                                                                      [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                           -------------------------------------------
                                                                                   FILED
                                         No. 97-6416                   U.S. COURT OF APPEALS
                          --------------------------------------------   ELEVENTH CIRCUIT
                                                                               02/09/99
                            D. C. Docket Nos. 94-D-508-N,                   THOMAS K. KAHN
                                             94-D-531-N                         CLERK




LILLIAN D. DUDLEY,
CLARA L. ROBERTSON,

                                                             Plaintiff-Appellee,

     versus

WAL-MART STORES, INC.,

                                                             Defendant-Appellant.


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                 Appeal from the United States District Court
                         for the Middle District of Alabama
                 ---------------------------------------------------------------
                                    (February 9, 1999)


Before EDMONDSON and BIRCH, Circuit Judges, and MORAN*, Senior District
Judge.

EDMONDSON, Circuit Judge:
______________________

*    Honorable James B. Moran, Senior United States District Judge for the
     Northern District of Illinois, sitting by designation.
     Defendant Wal-Mart appeals the district court’s post-trial

denial of its motion for judgment as a matter of law or for a new

trial and from the judgments entered against it on claims of

violating Title VII. We conclude that the judgments were not

against the weight of the evidence, the district court did not err in

failing to grant a judgment as a matter of law or a new trial, and

the jury issues were ruled on correctly. But we also conclude that

Plaintiff Clara Robertson was, as a matter of law, entitled to no

punitive damages. Therefore, we affirm the judgment, except for

the punitive damages awarded to Plaintiff Clara Robertson.



                           Background



     Lillian Dudley was hired by Wal-Mart Store 930 in

Montgomery, Alabama in March 1992. She was moved around

some before becoming a sales associate in the lingerie

                                  2
department. By 1993 she began expressing an interest in a full-

time sales associate position in the domestics department. This

position was eventually given to Lisa Chamberlain, a white woman

who had been employed at Wal-Mart Store 930 since 1988. Dudley

says that at all times during her employment she was subject to

racial harassment by store comanager Artie Moore and assistant

manager Dennis Roberts.1 Dudley complained to district manager

Don Bost about the harassment. After she filed a complaint with

the EEOC, Dudley was promoted to full-time associate; but the

harassment continued.

      Clara Robertson was hired by the same store in May 1986 as

a sales clerk. In 1992 she was promoted to manager of the

curtains and furniture department. Months after Robertson was

promoted, Artie Moore arrived as comanager of the store and

began to harass Robertson; this harassment included a racial

component. Moore eventually soured on Robertson’s performance

      1
        The chain of command within the store hierarchy is store manger, comanager,
assistant manager.

                                           3
as manager. Robertson attempted to discuss the problem with

Moore and then with store manager Mark Ferris, but they would

not listen. Robertson also tried to complain to district manager

Don Bost but, in her words, “he didn’t really have time to listen.”

Later, Robertson, in March 1993, was demoted.

        Plaintiffs Lillian Dudley and Clara Robertson filed complaints

against Wal-Mart in the Fall of 1994 alleging race discrimination in

violation of Title VII. Dudley claimed she was harassed and denied

a promotion to full-time sales clerk because of her race.

Robertson claimed she was demoted to sales clerk because of her

race.

        The two lawsuits were consolidated along with eleven

separately filed lawsuits by other plaintiffs. In February 1995, Wal-

Mart moved for summary judgment on every plaintiff but Dudley.

The motion was granted against all plaintiffs except Robertson

and three others.2             For the trial, jury selection was held in

        2
         Besides her demotion claim, Robertson’s complaint had also included two other claims:
racial harassment and failure to promote. These two claims were disposed of by this summary

                                               4
September 1996, and both sides exercised four of their five

peremptory strikes. The court struck those eight jurors and

continued the selection process.

