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O'Connor Ruling in Bruton Stephens Case

O'Connor Ruling in Bruton Stephens Case

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Federal judge tosses verdict awarded to former city of Dallas employee
Federal judge tosses verdict awarded to former city of Dallas employee

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Published by: Robert Wilonsky on Mar 29, 2013
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Case 3:10-cv-00191-O-BN Document 122 Filed 03/25/13

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION § § § § § § § § § § §

BRUTON STEPHENS, SR., Plaintiff, v. CITY OF DALLAS, Defendant.

Civil Action No. 3:10-cv-191-O

MEMORANDUM OPINION & ORDER Before the Court are Defendant City of Dallas’s Renewed Motion for Judgment as a Matter of Law and Motion for New Trial and Brief in Support (ECF Nos. 115, 116); Plaintiff Bruton Stephens, Sr.’s Response, Brief in Support, and Appendix (ECF Nos. 118, 119, 120); and Defendant’s Reply (ECF No. 121). Also before the Court are Plaintiff’s Motion for Entry of Judgment (ECF No. 114) and Defendant’s Response (ECF No. 117). Having reviewed the motions, briefing, and applicable law, the Court finds that Defendant’s Renewed Motion for Judgment as a Matter of Law is GRANTED in part and DENIED in part and Defendant’s Motion for New Trial is GRANTED in part and DENIED in part. Additionally, the Court finds that Plaintiff’s Motion for Entry of Judgment (ECF No. 114) is DENIED.

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I.

FACTUAL BACKGROUND1 Plaintiff Bruton Stephens, Sr., an African-American male, was hired by Defendant City of

Dallas as a senior electronic technician in the Transportation Operations Division of the Public Works and Transportation Department on December 24, 2003. See Jury Charge 3, ECF No. 105. In 2007, Robert Espinoza (“Espinoza”), Plaintiff’s supervisor, designated Plaintiff “lead technician.” See id.; Pl.’s App. Supp. Mot. Summ. J. (Stephens Depo Jan. 18, 2011), at App. 207-08, ECF No. 34; Trial R., Vol. 3, at 132:20-24, 133:10-14, ECF No. 110. As lead technician, Plaintiff took on additional responsibilities, including but not limited to reviewing job tickets, processing customer service requests, preparing payroll, and filling in as supervisor when Espinoza was absent. See Pl.’s App. Supp. Mot. Summ. J. (Stephens Depo Jan 18, 2011), at App. 207-08, 314-15, ECF No. 34; Trial R., Vol. 1, at 106:20-107:6, 108:16-18, 109:1-2, 147:11-25, ECF No. 108; id. Vol. 2, at 26:1827:13, ECF No. 109; id. Vol. 3, at 61:7-24, 134:7-135:3, 135:20-25, 136:1-2, ECF No. 110. Before being removed from his lead technician position, Plaintiff complained of, among other things, race discrimination in the workplace. See Trial R., Vol. 1, at 120:23-25, 134:2-15, 136:16-137:13, ECF No. 108; id. Vol. 3, at 46:24-47:1, 206:4-8, 208:4-12, ECF No. 110. In March 2009, Plaintiff was removed of his lead technician position. Id. Vol. 1, at 140:1-21; id. at Vol. 3, at 147:19-22, ECF No. 110; Pl.’s App. Supp. Mot. Summ. J. (Stephens Depo Feb. 7, 2011), at App. 336), ECF No. 34. In the months thereafter, Plaintiff filed a number of other grievances and complaints related to retaliation and race discrimination. See Jury Charge 3-4, ECF No. 105. As

In considering a motion for judgment as a matter of law “the court must draw all reasonable inferences in favor of the non-moving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). “[T]he court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses.’” Id.

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part of Defendant’s “Reduction in Force” (“RIF”), Plaintiff was effectively laid off on October 1, 2009. See id. at 4. II. PROCEDURAL BACKGROUND Plaintiff filed his original petition in Texas state court on December 23, 2009, alleging that Defendant violated his free speech rights under the First Amendment of the Constitution, retaliated and discriminated against him in violation of Title VII of the Civil Rights Act of 1964, and retaliated against him in violation of Chapter 554 of the Texas Government Code (“Texas Whistleblower Act”). See generally Notice Removal, ECF No. 1. Defendant removed the case to this Court on February 1, 2010. See id. Prior to trial, the Court dismissed Plaintiff’s (1) Title VII race discrimination claim; (2) Title VII retaliation claims based on the temporary assignment to retrieve flashers and sandbags and the failure of Defendant to rehire Plaintiff after the RIF; and (3) Texas Whistleblower Act claim. Order, Mar. 19, 2012, ECF No. 55; Trial R. Vol. 1, at 3:4-7:19, ECF No. 108. A trial was held from October 22, 2012 through October 30, 2012. At the close of Plaintiff’s case, Defendant moved for judgment as a matter of law. Trial R., Vol. 4, at 233:11-248:11, ECF No. 111. The Court granted that motion as to Plaintiff’s First Amendment claim and Plaintiff’s Title VII retaliation claim for sweeping the parking lot, and deferred ruling on the remaining claims. Id. at 233:11-248:15. After closing arguments, the Court submitted six questions to the jury. See generally Jury Charge, ECF No. 5. The jury answered “yes” to Question No. 1, which asked whether removal of Plaintiff’s lead technician duties constituted an adverse employment action. Id. The jury also answered “yes” to question No. 2, which asked whether Plaintiff’s protected activity was a motivating factor for Defendant’s removal of his lead technician duties. Id. The jury answered “no” to Question No. 3, which asked whether Defendant would have removed Plaintiff’s technician duties 3

