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Click here for the full text of this decision FACTS:Loretha Kanida appeals from a jury verdict in favor of her employers, defendants Gulf Coast Medical Personnel LP (GCMP) and Nursefinders Inc., which found that the defendants did not retaliate against Kanida in violation of the Fair Labor Standards Act. In August 1999, Kanida contacted Mary Beth Parks, the founder and owner of Gulf Coast Medical Personnel, and requested a meeting. At this meeting Kanida claimed that GCMP owed her unpaid overtime compensation. Parks collected Kanida’s employment records, calculated the amount that GCMP owed, and offered payment to Kanida. Kanida refused GCMP’s offers, and demanded payment of an amount significantly higher than Parks calculated. Kanida filed a complaint regarding the unpaid overtime compensation with the Department of Labor, which commenced an investigation in November 1999. While this investigation was ongoing, Parks finalized the sale of GCMP to Nursefinders. Parks continued to work for Nursefinders, and Nursefinders assumed any potential liability associated with Kanida’s claims. At the conclusion of the DOL’s investigation, Nursefinders and Parks attended a conference with the DOL where Parks acknowledged liability for the unpaid overtime. Parks subsequently offered payment of unpaid overtime compensation to all of the affected employees as determined by the DOL. Kanida again declined to accept payment of this amount and retained counsel to pursue the matter. Kanida filed this lawsuit in May 2000, but continued working for Nursefinders until January 2001 when she left voluntarily. Kanida claimed that Parks, and consequently GCMP and Nursefinders, retaliated against her for filing a complaint with the DOL in violation of the Fair Labor Standards Act. To support her retaliation claim, Kanida produced evidence to show that subsequent to her filing of the DOL claim she was subject to adverse employment actions. In response to Kanida’s production of this evidence, GCMP offered legitimate non-discriminatory reasons for the disputed actions. Kanida then offered evidence to show that GCMP’s purported reasons were merely a pretext for actions that were actually retaliation for her DOL complaint. The case was tried to a jury which ruled in favor of GCMP. Kanida moved for a new trial, but the district court denied this motion and entered final judgment awarding Kanida only the overtime pay that the parties stipulated she was entitled to based upon the DOL investigation. This appeal followed. HOLDING:Affirmed. The court is concerned that the permissive pretext jury instruction holding in Ratliff v. City of Gainesville, 256 F.3d 355 (5th Cir. 2001), unnecessarily expands the scope of Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133 (2000), for four reasons. First, and most importantly, Reeves was not a jury case. “The McDonnell Douglas formula, however, is applicable only in a directed verdict or summary judgment situation,” and “is not the proper vehicle for evaluating a case that has been fully tried on the merits.” Powell v. Rockwell Int’l Corp., 788 F.2d 279 (5th Cir. 1986). Thus, Ratliff’s holding that Reeves also guides the evaluation of cases fully tried on the merits appears to be in tension with Reeves and our own precedent. Second, Reeves did not change what a plaintiff must ultimately prove to prevail on their claim — that the adverse employment action was motivated by actual discriminatory intent. Before Ratliff the court only required district courts to instruct juries on the ultimate question they must answer; Reeves did not change this. Consequently, the court states that it should not have interpreted Reeves to alter the instructions that district courts are required to give to a jury. Third, the pretext inference described in Reeves is merely a permissive and not a mandatory inference. There are numerous permitted inferences, and only requiring an instruction regarding the permissive pretext inference risks confusing the jury regarding the ultimate issue a plaintiff must prove. Fourth, and finally, in Ratliff the court based its holding that permissive pretext instructions are required in part on the concern that “[w]ithout a charge on pretext, the course of the jury’s deliberations will depend on whether the jurors are smart enough or intuitive enough to realize that inferences of discrimination may be drawn from the evidence establishing plaintiff’s prima facie case and the pretextual nature of the employer’s proffered reasons for its actions,” and concluded that “[i]t does not denigrate the intelligence of our jurors to suggest that they need some instruction in the permissibility of drawing that inference.” However, in this case, even without the permissive pretext instruction, the jury received instructions regarding the ultimate legal question it must answer and the jury was also instructed that it was permitted to draw any reasonable inferences it felt the evidence justified. The plaintiff was free to argue that actual discriminatory intent was the appropriate inference to make from the evidence offered to show that the employer’s purported reasons for their actions were mere pretext. For these reasons, the court disagrees with Ratliff and urges en banc reconsideration of its holding that it is error for the district court to refuse to give a requested permissive pretext instruction in employment discrimination cases. The jury was properly instructed regarding the controlling law and trial counsel was able to present the jury with the inferences they were permitted to make from the evidence. Consequently, the court cannot conclude that Kanida was seriously impaired in presenting her claim. Therefore, although the district judge’s failure to give the requested permissible pretext instruction is error under Ratliff, it does not rise to the level of reversible error in this case. Refusing to include the vicarious liability instruction did not impair Kanida’s ability to present her claims to the jury. Kanida’s objection before the district court regarding her requested causal connection instruction failed to adequately preserve a taint instruction for appellate review. In retaliation cases the employee must prove that the adverse employment action would not have occurred “but for” plaintiff’s protected activity, inclusion of this instruction was not error on the part of the district court. Including a business judgment instruction in the jury charge was not plain error because this court has approved similar business judgment instructions in other retaliation cases. The court affirms the district court’s amended final judgment awarding Kanida overtime pay in the amount stipulated to by the parties before trial. Therefore, the court does not address plaintiff’s claim concerning the availability of compensatory and punitive damages under the FLSA and dismisses this claim as moot. OPINION:Garza, J.; Jones, Garza and Benavides, JJ.

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