       After the eight-member jury was selected, however, the court

heard Batson challenges to the eight strikes.           Both sides

challenged three of the other side’s four strikes.        The court

sustained all of Plaintiffs’ challenges to Wal-Mart’s strikes and two

of Wal-Mart’s challenges to Plaintiff’s strikes. The court then

placed those five temporarily-struck jurors back on the jury,

replacing the last five non-struck jurors who had been selected.

       Wal-Mart moved for a judgment as a matter of law at the close

of the evidence; it was granted against one plaintiff but denied for

all others.       The jury then returned judgments of $75,000 in

compensatory damages for Dudley, of $50,000 in compensatory

damages and $250,000 in punitive damages for Robertson, and for

Wal-Mart on the other plaintiffs’ claims. Wal-Mart then filed a


judgment for defendant.

                                  5
renewed motion for a judgment as a matter of law, which was

denied. Wal-Mart appealed.



                                          Discussion



                         I. Motion for a JMOL or New Trial



               On liability, Wal-Mart contends that it is entitled to a

judgment as a matter of law or, in the alternative, to a new trial.3

Given the verdicts, we must look at the evidence in the light,

including all reasonable inferences, most favorable to Plaintiffs.

       Dudley made out claims of discrimination on promotion and

hostile work environment sufficient to withstand a judgment as a

matter of law. Dudley submitted evidence that she was qualified

       3
         The two will be considered together even though the standards are not the same. A
judgment as a matter of law will be granted where “a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury to find for that party . . . .“
Fed. R. Civ. P. 50(a). A motion for a new trial may be granted if the district court judge believes
the verdict rendered by the jury was contrary to the great weight of the evidence. See Rosenfield
v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1497-98 (11th Cir. 1987). Because “a less
stringent standard applies to a motion for a new trial than to a motion for judgment as a matter of
law,” Holzapfel v. Town of Newburgh, 950 F. Supp. 1267, 1272 (S.D.N.Y. 1997), rev’d on other
grounds, 145 F.3d 516 (2nd Cir. 1998), failure to meet the former standard is fatal to the latter.

                                                  6
for the job by virtue of (1) her prior work experience, (2) a

recommendation by her supervisor and (3) a recommendation by

another Wal-Mart manager. Dudley was rejected for the position,

and it was given to a nonminority candidate with similar

credentials.     Although    Wal-Mart    set   out   evidence   of

nondiscriminatory reasons for not promoting Dudley, Dudley

presented sufficient evidence that a reasonable trier of fact could

disbelieve Wal-Mart’s proffered motives as pretext and conclude

that discrimination was the true reason.

     While the hostile work environment claim is a closer call, it

has support in the record as well. Though more than an isolated

incident of unpleasantness is required, Dudley set forth several

instances of racial harassment by coworkers, including people in

a supervisory capacity. That alone would be sufficient. Dudley,

however, appears to have communicated about the harassment to

the manager of the store, Mark Ferris, and to the district manager,

Don Bost.

     Clara Robertson’s judgment also withstands Defendant’s

renewed motion for judgment as a matter of law. Robertson

                                 7
testified that she was promoted to a department manager’s

position and then demoted from that position nine months later

and that a white employee was promoted to the position. In

addition, she testified she was subject to racially discriminatory

conduct by the man who ultimately demoted her.



             II. Batson Challenges and Empaneling Issues



       We reject Wal-Mart’s contention that the district court

improperly overruled an equal protection challenge to a juror that

Plaintiffs had struck and further that the court then removed non-

struck jurors in a manner inconsistent with the Jury Selection and

Service Act of 1968.4

       Batson v. Kentucky, 476 U.S. 79 (1986), requires that

peremptory strikes be used in a racially nondiscriminatory

manner. A party who believes that the other side is exercising its

right to strike in a discriminatory fashion must challenge the strike


       4
      Wal-Mart contests only the removal of the three jurors replaced after the Batson hearing
who would have sat on the jury if the court had heard the Batson challenges as they arose.