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even if it had not considered Plaintiff’s protected activity. Id. The jury responded “yes” to Question No. 4, which asked whether Plaintiff’s protected activity was a motivating factor for Defendant’s termination of him. Id. The jury answered “no” to Question No. 5, which asked whether Defendant would have made the same decision to terminate Plaintiff even if it had not considered Plaintiff’s protected activity. Id. Lastly, in response to Question No. 6, which asked what sum of money would fairly compensate Plaintiff for his damages caused by Defendant, the jury returned a verdict in favor of Plaintiff in the amount of $13,000 for back pay and benefits, $195,000 for past mental anguish and emotional distress, and $1,000 for past medical expenses. The unanimous jury verdict was certified on October 30, 2012. Id. III. LEGAL STANDARDS A. Judgment as a Matter of Law

Rule 50 of the Federal Rules of Civil Procedure governs motions for judgment as a matter of law in jury trials. See Fed. R. Civ. P. 50; see also Weisgram v. Marley Co., 528 U.S. 440, 448-49 (2000). Rule 50(a) “authorizes the entry of judgment as a matter of law ‘[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.’” See James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009) (quoting Fed. R. Civ. P. 50(a)). “It allows the trial court to remove cases or issues from the jury’s consideration ‘when the facts are sufficiently clear that the law requires a particular result.’” Weisgram, 528 U.S. at 448 (quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2521 (2d ed. 1995)). “If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the 4

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motion.” Fed. R. Civ. P. 50(b). “[I]n entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record.” Reeves, 530 U.S. at 150. “In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Id. (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 55455 (1990)). “‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inference from the facts are jury functions, not those of a judge.’” Id. at 150-51 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)). “Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. at 151. “A motion for judgment as a matter of law is appropriate if, after considering the evidence presented and viewing all reasonable inferences in the light most favorable to the nomovant, the facts and inferences point so strongly in favor of the movant that a rational jury could not arrive at a contrary verdict.” Murray v. Red Kap Indus., Inc., 124 F.3d 695, 697 (5th Cir. 1997). “If there is substantial evidence of such quality and weight that reasonable and fair-minded jurors might reach a different conclusion,” then judgment as a matter of law is not appropriate. Id. “We must remember, however, that evidence sufficient to support a jury verdict must be substantial evidence.” Guile v. United Sates, 422 F.3d 221, 227 (5th Cir. 2005). “[T]he party opposing the motion must at least establish a conflict in substantial evidence on each essential element of [his] claim.” See Anthony v. Chevron USA, Inc., 284 F.3d 578, 583 (5th Cir. 2002) (citing Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc)). An inference that “would be ‘mere speculation and conjecture’ . . . is not sufficient to support a jury verdict.” Guile, 422 F.3d at 226 (quoting Anthony, 5

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284 F.3d at 583-84). “The ‘standard of review with respect to a jury verdict is especially deferential.’” Lubke v. City of Arlington, 455 F.3d 489, 494 (5th Cir. 2006) (quoting Brown v. Bryan Cnty., 219 F.3d 450, 456 (5th Cir. 2000)). B. New Trial

Under Rule 59 of the Federal Rules of Civil Procedure, a new trial may be granted after a jury trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59 (a)(1)(A). While this rule does not enumerate specific grounds for granting a new trial, the Fifth Circuit has found that a new trial is appropriate where: (1) the verdict is against the weight of the evidence, (2) the amount of damages awarded is excessive, or (3) the trial was unfair or marred by prejudicial error. Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1140 (5th Cir. 1991). “Courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done, and the burden of showing harmful error rests on the party seeking the new trial.” Del Rio Distrib., Inc. v. Adolph Coors Co., 589 F.2d 176, 179 n.3 (5th Cir. 1979). C. Title VII Retaliation

To make out a prima facie case of retaliation, a plaintiff must show: “(1) that she engaged in activity protected by Title VII [of the Civil Rights Act of 1964], (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse action.” Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002); see also LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 388 (5th Cir. 2007). If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. LeMaire, 480 F.3d at 388. If the employer states a legitimate, non-retaliatory reason, the 6

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burden shifts back to the plaintiff to demonstrate that the employer’s reason is either a pretext or “‘that the [employer’s] reason, while true, is only one of the reasons for its conduct, and another motivating factor is the plaintiff’s protected [activity] (mixed-motive[s] alternative).’” Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005) (alteration in original) (quoting Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)). If the plaintiff relies on the mixedmotives analysis, as Plaintiff does here, the employer has the opportunity to present an affirmative defense that it would have undertaken the adverse employment action even in the absence of the prohibited consideration. See Smith v. Xerox Corp., 602 F.3d 320 333 n.50 (5th Cir. 2010); Hanks v. Shinseki, No. 3:08–1594–G, 2010 WL 3000835, at *4 (N.D. Tex. July 28, 2010).2 IV. ANALYSIS Defendant renewed its Motion for Judgment as a Matter of Law and filed its Motion for a New Trial. With respect to Defendant’s Motion for Judgment as a Matter of Law, Defendant argues that Plaintiff failed to present legally sufficient evidence that (1) Defendant’s removal of Plaintiff’s lead technician duties was an adverse employment action; (2) Defendant had a retaliatory motive when removing Plaintiff’s lead technician duties; (3) Defendant had a retaliatory motive when it included Plaintiff’s position in the 2009 RIF; and (4) Plaintiff suffered compensable mental anguish and emotional suffering. See Def.’s Renewed Mot. J. Matter Law & Mot. New Trial 2, ECF No. 115. With respect to Defendant’s Motion for New Trial, Defendant argues that the following findings were against the great weight of the evidence: (1) Defendant’s removal of Plaintiff’s lead technician duties amounted to an adverse employment action; (2) liability for retaliation with respect

This was the state of the law in the Fifth Circuit on causation in retaliation cases at the time this trial was held. The Court discusses below the Supreme Court’s decision to address this issue in its current term. See Part IV.D.

