The full case caption appears at the
end of this opinion. JERRY E. SMITH, Circuit Judge: Yvonne Vance sued Union Planters Bank, N.A. (“Union Planters”), under title VII, alleging discriminatory failure to promote onthe basis of sex. A jury awarded $30,000 for lost wages and benefits, $20,000 for emotional distress, and $390,000 in punitivedamages. The district court later reduced the total amount awarded to $330,000 because of title VII’s statutory limits onemployer liability. Union Planters appealed, asserting that (1) no reasonable jury could have found sex discrimination, (2) thecourt erred in allowing the jury to hear evidence that Union Planters had previously been found to have violated the Equal PayAct, and (3)the district court erroneously determined Union Planters’s size for purposes of the statutory liability limits. Weaffirm with regard to the first two issues and vacate and remand on the third issue. I. Vance had been president of the Oxford, Mississippi, branch of Grenada Sunburst Bank for seven years when the cause ofaction arose. She performed energetically and successfully in her capacity as branch president and was familiar with the Oxfordfinancial market. Union Planters Corporation, which owned, inter alia, First National Bank of New Albany and UnitedSouthern Bank, agreed in July 1994 to purchase Grenada Sunburst Bank effective December 31, 1994. Pursuant to a reorganization plan, Union Planters Corporation announced that it would consolidate its area banks into UnionPlanters Bank of Northeast Mississippi, N.A. The new bank would be headed by Pat Davis, who previously had been presidentof First National Bank. Because United Southern and Grenada Sunburst had bank branches in Oxford, the two branches wereto be consolidated. Davis was charged with hiring a president for the newly consolidated bank branch. Vance promptly applied for the job, as did Hardy Farris, the president of the United Southern branch in Oxford. Farris, though,had opted to participate in an early retirement scheme from which Union Planters Corporation refused to release him, makingVance the only viable candidate. Davis met with Vance and asked for hiring recommendations from people in the bankingcommunity. Vance’s supervisor, Jimmy Brown, gave her a glowing recommendation and told Davis he should immediately hireher to lead the new bank. Instead, Davis approached Ed Neelly, who was now working for the Grenada Sunburst branch in Tupelo, and offered him thejob. Neelly declined and recommended that Davis hire Vance, with whom Neelly had worked for years. Davis told Neelly thathe was looking to hire a “mature man.” In response, Neelly recommended Tom Carroll as an effective second-in-command atthe new bank. Brown also recommended Vance over Carroll. Davis then offered the branch presidency to Butch Collums, whohad worked under Davis at First National Bank; Collums rejected the offer. Davis claims then to have contacted Pete Boone, the former CEO of Grenada Sunburst Bank. Boone denies he was evercontacted, and testified that had he been, he strongly would have recommended Vance over Carroll. Davis contacted Boone’ssuccessor, Don Ayres, who, though he testified that he barely knew Vance, recommended hiring Carroll over Vance. Davisthen interviewed Carroll, whose job at Grenada Sunburst had been eliminated during that bank’s reorganization; Carrollexpressed interest in the branch presidency. Davis hired Carroll on March 15, 1995, and offered Vance the number twoposition, which she declined. Vance resigned and accepted the number two job at the Bank of Mississippi branch in Oxford,where she soon rose to the position of branch president. Vance testified that, as a result of her failure to receive the Union Planters branch presidency, she lost between $7,500 and$8,000 in bonuses and $4,050 in � 401(k) contributions. She claimed also to have lost $3,500 in annual pay in her new job andincurred $15,000 to $16,000 in health expenses because of an inability to obtain insurance upon transferring firms. Apsychologist who examined Vance and interviewed her friends, testified that her failure to receive the promotion caused her tosuffer from depression, agitation, sadness, and shock. At trial, Vance’s counsel asked Davis why he continued to solicit male candidates for the branch presidency when it appearedthat Vance was the only qualified applicant. Davis replied that he wanted to hire the “the best guy, the best person, and I saying[sic] that generically.” Also at trial, the court denied Union Planters’s motion in limine to prevent Vance from asking Davis anyquestions about previous adjudications in which he was determined to have unlawfully discriminated against women by payingthem less than men. The court told Vance’s counsel: “You may ask him if he had ever been found to have discriminated againstwomen in this work place as far as pay is concerned without going into the details or the name of a case or anything.” Vanceasked such a question of Davis, and he responded in the affirmative. II. This court has explained that [i]n a Title VII action that has been fully tried on the merits, such that the district court has before it all the necessary evidence to make the ultimate finding of discrimination, the factual inquiry is whether the defendant intentionally discriminated against the plaintiff. On review, this court must therefore decide whether the ultimate finding of discrimination by the district court was clearly erroneous. A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Davis v. Yazoo Co. Welfare Dep’t, 942 F.2d 884, 886 (5th Cir. 1991) (internal citations and quotation marks omitted). Wereview a verdict under the “reasonable juror” standard. The standard is that [t]he court should consider all of the evidence–not just that evidence which supports the nonmover’s case–but in a light and with all reasonable inferences most favorable to the party opposed to the motion [to overturn the jury verdict]. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the [c]ourt believes that reasonable men could not arrive at a contrary verdict, granting of a motion is proper. Merwine v. Board of Trustees, 754 F.2d 631, 636-37 (5th Cir. 1985) (emphasis added). A court should grant a Fed. R. Civ. P. 50(a) motion not only when the non-movant presents no evidence, but also when there isnot a sufficient conflict in substantial evidence to create a jury question.
