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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50493
_____________________
LLOYD BROWN,
Plaintiff - Appellee-Cross-Appellant,
versus
KINNEY SHOE CORP., doing
business as Foot Locker,
doing business as ASF/
Foot Locker, doing business
as Champs Sports, doing
business as Lady Foot Locker,
doing business as Susie's,
doing business as Athletic X-Press,
Defendant - Appellant-Cross-Appellee.
_________________________________________________________________
Appeals from the United States District Court for the
Western District of Texas
_________________________________________________________________
January 15, 2001
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal presents a challenge to various aspects of a jury
trial that resulted in a finding of intentional racial
discrimination in violation of Title VII. The plaintiff, Lloyd
Brown, brought this Title VII action against his former employer,
Kinney Shoes, d/b/a Foot Locker, ("Foot Locker"). He alleged racial
discrimination based on Foot Locker's failure to promote him to a
managerial position in a "non-ethnic store." Ultimately, the jury

found Foot Locker liable and awarded Brown $69,493 in past and
future wages, $21,500 in mental anguish damages, and $250,000 in
punitive damages, plus costs and attorney's fees. The district
court entered a judgment in favor of Brown, but reduced his damages
by $1160 to meet the statutory cap. On appeal, Foot Locker seeks
review of (1) the district court's failure to conduct a Batson
inquiry, (2) a number of evidentiary rulings, and (3) the
sufficiency of the evidence to support the jury's verdict. Brown
seeks review of the district court's rulings on damages, attorney's
fees, and a jury instruction on spoliation.1 We reject Foot
Locker's Batson and evidentiary claims. We also conclude that the
evidence is sufficient to support Brown's failure to promote claim.
The evidence is not sufficient, however, to support his claim for
constructive discharge. While upholding liability for the failure
to promote claim, we remand for a new trial on damages, including
compensatory, emotional, and punitive damages.
1Brown introduced evidence that Foot Locker destroyed
documents on the ethnic classification of its stores.
2

I
A
Lloyd Brown, who is black, worked for Foot Locker from
February 1989 to December 1995. He began his management career
with Foot Locker in October 1990 in the Killeen Mall store. Soon
after assuming a management position, Brown perceived and was told
by other black managers that black managers were not hired to
manage "non-ethnic stores," and, further, that the managers of
"non-ethnic stores" were more often promoted to district manager
positions.2 Additionally, Brown testified that he began to notice
that the black managers were subject to harsher reviews and audits
than were white managers.
In 1993, following Brown's request to be transferred to a
"non-ethnic store," he was promoted to manager of the Town Center
Mall store in Fort Worth, Texas. The Town Center Mall store,
however, like the Killeen Mall store, was an "ethnic store." The
sales volume of the Town Center Mall store was $1.1 million for the
year before Brown's arrival. Although conditions at the Town
Center Mall store were, concededly, anything but ideal (because of
problems with crime, the imposition of a curfew, and store
vacancies), the evidence at trial established that Brown had a
2A considerable amount of time at trial was spent on the issue
of how Foot Locker classified its Texas stores.
3

difficult time managing the store. Sales dropped from $1.1 million
to $980,000 in 1993. By 1995, sales had dropped to $577,000 under
Brown's management. In 1996, however, Brown was able to increase
sales to approximately $609,000. In addition to declining sales,
Brown also received critical evaluations from Jan Balder, his
district supervisor, and from store auditors. The critical
evaluations stemmed from Brown's problem with "shrinkage," that
is, store inventory unaccounted for.
In early 1995, Brown moved his family from Fort Worth to
Austin, Texas, so that they would be closer to his wife's mother.
Sometime after moving his family to Austin, Brown applied for a
transfer to one of Foot Locker's two new stores under construction
in Austin. Both of these stores were categorized as non-ethnic
stores.
The first store, the Lakeline Mall store, was projected as a
$900,000 volume store. At trial, there was conflicting testimony
regarding why Brown was not offered a managerial position at the
Lakeline Mall Store. District Manager Balder testified that Brown
was denied a transfer to this store because it would have
constituted a promotion, when he was not promotable given the drop
in sales to just over $600,000 at the Town Center Mall store.
Instead, Foot Locker promoted Mike Zoiber, a white male, who, Foot
Locker argued at trial, was more qualified based on his work
4