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to removal of Plaintiff’s lead technician duties; “(3) liability for retaliation with respect to the inclusion of Plaintiff’s position in the 2009 RIF; and (4) the finding of $195,000 in damages for past emotional distress.” Id. at 3. Defendant further argues that a new trial is warranted because the Court erroneously instructed the jury. Id. The Court will address each of Defendant’s evidentiary concerns in turn. A. Removal of Lead Technician Position 1. Adverse Employment Action

Defendant contends that Plaintiff failed to present legally sufficient evidence that removal of Plaintiff’s lead technician duties was an adverse employment action. Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 4-10, ECF No. 116. Defendant also contends that the jury’s finding was against the great weight of the evidence. Id.3 The Court disagrees with Defendant. The threshold issue for the Court is whether Plaintiff held the lead technician position. Defendant argues that such a position never existed. See id. at 7-9. According to Defendant, it is “impossible to conclude with any certainty . . . what [Plaintiff’s] leadership duties entailed.” Id. at 7. Plaintiff asserts that there is sufficient evidence in the record from which the jury could have concluded that Plaintiff held the lead technician position from 2007 to March 2009. Br. Supp. Pl.’s Resp. Opp’n Def.’s Mot. J. Matter Law & Mot. New Trial 2-6, ECF No. 119. Plaintiff further asserts that this finding was not against the great weight of the evidence. Id. The Court agrees with Plaintiff.

Where the Court finds that there is sufficient evidence supporting the jury’s findings, it also finds that the jury’s findings are not against the great weight of the evidence. Thus, with respect to Part IV.A. through IV.C., the Court’s analysis applies to both Defendant’s Renewed Motion for Judgment as a Matter of Law and Defendant’s Motion for New Trial. Part IV.D. only addresses Defendant’s Motion for New Trial.

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At trial, Plaintiff testified that he was the lead technician every day of the week from 2007 to March 2009. Trial R., Vol. 1, at 149:3-4, ECF No. 108. Espinoza, Plaintiff’s supervisor, testified that he had been the lead technician before becoming supervisor, and as a supervisor he appointed Plaintiff to be lead technician. Id. Vol. 3, at 132:20-24, 133:10-14, ECF No. 110. Espinoza also testified that other employees recognized Plaintiff as the lead technician from 2007 to March 2009. Id. at 132:20-24, 134:24-135:1. Even Wong, who supervised Espinoza and was a hostile witness to Plaintiff’s case, recognized Plaintiff was the lead technician: Q. Does the Signal Maintenance personnel manual or procedure manual give the supervisor of Signal Maintenance the right to designate a lead technician? Yes. And Mr. Espino[z]a designated Mr. Stephens as the lead technician, correct? Yes. So Mr. Stephens would perform Mr. Espino[z]a’s functions when Mr. Espino[z]a wasn’t around, correct? Some of the function, yes. And he was the lead technician until March of 2009? Yes. And he had been the lead technician for all of 2007 and 2008, hadn’t he? Yes.

A. Q. A. Q. A. Q. A. Q. A.

Id. at 59:3-17. Given the foregoing, it was reasonable for the jury to conclude that Plaintiff was the lead technician from 2007 to March 2009. To determine whether Plaintiff was effectively removed from his lead technician position, the Court must look at the record as a whole to determine which duties the jury reasonably could have found were included within Plaintiff’s lead technician position. Plaintiff provided evidence that the lead technician position included filling in for his supervisor when his supervisor was absent, processing job tickets and customer service requests, training and assisting lower level staff,

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programming school flashers, reviewing and approving time sheets, assisting with payroll, receiving complaints from lower level technicians, and supervising the other technicians when needed. Id. Vol. 1, at 106:20-107:6, 108:16-18, 109:1-2, 147:11-25, ECF No. 108; id. Vol. 2, at 26:18-27:13, ECF No. 109; id. Vol. 3, at 61:7-24, 134:7-135:3, 135:20-25, 136:1-2, ECF No. 110. Indeed, Defendant’s procedure manual gives the supervisor of Signal Maintenance the right to designate a lead technician. Id. Vol. 2, at 27:1-13, ECF No. 109; id. Vol. 3, at 59:3-9, 134:12-135:3, ECF No. 110. According to Defendant’s manual, the lead technician’s duties included interacting with citizens regarding how signal lights operate, working with clerical staff regarding billing, and acting as the “lead supervisor” in the actual supervisor’s absence. Id. Vol. 2, at 27:1-13, ECF No. 109; id. Vol. 3, at 59:3-9, 134:12-135:3, ECF No. 110; Pl.’s Ex. 74.4 Given this evidence, it was reasonable for the jury to conclude that the aforementioned duties were included within Plaintiff’s lead technician position. Having determined there is sufficient evidence indicating which duties were included within the lead technician position, the next question is whether there is sufficient evidence supporting a finding that Plaintiff was effectively removed from his lead technician position. Plaintiff testified that in March 2009, Wong stripped him of his duties of programming school flashers, processing job tickets and customer service requests, interacting with customers, processing payroll, and filling in as supervisor when Espinoza was away. Trial R., Vol. 1, at 147:13-25, ECF No. 108; id. Vol. 2, at 27:2-21, 32:14-17. Plaintiff also testified that Wong instructed lower level technicians and other employees not to report incidents to Plaintiff. Id. Vol. 1, at 147:22-25, ECF No. 108. Espinoza

Although Defendant’s manual uses the term “lead supervisor” instead of “lead technician,” there is ample evidence in the record that the “lead supervisor” was understood to mean “lead technician.” See Trial R., Vol. 3, at 59:39, 134:12-135:3, ECF No. 110.