[FOOTNOTE 2] Importantly, this articulation of the standard ofreview does not require a showing of substantial evidence in support of the jury verdict (in the manner that this court looks forsubstantial evidence in support of certain decisions by administrative agencies). Rather, the standard requires merely a finding ofa sufficient conflict in substantial (meant as a synonym for “material”) evidence. This can be restated as requiring “sufficientmaterial evidence to support the jury’s verdict”–the reasonable-juror standard. Evidentiary rulings are reviewed for abuse of discretion. See Jon-T Chems., Inc., 704 F.2d 1412, 1417 (5th Cir. 1983). Thedistrict court’s interpretation of title VII’s limits on liability is reviewed de novo. See United States v. Santos-Riviera, 183 F.3d367, 369 (5th Cir.), cert. denied, 120 S. Ct. 597 (1999). III. In reviewing a finding of sex discrimination in a case tried to a jury, we examine the record to determine whether sufficientmaterial evidence supports a charge that the plaintiff was treated unfavorably on the basis of sex and that the employer’s statedreasons are pretextual. See Rutherford v. Harris County, 197 F.3d 173, 181 (5th Cir. 1999). Vance introduced sufficientevidence to support the verdict. During the search process, Davis approached Ed Neelly, a retired branch president, and asked whether he wanted the job ofOxford branch president. Neelly declined the position and recommended Vance for the position. After Neelly turned down thejob, Davis told Neelly that he needed a “mature man in the office in Oxford.” Neelly testified that at the time he assumed thatDavis meant that he was interested in hiring a “mature man” for the number two position at the new bank. Neelly then testifiedthat in retrospect this assumption was incorrect, i.e., that Davis appears to have wanted a “mature man” to head the branch. The jury reasonably could have inferred that this preference for “a mature man” at the bank colored his decision to hire Carrollover Vance, especially in light of his subsequent actions–hiring Carroll as President and offering Vance the number-twoposition. Vance also testified that Davis told her he wanted to hire a 40- to 50-year-old man for the number two positionbecause such a person would lend stability and credibility to the bank. Union Planters argues that these comments were “merely stray” and thus insufficient to constitute a basis for liability. We haveheld, however, that workplace remarks like Davis’s may constitute sufficient evidence of discrimination if the remarks are (1)related to sex; (2) proximate in time to the employment action; (3) made by an individual with authority over the employmentdecision; and (4) related to the employment decision at issue. See Krystek v. University of S. Miss., 164 F.3d 251, 256 (5thCir. 1999). Davis’s remark that he wanted to hire a “mature man” is certainly related to sex, was said during the process of consideringcandidates for the job, was uttered by the individual who made the hiring decision, and was obviously related to Vance’s jobprospects at the Oxford branch. Therefore, the comment qualifies as direct and material evidence of sex discrimination.
[FOOTNOTE 3] Evenif Vance were the only witness to testify about the statements at issue, though she is not, that would not warrant taking the caseout of the jury’s hands.
[FOOTNOTE 4] On the witness stand, Davis was asked why he pursued a series of male candidates after it appeared that Vance was the onlyviable candidate for the branch presidency. He responded, “I wanted to get the best guy, the best person, and I saying [sic] thatgenerically.” Vance argues that this “Freudian slip” on the stand evinced Davis’s desire to hire a male. Union Planters arguesthat Davis’s remark was merely a slip of the tongue.
