1                        UNITED STATES COURT OF APPEALS
2                             FOR THE FIFTH CIRCUIT
3                                              _______________
4
5                                                m 98-20071
                                               _______________

                                                Angela NATT,
                                                                   Plaintiff-Appellee,
                                                    VERSUS

                                       WAL-MART STORES, INC.,
                                                                   Defendant-Appellant.
                                        _________________________

                                  Appeal from the United States District Court
                                      for the Southern District of Texas
                                               (CA-H-94-3848)
                                       _________________________

                                               November 9, 1999

    Before GARWOOD, SMITH, and                             error, we AFFIRM.
      BENAVIDES, Circuit Judges.
                                                                                  I.
    JERRY E. SMITH, Circuit Judge:*                            Wal-Mart hired Natt in 1988 as an invoice
                                                           clerk in the automotive department of its
        Wal-Mart Stores, Inc. (“Wal-Mart”),                Beechnut store in Houston, Texas. In early
    appeals a judgment entered on a jury verdict           1991, Wal-Mart promoted her to merchandise
    awarding damages for race and sex                      assistant, which involved some management
    discrimination and retaliation under title VII.1       responsibilities, including ordering products
    It seeks reversal on three grounds. First, it          and paperwork. In 1992, Natt expressed to
    alleges that plaintiff Angela Natt exercised her       her district manager, Terry Nagle, her interest
    peremptory challenges improperly to exclude            in going into management, and in May 1993,
    jurors on the basis of sex. Second, it requests        Nagle recommended her for management
    a new trial on grounds of newly discovered             training.     She completed the program
    evidence and unfair surprise at trial. Finally, it     successfully and, in August, accepted a
    claims the district court applied the wrong            management position over the tire, lube, and
    legal standards for determining mental anguish         express department at Wal-Mart’s store in
    and punitive damages. Finding no reversible            Texas City, Texas.

                                                              Wal-Mart terminated Natt on
       *
          Pursuant to 5TH CIR. R. 47.5, the court has      November 19, 1993. According to Nagle,
    determined that this opinion should not be             Natt had allowed non-authorized personnel
    published and is not precedent except under the        access to cash register keys in violation of
    limited circumstances set forth in 5TH CIR.            Wal-Mart’s key control policy. Natt alleged
    R. 47.5.4.                                             that these claims were concocted as a way to
                                                           discriminate and retaliate against her.
       1
           42 U.S.C. § 2000e et seq.
   In addition to her termination, Natt alleged       their race or sex.2 When counsel objects that
several instances of discrimination during her        a peremptory strike has been exercised for
tenure with Wal-Mart. In May 1991, she                impermissible reasons, the trial court must
overheard a district manager, Norman Rose,            undertake a three-step inquiry.
make a highly offensive racial remark. She
reported it, and Rose was disciplined.                   First, the opponent of the peremptory
Afterwards, some Wal-Mart associates called           challenge must make a prima facie case of
her a “black bitch,” and in November 1993,            race or sex discrimination. Then, the burden
someone placed a “black monkey doll” on the           of production shifts to the strike proponent to
security camera in her work area at the Texas         present a race- or sex-neutral explanation. If
City store.                                           one is tendered, the court must then decide
                                                      whether the asserted explanation is pretextual
   Additionally, Natt alleges, WalMart delayed        and the strike was motivated in fact by
promoting her into the management training            improper purposes. See Purkett v. Elem,
program because of her sex; her proof was             514 U.S. 765, 767 (1995); Hernandez v. New
that Nagle warned her that a manager’s long           York, 500 U.S. 352, 358-59 (1991).
hours would be hard on a woman.
Furthermore, Natt complained that, during her
management training, other managers treated
her like an outcast and thereby interfered with
her training.

   Natt requested a management assignment at
a new Wal-Mart location in the Houston area
that had yet to be built, but instead was
assigned to Texas City. Her car allegedly was
vandalized by Wal-Mart employees. Finally,
she alleged that, while she was on a two-week
leave of absence shortly before her
termination, merchandise in her department
was over-ordered and stacked up in the stock
room to make it appear as though she was a
poor manager.

   A jury found in favor of Natt and awarded
compensatory and punitive damages. The
court entered judgment after reducing the jury
verdict to comply with the statutory caps, see
42 U.S.C. § 1981a(b)(3)(D), and awarding
attorney’s fees.

                      II.
    Under the Supreme Court’s jurisprudence
in Batson and its progeny, the equal protection
component of the Due Process Clause of the
Fifth Amendment prohibits litigants from                 2
                                                            See Batson v. Kentucky, 476 U.S. 79 (1986)
exercising peremptory challenges to exclude           (barring use of race to exclude jurors by
potential jurors from jury service because of         prosecutor); Edmonson v. Leesville Concrete Co.,
                                                      500 U.S. 614 (1991) (extending Batson to private
                                                      litigants in civil trials); J.E.B. v. Alabama,
                                                      511 U.S. 127 (1994) (extending Batson to juror
                                                      exclusion on basis of sex).