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confirmed that in March 2009 Wong said to him that “he didn’t want [Plaintiff] to be in charge any longer of the job tickets or the service requests and didn’t want him being up in the office area.” Id. Vol. 3, at 147:19-22, ECF No. 110. Espinoza admitted that he may have authorized Plaintiff in the office area after March 2009, but he is unsure whether Plaintiff continued to help with payroll. Id. at 164:13-19. Additionally, on cross examination, Plaintiff backtracked from his original contention that after March 12, 2009, he was no longer allowed to program school flashers. Id. Vol. 2, at 31:22-24. Plaintiff also clarified that “at times” he still interacted with customers when programming the school flashers. Id. at 31:22-32:1. However, Plaintiff maintained that he no longer processed job tickets or spoke to customers regarding customer service requests. Id. at 32:2-17, 33:24-34:2. Plaintiff also never stated that he filled in for Espinoza as supervisor after March 12, 2009. Id. at 34:3-7. Given the foregoing, the Court finds that the jury could have reasonably concluded that after March 12, 2009, Plaintiff was no longer allowed to (1) fill in as supervisor in Espinoza’s absence, (2) process job tickets and customer service requests, (3) help with payroll, and (4) receive reports from other technicians and employees related to problems at work. The ultimate question is whether removal of these lead technician duties was a materially adverse employment action. Defendant argues that, if anything, Plaintiff’s harms are “trivial” and amount to nothing more than “petty slights or minor annoyances that often take place at work and that all employees experience.” Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 4-10, ECF No. 116. Plaintiff contends that Wong effectively demoted Plaintiff and, at the very least, because of Wong’s actions Plaintiff was in an “objectively worse” position. Pl.’s Br. Supp. Resp. 11

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Opp’n Def.’s Mot. J. Matter Law & Mot. New Trial 2-6, ECF No. 119. The Court agrees with Plaintiff. An adverse employment action in the context of a Title VII retaliation claim must be “materially adverse”—that is, one that would “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). The purpose of this objective standard is “to separate significant from trivial harms” and “filter out complaints attacking the ordinary tribulations of the workplace.” Id. (quoting Burlington N., 548 U.S. at 68). Thus, “petty slights” and “minor annoyances” are typically not considered adverse employment actions. Burlington N., 548 U.S. at 68. Even when an adverse action is intended by the employer as retaliation, it still must satisfy this materiality standard. See Stewart, 586 F.3d at 331. The standard for harm is objective. Burlington N., 548 U.S. at 68. Thus, determining “[w]hether a reasonable employee would view the challenged action as materially adverse involves questions of fact generally left for a jury to decide.” McArdle v. Dell Prods., L.P., 293 F. App’x 331, 337 (5th Cir. 2008); see also Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir. 2008) (“Burlington also strongly suggests that it is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered ‘materially adverse’ to him and thus constitute adverse employment actions.” (citing Burlington N., 548 U.S. at 72-73)). Defendant directs the Court’s attention to a number of opinions where the appellate court found that summary judgment was appropriate because the actions about which the plaintiffs complained were not materially adverse. For example, Defendant argues that the Fifth Circuit’s opinion in Grice v. FMC Tech, Inc., 216 F. App’x 401 (5th Cir. 2007), is “closely analogous” to this 12

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case. The Court disagrees. First, Grice was dismissed on summary judgment rather than after a full trial on the merits. See Grice, 216 F. App’x at 407-08. Additionally, the plaintiff in Grice complained that the defendant had “refuse[d] to allow him to act as a step-up lead when a Lead Assembler [was] absent.” Id. at 404. There was no evidence in the record that the plaintiff had been the step up lead previously, much less for at least two years. Cf. supra Part IV.A. Here, as noted above, Plaintiff has provided sufficient evidence that his immediate supervisor and other technicians recognized him as the lead technician from 2007 to March 2009, and he was effectively removed of his lead technician position because he was unable to continue performing a number of duties originally assigned thereunder. Based on the foregoing, the Court finds that Grice does not control the resolution of the issues in the present case. Finally, the Court finds that the harms about which Plaintiff complains are not so “trivial” that the jury’s finding of material adversity should be vacated. As noted above, after March 12, 2009, Plaintiff no longer (1) processed job tickets and customer service requests, (2) filled in as supervisor for Espinoza, or (3) helped with payroll. Trial R., Vol. 1, at 147:13-25, ECF No. 108; id. Vol. 2, at 27:2-21, 32:2-17, 33:24-34:7, ECF No. 109. The trial record also provides that pursuant to Wong’s recommendation other employees were instructed to stop reporting issues to Plaintiff. Id. Vol. 1, at 147:22-25, ECF No. 108. Such harms establish that Plaintiff suffered a loss of prestige and was effectively demoted. Accordingly, the Court finds that removal of Plaintiff’s lead technician duties constituted a materially adverse employment action. See Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (explaining that demotions are adverse employment actions); Alvarado v. Tex. Rangers, 492 F.3d 605, 613 (5th Cir. 2007) (providing that a materially adverse employment action may include a “demotion if the new position proves objectively worse—such as being less 13