[FOOTNOTE 5] The comment is susceptible to either construction. In title VII trials, though, the employer is rarely going to concedeunambiguously that it intended to violate the law.
[FOOTNOTE 6] Because we lack the jury’s opportunity to observe Davis’s demeanor andhear his voice, and because the statement corroborated Davis’s comments that he wanted to hire a “mature man,” or a 40- to50-year-old man, there was sufficient material direct evidence of discrimination to allow a reasonable jury to decide in Vance’sfavor. This direct evidence is supported by material circumstantial evidence.
[FOOTNOTE 7] For example, Davis never spoke with Pete Boone,Carroll’s former boss at Grenada Sunburst Bank, about Carroll’s qualifications. Boone testified that had Davis contacted him, hewould have told him that Carroll should not even be considered for the job. Davis testified that he called Boone but that his callswent unreturned. Boone’s testimony contradicted this. The jury was entitled to believe Boone’s account and conclude that Davis was less than diligent in seeking information aboutCarroll’s qualifications. Davis’s testimony concerning the recommendation he sought from Brown, Vance’s immediatesupervisor, supports this claim. Brown knew both Vance and Carroll quite well. Nevertheless, after Davis received Brown’s “glowing” recommendation insupport of Vance’s receiving the job, Davis did not bother to discuss Carroll’s qualifications with Brown until after Carroll washired. At that time, Brown told Davis that Carroll was “lazy,” “not challenged,” and that Davis would have to “light a fire underCarroll’s ass” to ensure that he would perform his job. Carroll’s personnel file also indicated that he had a tendency to procrastinate and miss deadlines, but Davis never asked to seethat file. The jury was entitled to infer from Davis’s lackadaisical investigation of Carroll’s qualifications and premature hiring ofCarroll that he was predisposed to select a man. There also was uncontradicted evidence that Davis offered the presidency to Ed Neelly and Butch Collums, two men whonever applied for the position. The parties dispute whether Davis also offered the job to Hardy Farris. The jury could reasonablyinfer from these actions that Davis was predisposed to hire a man and began grasping at straws when it appeared that Vancewas the only viable applicant. In sum, sufficient evidence supports the finding that Union Planters discriminated against Vanceon the basis of sex. Sufficient evidence also supports the jury’s decision that pretext motivated Union Planters’s justifications for hiring Carroll overVance. Union Planters argues that administrative concerns were determinative in the decision. To prevail, Union Planters mustprovide direct or circumstantial evidence to rebut that explanation for its employment decision. See Rutherford, 197 F.3d at184. The jury heard credible evidence that Vance’s administrative skills were at least as strong as Carroll’s. The uncontradictedevidence was that the branch Vance had helped start and later led had experienced dramatic increases in both size and profits.Vance testified that she dedicated thirty percent of her work time to administrative matters. The jury could infer from thebranch’s success that Vance’s administrative skills were excellent. On the other hand, Carroll was available to fill the branch presidency because he had been demoted from his administrativeposition at the Sunburst bank. The jury could infer from this that Carroll’s administrative skills did not motivate Davis to hire him. Davis admitted that he thought Vance worked longer hours than did Carroll. The jury could infer that someone who would putmore time into the complex task of merging two bank branches would be a better administrator. Some evidence did suggest thatCarroll’s administrative skills were superior to Vance’s, but the evidence did not, by its strength, disallow supported inferences inVance’s favor. IV. Union Planters claims this case is “controlled” by Scott, in which a would-be professor of legal writing sued after failing to benamed to the post, claiming age discrimination. She propounded but failed to establish the argument that she was plainly betterqualified than the selected individual, who was younger than the age-protected class of which she was a part; beyond thisargument, she had no evidence, direct or circumstantial, of age discrimination. Id. at 497-98. In overturning the verdict in favorof Scott, we held that “an employee’s subjective belief of discrimination, however genuine, cannot be the basis of judicial relief.”Id. at 507 (citations omitted). Similarly, in Travis, we overturned a verdict because the only evidence that a hiring decision was motivated by sex bias was acomment, made seven years prior to the relevant promotion decision by a supervisor who had in the intervening years retiredand thus played no role in the complained of failure to promote, that the plaintiff was not “tough enough” to fill a certain position.See Travis, 122 F.3d at 264. As the court noted, this comment was a “stray remark” in that it was made by a supervisor otherthan the one who made the relevant employment decision; it was made remotely from the time of that decision; and it did notobviously call into question the issue of sex. Id. See also Krystek, 164 F.3d at 254, 256 (same). These cases do not control. Vance provided both direct, non-stray-comment