                                              8
and bear the burden of the prima facie case. Id. at 93. After the

challenging party meets this burden, the striking party must come

forward with a legitimate nondiscriminatory rationale for the

strike; the ultimate burden rests on the challenging party to prove

purposeful discrimination. Id. at 97.

       The district court committed no errors in its application of the

Batson        procedures,            interrogating           counsel          and      making

determinations where necessary including whether a proffered

nondiscriminatory rationale was mere pretext. We do not agree

with Wal-Mart that a district court must always allow the

challenging party a chance to rebut the proffered rationale of the

striking party. Neither the Supreme Court nor this Court has ever

held this step to be an essential element of Batson.5                                        See

Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (plurality

       5
         Although we have written on the issue in dicta, see United States v. Bennett, 928 F.2d
1548, 1550 n.1 (11th Cir. 1991), superseded by statute on other grounds as stated in United States
v. Smith, 127 F.3d 1388, 1389-90 (11th Cir. 1997), in a concurring opinion, see United States v.
Alston, 895 F.2d 1362, 1374 (11th Cir. 1990) (Hatchett, J., concurring), and in a case tried before
Batson, see United States v Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987), vacated in part on
other grounds, 836 F.2d 1312 (11th Cir. 1988), never have we held a district court’s application
of Batson to be reversible error solely because the challenging party was not offered an
opportunity to rebut the striking party’s rationale. Furthermore, we decline to extend what may
be the law of other circuits, see United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991); United
States v. Alcantar, 897 F.2d 436, 438 (9th Cir. 1990), to the Eleventh Circuit.

                                                 9
opinion) (setting forth three-step Batson process, which does not

include challenging party’s opportunity to rebut). Even so, the

court did entertain Wal-Mart’s rebuttals when offered throughout

the voir dire.6

       We do not agree that Batson requires the level of precision

and consistency in juror selection that Wal-Mart seeks. Wal-Mart

says that the trial court allowed a juror (Larry Curly) to be struck

who shared a similar trait with another juror (Lila Bell) who was

not struck by Plaintiffs. This circumstance does not automatically

prove discrimination or trial court error particularly where, as

here, Wal-Mart did not raise this objection at the time of the

Batson challenge. Furthermore, the cases Wal-Mart cites on

maintaining consistency as among peremptory strikes -- United

States v. Stewart, 65 F.3d 918 (11th Cir. 1995) and Hollingsworth v.

Burton, 30 F.3d 109 (11th Cir. 1994) -- are distinguishable: in both

of the cases this Court was affirming a district court’s findings

about peremptory challenges at trial instead of, as here, being


       6
         Wal-Mart has pointed to no instance where the district court rejected its proffer of
rebuttal evidence.

                                                10
asked to overrule the district court’s sensitive findings. A district

court’s Batson determinations are largely findings of fact entitled

to great deference on review. See Batson, 476 U.S. at 98 n.21.

And, after looking at the record, we do not see clear error here.7




                              III. The Jury Instructions



       The district court committed no reversible error in its jury

instructions.

       We agree with Wal-Mart that the instruction on the McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), framework had

the potential to confuse the jury. But, the instruction accurately

summarized the complicated law of the Circuit. In the context of

the overall jury charge, it was not reversible error. The jury was

told what it must determine to find for Plaintiffs; Plaintiffs had the


       7
         Wal-Mart’s claims that the district court’s Batson hearing violated the Jury Selection
and Service Act by removing three jurors from the jury for reasons other than those articulated in
the Act are similarly misplaced: the Act does not cover the composition of the trial jury but only
the initial source list from which juries will be selected, see 28 U.S.C. § 1863(b)(3).

                                               11
ultimate burden of persuading the jury that Wal-Mart discriminated

against Plaintiffs.