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prestigious or less interesting or providing less room for advancement”); see also McArdle, 293 F. App’x at 337 (“Whether a reasonable employee would view the challenged action as materially adverse involves questions of fact generally left for a jury to decide.”) (citing Burlington N., 548 U.S. at 71-73). Therefore, Defendant’s Motion for Judgment as a Matter of Law and Motion for New Trial on this ground are DENIED. 2. Retaliatory Motive

Defendant contends that there was insufficient evidence for a reasonable jury to conclude that Plaintiff’s reports of race discrimination and theft in the workplace caused Wong to retaliate against Plaintiff. Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 10-12, ECF No. 116. Defendant further contends that the jury’s finding was against the great weight of the evidence, and that Defendant had a legitimate non-retaliatory reason for removing Plaintiff’s lead technician duties. Id. Plaintiff argues that the “record is replete with evidence of Wong’s retaliatory motive in removing [Plaintiff] from his lead technician position,” and a jury could reasonably have concluded that Defendant’s explanations for removing Plaintiff’s lead technician duties are merely pretextual. Br. Supp. Pl.’s Resp. Opp’n Def.’s Mot. J. Matter Law & Mot. New Trial 7-11, ECF No. 119. The Court agrees with Plaintiff. According to Defendant, Wong removed Plaintiff from his lead technician duties to ensure fairness by rotating leadership opportunities among the other senior electronic technicians and because Stephens was involved in “personnel matters.” Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 10-12, ECF No. 116. However, the trial record undercuts Defendant’s proffered explanations. First, the removal of Plaintiff’s lead technician duties came mere weeks after Plaintiff filed grievances and complaints of race discrimination. Trial R., Vol. 1, at 119:10-14, 14

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136:16-137:1, 137:22-23, 139:21-25, 140:1-5, 140:15-21, ECF No. 108; id. Vol. 3, at 30:17-22, 46:24-47:1, ECF No. 110. While temporal proximity alone is insufficient to establish causation, time lapse is one element for the court to consider. See Strong v. Univ. HealthCare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007); Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992). Furthermore, when asked why fairness to the other senior electric technicians became a concern on March 12, 2009, the date Plaintiff was removed from his lead technician position, the jury could have reasonably found Wong to be evasive. Trial R., Vol. 3, at 53:22-54:7, ECF No. 110. The jury also could have reasonably found Wong to be evasive when being asked why this fairness concern did not extend to other positions with the City of Dallas. Id. at 54:8-23, ECF No. 110. There was also testimony that Wong was “upset” about Plaintiff filing the grievances and complaints of race discrimination. Id. at 148:22-24; see also Marroquin v. City of Pasadena, 524 F. Supp. 2d 857 (S.D. Tex. 2007). Indeed, Wong went so far as to admit that he removed Plaintiff from his lead technician position, at least in part, because Plaintiff was filing grievances and making complaints. Trial R., Vol. 3, at 61:5-62:4, ECF No. 110. There is also ample evidence in the record that Wong had exhibited retaliatory conduct toward Plaintiff before Wong removed Plaintiff’s lead technician duties. See, e.g., Trial R., Vol. 3, 24:23-25:1, ECF No. 110. For example, the day after Stephens filed his first grievance, Wong instructed him to clean and sweep the parking lot. See id.5 Finally, the Court notes that the jury need not accept Defendant’s explanations as to why it removed Plaintiff’s lead technician position. The jury may “reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a [retaliatory] purpose. Such an inference

The Court dismissed as a matter of law Plaintiff’s retaliation claim based on cleaning and sweeping the parking lot. See Trial R., Vol. 4, at 247:23-248:11, ECF No. 111. Plaintiff presented this evidence to show Wong’s retaliatory motive towards Plaintiff. Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 10, ECF No. 116

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is consistent with the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt.’” Smith v. Xero Corp., 584 F. Supp. 2d 905, 915 (N.D. Tex. 2008)), aff’d, 602 F.3d 320 (5th Cir. 2010) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)). In this case, it appears as though the jury, at least in part, drew its own reasonable inferences that Defendant’s proffered explanations were pretextual. Based on the foregoing, the Court finds the evidence legally sufficient to support the jury’s findings of causation. Accordingly, Defendant’s Motion for Judgment as a Matter of Law and Motion for New Trial on this ground are DENIED. B. Reduction in Force

Defendant contends that there was no evidence before the jury of a causal connection between Plaintiff’s protected complaints and the fact that his position was included in the Reduction in Force (“RIF”). Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 12-18, ECF No. 116. Defendant asserts that the jury’s finding is against the great weight of the evidence, and that even if causation existed, Defendant’s legitimate business reason for eliminating Plaintiff’s position precludes Plaintiff’s recovery. See id. Plaintiff argues that there is more than sufficient evidence in the record of causation. Br. Supp. Pl.’s Resp. Opp’n Def.’s Mot. J. Matter Law & Mot. New Trial 11-17, ECF No. 119. The Court finds that there was insufficient evidence to support the jury’s finding. As noted above, to prevail on a Title VII retaliation claim, the plaintiff must prove as part of his prima facie case that a causal connection existed between the protected activity and the adverse employment action. See Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997). In establishing the 16