evaluations. Brown offered testimony, which the jury apparently
believed, demonstrating that Zoiber was less qualified based on the
fact that he had only one year's experience as a manager at a
"rookie" store, a store smaller than Brown's Town Center Mall
store. Additionally, in response to Foot Locker's assertion that
he was not promotable, Brown testified that after he was denied the
Lakeline Mall job he was offered a managerial position at a Fort
Worth Outlet Mall store, a store with a sales volume of $1.4
million to $1.6 million. The Fort Worth Outlet Mall store had an
"ethnic store" classification. To support this testimony, Brown
offered the testimony of the manager of the Outlet Mall store, Joe
Maldonado, who stated that when Balder offered him the job she
indicated that he (Maldonado) was the second choice for the job in
that Brown had already declined the offer. Balder denies having
offered a managerial position at the Outlet Mall to Brown. The
jury, however, was entitled to reject her testimony, and apparently
did.
The second store, the Barton Creek Square Mall store, was a
$400,000 to $500,000 volume store. Foot Locker offered evidence
establishing that Brown was denied a transfer to this store because
it was classified as a "rookie" store for entry level managers
only. Ultimately, Martin Rhoads, a Hispanic male manager with no
5

previous management experience, was hired by Foot Locker to manage
the store.
By November 1995, Brown had become frustrated by his inability
to secure a promotion or even a transfer to a "non-ethnic store."
Consequently, he filed a race discrimination charge with the EEOC.
While the charge was pending, in early 1996, a new district manager
was assigned to Brown's region, and Brown again expressed to his
new manager his desire to be transferred/promoted to a "non-ethnic
store." The manager told Brown that he would have to prove
himself. Because of this conversation, and Foot Locker's continual
refusal to transfer/promote him, Brown resigned from Foot Locker.
B
On November 26, 1997, Brown filed this Title VII action
against Foot Locker alleging intentional race discrimination.3
Following a somewhat lengthy trial, the jury returned a verdict for
Brown finding intentional race discrimination and awarding him
3In his original complaint, Brown alleged claims pursuant to
42 U.S.C. � 1981 and the Texas Labor Code. However, at the charge
conference, the district court referred to Brown's claims as only
brought pursuant to Title VII. Brown made no attempt to correct
the district court during the charge conference. Additionally,
Brown did not object to the district court's instructions to the
jury limited to Title VII.
6

$340,000 in damages.4 Additionally, the court awarded Brown costs
and attorney's fees in the amount of $148,339.44.
Foot Locker moved to set aside the verdict under Federal Rule
of Civil Procedure 50, and the court denied its request. Foot
Locker then filed this appeal. Foot Locker seeks review of: (1)
the district court's failure to conduct a Batson inquiry following
its timely objection to Brown's use of all of his peremptory
strikes on white jurors; (2) the grant of one of Brown's Batson
challenges; (3) the denial of Foot Locker's motion for judgment on
the issue of intentional discrimination; (4) the denial of Foot
Locker's motion for judgment on the issue of constructive
discharge; (5) a series of evidentiary rulings centering on the
refusal of the court to allow Foot Locker to offer testimony
regarding its use of merchandising codes, and the reasons why Brown
was not promoted; (6) the entry of judgment for punitive damages
in the absence of any evidence of malice or reckless disregard; and
(7) the entry of judgment for damages for emotional distress in the
absence of any evidence of particular injuries suffered by Brown.
4Specifically, the jury awarded Brown $39,833 for loss of
wages and benefits from the date of the defendant's discriminatory
conduct until the present; $29,660 for loss of value of earning
capacity from this date into the future caused by the defendant's
discriminatory conduct; $21,500 for emotional pain, suffering,
mental anguish and the loss of enjoyment of life; and $250,000 in
punitive damages.
7

Brown cross-appeals. He seeks review of the district court's
reduction of punitive damages and denial of supplemental attorney's
fees. If the case is reversed or remanded, Brown also seeks review
of the district court's denial of his requested jury instruction on
spoliation.
II
Foot Locker challenges both the district court's refusal to
conduct a full Batson inquiry in response to its challenge of
Brown's peremptory strikes, and the court's decision to sustain
Brown's Batson challenge to Foot Locker's peremptory strike of a
black juror.
A
We first address Foot Locker's claim that the district court
failed to fulfill its duty to conduct a Batson inquiry. The law
is now well settled: "A party to a civil suit can challenge
another party's use of a peremptory strike that excludes a
prospective juror on the basis of that juror's race." Greater
Plains Equipment, Inc. v. Koch Gathering Systems, Inc., 45 F.3d
962, 964 (5th Cir. 1995)(citing Edmonson v. Leesville Concrete
Co., 500 U.S. 614 (1991); Batson v. Kentucky, 476 U.S. 79
(1986)). In Batson, the Supreme Court held that equal protection
principles prohibit a prospective juror from being peremptorily
challenged on the basis of his or her race. See Batson, 476 U.S.
8

