               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 00-31061
                        _____________________



KATHY JEAN FORD,

                                                Plaintiff-Appellant,

                               versus

HORSESHOE ENTERTAINMENT,
doing business as Horseshoe Casino & Hotel,
                                              Defendant-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
                  Western District of Louisiana
                       USDC No. 5:98-CV-676
_________________________________________________________________
                         November 28, 2001

Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:1

     Kathy Jean-Ford is an African-American woman.        She began

working for Horseshoe Entertainment in June 1994 as a clerk in the

gift shop.     On March 4, 1996 she was transferred to the human

resources department.   Horseshoe fired her on April 9, 1997.   She

brought suit against Horseshoe under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, 42 U.S.C. § 1981, and Louisiana’s

employment discrimination statute.      Ford’s claims were based on

     1
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
alleged unequal pay, failure to promote and wrongful discharge.

The district judge dismissed Ford’s § 1981 claims for failure to

promote and unequal pay on statute of limitations grounds.       A jury

found in favor of Ford on her unequal pay claim, but in favor of

Horseshoe on Ford’s wrongful discharge and failure to promote

claims.   The district judge then granted Horseshoe’s motion for

judgment as a matter of law on the unequal pay claim, overturning

the jury’s verdict, and denied Ford’s motion for judgment as a

matter of law on the wrongful discharge and failure to promote

claims. Ford timely appealed.     We reverse the grant of judgment as

a matter of law on Ford’s unequal pay claim and reinstate the

jury’s verdict.   We affirm the district court’s rulings in all

other respects.

                                   I

     We first address the district court’s grant of judgment as a

matter of law to Horseshoe on Ford’s unequal pay claim.      This court

reviews judgments as a matter of law de novo.       Conkling v. Turner,

18 F.3d 1285, 1300 (5th Cir. 1994).        A district court’s grant of

judgment as a matter of law will survive review “only if ‘the facts

and inferences point so strongly and overwhelmingly in favor of one

party that [this Court] believes that reasonable men could not

arrive at a contrary verdict.’”        Arleth v. Freeport-McMoran Oil &

Gas Co., 2 F.3d 630, 636 (5th Cir. 1993), quoting Boeing Co. v.

Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc).          Whether



                                   2
judgment as a matter of law is appropriate depends on a number of

factors, including the “strength of the plaintiff’s prima facie

case,   the   probative        value   of   the       proof    that    the   employer’s

explanation is false, and any other evidence that supports the

employer’s case and that properly may be considered on a motion for

judgment as a matter of law.”                       Reeves v. Sanderson Plumbing

Products, 530 U.S. 133, 148-49 (2000).                    “[A] prima facie case and

sufficient evidence to reject the employer’s explanation may permit

a finding of liability,” and the plaintiff need “[not] always

introduce additional, independent evidence of discrimination.” Id.

at 149.

     The facts in this case were disputed.                      Ford contended that

Horseshoe policy was that an employee receive a pay raise after

ninety days in a new department at Horseshoe.                    On the other hand,

Horseshoe claimed that employees were eligible to receive a pay

raise after ninety days at Horseshoe, not after transfer to a new

department,    and   noted      that   Ford         had   already     been   working   at

Horseshoe     for   over   a    year   in       a   different    department.       Ford

presented evidence of two Caucasian employees in human resources

who received pay raises after ninety days in the department.

Horseshoe presented evidence that Ford had a write-up in her file

from December 1996 due to her unsatisfactory performance, but Ford

claimed she was unaware of this write-up.                     Horseshoe also pointed

to two other write-ups that Ford received shortly before her



                                            3
discharge    for    improperly    processing        employment    applications.

Horseshoe alleged that its policy was to not give pay raises to

employees who were performing unsatisfactorily.

     Although Ford’s evidence may be disputed, we believe that the

jury’s verdict is supported by sufficient evidence.               The facts in

this case do not point so overwhelmingly in favor of Horseshoe that

judgment as a matter of law in Horseshoe’s favor is appropriate.

We therefore reverse the grant of judgment as a matter of law in

Horseshoe’s favor, and reinstate the jury’s verdict.

                                        II

     The district judge instructed the jury that in order for Ford

to prevail on her failure to promote claim, she had to establish

that she applied for the position (i.e., the newly created tax

credit representative position). Ford objected to this instruction

because the position was never posted, and argues that because the

position    was    not   posted   and       she   was   not   informed   of   its

availability, the district court erred in overruling her objection.

     This court has stated that “[i]t is not legally sufficient or

legitimate for an employer to reject an employee who does not have

notice or an opportunity to apply for a promotion.”                 Bernard v.

