EEOC v. Federal Express Corp. (11th Cir.) Brief as appellee and cross-appellant Nov. 16, 2005 Nos. 05-13448 & 05-14108 ________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee-Cross-Appellant, and THEODORE MAINES, Plaintiff-Intervenor-Appellee, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellant-Cross-Appellee. _________________________________________________ On Appeal from the United States District Court for the Middle District of Florida, 6:02-cv-1112 __________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLEE-CROSS-APPELLANT ________________________________________________ JAMES LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L St. NW, Rm. 7030 Washington, DC 20507 EEOC v. Federal Express, Nos. 05-13448 & 05-14108 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1.1-1, I hereby certify that the following persons or entities have an interest in the outcome of this case: Honorable John Antoon II, District Court Judge Honorable David A. Baker, U.S. Magistrate Judge Lorraine C. Davis, Assistant General Counsel, EEOC Equal Employment Opportunity Commission, Plaintiff Federal Express Corporation, Defendant Michael J. Farrell, former EEOC trial attorney Delner Franklin-Thomas, Regional Attorney, EEOC Jay L. Grytdahl, Attorney, Federal Express Kathy L. Laizure, Attorney, Federal Express James Lee, Deputy General Counsel, EEOC Marcia K. Lippincott, Attorney, Plaintiff-Intervenor Ted Maines, Plaintiff-Intervenor Carl Morrison, Attorney, Federal Express Daniel P. O'Gorman, Attorney, Federal Express Anne Noel Occhialino, Attorney, EEOC EEOC v. Federal Express, Nos. 05-13448 & 05-14108 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT(con't) Gwendolyn Young Reams, Associate General Counsel, EEOC Jill Schwartz & Associates, Counsel for Plaintiff-Intervenor Jill Steinberg Schwartz, Attorney, Plaintiff-Intervenor Andrew G. Wedmore, Attorney, Plaintiff-Intervenor Carolyn L. Wheeler, Acting Associate General Counsel, EEOC Kay L. Wolf, Attorney, Federal Express STATEMENT REGARDING ORAL ARGUMENT The Commission requests oral argument. In its appeal of the jury verdict and the district court's application of legal standards, Federal Express raises several issues respecting what constitutes statutorily protected activity, constructive discharge, and adverse action, and what evidence is needed to establish a causal nexus between protected activity and adverse actions. The EEOC's cross-appeal raises important questions regarding a district court's discretion to deny front pay when a jury has found that an employer intentionally retaliated against an employee and whether a district court abuses its discretion in denying the EEOC's request for injunctive relief when an employer fails to show that the violation is unlikely to recur in the future. Because resolution of these issues requires a careful review and explication of the factual record, which involves the transcript of a multi-day trial, the Commission submits that oral argument will assist this Court in resolving these appeals. TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . .C-1 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . .i STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . .2 1. Nature of the Case and Course of Proceedings . . . . . . . . .2 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . 3 3. Disposition Below . . . . . . . . . . . . . . . . . . . . . .19 4. Standard of Review . . . . . . . . . . . . . . . . . . . . . 23 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . .23 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 FedEx's Appeal Case No. 05-13448 I. The district court properly denied FedEx's motions for judgment as a matter of law and for a new trial because the evidence supported the jury's finding that FedEx retaliated against Maines for engaging in statutorily protected conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 A.Maines engaged in statutorily protected conduct when he called the legal department to voice his concern that Mattman's nullification of the promotion of two minorities constituted unlawful race discrimination. . 28 B.The jury's finding that FedEx took another adverse action against Maines is well supported by the record and the law . . . . . . . . . . . 