at 86-87 (stating that by denying a person participation in jury
service
on account of race, the offending party
"unconstitutionally discriminated against the excluded juror").
The Batson Court reasoned that while it is clear that "[a]n
individual juror does not have a right to sit on any particular
petit jury,. . . he or she does possess the right not to be
excluded from one on account of race." United States v. Huey, 76
F.3d 638, 640 (5th Cir. 1996)(citing Batson, 476 U.S. at 87).
We have developed a three-step process for evaluating Batson
challenges:
First, the complaining party must make a prima facie
showing that opposing counsel has exercised a peremptory
challenge on the basis of race. Once this showing has
been made, the burden shifts to the striking party to
articulate a race-neutral explanation for the strike.
Thereafter, the court must determine whether the Batson
claimant has proven purposeful discrimination.
Great Plains Equipment, 45 F.3d at 964-65 (citing United States v.
Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993)). Once a court
has called on counsel to provide race-neutral justifications for
the use of peremptory strikes, we review only the district court's
finding of discrimination, not whether the party has made a prima
facie case. United States v. Forbes, 816 F.2d 1006, 1010 (5th
Cir. 1987). If the trial court determines that a party failed to
make a prima facie showing, however, opposing counsel is not
9

required to come forward with a neutral explanation for the
challenges. Soria v. Johnson, 207 F.3d 232, 239 (5th Cir. 2000).
To establish a prima facie case, a party is required to show
that the circumstances surrounding the peremptory challenges raise
an inference of purposeful discrimination. Batson, 476 U.S. at
96; Soria, 207 F.3d at 237. The trial court should consider all
relevant circumstances in determining whether a prima facie Batson
violation can be established. McGinnis v. Johnson, 181 F.3d 686,
691 (5th Cir. 1999). Factors that give rise to an inference of
discrimination include, among others, a pattern of strikes against
jurors of a certain race and the party's statements and questions
during voir dire. United States v. Branch, 989 F.2d 752, 755 (5th
Cir. 1993). "A prima facie case of racial discrimination requires
a defendant to `come forward with facts, not just numbers alone.'"
Id. (quoting United States v. Moore, 895 F.2d 484, 485 (8th Cir.
1990)). In this circuit, a trial court's determination that a
party has failed to make a prima facie showing is accorded a
"presumption of correctness, which can only be rebutted by `clear
and convincing evidence.'" Soria, 207 F.3d at 238. See also
Branch, 989 F.2d at 755 ("a finding that appellants did not make
a prima facie case of discrimination under Batson . . . is
reviewed for clear error").
10

A party that does not raise facts or make timely Batson
claims in the district court waives the right to raise them on
appeal. See Branch, 989 F.2d at 755 n.2 ("On appeal, appellants
have noted facts in alleged support of their Batson claim. We may
not consider them. . . . [T]he failure to enunciate these facts
in the district court amount[s] to a waiver"). Thus, it is
important that the district court afford the parties ample
opportunity to create a Batson record. As the Eighth Circuit has
noted,
a defendant who requests a prima facie finding of
purposeful discrimination is obligated to develop a
record, beyond numbers, in support of the asserted
violation. And the district court . . . must give the
defendant a reasonable opportunity to do so. Such a
record will allow the appellate court to review the
findings at issue.
United States v. Dawn, 897 F.2d 1444, 1448-49 (8th Cir. 1990).

