Smith v. Cohen ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-10199
Summary Calendar
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HELEN I. SMITH,
Plaintiff-Appellant,
versus
WILLIAM S. COHEN,
U.S. Secretary of Defense,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas, Dallas
USDC No. 3:98-CV-0429-AH
_________________________________________________________________
January 3, 2001
Before JOLLY, SMITH, and DeMOSS Circuit Judges.
PER CURIAM:*
This is a Title VII employment discrimination action filed by
Helen Smith, an employee of the Army and Air Force Exchange Service
(“AAFES”). The magistrate judge granted summary judgment for AAFES
on three of Smith’s four retaliation claims. The fourth
retaliation claim was argued before a jury, which returned a
verdict in favor of AAFES. On appeal, Smith contends that the
*
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this opinion should not be published and is not precedent except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.
trial court erred in granting summary judgment on her claim that
she was denied a desk audit and given a lowered performance
evaluation report. Smith also contends that the trial court erred
in regard to three evidentiary rulings during the trial. Having
concluded that the trial court committed no reversible error, we
affirm the partial summary judgment and the jury’s verdict.
I
Helen Smith was an accounting technician with the Army and Air
Force Exchange Service (“AAFES”), a store that provides goods and
services to Army and Air Force personnel. Beginning in 1992,
Smith’s primary responsibility was to perform accounting functions
for “The Club,” a dining facility at the AAFES’s headquarters in
Dallas, Texas. The Club was operated jointly by AAFES and the Air
Force Services Agency, and the AAFES had agreed to provide a
manager and accountant for the Club.
Between 1990 and 1996, Smith filed numerous EEO complaints
against her supervisors, argued with her supervisors about her
duties as accounting technician for the Club, and was accused of
filing late and inaccurate financial reports.
In 1996 and 1997, the Club was in the process of being
converted to an Air Force Club. In January 1997, Smith’s
supervisor informed her that Bea Crider, the chief accountant for
the Air Force Services Agency, would be coming to Dallas to teach
Smith about the Air Force Services Agency’s accounting system. A
problem arose because Smith had always used commercial accounting
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software called “DAC-Easy” to perform the accounting functions, but
the Club decided to switch to UNIX software that the Air Force
Services Agency had used for many years. Smith informed her
supervisor that she did not want to be trained by Ms. Crider.
When Crider arrived on January 21, 1997, she was asked to
provide software training to Smith and to assist her in producing
the Club’s financial report for the final quarter of 1996. Crider
informed Smith’s supervisor that Smith had not been fully
cooperative during the training session. On January 22, Smith and
her immediate supervisor quarreled over how long it would take to
produce the quarterly financial report. Smith then requested a
meeting with Colonel Campbell, the director of administration at
the AAFES. In the presence of several AAFES officials, Colonel
Campbell issued what he called a “very stern counseling” to Smith.
The parties disagree about what happened immediately after the
meeting with Colonel Campbell. Smith alleges that she was given no
further instructions with regard to the Club’s quarterly financial
statement. Smith’s supervisor, however, claims that he personally
requested that Smith provide him with the raw financial data from
the fourth quarter of 1996. Crider testified that Smith gave the
raw data to her shortly after lunch. Smith’s supervisor testified
that he asked Smith about the financial information later that
afternoon; that she ignored his requests and walked away; that he
sent an e-mail reporting Smith’s “gross insubordination” to Colonel
Campbell, the human resources manager, and others; and that Smith
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finally provided the information to him shortly after he sent the
e-mail. Smith’s supervisor contacted Colonel Campbell again and
requested that “personnel action” be taken immediately.
In February 1997, Colonel Campbell informed Smith that she
would be suspended from work for three days because of her actions
on January 22. Smith served her suspension from March 10 to
March 12, 1997. In May 1997, Smith received her annual performance
evaluation. Although she received a “satisfactory” rating, her
supervisor noted that he found Smith difficult to work with, and
Colonel Campbell said that she was the “most sullen and
uncooperative” employee he had known.
II
In February 1998, Smith filed a complaint in the United States
District Court, alleging that the AAFES had violated Title VII of
the Civil Rights Act of 1964. The complaint contained numerous
allegations of illegal discrimination on the bases of sex and age,
as well as allegations of unlawful retaliation. With the consent
of the parties, the case was assigned to a magistrate judge.
In January 1999, AAFES filed a motion for summary judgment.
