Perez v. Texas Dept. of Criminal Justice

• Decision Date: 21 December 2004
• Docket Number: No. 03-50985.,03-50985.
• Citation: 395 F.3d 206
• Parties: Javier PEREZ, Plaintiff-Appellee, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 206

395 F.3d 206

Javier PEREZ, Plaintiff-Appellee, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Defendant-Appellant

No. 03-50985.

United States Court of Appeals, Fifth Circuit.

December 21, 2004.

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John Wallace Griffin, Jr., Houston, Marek & Griffin, Bobby Dewayne Brown, Law Office of Bobby D. Brown, Victoria, TX, for Plaintiff-Appellee.

Adrian L. Young, Asst. Atty. Gen., Austin, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH and GARZA, Circuit Judges, and VANCE,^* District Judge.

EMILIO M. GARZA, Circuit Judge:

A jury returned a verdict in favor of Javier Perez in his employment discrimination action against his former employer, the Texas Department of Criminal Justice ("TDCJ"). Claiming that the district court erroneously excluded evidence, misinstructed the jury and improperly denied its motion for judgment as a matter of law, TDCJ appeals.

Perez was a lieutenant at the TDCJ's Connally Unit. In August, 1996 Perez was arrested and charged with felony assault for the off-duty stabbing of a fellow patron of Little Joe's Bar in Victoria, Texas. The victim, Santiago Ramos, was a former inmate at the Connally Unit.

Shortly after the stabbing incident Perez informed his supervisor, Warden Dayton Poppell, of his arrest. Despite a Garrity warning, however, Perez refused to discuss the incident except to proclaim his innocence.¹ After cautioning Perez that agency policy required that he give a statement and that failure to cooperate could result in disciplinary action, Poppell referred the matter to Internal Affairs for investigation.² The resultant Internal Affairs report (the "IA Report") concluded that Perez had violated agency rules by engaging in conduct that jeopardized the integrity of the agency. Under agency guidelines, such a finding required a termination recommendation. After reviewing the IA Report and conducting a disciplinary hearing in which Perez, on advise of counsel, again refused to discuss the stabbing incident, Poppell recommended termination. Perez was discharged.³ The criminal charges against Perez were later dismissed, apparently because Ramos would not cooperate.

Perez brought a claim under Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discharge an employee because of his race. See 42 U.S.C. § 2000e-2(a). Perez's claim relied primarily on a disparate treatment theory; he claimed that TDCJ had treated him more harshly than similarly situated non-Hispanic employees. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir.2001) (explaining that an employee may rebut a non-discriminatory explanation for termination with evidence of disparate treatment of similarly situated employees). The jury agreed with Perez, finding that TDCJ had discriminated against Perez because of his race.

On appeal, TDCJ contends that the district court erred in: (1) excluding certain evidence relating to Perez's involvement in the stabbing; (2) misinstructing the jury on the standard for determining whether TDCJ treated Perez more harshly than similarly-situated non-Hispanic employees; and (3) denying TDCJ's renewed motion for judgment as a matter of law ("JMOL"). We consider the issues in the order they presented themselves at trial, beginning with the district court's evidentiary rulings.

I

TDCJ argues that the district court erred in (1) prohibiting cross-examination of Perez about his guilt in the underlying stabbing and (2) excluding the contents of the IA report that prompted the termination recommendation.⁴ "The trial court's discretion to admit or exclude evidence is generally broad, but competent evidence cannot be excluded without a sound and acceptable reason." Davidson Oil Country Supply Co. v. Klockner, Inc., 908 F.2d 1238, 1245 (5th Cir.1990). We review the trial court's evidentiary rulings only for abuse of discretion. Kelly v. Boeing Petroleum Servs., 61 F.3d 350, 356 (5th Cir.1995). An erroneous evidentiary ruling is reversible error only if the ruling affects a party's substantial rights. Id. at 361.

The district court permitted TDCJ to cross-examine Perez about his arrest, his call to Poppell after the arrest and his refusal, on advise of counsel, to discuss the incident with either Poppell or the Internal Affairs investigator. But, the district court prohibited TDCJ from questioning Perez about his actual involvement in the stabbing, sustaining Perez's objection that what happened at Little Joe's Bar was irrelevant. TDCJ argues that the district court erred in so limiting its examination of Perez. We disagree.