B
On appeal, Foot Locker argues that the district court
committed reversible error by completely disregarding the
three-step procedure for evaluating Batson claims and by summarily
denying its challenge. Specifically, Foot Locker argues that it
raised a timely objection, that it made a prima facie case of
discrimination, and that the judge erred by failing to require
Brown to give race-neutral reasons for his peremptory strikes.
11

Brown responds by arguing that Foot Locker failed to carry its
burden under the first prong of the Batson test, that is, Foot
Locker failed to make a prima facie showing that the challenges
were exercised on the basis of race. Brown argues that by failing
to require race-neutral explanations, the court made a
determination that Foot Locker did not make a prima facie case of
discrimination.
In truth, the trial court made no explicit findings at all.
It summarily dismissed Foot Locker's Batson claim without allowing
Foot Locker to attempt to make a prima facie case. In response to
Foot Locker's Batson challenge for Brown's use of peremptory
challenges against four white jurors, the court's only response
was, "Well, that objection is overruled." Because the district
court made no explicit findings and did not allow Foot Locker to
state the reasons for its objection, there is no record on which to
rely to determine whether Foot Locker made a prima facie case.
On appeal, Foot Locker only argues that it established a prima
facie case. It does not argue either that the district court did
not afford it an opportunity to make a prima facie case5 or that
5By not giving Foot Locker a full opportunity to make a Batson
record to establish its prima facie case, and by not making any
findings of its own, the district court did not discharge its duty
under Batson. As the Ninth Circuit found in a similar case,
the district court[] clear[ly] disregard[ed] . . . even
the most basic of Batson safeguards in summarily
overruling, with absolutely no inquiry or discussion [the
12

the district court made no finding on the issue. As such, we must
review whether Foot Locker made a prima facie case when it
presented its claim to the district court. The district court's
determination is entitled to a presumption of correctness.
At the time of the Batson objection, Foot Locker objected only
on the basis that Brown used his four peremptories on white jurors.
Standing alone, these numbers do not make a prima facie case. Foot
Locker did not present other facts that could have led the court to
find an inference of discrimination. Although the facts in this
case--a white supervisor accused of discrimination against a black
salesman on the basis of race, the fact that race was an issue
during voir dire, and the fact that the plaintiff used all four of
its strikes on white jurors (the jury pool consisted of 12 whites,
3 blacks, and 1 Hispanic)--suggest that Foot Locker might have made
a more convincing showing for a prima facie case, it did not
present and argue these facts in support of its claim. Instead,
Foot Locker raised only the race of the struck jurors. On this
basis, we cannot say that the district court was clearly erroneous
in rejecting the Batson challenge. Although the record before us
plaintiff's] Batson objection . . . In so doing, the
district court precluded [the plaintiff] from stating,
let alone proving, what appears evident from the
defendants' use of . . . their . . . peremptory
challenges . . .
Montiel v. City of Los Angeles, 2 F.3d 335, 340 (9th Cir. 1993).
13

contains no articulated findings by the district court and no
argument by counsel on the issue, we can only conclude that the
district court considered that 75 percent of the jury pool was
white and found no inference of discrimination from the scant facts
to which counsel alluded--strikes against four white jurors.
Therefore, the district court's finding that Foot Locker failed to
make a prima facie case of discrimination was not clearly
erroneous.
C
Foot Locker also appeals the trial court's decision to sustain
Brown's Batson challenge to Foot Locker's peremptory strike of one
of three black jurors on the panel. During jury selection, Foot
Locker first attempted to strike two of the black jurors for cause,
stating that one of the jurors, juror Sims, believed that he had
been the defendant in a frivolous lawsuit, and that the other juror
had worked for the first juror, who might unduly influence her.
After the court refused the cause challenge, Foot Locker used two
of its four peremptories to strike juror Sims and the other black
juror on the sixteen person venire, juror Brown, who had not been
challenged for cause. After Brown challenged the strike on Batson
grounds, the court asked Foot Locker to state its reasons for
striking the jurors. Foot Locker articulated a reason for striking
juror Sims--he had been involved in a lawsuit and would be hostile
14

to litigants--but the district court found it pretextual, and
sustained the Batson challenge. Finding that Foot Locker's neutral
reasons were adequate with respect to juror Brown, however, the
court allowed the juror to be struck.
Although explanations are generally considered to be race-
neutral unless the discriminatory intent is inherent in the
explanation, this determination depends in significant part on an
evaluation of the credibility and demeanor of the attorney
exercising the challenge. Thus, the district court's determination
that a party used peremptory strikes in a discriminatory manner is
entitled to deference, and should not be overturned absent clear
error. United States v. Kelley, 140 F.3d 596, 606 (5th Cir. 1998).