In her response to the motion for summary judgment, Smith withdrew
her claims based on sex and age discrimination. The magistrate
judge considered Smith’s claims that she was the target of illegal
retaliation when (1) she was denied a desk audit and not given a
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correct job description in 1996; (2) she was suspended without pay
from March 10 to March 12, 1997; (3) she was forced from her
position as account technician in May 1997; and (4) her performance
evaluation report was lowered in June 1997. In August 1999, the
magistrate judge granted AAFES’s motion for summary judgment on all
the claims except the one related to the March 1997 suspension.
The magistrate judge concluded that the other three claims did not
constitute ultimate or adverse employment actions under the law of
the Fifth Circuit.
The parties consented to a jury trial before the magistrate
judge. The sole issue was whether Smith had been suspended without
pay for three days in March 1997 in retaliation for her prior EEO
filings.
The magistrate judge made three significant evidentiary
rulings. First, at a pretrial conference, the magistrate judge
granted AAFES’s motion in limine preventing Smith from mentioning
in the jury’s presence the substance of any of her eight prior EEO
complaints. Second, during the trial, the magistrate judge
excluded Smith’s prior performance evaluation reports. Third, at
the commencement of the trial, the magistrate judge did not allow
tape recordings of certain conversations to be sent to the jury
room because (1) the transcripts had been previously excluded, and
(2) neither party had played the tapes during trial.
The jury returned a verdict in favor of AAFES, and this appeal
followed.
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III
Smith raises four issues on appeal. The first issue concerns
the magistrate judge’s partial grant of summary judgment in favor
of AAFES. Smith contends that the court erred in holding that the
denial of a desk audit and a poor performance evaluation were not
adverse employment actions under Title VII. The second, third, and
fourth issues concern the magistrate judge’s evidentiary rulings at
trial. Smith contends that the district court erred in (1)
preventing Smith from offering evidence about the prior EEO
complaints, (2) excluding Smith’s prior performance evaluation
reports, and (3) not allowing the tape recordings to be sent to the
jury during deliberations. We consider these four issues in turn.
A
First, we consider the magistrate judge’s grant of summary
judgment on Smith’s three retaliation claims.
Summary judgment is appropriate only if the record discloses
“no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” FED. R. CIV.
P. 56. When a district court has granted a motion for summary
judgment, we review the question de novo, applying the same
substantive test set forth in Rule 56. Horton v. City of Houston,
179 F.3d 188, 191 (5th Cir. 1999).
In order to make a prima facie case of retaliation, Smith
needed to prove that (1) she had engaged in activity protected by
Title VII, (2) she suffered an adverse employment action, and (3)
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there is a causal connection between the participation in the
protected activity and the adverse employment action. See, e.g.,
Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
The issue in this case is whether the two employment actions--
a lowered performance evaluation and the denial of a desk audit--
constitute adverse employment actions under Title VII. This court
has explained that Title VII was designed to address only “ultimate
employment decisions,” such as hiring, discharging, promoting, and
compensating employees. Dollis v. Rubin, 77 F.3d 777, 781-82 (5th
Cir. 1995). It is clear that negative performance evaluations and
the denial of a desk audit do not qualify as ultimate employment
actions. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th
Cir. 1997) (stating that “disciplinary filings and supervisor’s
reprimands,” for examples, are not ultimate employment actions even
though these actions might jeopardize employment in the future);
Dollis, 77 F.3d at 782 (“[T]he denial of a desk audit is not the
type of ultimate employment decision that Title VII was intended to
address.”). The decisions in Dollis and Mattern are binding, and
we have no authority to reconsider this circuit’s definition of
adverse employment actions.
B
The second issue is whether the magistrate judge committed
reversible error when he granted AAFES’s motion in limine and thus
prevented Smith from offering evidence about the prior EEO
complaints.
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This court shows considerable deference to the district
court’s evidentiary rulings.
We review the district court’s evidentiary rulings for
abuse of discretion. Johnson v. Ford Motor Co., 988 F.2d
573, 578 (5th Cir.1993). Under Federal Rule of Civil
Procedure 61, we may not set aside a verdict based on an
error in the exclusion of evidence, ‘unless refusal to
take such action appears to the court inconsistent with
substantial justice.’ FED. R. CIV. P. 61. To vacate a
judgment based on such an error, we ‘must find that the
substantial rights of the parties were affected.’ Carter
v. Massey-Ferguson, Inc., 716 F.2d 344, 349 (5th Cir.
1983).