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causal connection, a plaintiff need not prove that his protected activity was the sole factor in motivating the employer’s decision. Gee, 289 F.3d at 345; Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 403 (5th Cir. 2000); Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996). Rather, a causal link is established when the evidence demonstrates that the employer’s decision to take adverse action was based in part on knowledge of the employee’s protected activity. See Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385-86 (5th Cir. 2003); Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). In other words, “a plaintiff must show that the decisionmaker who committed the adverse employment action was aware of the plaintiff’s protected activity.” Manning v. Cheron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003); see also Ackel, 339 F.3d at 385-86. “If an employer is unaware of an employee’s protected conduct at the time of the adverse employment action, the employer plainly could not have retaliated against the employee based on that conduct.” Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999). Nevertheless, if the employee serves as the “cat’s paw” of the decision maker, the causal connection remains intact. Gee, 289 F.3d at 346; Long, 88 F.3d at 307. To invoke the cat’s paw theory—or rubber stamp theory—a plaintiff must establish (1) that an employee exhibited retaliatory animus and (2) that the same employee “possessed leverage, or exerted influence, over the titular decision maker.” Roberson v. Alltell Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004); Gee, 289 F.3d at 346. If both elements are established, it is proper to impute the retaliatory motive to the formal decision maker. See Gee, 289 F.3d at 346; Roberson, 373 F.3d at 653. However, if the decision maker conducted an independent investigation rather than “rubberstamping” or relying on the recommendation of the employee with the retaliatory animus, any causal link between the alleged 17

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retaliatory intent and the adverse employment action is broken. Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001); Long, 88 F.3d at 307; Evans v. Tex. Dep’t Of Transp., 547 F. Supp. 2d 626, 656 (E.D. Tex. 2007). Specifically, Plaintiff argues there is sufficient evidence in the record that (1) Wong exhibited a retaliatory animus and (2) Wong’s recommendation to include Plaintiff on the RIF list was “rubber stamped all the way up the chain of command.” Br. Supp. Pl.’s Resp. Opp’n Def.’s Mot. J. Matter Law & Mot. New Trial 11-17, ECF No. 119. Defendant responds that there is no evidence in the record that Wong had a retaliatory animus. Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 12-14, ECF No. 116. In the event the Court finds there is evidence supporting the jury’s finding that Wong had a retaliatory motive, Defendant argues that it is entitled to judgment because Wong never exerted any influence or leverage over the City’s ultimate decision to include Plaintiff’s position on the RIF list. Id. at 13 n.3; Def.’s Reply Supp. Renewed Mot. J. Matter Law & Mot. New Trial 6-7, ECF No. 121. Having already found there was sufficient evidence in the record of Wong’s retaliatory animus towards Plaintiff, the Court turns to the second element of Plaintiff’s cat’s paw theory: whether Wong exerted influence or leverage over Defendant’s decision to include Plaintiff on the RIF list. See supra Part IV.A.2. Despite Plaintiff’s insistence to the contrary, there is simply no evidence in the trial record supporting a reasonable inference that Wong’s recommendation was “rubber stamped” up the chain of command. Thus, no reasonable jury could have imputed Wong’s retaliatory animus to City Manager Mary Suhm, who presented the plan to the City Council—the ultimate decision maker. The evidence Plaintiff relies on to establish cat’s paw liability is as follows. Wong recommended that four senior electronic technicians be included in the RIF. Id. Vol. 2, at 115:4-8, 18

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16-20, 126:2-6. Wong knew that Plaintiff was one of the four senior electronic technicians in his recommendation. Id. at 118:1-11; id. Vol. 3, at 4:15-25, 106:2-9, ECF No. 110. The City ultimately decided to include the four senior electronic technicians together with hundreds of other positions on the RIF list. Id. Vol. 3, at 5:6-9. Plaintiff was effectively laid off in October 2009. Jury Charge 4, ECF No. 105. Based on this evidence, Plaintiff argues that because the City decided to eliminate four senior electronic technicians, the City necessarily “rubber stamped” Wong’s recommendation all the way up the chain of command. As an initial matter, the Court notes that it “may not extrapolate simply from [Wong’s] involvement in the process” that Wong was responsible for the City’s decision to include Plaintiff’s position on the RIF list. See Mato, 267 F.3d at 451. Instead, taking the trial record in the light most favorable to Plaintiff, the Court must determine whether Wong exerted influence or leverage over the City’s decision to place Plaintiff’s position on the RIF list. Mindful of this standard, the Court turns to Plaintiff’s theory. Plaintiff’s theory is that Wong’s direct supervisor, Elizabeth Ramirez (“Ramirez”), “rubber stamped” Wong’s recommendation to include Plaintiff’s position on the RIF list. The Court finds there is legally insufficient evidence to support this theory. Ramirez’s uncontradicted testimony is that before submitting the proposal she met with her own staff and received input from “everyone,” including the other managers familiar with Wong’s group, as to which materials and positions should be cut. Trial R., Vol. 4, at 26:17-25, 27:11-20. Indeed, Ramirez stated that Wong’s recommendation was not the one she implemented. Id. at 12:10-13. Uncontradicted evidence also establishes that the “proposal changed many times,” and Wong was not involved in any of these subsequent discussions or decisions. Id. at 12:17-13:2, 13:3-4, ECF No. 111. Given this uncontradicted evidence, there is legally insufficient evidence to conclude that Wong exerted leverage or influence over the decision 19