                                                  2
    Only intentional discrimination is                   court that Natt would have kept a female oil
prohibited,3 and the burden to prove improper            and gas workerSSand having failed to
motivation rests with the opponent of the                demonstrate clear error by that
strike. See Purkett, 514 U.S. at 768. Whether            courtSSWal-Mart alternatively asserts that,
counsel has asserted a race- and sex-neutral             because the objection was premised solely on
justification is a credibility determination for         a sex-related criterion, counsel did not state a
the court and is thus reviewed on appeal only            sex-neutral justification and thus could not
for clear error. See Hernandez, 500 U.S. at              survive step two of Batson. Moreover, Wal-
364-65.                                                  Mart seeks de novo review, rather than review
                                                         for clear error, on the ground that the district
   Wal-Mart objected to three of Natt’s                  court misapplied the Batson three-step inquiry
peremptory strikes.      The district court              when it found Natt’s sex-related grounds
committed no error in allowing Natt to strike            sex-neutral and shifted the burden to Wal-
Jurors 8 and 10 (both male) on the ground that           Mart to prove pretext.5
they were in management and therefore might
be biased against claims made by any                        We reject Wal-Mart’s contention that
employee.                                                Natt’s stated ground for striking Juror 11 was
                                                         insufficient to satisfy Batson step two. The
   A bit more attention is required to dispose           presence of merely sex-related considerations
of Wal-Mart’s objection to striking Juror 11             does not transform a valid peremptory strike
(male). Natt justified eliminating him on the            into a Batson offense. Counsel offends equal
ground that anyoneSSmale or femaleSSwho                  protection only if the juror was excluded
works in the male-dominated oil and gas                  because he is a member of a protected class.
industry would be biased against a claim of sex          Juror 11 may have been eliminated on grounds
discrimination.4 Having failed to convince the           of sex-related considerations but not on
                                                         grounds of his sex, and only the former is
                                                         prohibited under Batson.
   3
     Though disparate impact may be used to infer
intent to discriminate, see Hernandez, 500 U.S. at
362; Washington v. Davis, 426 U.S. 229, 242
(1976), Wal-Mart has made no such claim here.
       4
       The colloquy regarding Juror 11 was as
follows:
   MR. KRENEK [Wal-Mart’s attorney]: We
   were concerned about Juror Number 11, he
   was in the oil and gas industry,
   petrochemical industry, and based upon that
   we had concerns about his ability to judge
   fairly claims brought by a female in what
   was an oil and gas man-dominated
   intensified field.
                                                         (...continued)
   THE COURT: She’s not in the oil and gas                  THE COURT: I can’t say that these are
   industry, the plaintiff is not in the oil and            untrue reasons or that they’re improper
   gas industry.                                            reasons, Mr. Wrotenbery.
                                                            5
   MR. KRENEK No, she’s not, your Honor,                      See United States v. Huey, 76 F.3d 638, 641
   but because of the gender profile for the oil         (5th Cir. 1996) (finding reversible error where
   and gas industry we had concerns about                “district court failed to discharge its clear duty
   that.                                                 either to elicit a race-neutral explanation for the
                                                         peremptory challenges or to deny the use of those
                           (continued...)                challenges”).