Smith v. Isuzu Motors Ltd., 137 F.3d 859, 863 (5th Cir. 1998).
Furthermore, the “burden of proving substantial prejudice lies with
the party asserting error.” McDonald v. Steward, 132 F.3d 225, 232
(5th Cir. 1998).
Smith filed eight previous EEO complaints between 1990 and
1996. Because the existence of these prior filings was essential
to Smith’s retaliation claim, Smith was allowed to testify that she
had filed these complaints. But the district court decided not to
allow Smith to testify about the nature and substance of these
complaints. In its motion in limine, AAFES argued that (1) the
prior EEO complaints had not involved the supervisors who were
responsible for suspending her in March 1997; and (2) detailed
consideration of the prior complaints would be prejudicial,
unnecessary, and wasteful. At a pretrial conference, the
magistrate judge granted AAFES’s motion in limine. On appeal,
Smith argues that the details of the prior EEO complaints were
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necessary to establish the “issue of intent, and a pattern and
practice” of discriminatory treatment.
We conclude that the magistrate judge could have reasonably
concluded that the details of these prior acts were irrelevant,
confusing, dilatory, or prejudicial under Federal Rules of Evidence
401 and 403. It is not disputed that all prior complaints had been
adjudicated and (with one limited exception) either dismissed on
the merits after an administrative hearing or dismissed as a matter
of law prior to the trial in January 2000. Further, it is not
disputed that the previous eight complaints involved different
supervisors from those who suspended her for three days in March
1997, which, of course, was the sole subject of the trial below.
In the light of these considerations, we cannot say that the
district court abused its discretion. Smith’s second issue is thus
without merit.
C
The third issue is whether the magistrate judge committed
reversible error by excluding Smith’s prior performance evaluation
reports.
At trial, the magistrate judge admitted into evidence Smith’s
performance evaluation report (“PER”) prepared by Smith’s immediate
supervisor and Colonel Campbell, the officials who authorized her
suspension in March 1997. However, the judge excluded Smith’s
prior PERs from 1985 to early 1996. Smith claims that her “long
history of glowing reviews” suggests that her supervisors in 1997
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must have had an improper motive in suspending her. The magistrate
judge disagreed, concluding that the prior PERs were irrelevant to
the issue at trial. Smith has not demonstrated why the exclusion
of these written evaluations, which were prepared long before her
suspension and by supervisors who were not involved in the decision
to suspend her, is relevant to the question whether Smith was
suspended in March 1997 in retaliation for filing EEO complaints.
Moreover, the magistrate judge still allowed Smith to testify on
two occasions that she had previously been rated “superior” by her
former supervisors. In the light of these considerations, we
cannot say that the trial court abused its discretion or that
Smith’s substantial rights were affected by the trial court’s
decision to exclude these written PERs. Smith’s third issue is
thus without merit.
D
The fourth issue is whether the magistrate judge committed
reversible error by not allowing the tape recordings to be sent to
the jury during deliberations.
In late 1996 and early 1997, Smith secretly recorded four
conversations with her immediate supervisor. She then prepared
transcripts of these taped conversations. Prior to trial, AAFES
listed the tapes as exhibits, and Smith listed both the tapes and
transcripts as exhibits. AAFES objected to the transcripts,
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claiming that they had not been accurately transcribed. The
magistrate judge excluded all but one of the transcripts. Although
the tapes were pre-admitted into evidence, neither party played the
tapes at trial. Nevertheless, at the close of the trial, Smith
requested that the tapes be forwarded to the jury during their
deliberations. Smith contends that consideration of the tapes
would have affected the jury’s view of the credibility of the
witnesses. Specifically, Smith argues that the tapes present a
portrait of her supervisor that was different from the one
presented at trial.
The magistrate judge refused to forward the tapes to the jury
because most of the transcripts of these tape-recorded
conversations had not been admitted into evidence and, moreover,
the tapes had not been played before the jury. As the appellee’s
brief points out, the jury would almost certainly have been
confused if the judge had allowed these tapes to go the jury room
“with no means for the jury to play them, with no explanation of
what they were or how they were prepared, or even who the voices
were on the tape.” Under these circumstances, the magistrate judge
did not abuse his discretion by deciding not to send the tapes to
the jury room. Smith’s fourth issue is also without merit.
IV
For the reasons set forth above, the partial summary judgment
on three of Smith’s retaliation claims and the jury verdict on her
fourth retaliation claim are both
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A F F I R M E D.
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