., 470 F. App’x 250, 253 (5th Cir. 2012) (per curiam). And if the plaintiff fails
to produce any evidence that a decisionmaker was aware of the protected
activity, judgment as a matter of law should be granted. See Bain v. Ga. Gulf
Corp., 462 F. App’x 431, 433–34 (5th Cir. 2012) (per curiam) (crediting the sole
decisionmaker’s testimony that he had no knowledge of protected activity when
the plaintiff did not present any evidence to the contrary); Lopez v. Martinez,
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240 F. App’x 648, 650 (5th Cir. 2007) (per curiam) (noting that the plaintiff
“presented no evidence establishing the superior’s knowledge”).
       This case does not involve mere speculation. As an initial matter, there
was an abundance of conflicting testimony over critical issues, entitling the
jury to discredit Richardson’s and Thornton’s versions of events and find their
testimony not credible. For example, the jury heard conflicting accounts
regarding: whether Thornton and Richardson ever personally observed
McKinney make sexually offensive comments, whether Trahan and Shaw ever
complained to HR about McKinney’s behavior, and whether the audit of
Trahan’s unit produced any legitimate grounds to fire him. Accordingly, the
jury was entitled to find that Richardson and Thornton had both witnessed
inappropriate behavior in the workplace and taken no action, that Trahan and
other employees complained to HR numerous times, and that the justification
for firing Trahan was pretextual.
       In light of these contradictory statements, as well as the circumstances
surrounding Trahan’s termination, the evidence was sufficient for the jury to
find that Richardson was aware of Trahan’s complaints. 2 More specifically,
Trahan testified that McKinney would criticize Trahan whenever he
complained, allowing the jury to infer, at the very least, that McKinney knew
about the complaints. Given that both McKinney and Richardson were
executives and supervisors in the same division, Richardson could have been
given the same information. The jury could also have logically inferred that



       2Notably, ample additional evidence presented at trial supports causation, including:
the timing of Trahan’s firing (approximately six weeks after the complaint on BYCTW Day);
the fact that the three employees who complained together were all fired the same day;
testimony suggesting the explanations given for Trahan’s termination were pretextual; and
evidence related to Shaw and Stokes that may have overlapped with Trahan’s testimony.
Because EmCare’s entire argument is based on Richardson’s lack of knowledge, we focus on
evidence relevant to that specific issue. Nonetheless, we are mindful of the totality of evidence
from which the jury drew its inferences.
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Thornton told Richardson about the complaints when they discussed Trahan’s
performance and termination. Unlike the conversations in Lee and Turner,
these were not general discussions about an employee; Thornton and
Richardson specifically discussed Trahan’s performance before and after the
audit. See Lee, 574 F.3d at 258; Turner, 470 F. App’x at 253.
       In addition—or alternatively—there was sufficient evidence for the jury
to find that Thornton and Richardson both made the decision to fire Trahan. 3
A decisionmaker is an individual “who actually made the decision or caused
the decision to be made.” Russell, 235 F.3d at 227. Here, it was Thornton’s idea
to audit Trahan in 2009, shortly after Trahan made the complaint on BYCTW
Day. Those audits were used to justify his firing. Richardson discussed
terminating Trahan with Thornton before he did so, and Thornton was present
when Trahan was fired. She was also the person who entered his termination
into the company computer system, even though that was not her usual
practice. Indeed, Thornton testified that she entered terminations into the
system only if there was “a backlog or if [she] was personally involved in the
transaction.” Any inference by the jury that Thornton was a decisionmaker or
caused the decision to be made would not have been speculative.
                                  IV. CONCLUSION
       The district court did not err in denying EmCare’s motion for judgment
as a matter of law. Because the jury could have logically inferred either
that Richardson knew of Trahan’s complaints or that Thornton was involved




       3EmCare accuses the EEOC of using a “cat’s paw theory” to prove causation. Plaintiffs
may use a cat’s paw theory to prove causation when they cannot show the official
decisionmaker had a retaliatory motive, but can show that another individual influenced that
decisionmaker. Zamora, 798 F.3d at 331. However, the EEOC does not raise a cat’s paw
argument, and we do not need to decide whether cat’s paw causation applies. The jury could
have found that Thornton was actually involved in the decision to fire Trahan.
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in the decision to fire Trahan, the EEOC presented sufficient evidence of
causation. Accordingly, we AFFIRM the judgment in favor of the EEOC.




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