On the record before us, we cannot say that the district court
was clearly erroneous in concluding that Foot Locker's explanation
for challenging juror Sims was pretextual. Foot Locker challenged
all three black venire members, either by peremptory strike or for
cause. Although Foot Locker claimed that it used its peremptory to
strike juror Sims because it was worried that his prior experiences
with litigation would influence him, it did not challenge two white
jurors who had also been parties to litigation. Given these facts,
we will not disturb the district court's finding that Foot Locker
evinced purposeful discrimination in striking juror Sims. We now
turn to the merits of the appeal.
15

III
As an initial matter, we must examine the essence of Brown's
claims. Brown claims that Foot Locker intentionally discriminated
against him based on his race during the course of his employment.
The facts, as presented by Brown, encompass both a failure to
promote (or transfer) claim, and a constructive discharge claim.
These two claims, however, were not clearly separated at trial.
The same evidence was presented to support both claims. The jury
instructions on the issue of intentional discrimination did not
discuss the elements of constructive discharge;6 to be sure,
6The district court's jury instruction read as follows:
It is unlawful for an employer to discharge or otherwise
discriminate against an employee because of the
employee's race. In order for Mr. Brown to prevail on
his claim against Foot Locker, he must prove by a
preponderance of the evidence that his race was a
motivating factor in any of Foot Locker's adverse
employment decisions. An adverse employment decision is
any decision by an employer such as Foot Locker that
negatively affects an employee such as Mr. Brown with
respect to compensation, tenure, conditions or privileges
of employment. Taking adverse employment action toward
an employee who is black is not illegal if the reasons
for doing so are unrelated to the employee's race.
Therefore, the fact that Mr. Brown is black and Foot
Locker took adverse employment actions towards him is not
sufficient, in and of itself, to establish his claim
under the law. Similarly, the fact that Foot Locker may
have mistreated the Plaintiff or made an unwise decision
regarding the Plaintiff's employment is not sufficient to
establish the Plaintiff's claim under the law. Finally,
simply because you do not agree with the employment
decisions made by Foot Locker or the manner in which the
decisions were made is not sufficient to establish
Plaintiff's claims under the law. You must find that an
16

constructive discharge was not addressed until the instruction on
the award of damages. The verdict form did not distinguish the
two issues for the jury; it asked "[d]o you find from a
preponderance of the evidence that Defendant Foot Locker
discriminated against Mr. Brown based on his race?" Despite this
consolidation of failure to promote and constructive discharge at
trial, we must separate these two jury issues to determine whether
there is sufficient evidence to support the jury award.
Foot Locker contends that the district court erred in denying
its motion for judgment on the issues of, first, intentional
discrimination, which we interpret as failure to promote, and
second, constructive discharge. Foot Locker argues that Brown
provided no evidence to show that Foot Locker's reasons for failing
to promote Brown were pretextual, or to show that Foot Locker made
a calculated effort to pressure him into resignation.
We review the denial of a party's motion for judgment as a
matter of law de novo, applying the same standard that the district
court used. Rutherford v. Harris County, Texas, 197 F.3d 173, 178
(5th Cir. 1999). "The district court properly grants a Rule 50
motion for judgment as a matter of law only where the facts and
inferences indicate a particular outcome so strenuously that
adverse employment decision was made by Foot Locker
because of Mr. Brown's race in order to answer "yes" to
Question One.
17

reasonable minds could not disagree." Aguillard v. McGowen, 207
F.3d 226, 228-29 (5th Cir. 2000). In deciding a Rule 50 motion,
the court should consider all the evidence in the light most
favorable to the non-moving party. Id. at 228. "A jury verdict
must be upheld unless `there is no legally sufficient evidentiary
basis for a reasonable jury to find' as it did." Vadie v.
Mississippi State Univ., 218 F.3d 365, 372 (5th Cir. 2000) (quoting
Fed. R. Civ. P. 50(a)(1)). Even if this court would reach a
different conclusion as trier of fact, "we are not free to reweigh
the evidence or to re-evaluate credibility of witnesses." Hiltgen
v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995).
A
We start with the basics. To succeed on his Title VII
intentional discrimination claim, Brown must prove by a
preponderance of the evidence that he was denied employment
opportunities because of his race. "An employer is entitled to
judgment as a matter of law on this ultimate question `if the
evidence taken as a whole would not allow a jury to infer that the
actual reason for the [employer's decision] was discriminatory.'"
Vadie, 218 F.3d at 372 (quoting Rhodes v. Guiberson Oil Tools, 75
F.3d 989, 994 (5th Cir. 1996) (en banc)). After a case has been
fully tried on the merits, as has this one, the inquiry shifts from
a focus on whether the plaintiff has made a prima facie case of
18