evidence that she had been discriminated againstbecause of her sex and circumstantial evidence that indicated that she was the only woman president involved in theconsolidation and the only president not provided a place in the new organization, though a place existed for her. This evidencedoes not, but need not, establish that Vance was “clearly better qualified.” Rather, her circumstantial evidence, with the directevidence (including a comment by the relevant supervisor) that her supervisor wanted to hire males provides sufficient evidencethat she was discriminated against because of sex. Union Planters also argues that the jury erred in awarding Vance damages for emotional distress. Union Planters attempts toundermine Vance’s expert medical testimony by asserting that because neither Neelly nor Carroll suffered psychological traumawhen they lost their jobs, no reasonable fact finder could have concluded that Vance suffered such an injury. As Union Plantersso colorfully notes, “[b]ankers lending the money of others should be more resilient.” We have discovered, however, no caselawsupporting a “banker’s exception” to the rule that plaintiffs who suffer emotional distress can recover damages. V. Union Planters contends that the district court erred in admitting evidence that Union Planters suffered an adverse verdictagainst it in a 1990 pay discrimination case. We note initially that we evaluate the jury’s findings without regard to this testimonyand conclude that, even in exclusion of this exchange, the evidence supports the verdict. The relevant evidence is as follows: Q. And in the past, you have–you have been found to discriminate against women, women loan officers in their pay as against male officers; haven’t you, sir? A. Yes, sir. Q. All right, sir. A. 1990, I think it was. I cannot recall the exact date. Union Planters raises two issues with respect to this colloquy. The first, that the admission of this evidence constitutes a bill ofattainder, is frivolous. A bill of attainder is, as the name implies, a legislative action rather than a judicial one. See SBCCommunications, Inc. v. FCC, 154 F.3d 226, 233 (5th Cir. 1998), cert. denied, 525 U.S. 1113, and cert. denied, 525 U.S.1113 (1999). Union Planters’s second argument–that admission of the evidence violates Fed. R. Evid. 404(b)
[FOOTNOTE 8] –is more substantive. Vanceintroduced the evidence to show how Union Planters treated the class of women employees. In the context of a title VII suitalleging racial discrimination, evidence concerning an employer’s “general policy and practice with respect to minorityemployment” “may be relevant to any showing of pretext.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973).Similarly, evidence that Union Planters had been found to have discriminated against women in the past could help undermine itsargument that it chose not to hire Vance only because of administrative concerns.
[FOOTNOTE 9] In EEOC v. General Dynamics Corp., 99 F.2d 113, 119 (5th Cir. 1993), we affirmed the admission of “arguably not relevant”evidence that the plaintiff had filed prior discrimination lawsuits against his employers. Despite the danger that such evidencecould cause a jury to believe that the plaintiff was unreasonably litigious, we held that such evidence was appropriate, becausethe plaintiff had testified that he had prevailed in a previous discrimination lawsuit. Union Planters called Yolaine Couser, a female bank officer, who testified that she had not been discriminated against and thatshe had never observed discrimination against Davis also testified that he had hired a female to serve as Union Planters’s anti-discrimination compliance officer. Because Vanceis the party who first raised the pattern-of-discrimination issue, General Dynamics is merely instructive, not controlling. When aparty has an opportunity to explore admitted evidence of prior acts “through examination of its own witnesses” and exercisesthat opportunity, the admission of potentially damaging evidence is not reversible error. See Bradbury v. Phillips PetroleumCo., 815 F.2d 1356, 1365 (10th Cir. 1987). Relatedly, Union Planters makes no showing that the admission prejudiced it. It presented testimony from a female officerstating that in the years she worked for the bank, she had never seen discrimination against women. The jury might well haveassigned more weight to this evidence about the firm’s current practices than to Davis’s brief admission that his firm haddiscriminated on one occasion in 1990. For these reasons, we see no abuse of discretion in the decision to admit the evidence inquestion. VI. Title VII limits damage awards based on the number of employees the employer had during the “current or preceding calendaryear.” 42 U.S.C. � 1981a(b)(3). If, as the district court held, Union Planters had more than 500 employees, its potential liabilityis $300,000. If, as Union Planters argues, it employed only approximately 140 people, its liability is only $100,000. Theselimitations on damages look to the number employed “in each of 20 or more calendar weeks in the current or preceding calendaryear.” Id. A. We must decide the meaning of “current or preceding calendar year.” The district court held that it refers to the year ofjudgment; it is undisputed that at the time of judgment, Union Planters had more than 500 employees. Union Planters correctly contends that “current year” refers to the year in which the discriminatory acts took place. We haveinterpreted “current year” to refer to the year in which the alleged discrimination occurred. See Dumas v. Town of MountVernon, 612 F.2d 974, 979 n.4 (5th Cir. 1980). The district court emphasized that the “current year” language interpreted in Dumas was from a different part of title VII, andstated that no court has interpreted the “current year” language of � 1981a(b)(3). The latter assertion is incorrect. In Hennessyv. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1348, 1354 (7th Cir. 1995), the court limited the damages assessed againsta defendant based on the number of employees working for it at the time of the discriminatory firing. The district court’sinterpretation of “current year” was rejected also in Komorowski v. Townline Mini-Mart & Restaurant, 162 F.3d 962, 965(7th Cir. 1998). There is no reason to define “current year” to mean one thing in one part of title VII and something else inanother.
[FOOTNOTE 10] Sound policy analysis supports this reading of the statute. The best reason to use the “year of occurrence” is that any otherinterpretation allows parties to engage in gamesmanship by structuring companies, or timing the progress of lawsuits, tomaximize gain or to minimize loss. An additional reason is that we presume that part of the reason for the liability cap for smaller corporations is that such entitiescannot afford to hire the specially trained human-resource personnel required to negotiate the shoals of modern employmentlaw. These businesses are therefore provided some additional level of protection. Larger companies, better equipped to hire therelative expertise, are held to a more rigorous standard. This purpose would be defeated if the size of the company weremeasured at the date of verdict rather than the date of commission of the suspect act. B. The district court held that even if 1995 were the “current year,” Union Planters would have had more than 500 employees: Furthermore, even if the court were to use the time of the discriminatory act as the current year for the purposes of the statutory cap, the court would still find that the defendant had more than 500 employees. Union Planters Bank of Northeast Mississippi, which the defendant asserts had no more than 140 employees, did not even exist as of the date of the discriminatory act. The decision-maker, Pat Davis, was the president of First National Bank. The entity to be formed, Union Planters Bank of Northeast Mississippi, consisted of banks belonging to three different subsidiaries of Union Planters Corporation (specifically First National Bank, Sunburst Bank, and United Southern Bank). There was no single subsidiary which could realistically be considered the employer for purposes of the statutory cap. The allegedly discriminatory act was done on behalf of a large corporation by an agent of a large corporation, with well over 500 employees. Accordingly, regardless of how the term “current or preceding year” is applied, the statutory limit on damages should be set at $300,000.00. In 1995, Pat Davis ran First National Bank and was charged with merging banks belonging to subsidiaries of First National Bank, Sunburst Bank, and United Southern Bank. The product of that merger, Union Planters Bank of Northeast Mississippi, did not exist at the time of the employment action but did come into existence a few months thereafter, in July 1995. The period from then to December 31, 1995, is more than twenty weeks, so even though Union Planters Bank of Northeast Mississippi did not exist at the time of the discriminatory act, it could qualify as Vance’s would-be employer under title VII. If it were the relevant employer, then the applicable cap on damages would be $100,000. By denying Vance’s post-verdict motion for discovery regarding Union Planters’s size, the district court failed to develop therecord with regard to several important facts. First, the court’s analysis, which held Union Planters Corporation (the holdingcompany that owned Union Planters Bank of Northeast Mississippi) to be the relevant employer, seems inconsistent with theorder dismissing Union Planters Corporation as a defendant. Second, the court failed to engage in the searching inquiry calledfor by Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983), which is this circuit’s leading precedent on the size of anemployer for title VII liability purposes. Under Trevino, the court must determine whether nominally independent entities–First National Bank, Sunburst Bank, andUnited Southern Bank–are a single employer for purposes of title VII liability. If so, their total employment should beaggregated. Third, the record does not reveal who would have been Vance’s employer before July 1995, had she been offered the job.Looking to who employed Carroll between March 15, 1995, and July 1, 1995, might answer this question. The trier of fact wouldneed to determine how many employees that firm employed in 1995 and 1994. Any of these factors could affect the limitation on damages. Because the record is insufficiently developed for us to engage inthat analysis, we remand for such a determination. We therefore AFFIRM the judgment except with regard to the interpretation of � 1981a(b)(3), VACATE that portion of thejudgment, and REMAND for further proceedings. :::FOOTNOTES:::
FN1 Circuit Judge of the Ninth Circuit, sitting by designation.