To be admissible, evidence must be relevant. See FED. R. EVID. 401. In determining whether Perez was treated differently from similarly situated employees because of his race, the issue is whether Perez and his alleged comparator employees were similarly situated from the perspective of their employer at the time of the relevant employment decisions. Cf. Hill v. Seaboard Coast Line R. Co., 767 F.2d 771, 774 (11th Cir.1985) ("[F]ailure to promote a plaintiff because the person actually promoted was more qualified is a nondiscriminatory reason, but the articulation of that reason must include the fact that the decision-maker knew that the promoted individual's qualifications were superior at the time the decision was made."); Sabree v. United Bhd. of Carpenters and Joiners Local No. 33, 921 F.2d 396, 404 (1st Cir.1990) (emphasizing the importance of focusing on the employers rational at the time of the decision rather than post hoc rationalizations). Thus, the evidence relevant to determining whether TDCJ treated Perez differently because of his race is evidence that goes to what Poppell knew at the time he ordered the IA investigation and recommended Perez's termination. Examination of Perez about what actually happened the night of the stabbing, as distinct from what he told Poppell and the IA investigator about what happened, could not have added anything relevant to that inquiry.⁵ See Patrick v. Ridge, No. 04-10194, 2004 WL 2898068 (5th Cir. December 15, 2004) ("As the ultimate issue is the employer's reasoning at the moment the questioned employment decision is made, a justification that could not have motivated the employer's decision is not evidence that tends to illuminate this ultimate issue and is therefore simply irrelevant....") (emphasis in the original). Moreover, even if Perez's testimony about his involvement in the stabbing somehow met the low threshold for relevance, its minimal probative value would have been outweighed by the danger of confusion and prejudice. See Fed. R. Evid. 403.

TDCJ also appeals the district court's exclusion of the contents of the IA Report. Unlike Perez's proposed testimony, the IA Report goes to the basis for Poppell's termination recommendation and is thus relevant. See Fed. R. Evid. 401. The district court stated that it was excluding the report because admitting it would drag out the trial and require going into the details of each employee's criminal conduct. The court also suggested that TDCJ did not need the IA Report to show that Perez had been uncooperative because it had already introduced other testimony to that effect. We take these statements to mean that the court excluded the IA Report as cumulative and a waste of time. See Fed. R. Evid. 403.

We need not decide whether the district court erred in excluding the contents of the IA report because, even assuming the exclusion was erroneous, we are not persuaded that the exclusion affected TDCJ's substantial rights. See EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093 (5th Cir.1994) (holding that to vacate a judgment based on an erroneous evidentiary ruling, the court must find that the erroneous ruling affected the substantial rights of the parties).

At trial and again on appeal, TDCJ argues that the IA Report should be admitted because it showed the basis for Poppell's termination recommendation. But the district court did admit into evidence the IA Report's conclusion that Perez's off-duty conduct undermined the integrity of the agency, which under TDCJ's own theory of the case required Poppell's termination recommendation.⁶ Moreover, TDCJ points to no portion of the record in which Perez denies that, under agency policy, the IA Report's conclusion required a termination recommendation.⁷ Thus, the exclusion of the IA Report's contents did not prevent TDCJ from establishing that Poppell's termination recommendation was required in light of the IA Report's conclusion. Nor was TDCJ prevented from establishing that Perez refused to cooperate with the Poppell or the IA investigator, since both Poppell and the investigator testified to that effect at trial. In sum, TDCJ has not shown a reasonable likelihood that the exclusion affected its substantial rights. See Johnson v. William C. Ellis Sons Iron Works, Inc., 609 F.2d 820, 823 (5th Cir.1980) (stating that "if there is a reasonable likelihood that a substantial right was affected, we should not find the error harmless.").

II

The crux of this case, however, is not the evidentiary rulings discussed in Part I, supra, but rather the undergirding legal standard to which that evidence must be applied. TDCJ argues that the district court misinstructed the jury on the legal standard for determining whether the employees to whom Perez sought to compare himself were in fact similarly situated. In relevant part, the trial court instructed the jury that,

To establish discrimination by using indirect evidence in this case, the plaintiff must prove by a preponderance of the evidence that one or more similarly situated non-Hispanic employees who engaged in criminal activity were treated more favorably. In comparing the nature of the offense at issue and the nature of the discipline imposed, the quantity and quality of the other employees' misconduct must be of...