     The court’s instructions on the McDonnell Douglas

framework ought not to have been given to the jury. Although

“statements [like ‘prima facie case’ and ‘burden of production’]

faithfully endeavor[] to track the three-step formulation of

McDonnell Douglas Corp. v. Green, and Texas Dep’t of Community

Affairs v. Burdine, they create[] a distinct risk of confusing the

jury.” Cabrera v. Jakabovitz, 24 F.3d 372, 381 (2d Cir. 1994)

(citations omitted). Whether a plaintiff has “made out a prima

facie case has no place in the jury room.” Walther v. Lone Star

Gas Co., 952 F.2d 119, 127 (5th Cir. 1992).     Furthermore, “the

distinction between burden of persuasion and burden of

production is not familiar to jurors, and they may easily be misled

by hearing the word ‘burden’ (though referring to a burden of

production) used with reference to a defendant in an explanation

of that part of the charge that concerns a plaintiff’s burden of

persuasion.” Cabrera, 24 F.3d at 381. Instead, “[i]f the defendant

has met its burden of producing evidence that, if taken as true,

                                12
would rebut the prima facie case, a threshold matter to be decided

by the judge, the jury need not be told anything about a

defendant’s burden of production.” Id. at 382 (emphasis added).



     We stress that it is unnecessary and inappropriate to instruct

the jury on the McDonnell Douglas analysis. See Gehring v. Case

Corp., 43 F.3d 340, 343 (7th Cir. 1994); Cabrera, 24 F.3d at 380-82;

Walther, 952 F.2d at 126-27. In context, however, the error was

harmless because the court gave the critical instruction: “in order

to recover each Plaintiff must prove by a preponderance of the

evidence that race . . . or sex was a substantial or motivating

factor in Defendant’s employment decisions.” The court actually

repeated this statement several times: for the specific claims by

each Plaintiff. In addition, after all the other instructions and the

attorneys’ objections, the final charge the court gave before the

jury retired was this definitive one: “I remind you again that in

order for a Plaintiff to recover she must prove by a preponderance

of the evidence that any adverse employment decision

complained about in this case was a result of racial or sexual

                                 13
discrimination. If it was not, then the Defendant is entitled to

recover.”

     Because a “trial judge is given wide discretion as to the style

and wording employed in the instructions,” see Carter v.

Decisionone Corp., 122 F.3d 997, 1005 (11th Cir. 1997), and

because the charge taken as a whole did not unduly confuse the

jury, we conclude that no reversible error is present here.



                          IV. Damages



     Wal-Mart correctly contends that Clara Robertson is

unentitled to the $250,000 in punitive damages because she has

not proved that Wal-Mart the corporation -- as opposed to persons

working for Wal-Mart -- was at fault.

     Not every unlawful discriminatory act will support an award

of punitive damages against an employer. Punitive damages are

available under the Civil Rights Act of 1991 only when the

employer has engaged in “discriminatory practices with malice or

                                14
with reckless indifference to the federally protected rights of an

aggrieved individual.” 42 U.S.C. § 1981a. So, “[p]unitive damages

are ‘an extraordinary remedy,’ to be reserved for egregious

cases.”    Harris v. L & L Wings, Inc., 132 F.3d 978, 982 (4th Cir.

1997) (quoting Stephens v. South Atlantic Canners, Inc., 848 F.2d

484, 489 (4th Cir. 1988)).

     For punitive damages, a plaintiff must demonstrate some

form of reckless or egregious conduct or otherwise “every

employment discrimination claim [could] include a punitive

damage award because every employment discrimination plaintiff

must demonstrate an intentional unlawful discrimination].”

Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1132 (7th Cir. 1997).

Examples of such egregious conduct might include: (1) a pattern

of discrimination, (2) spite or malevolence, or (3) a blatant

disregard for civil obligations. See Kolstad v. American Dental

Ass’n, 139 F.3d 958, 965 (D.C. Cir.) (en banc), cert. granted, 119 S.

Ct. 401 (1998) (No. 98-208).