race discrimination to the question of whether the record contains
sufficient evidence to support the jury's finding of race
discrimination. Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.
1997). Thus, the question is whether the evidence was sufficient
for the jury to find that Brown was not promoted because of his
race.
Foot Locker contends that the evidence indisputably showed
that Brown had not performed well enough to qualify for a promotion
to a higher volume store, that he was less qualified than the
individual who did get the promotion, and that he would not have
been well placed in a lower volume store. Furthermore, Foot Locker
argues that the cases indicate that courts should be deferential to
the judgment of employers in making promotion decisions in their
businesses. See Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993)
(noting that judges should be reluctant to substitute their own
views unless disparities are "so apparent as virtually to jump off
the page and slap us in the face"). Brown counters Foot Locker's
claim with evidence of strong evaluations, and more years of
management experience than the individual who was selected. Brown
also testified that, although not spoken at the time, he would have
been willing to accept a pay cut to manage the smaller non-ethnic
store.
19

Brown also introduced evidence attempting to show that Foot
Locker's method of promoting managers systematically treated black
candidates differently. The evidence showed that, for
merchandising purposes, Foot Locker classified its stores based on
the racial makeup of each store's customer base. The evidence also
showed that, generally, black managers were not promoted to
management positions in non-ethnic stores.7 There was testimony,
conclusionary in nature, that also suggested that white managers
were promoted more frequently and that black managers were
evaluated more harshly.
Brown also introduced evidence to show that Foot Locker's
reasons for failing to promote Brown out of the ethnic store--that
the alternative stores were either too big or too small for his
experience level--were pretextual. Brown testified that Foot
Locker offered to promote him to a 1.4 to 1.6 million dollar ethnic
store, but refused to promote him to either a 900,000 dollar or a
300,000 to 500,000 dollar non-ethnic store. Another Brown witness
corroborated this testimony. Foot Locker presented evidence that
it never offered him management of the 1.4 million dollar store,
directly contradicting Brown's testimony.
7The evidence on promotion to non-ethnic stores was primarily
anecdotal, because most of Foot Locker's documentation on the
ethnic classification of stores was destroyed, allegedly pursuant
to Foot Locker's document retention policies.
20

Although much of the evidence is conflicting, it is legally
sufficient for a jury to find intentional discrimination. The
jury, exercising its function of determining facts and weighing
credibility, was free to believe Brown's testimony and evidence
over the evidence offered by Foot Locker. Brown introduced
evidence that white managers with similar evaluations were promoted
to non-ethnic stores, and evidence suggesting that black managers
were generally not chosen to manage non-ethnic stores. Brown
testified that despite requesting positions at non-ethnic stores on
multiple occasions, he was denied the opportunity to manage a non-
ethnic store, although he was apparently promotable to ethnic
stores. Based on that, and similar evidence, the jury could have
concluded that Foot Locker's claim that Brown was not qualified for
the higher volume store was pretextual, and that Foot Locker
intentionally discriminated against Brown by not promoting him to
a non-ethnic store.
B
Foot Locker also appeals the district court's denial of Foot
Locker's motion for judgment on constructive discharge. As we
pointed out earlier, Brown was not discharged. He resigned. A
resignation is actionable under Title VII, allowing the plaintiff
to seek compensatory damages for events after the resignation, only
if the resignation qualifies as a constructive discharge. To prove
21

a constructive discharge, a "plaintiff must establish that working
conditions were so intolerable that a reasonable employee would
feel compelled to resign." Faruki v. Parsons, 123 F.3d 315, 319
(5th Cir. 1997). In determining whether a reasonable employee
would feel compelled to resign, we have considered the relevancy of
the following events:
(1) demotion; (2)reduction in salary; (3) reduction in
job responsibilities; (4) reassignment to menial or
degrading work; (5) reassignment to work under a younger
supervisor; (6) badgering, harassment, or humiliation by
the employer calculated to encourage the employee's
resignation; or (7) offers of early retirement [or
continued employment on terms less favorable than the
employee's former status] . . .
Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000) (alteration
in original) (quoting Barrow v. New Orleans Steamship Ass'n, 10
F.3d 292, 297 (5th Cir. 1994)). Constructive discharge requires a
greater degree of harassment than that required by a hostile
environment claim. Benningfield v. City of Houston, 157 F.3d 369,
378 (5th Cir. 1998). Discrimination alone, without aggravating
factors, is insufficient for a claim of constructive discharge, as
is a discriminatory failure to promote. Boze v. Branstetter, 912
F.2d 801, 805 (5th Cir. 1990); Landgraf v. USI Film Productions,
968 F.2d 427, 429-30 (5th Cir. 1992), aff'd, 511 U.S. 244 (1994).
Brown contends that he resigned because he was repeatedly
denied promotions and transfer opportunities. He also contends
that his 1993 transfer to the Fort Worth Town Center Mall was
22