32 1. Constructive Discharge. . .. . . . . . . . . . . . . . . . . . 32 TABLE OF CONTENTS (con't) 2. Other adverse actions. . . . . . . . . . . . . . . . . . . . . . 39 a. warning letter . . . . . . . . . . . . . . . . . . . . . .. . . 40 b. collectively . . . . . . . . . . . . . . . . . . . 42 C. A causual nexus existed between Maines's call to the legal department and the adverse actions FedEx took against him immediately thereafter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 D. A reasonable jury could have disbelieved FedEx's proffered non- discriminatory reasons for its retaliatory action . . . . . . . . . . . .47 EEOC's Cross-Appeal No. 05-14108 I. The district court abused its discretion in denying the EEOC's request for front pay because FedEx failed to meet its burden of showing that Maines did not mitigate his front pay damages. . . . . . . . . . . . . . . . . . 52 II. The district court abused its discretion in finding that FedEx showed that future retaliation is unlikely to recur and in therefore denying nearly all of the EEOC's requested injunctive relief. . . . . . . . . . . . . . . . . 59 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . .68 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 TABLE OF AUTHORITIES Cases ------ Akins v. Fulton County, 420 F.3d 1293 (11th Cir. 2005) . . 32, 34 Albemarle Paper v. Halifax Local No. 425 United Paperworkers & Paperworkers, AFL-CIO, 422 U.S. 405 (1975) . . . . . . . . . . . . . . . . 59 *Bass v. Bd. of County Comm'rs, 256 F.3d 1095 (11th Cir. 2001) . . . . . . . . . . . . . . . . . 42, 43, 47 Bearint ex rel. Bearint v. Dorrell Juvenile Group, . . . . . . . . . . . . . . . . 389 F.3d 1339 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 23 Bruso v. United Airlines, 239 F.3d 848 (7th Cir. 2001) . . . . 53 Burks v. Oklahoma Publ'g, 81 F.3d 975 (10th Cir. 1996) . . . . 33 Castle v. Sangamo Weston, 837 F.2d 1550 (11th Cir. 1988). . . . . . . . . . . . . . . . 23, 24, 28, 52 Clover v. Total Sys. Servs., 176 F.3d 1346 (11th Cir. 1999). . 44 Coutu v. Martin County Bd. of County Comm'rs, . . . . . . . . . . . . . . . . .47 F.3d 1068 (11th Cir. 1995)27 Davis v. Town of Lake Park, 245 F.3d 1232 (11th Cir. 2001) 41, 42 *EEOC v. Harris Chernin, 10 F.3d 1286 (7th Cir. 1993). . . . . 60 *EEOC v. Massey Yardley Chrysler Plymouth, . . . . . . . . . . 117 F.3d 1244 (11th Cir. 1997)23, 60, 62, 65 *EEOC v. Univ. of Chicago Hospitals, 276 F.3d 326 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 33, 35 EEOC v. W&O, 213 F.3d 600 (11th Cir. 2000) . . . . . . . . . . 52 Gagnon v. Sprint, 284 F.3d 839 (8th Cir. 2002) . . . . . . . . 41 Gotthardt v. Nat'l R.R. Passenger, 191 F.3d 1148 (9th Cir. 1999)56 TABLE OF AUTHORITIES (con't) Gupta v. Florida Bd. of Regents, 212 F.3d 571 (11th Cir. 2000) 27 Hairston v. Gainesville Sun Publ'g, 9 F.3d 913 (11th Cir. 1993)51 Harris v. Forklift Sys., 510 U.S. 17, 114 S.Ct. 367 (1993) . . 38 Hinson v. Clinch County, 231 F.3d 821 (11th Cir. 2000) . . . . 48 Hipp v. Liberty Nat. Life Ins., 252 F.3d 1208 (11th Cir. 2001). . . . . . . . . . . . . . . . . . . . 36, 37 Hipp v. Liberty Nat'l Life, 29 F. Supp. 2d 1314 (M.D. Fla. 1998). . . . . . . . . . . . . . . . . . . . . . 53 Julian v. City of Houston, 314 F.3d 721 (5th Cir. 2002). . . . 59 Kidder, Peabody & Co. v. Brandt, 131 F.3d 1001 (11th Cir. 1997)59 Kilgo v. Bowman Transp., 789 F.2d 859 (11th Cir. 1986) . . . . 59 Lindale v. Tokheim, 145 F.3d 953 (7th Cir. 1998) . . . . . . . 35 Little v. United Tech., 103 F.3d 956 (11th Cir. 1997). . . 28, 31 Lopez v. S.B. Thomas, 831 F.2d 1184 (2d Cir. 1987) . . . . . . 33 Maddow v. Proctor & Gamble, 107 F.3d 846 (11th Cir. 1997). . . 33 Mohr v. Chicago Sch. Reform Bd. of Trustees, . . . . . . . . . . . .155 F. Supp. 2d 923 (N.D.Ill. 2001)63, 65 Munoz v. Oceanside Resorts, 223 F.3d 1340 (11th Cir. 2000) 52, 54 Nord v. U.S. Steel, 758 F.2d 1462 (11th Cir. 1985) . . . . . . 52 Padilla v. Metro-North Commuter R.R., 92 F.3d 117 (2d Cir. 1996)55 Penn. State Police v. Suders, 542 U.S.129, 124 S.Ct. 2342 (2004)32 Pennington v. City of Huntsville, 261 F.3d 1262 (11th Cir. 2001)44 TABLE OF AUTHORITIES (con't) Pierce v. Atchison, Topeka & Santa Fe Ry., 65 F.3d 562 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 57 Poole v. Country Club, 129 F.3d 551 (11th Cir. 1997) . . . 