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to include Plaintiff’s position on the RIF list. See Mato, 267 F.3d at 450 (stating that the causal chain breaks when an official conducts his own “independent investigation” in the course of reaching his decision); Evans v. Tex. Dep’t of Trans., 547 F. Supp. 2d 626, 655 (E.D. Tex. 2007) (finding that although the employee’s complaint “triggered the investigation,” there was no evidence that the employee exerted influence or leverage over the final decision). Even though the chain of causation was broken at Ramirez’s level, the Court finds that the chain was also conclusively broken beyond Ramirez’s level. City Manager Mary Suhm explained that there are a number of levels between her and Wong, and that at each level the employee making the recommendation must be able to “discuss what [his] decision-making process is and be able to persuade management on up the chain [he’s] made a sound decision.” Trial R., Vol. 4, at 143:6-13, 144:4-15. She further stated that the supervisor or manager has to “explain what he’s doing and why he is doing it and why it’s a suitable reduction to serve the citizens.” Id. at 144:7-8. Indeed, when making a decision about what positions to include in the RIF, Suhm does not “ask about whether [the employee] filed a grievance or not because [she] can’t take action against somebody [who’s] filed a grievance.” Id. at 146:12-17. Instead, Suhm testified without contradiction that she looks at whether the service is still needed, how much of it is needed, and what will be done in the service’s absence. Id. Ramirez corroborated that at each level there is an independent inquiry into the reasons behind the decision. See id. at 12:17-13:2, 13:5-17. As it relates to her boss, Ramirez stated

without contradiction that she “would have to make sure that [her] director understood [the proposal] really well so that when he goes to make a presentation to his boss, which is the assistant city manager, he’s got to be able to speak to all the things that [she’s] coming up with.” Id. at 11:2112:9. For this additional reason, the Court finds that the evidence is legally insufficient to establish that Wong exerted leverage or influence such that his recommendation was “rubber stamped up the 20

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chain of command.” Therefore, there is legally insufficient evidence to establish a causal connection between Plaintiff’s protected activity—filing grievances and complaints regarding retaliation and race discrimination—and the inclusion of his position in the RIF. Accordingly, the Court enters judgment as a matter of law on this ground for Defendant and DENIES as moot Defendant’s Motion for New Trial on this ground.6 C. Damages for Past Mental Anguish & Emotional Distress

Finally, Defendant argues that Plaintiff failed to provide legally sufficient evidence to support the jury’s award of $195,000 for past mental anguish and emotional distress. Def.’s Br. Support Renewed Mot. J. Matter Law & Mot. New Trial 18-23, ECF No. 116. Defendant further argues that such a finding is against the great weight of the evidence. Id. Plaintiff asserts that there is “ample evidence” in the record supporting the jury’s verdict. Br. Supp. Pl.’s Resp. Opp’n Def.’s Mot. J. Matter Law & Mot. New Trial 17-22, ECF No. 119. Courts must review damage awards based on intangible harms with deference because “the harm is subjective and evaluating it depends considerably on the demeanor of witnesses.” Giles v. Gen. Elec. Co., 245 F.3d 474, 488 (5th Cir. 2001). Nevertheless, “[t]o be entitled to mental anguish damages, a plaintiff must show a discernible injury to the victim’s mental state and submit evidence regarding the nature and extent of the alleged harm.” E.E.O.C. v. WC & M Enters., Inc., 496 F.3d 393, 402 (5th Cir. 2007); see also Vadie v. Miss. State Univ., 218 F.3d 365, 376 (5th Cir. 2000). “Compensable emotional distress may manifest itself as sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self esteem, excessive fatigue, or a nervous breakdown.” WC & M Enters., 496 F.3d at 402. “A claimant’s testimony, without more, may

The Court’s determination that there was insufficient evidence supporting Plaintiff’s cat’s paw theory of liability, obviates the need to defer ruling on whether the Court properly instructed the jury on causation. See Part IV.D.

6

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support an award of compensatory damages for emotional distress.” Id.; see also Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). “Neither conclusory statements that the plaintiff suffered emotional distress nor the mere fact that a constitutional violation occurred supports an award of compensatory damages.” Brady v. Fort Bend Cnty., 145 F.3d 691, 720 (5th Cir. 1998). Here, the jury returned a verdict of $195,000 as compensation for Plaintiff’s past mental anguish and emotional distress. See generally Jury Charge, ECF No. 105. The jury’s verdict compensated Plaintiff for both alleged injuries: (1) removal of his lead technician position and (2) losing his job because of the RIF. See generally id. As noted above, the Court finds that there is legally insufficient evidence to support the jury’s finding that Defendant retaliated against Plaintiff by including him in the RIF. See supra Part IV.B. Therefore, the Court must determine whether there is legally sufficient evidence to support a finding that removal of Plaintiff’s lead technician duties caused Plaintiff $195,000 in compensable harm. In this case, Plaintiff testified that in his final months with the City, he suffered “stress, major anxiety, . . . was depressed, . . . had posttraumatic stress disorder,” and “was feeling terrible.” Trial R., Vol. 1, at 167:22-25, ECF No. 108. Plaintiff also stated that for the first time he sought help from a counselor. Id. at 168:10-18, 169:17-20. According to Plaintiff, his counseling started in June 2009 and continued until January 2010, and was done solely for “work-related” reasons. Id. at 169:2-11, 17-23. Additionally, Plaintiff testified that he saw his doctor to deal with his mental anguish. Id. at 169:24-170:19. Plaintiff also said, and receipts corroborate, that Plaintiff’s doctor prescribed Plaintiff medications to deal with his mental anguish. Id. at 170:9-19; Pl.’s Ex. 76; id. Ex. 77. Finally, Plaintiff testified that because of this “stress[,] anxiety, [and] depression” he took medical leave. Trial Record, Vol. 1, at 170:25-171:15. Based on the foregoing, there is evidence in the record from which a reasonable jury could conclude that Defendant’s actions caused Plaintiff 22