actually a demotion--not the promotion he was promised--because the
store was continually losing money. Because the Fort Worth Town
Center Mall store lost revenue while he was manager, Brown further
testified that he lost ten to fifteen thousand dollars in salary
and bonuses.
These facts, without more, are insufficient for a finding that
a reasonable employee in Brown's position would have felt compelled
to resign, particularly in light of the fact that he was pursuing
an EEOC remedy that could have addressed any discrimination he
suffered in failing to be promoted or transferred. Although, in
hindsight, it is clear that Brown's transfer to the Fort Worth Town
Center Mall did not result in the benefits of a promotion, Brown
did not lose responsibilities by moving to that store. He was
indeed the manager of a larger store initially, which deteriorated
only under his management (for which, it is true, he may not have
been wholly blameworthy). His work was not degrading or menial,
and he was not subjected to badgering or harassment designed to
encourage his resignation. In fact, Brown himself testified that
he was offered a promotion to a 1.4 million dollar store shortly
before he resigned. In essence, Brown's resignation, as a matter
of law, was not justified by working conditions that had become so
intolerable that no reasonable person could have worked there under
those conditions. We therefore reverse the district court's denial
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of Foot Locker's motion for judgment as a matter of law on the
issue of constructive discharge and any damages resulting
therefrom.
This reversal, however, does not affect our holding affirming
liability on Brown's failure to promote claim. Although the jury
verdict form did not separate Brown's failure to promote and
constructive discharge claims--instead, simply finding Foot Locker
liable for racial discrimination--the constructive discharge aspect
of the claim is supported only by the evidence concerning Brown's
failure to be transferred or promoted. Brown claimed that he was
constructively discharged because he was denied transfers and
promotions to non-ethnic stores. Thus, in finding that Foot Locker
intentionally discriminated against Brown, the jury necessarily
found that Brown was denied transfers and promotions, or other
advancement opportunities, based on his race. As we have earlier
noted, the evidence supports such a finding. The jury verdict is
therefore sufficient to uphold Foot Locker's liability on Brown's
failure to promote claim. The compensatory damage award, however,
obviously included damages relating to both the constructive
discharge claim and the failure to promote claim. No compensatory
damages that may be based on the claim of constructive discharge
can stand. Thus, the case must be remanded for a new trial on
compensatory damages.
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IV
Furthermore, Foot Locker specifically appeals the award of
both punitive damages and damages for emotional distress. In this
appeal, however, we will not address these specific damage awards.
Because we have overturned the finding of constructive discharge,
all damages, including punitive and emotional, must be supported by
the failure to promote or transfer claim alone. A new
determination of the compensatory injuries that flow from the claim
may fundamentally affect a jury's determination of emotional and
punitive damages. See Hardin v. Caterpillar, 227 F.3d 268, 272-73
(5th Cir. 2000) (noting the "practical inseparability of the issues
of intent, of damages for emotional injury, and of punitive
damages" and that legal systems reflect the "linkage of actual and
punitive damages in locating caps for punitive awards"). Thus, all
damages must be reconsidered. We therefore remand for a retrial on
the issue of compensatory, punitive and emotional damages that flow
from the failure to promote.
V
Finally, we find no reversible error in the evidentiary issues
contested by Foot Locker. We have affirmed the district court's
judgment on liability for intentional discrimination based on
failure to promote, thus, there is also no need to address Brown's
proposed jury instruction on spoliation. We will not address
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Brown's request for additional attorney's fees, the final issue
presented in this appeal. The appropriateness of additional
attorney's fees will be more properly addressed at the conclusion
of this remand.
VI
Because we find that the district court properly denied Foot
Locker's motion for judgment as a matter of law on the issue of
failure to promote, but should have granted Foot Locker's motion
for judgment as a matter of law on the issue of constructive
discharge, we AFFIRM in part, REVERSE in part, and REMAND for a
retrial on the issue of damages.
AFFIRMED in part; REVERSED in part; and REMANDED.
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