                                                     3
   We also reject quickly the claim that the             inconsistent answers regarding her marital
final makeup of the jurySSall womenSSeither              status. Pre-trial, she swore she was unmarried.
evinces or constitutes in and of itself a Batson         At trial, Natt claimed her marriage had failed
violation. This outcome was driven in large              because of Wal-Mart.
part by the fact that the first seven venire
members, and eight of the first nine, were                  After trial, Wal-Mart determined that Natt
women. Moreover, Wal-Mart has no right to                was not married; Natt now explains that hers
a jury consisting of a fair cross-section of the         was o nly a common law marriage. This
community; it may demand only that the jury              discovery is relevant not only for impeachment
selection process not be tainted by improper             purposes, but also perhaps to diminish Natt’s
exclusionary motives.6                                   claim for damages. But the fact that her
                                                         marriage was at common law was not unfair
   Therefore, the court committed no clear               surprise, for her deposition put Wal-Mart on
error in allowing Natt to eliminate Jurors 8,            notice that she had been counseled through her
10, and 11 (all male), even though doing so              marital difficulties by Reverend Robert
meant an all-female jury would decide the                Jefferson.
case. The court accepted Natt’s sex-neutral
(though sex-related) justifications as sincere,             It was up to Wal-Mart to determine
and we see no cause for disturbing the court’s           whether it had an argument in response based
credibility determination on appeal.7                    on the nature of Natt’s marital relationship.
                                                         For the same reasons, presenting Jefferson as
                      III.                               a witness at trial was also not unfair surprise.
    Although it presents a number of factual             Moreover, that Natt’s marriage was
allegations not made at trial but that might             recognized only at common law is a fact
have been helpful to its case, Wal-Mart fails to         unlikely to have affected the outcome of trial.
show why it is entitled to a new trial on these
grounds.     To determine whether newly                     Natt also provided an incomplete history of
discovered evidence warrants a new trial, a              her employment after leaving Wal-Mart.
district court should consider whether the               Specifically, she did not disclose that, after her
evidence (1) would probably have changed the             employment with Wal-Mart, she was not only
outcome of the trial; (2) could have been                hired but then also discharged by the Houston
discovered earlier with due diligence; and (3)           Public Library for cause, the reasons for which
is merely cumulative or impeaching. Diaz v.              included a criminal conviction for assaulting
Methodist Hosp., 46 F.3d 492, 495 (5th Cir.              her supervisor. Such evidence was of course
1995). The refusal to grant a new trial is               useful for impeachment, but of little help to the
reviewed for abuse of discretion. Lancaster v.           issue of mitigation of damages; after all, Natt
Presley, 35 F.3d 229, 231 (5th Cir. 1994).               already had admitted to having a transitory
                                                         employment record, well-established even
   Wal-Mart claims that Natt provided                    absent the library termination. And in any
                                                         case, this information was within Wal-Mart’s
                                                         grasp, for Natt had revealed in a timely fashion
   6
                                                         that she had worked at the library.
     See Batson, 476 U.S. at 85-86; Strauder v.
West Virginia, 100 U.S. 303, 305 (1880).                     Natt also alleged racial discrimination
       7                                                 against the library and included in her
        Pursuant to FED. R. APP. P. 28(j), Natt          allegations a remarkably similar accusation that
supplements her defense to Wal-Mart’s Batson
challenge by claiming that, as a corporation, Wal-       her car was vandalized for discriminatory
Mart “cannot claim to be a member of the                 reasons. This goes only to her credibility,
constitutionally protected class alleged excluded        however, and again was discoverable with due
from the jury, i.e., males. We do not reach this         diligence.
issue, because we find no improper motive
underlying the peremptory strikes.                          Wal-Mart argues that, taken as a whole, all
                                                     4
the newly discovered evidence substantially             with Title VII.” Id. at 2129. Here, however,
affected its ability to impeach Natt’s                  Natt’s allegation that Wal-Mart failed to
credibility. We may or may not agree, but in            correct its managers’ race- and
any case, it does not rise to an abuse of               sex-discriminatory conduct was sufficient to
discretion for the court to have held Wal-Mart,         negate such a defense. Therefore, the award
rather than Natt, accountable for failing to            of mental anguish and punitive damages was
present the trier of fact with all the facts, for       not an abuse of discretion.
due diligence might have provided Wal-Mart
the simplest remedy. It was also not an abuse             AFFIRMED.
of discretion for the court, on presentation of
the newly discovered evidence, to reverse its
reinstatement ruling while denying Wal-Mart’s
broader motion for a new trial.

                      IV.
   Wal-Mart claims the district court
improperly assessed mental anguish and
punitive damages. Mental anguish damages
are reviewed for abuse of discretion. Migis v.
Pearle Vision, Inc., 135 F.3d 1041, 1046 (5th
Cir. 1998). The testimony of a plaintiff alone
may in some cases be sufficient to justify such
compensation.           Id. at 1046-47;
Farpella-Crosby v. Horizon Health Care, 97
F.3d 803, 809 (5th Cir. 1996). In any case,
Natt’s own testimony, combined with the
corroborating testimony of Reverend
Jefferson, was sufficient to support monetary
recovery for mental anguish.

   We review punitive damages only for abuse
of discretion. Patterson v. P.H.P. Healthcare
Corp., 90 F.3d 927, 942 (5th Cir. 1996).
After the parties filed briefs in this case, the
Supreme Court made clear that a title VII
plaintiff need not prove egregious conduct by
the employer to win punitive damages. See
Kolstad v. American Dental Ass’n, 119 S. Ct.
2118, 2126 (1999). Rather, punitive damages
are available against any employer who
intentionally “discriminates in the face of a
perceived risk that its actions will violate
federal law.” Id. at 2125. Only a good faith
belief that its conduct is legal will protect an
employer from exemplary damages. Id.

    Wal-Mart may have denied the fact of its
alleged misconduct, but it did not deny its
illegality. It is true that an employer will not
be vicariously liable for the intentional conduct
of its agents if that misconduct is “contrary to
the employer’s good-faith efforts to comply
                                                    5