FN2 Travis v. Board of Regents, 122 F.3d 259, 263 (5th Cir. 1997) (citation and quotation marks deleted; emphasis added).
FN3 Cf. Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996) (holding that a company president’s instruction to humanresources officials that he did not want to hire older workers constitutes sufficient material evidence of age discrimination);Portis v. First Nat’l Bank, 34 F.3d 325, (5th Cir. 1994) (holding that a supervisor’s statement to a female subordinate that she”wouldn’t be worth as much as the men would be to the bank” constituted direct evidence of sex discrimination).
FN4 See id. at 329 n.10 (holding that “[t]he fact that Portis’ case-in-chief consists solely of her own testimony does not preventher from establishing intentional discrimination”).
FN5 Union Planters appears to advocate an extension of the “stray remark” caselaw to cover witnesses’ statements at trial. Itpresented no instance in which a court has ever applied its “stray remark” jurisprudence to a witness’s trial testimony. Indeed,there are at least three reasons why it would be unwise to do so in this manner. First, the “stray remark” jurisprudence is itselfinconsistent with the deference appellate courts traditionally allow juries regarding their view of the evidence presented and soshould be narrowly cabined. Second, one of the questions at issue in the Krystek test–whether the remark is proximate in timeto the employment decision– would always be answered in the negative with respect to testimony at trial, even though wordsfrom the dock seem particularly probative of actual state of mine. Third, in-court testimony, unlike a stray remark made in the workplace, allows the jury to evaluate the context of the remarkbased on its observations of the witness’s demeanor. We decline, therefore, to extend the doctrine in this manner.
FN6 Cf. Aikens, 460 U.S. at 716 (noting that “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mentalprocesses”).
FN7 Citing Haas v. Advo Systems, Inc., 168 F.3d 732, 734 n.2 (5th Cir. 1999), Union Planters seems to think that to prevail,Vance must provide direct evidence of discrimination. This would be untrue even if Vance had not provided such directevidence. See, e.g. Scott v. University of Miss., 148 F.3d 493, 504 (5th Cir. 1998) (holding that “[b]ecause direct evidence israre in discrimination cases, a plaintiff must ordinarily use circumstantial evidence to satisfy her burden of persuasion”).
FN8 That rule reads in pertinent part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
FN9 See also McCorstin v. United States Steel Corp., 621 F.2d 749, 754 (5th Cir. 1980) (holding that evidence of a pattern ofterminating older workers allowed a reasonable inference that plaintiff had been discharged on account of age); Dosier v.Miami Valley Broad. Corp., 656 F.2d 1295, 1300 (9th Cir. 1981) (“Dosier claims that the post-settlement incidents were partof a continuing pattern of discrimination. . . . [H]e is not prevented from using those incidents as evidence of a continuingpattern of discrimination by Miami Valley. Evidence of prior acts may clearly be used to establish the existence of a pattern orscheme. See Rule 404(b), Federal Rules of Evidence.”).
FN10 See Department of Revenue of Ore. v. ACF Indus., 510 U.S. 332, 342 (1994) (noting the “normal rule of statutoryconstruction that identical words used in different parts of the same act are intended to have the same meaning”) (internalquotation marks omitted).
Vance v. Union Planters Corp., et al. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 99-60289 YVONNE E. VANCE, Plaintiff-Appellee, VERSUS UNION PLANTERS CORPORATION, ET AL., Defendants, UNION PLANTERS BANK, NATIONAL ASSOCIATION, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Mississippi April 25, 2000 Before DAVIS, CYNTHIA HOLCOMB HALL,
[FOOTNOTE 1] and SMITH, Circuit Judges.