Gulf Oil Corp., 841 F.2d 547, 580 (5th Cir. 1988).               This court has

also found that an employer’s promotion and transfer policies as

applied can violate Title VII when “[h]ourly employees are not

notified of promotion opportunities nor are they notified of the



                                        4
qualifications necessary to get jobs.”          Rowe v. General Motors

Corp., 457 F.2d 348, 358-59 (5th Cir. 1972). Although the district

court did err by instructing the jury that Ford had to show that

she applied for the position to prevail on her failure to promote

claim, this error was harmless.          Horseshoe presented sufficient

evidence for the jury to find that Horseshoe’s stated legitimate,

non-discriminatory reasons for not promoting Horseshoe were true

and were not pretext.     Even if the jury had been instructed that

Ford need not have applied for the position to prevail on her

failure to promote claim, it would not have had an effect on the

verdict.

                                   III

     Ford also contends that the district court erred in refusing

to expand the exhibit list to include a report by the Illinois

Gaming Commission which contained a letter in which Horseshoe’s

attorney    asserted   that   Horseshoe   “brutally   treat[ed]   African

Americans.” The district court entered a pretrial order on January

24, 2000 that the exhibit list could not be expanded.             Ford’s

attorney admitted that he had received a copy of the report on

January 12, 2000, but he did not file a motion to expand the

exhibit list to include the report until April 14, 2000.            This

motion was referred to a magistrate judge, and he denied it on

April 24.   Ford did not appeal the magistrate judge’s order to the

district court. Therefore, we do not have jurisdiction to consider



                                    5
Ford’s contention.      See FED. R. CIV. P. 72(a); Unida v. Levi Strauss

& Co., 986 F.2d 970, 976 n.4 (5th Cir. 1993) (declining to address

challenge to magistrate judge’s evidentiary ruling where appellant

did not appeal magistrate judge’s ruling to district court).

                                       IV

       At the close of Ford’s case, Horseshoe moved for judgment as

a matter of law against her on all claims.                   The district court

granted the motion only as to Ford’s claim for punitive damages.

Under Title VII, a plaintiff has a right to an award of punitive

damages      if   the   employer     “engaged         in   unlawful   intentional

discrimination,” 42 U.S.C. § 1981a(a)(1), and if she “demonstrates

that   the    respondent   engaged    in       a   discriminatory     practice   or

discriminatory practices with malice or with reckless indifference

to the federally protected rights of an aggrieved individual.”                   42

U.S.C. § 1981a(b)(1).       In Kolstad v. American Dental Association,

the Supreme Court held that in order to discriminate “with malice

or with reckless disregard” to federally protected rights, “an

employer must at least discriminate in the face of a perceived risk

that its actions will violate federal law.”                   527 U.S. 526, 536

(1999).

       Horseshoe    does   not     argue       that   Ford   failed   to   present

sufficient evidence of the “malice or reckless disregard” standard,

but that Ford failed to provide sufficient evidence that punitive

damages liability for the acts of Horseshoe’s managerial agents are



                                           6
imputable to Horseshoe.               Under Kolstad, when an employer is an

entity rather than an individual, if “an employer has undertaken .

. . good faith efforts [to comply with Title VII,] it demonstrates

that it never acted in reckless disregard of federally protected

rights.”      Id. at 544 (citation omitted).             Ford’s punitive damages

claim is based on her allegation that Horseshoe went too far in its

good-faith        plan   to    seek    minority      applicants   and   to   replace

departing African-Americans with new African-American employees, in

that       this   forced      supervisors       to   become   race-conscious     and

engendered resentment.            Ford never offered any support for this

argument, however.            Horseshoe did present evidence of its good

faith efforts to comply with Title VII, including legal seminars,

compliance with state and federal employment laws, and efforts to

include minorities and women in every job classification.                     In the

light of Ford’s lack of evidence on this issue, we hold that it was

proper for the district court to grant Horseshoe’s motion for

judgment as a matter of law on Ford’s punitive damages claim.2

                                            V

       For the foregoing reasons, we REVERSE the district court’s

grant of judgment as a matter of law to Horseshoe on Ford’s unequal

pay claims and reinstate the jury’s verdict.                       We AFFIRM the

district court’s judgment in all other respects.



       2
      We have considered Ford’s other arguments on appeal and have
found them to be without merit.

                                            7
                           REVERSED IN PART AND AFFIRMED IN PART.3




     3
      Judge Garza concurs, with the single exception that, based on
evidence before the jury and the plaintiff’s final argument, he
would award only $501.02 in damages.

                                 8