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However, it is unclear to what extent the mental anguish and emotional distress flowed from the removal of Plaintiff’s lead technician duties, especially since the jury’s verdict compensated Plaintiff for both removal of his lead technician duties and the loss of his job as part of the RIF. See generally Jury Charge, ECF No. 105. While compensating Plaintiff $195,000 solely for removal of his lead technician duties is excessive, the Court finds that it is not appropriate to enter judgment as a matter of law that Plaintiff suffered no compensable mental anguish damages. See Salinas v. O’Neill, 286 F.3d 827 (5th Cir. 2002) (finding jury’s award of $300,000 was clearly excessive and granting remittitur). Instead, pursuant to Rule 59, the Court finds the more appropriate action is to order a partial new trial on the limited issue of what mental anguish and emotional distress damages, if any, Plaintiff suffered because of the removal of his lead technician duties. Accordingly, as to this ground, Defendant’s Renewed Motion for Judgment as a Matter of Law is DENIED and Defendant’s Motion for New Trial is GRANTED. D. Jury Charge

Defendant asserts that the Court improperly instructed the jury, resulting in an improper verdict and prejudicial error. Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 2325, ECF No. 116. According to Defendant, the Court improperly presented a “motivating factor” instruction to the jury on Plaintiff’s Title VII retaliation claim and failed to include a “critical part” for the definition of “adverse employment action.”7 Id. The Court addresses each instruction in turn. The district court has wide latitude in instructing the jury on the law and thus “technical imperfections” are ignored. Davis v. Ector Cnty. Tex., 40 F.3d 777, 786 (5th Cir. 1994); Fed.
7

Defendant only moves for a new trial on the ground that the Court improperly instructed the jury. See Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 23-25, ECF No. 116; Def.’s Reply Supp. Renewed Mot. J. Matter Law & Mot. New Trial 9-10, ECF No. 121.

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Deposit Ins. Corp. v. Wheat, 970 F.2d 124, 130 (5th Cir. 1992). “[A] verdict based judgment will be reversed because of an erroneous instruction only when the charge as a whole leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.” Mayo v. Borden, Inc., 784 F.2d 671, 672 (5th Cir.1986) (citations omitted); see also Brochtrup v. Mercury Marine, 426 Fed. App’x 335, 340 (5th Cir. 2011); Taita Chem. Co., Ltd. V. Westlake Styrene, LP, 351 F.3d 663 (5th Cir. 2003). The Court first turns to Defendant’s assertion that the Court erred by presenting the jury with a “motivating factor” instruction. Under Fifth Circuit precedent, a motivating factor jury instruction is proper in a Title VII retaliation case. See Smith v. Xerox Corp., 602 F.3d 320, 329-30 (5th Cir. 2010); see also Carter v. Luminant Power Servs. Co., No. 3:10-CV-1486-L, 2012 WL 1810185, at *2-3 (N.D. Tex. May 18, 2012) (submitting a mixed-motive instruction to the jury). The Supreme Court has not overruled the Fifth Circuit on this issue. However, the Supreme Court will likely address this issue in Nassar v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d 448 (5 th Cir. 2012), cert. granted, No. 12-484, 2013 WL 203552 (Jan. 18, 2013). Since the Court has ordered a new trial, it defers ruling on whether it erred by giving the jury a “motivating factor” instruction instead of a “but for” instruction until the Supreme Court’s decision in Nassar. The Court next turns to Defendant’s assertion that the Court erred by omitting a critical part of the “adverse employment action” definition. Here, the Court instructed the jury that: “Adverse employment” is not confined to acts or harms that occur at the workplace. It is an action that alters the employee’s terms, conditions, or privileges of employment, or otherwise affects the status as an employee. It covers those employer actions that could well dissuade a reasonable worker from making or supporting a charge of discrimination. Jury Charge 4-5, ECF No. 105. According to Defendant, a complete jury instruction would have added the following to the definition of “adverse employment action”: “Inconvenience, personality 24

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conflicts in the workplace, and petty slights or minor annoyances that all employees experience are not materially adverse actions.” Def.’s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 23, ECF No. 116. The Court finds it did not commit prejudicial error. The Court’s jury instruction necessarily covers Defendant’s additional definition of “adverse employment action.” In other words, a reasonable worker would not be dissuaded from making a charge of discrimination if he found an employer’s action to be petty, inconvenient, a minor annoyance, or the result of a personality conflict. Including the requested language in the charge would therefore be superfluous. Here, the jury found that the threat of losing a lead technician position “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” See Jury Charge 4-5, 8, ECF No. 105. The Court finds no reason to disturb this finding. Indeed, the Court’s instruction tracks the Fifth Circuit’s pattern jury charge, which was updated three years after Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)—the case on which Defendant relies. Based on the foregoing, as to this ground, Defendant’s Motion for New Trial is DENIED. V. CONCLUSION Consistent with the foregoing, the Court GRANTS Defendant’s Renewed Motion for Judgment as a Matter of Law (ECF No. 115) on the issue of whether there is a causal connection between Plaintiff’s protected activities and the fact his position was included in the RIF. The Court DENIES Defendant’s Renewed Motion for Judgment as a Matter of Law (ECF No. 115) on all other grounds. The Court GRANTS Defendant’s Motion for New Trial (ECF No. 115) on the issue of whether Plaintiff suffered damages for past mental anguish and emotional distress because of the removal of his lead technician position. The Court DENIES Defendant’s Motion for New Trial 25

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Accordingly, the Court ORDERS a partial new trial on the limited issue of what mental anguish and emotional distress damages, if any, Plaintiff suffered because of the removal of his lead technician position. This trial may also include the merits of Plaintiff’s claim that Defendant retaliated against him by removing his lead technician duties, depending on the outcome of Nassar. The parties are therefore ORDERED to confer and file, by April 8, 2013, a list of dates when such trial can be held. Finally, the Court DENIES as moot Plaintiff’s Motion for Entry of Judgment (ECF No. 114). SO ORDERED on this 25th day of March, 2013.

_____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE

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