                                  15
       In part because of the egregious-conduct requirement,

punitive damages will ordinarily not be assessed against

employers with only constructive knowledge of the violations.

See Splunge v. Shoney’s, Inc., 97 F.3d 488, 491 (11th Cir. 1996).

Although an employer may be liable in compensatory damages for

the discriminating act of its agent, the employer might not be

liable for punitive damages for the same act. Punitive damages

are not necessary to compensate the plaintiff. Punitive damages

are to punish: to punish those who have actually done wrong and

not those who have liability by implication of law only. To get

punitive damages, a Title VII plaintiff must show either that the

discriminating employee was “high[] up the corporate hierarchy,”

id. at 491, or that “‘higher management’ countenanced or

approved [his] behavior,” Reynolds v. CSX Transp., Inc., 115 F.3d

860, 869 (11th Cir. 1997), vacated on other grounds, 118 S. Ct. 2364

(1998).8

       8
       For punitive damages in this Circuit, the employer must be proved to be at fault. We are
aware of the Fifth Circuit’s recent decision extending Faragher v. City of Boca Raton, 118 S. Ct.

                                               16
       The evidence in this case allows a finding that store

comanager Artie Moore or store manager Mark Ferris or both

misused the authority delegated to them by Wal-Mart: they

discriminated against plaintiff on account of her race, demoting

her. But Wal-Mart is a giant business; the record shows that Wal-

Mart has more than 2000 stores. Neither of these men is high

enough up Wal-Mart’s corporate hierarchy -- if they can be said to

be in the corporate management hierarchy at all -- to allow their

discriminatory acts to be the basis for punitive damages against

the corporation.           In addition, Robertson has not shown that

anyone higher than these two men had notice or knowledge that

her     demotion          was       discriminatory.                Wal-Mart         has      a

nondiscrimination policy to encourage employees to refer

incidents of discrimination up the chain of command until the


2275 (1998), in a way to allow vicarious liability for punitive damages. See Deffenbaugh-
Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 592-93 (5th Cir. 1998). Given the requirement
of notice or knowledge for punitive damages in this Circuit, however, we are doubtful that
Faragher, which is not
                  about punitive damages, can (or was intended to)
overrule our pre-Faragher, punitive damages precedent.
                                              17
matter is resolved. Although Robertson had some contact with

district manager Don Bost before the time of her demotion, no

evidence suggests that he was informed of the demotion itself,

which, by the way, involved only a reassignment of work within

the pertinent store and included no reduction in pay or loss of

benefits. No evidence was presented that Robertson complained

to Bost or to anyone higher about her being demoted on account

of her race. In short, Robertson failed to prove that Wal-Mart -- the

company -- had the kind of notice and engaged in the kind of

egregious acts required to award punitive damages.9

       AFFIRMED IN PART AND REVERSED IN PART.

       9
         Defendant also contends that compensatory damages were not warranted in this case
because emotional distress was not competently proved. But Wal-Mart failed to raise the issue
in district court; and, thus, it will not be considered on appeal. See Depree v. Thomas, 946 F.2d
784, 793 (11th Cir. 1991) (“We have long held that an issue not raised in the district court and
raised for the first time in an appeal will not be considered by this court.”).
         Wal-Mart seems to claim the issue was inherent in its motion to set aside the jury verdict
for Robertson as against the weight of the evidence. But, while Wal-Mart specifically
challenged the appropriateness of punitive damages in its renewed motion for judgment as a
matter of law, no reference to compensatory damages or emotional distress was made. Second,
Wal-Mart did not object to the jury instruction on compensatory damages; and so the renewed
motion was the last opportunity in which a direct objection to compensatory damages could be
made. It was critical then that Wal-Mart raise the issue and so provide the district court with a
proper basis to face the issue. See generally United States v. Reyes-Vasquez, 905 F.2d 1497,
1500-01 (11th Cir. 1990) (stressing need for clear preservation of errors and limited application
of plain-error doctrine).

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