33, 34 Ramsey v. Chrysler First, 861 F.2d 1541(11th Cir. 1988). . . . 23 *Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S.Ct. 2097 (2000) . . . . . . . . . . . . 47 Reiner v. Family Ford, 146 F. Supp. 2d 1279 (M.D. Fla. 2001) . 54 Shannon v. BellSouth Telecomms., 292 F.3d 712 (11th Cir. 2002) . . . . . . . . . . . . . . . 42, 43, 44, 47 Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir. 1992) . 59 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478 (1983) . . . . . . . . . . . . . . . . . . . . .27 Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . .47 *Weaver v. Casa Gallardo, 922 F.2d 1515 (11th Cir. 1991). . . . . . . . . . . . . .22, 47, 52, 58, 59 Welch v. Univ. of Tex., 659 F.2d 531 (5th Cir. Unit A Oct. 15, 1981). . . . . . . . . . . . . . .36 *Wideman v. Wal-Mart Stores, 141 F.3d 1453 (11th Cir. 1998). . . . . . . . . . . . . . . . 40, 41, 42, 43 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . . . .2, 27 TABLE OF AUTHORITIES (CON'T) Rules Fed. R. Civ. P. 50(a)(1) . . . . . . . . . . . . . . . . . . . 23 Fed. R. Civ. P. 61 . . . . . . . . . . . . . . . . . . . . . . 44 Treatises Lex K. Larson, Employment Discrimination, § 15.08 (2d ed. 1999 & Supp. 2005). . . . . . . . . . . . . 33 STATEMENT OF JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345. The district court entered final judgment on May 26, 2005. Doc.148. This Court has jurisdiction under 28 U.S.C. § 1291. On June 17, 2005, Federal Express Corporation (“FedEx”) timely filed a notice of appeal (Case No. 05-13448), Doc.151, and on July 22, 2005, the Commission timely filed a notice of cross- appeal (Case No. 05-14108), Doc.166. STATEMENT OF THE ISSUES FedEx’s Appeal (No. 05-13448) Whether the district court properly denied FedEx’s motions for judgment as a matter of law and for a new trial on the EEOC’s Title VII claim where the evidence was sufficient to support the jury’s finding that FedEx retaliated against the charging party, and whether the court properly instructed the jury to consider whether FedEx subjected the charging party to adverse actions other than constructive discharge? EEOC’s Cross-Appeal (No. 05-14108) 1. Whether the district court abused its discretion in concluding that FedEx met its burden of establishing a lack of mitigation and by denying front pay where the evidence showed that the charging party had been unable to obtain a comparable position despite four years of diligent searching and where FedEx failed to show that there were comparable available positions for which the charging party had failed to apply. 2. Whether the district court abused its discretion in denying nearly all of the injunctive relief requested by the EEOC where the jury found that FedEx intentionally retaliated against the charging party and where FedEx failed to prove that the retaliation was unlikely to recur in the future. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an employment discrimination case involving FedEx’s retaliation against Ted Maines. On September 27, 2002, the EEOC filed a complaint alleging that FedEx violated section 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), by unlawfully disciplining and constructively discharging Maines for opposing what he reasonably believed to be unlawful discrimination. Doc.1. The EEOC sought injunctive relief, back pay, compensatory damages, front pay, and punitive damages. Maines intervened and brought state and federal claims. Doc.9. FedEx filed a motion for summary judgment, which the court denied. Doc.83. On December 13, 2004, a four-day trial began. The district court reserved ruling on FedEx’s Rule 50 motions for judgment as a matter of law. Doc.175,pg.448-54,602-04. The jury returned a verdict for the Plaintiffs, awarding $201,010.30 in back pay and $1,370,000 in compensatory damages. Doc.116. A week later the trial continued as to punitive damages, and the jury returned a verdict against Plaintiffs. Doc.121. On February 10, 2005, the court issued an order denying FedEx’s Renewed Motion for Judgment as a Matter of Law or for New Trial or Amendment of Judgment except as to FedEx’s request for remittitur of the compensatory damages. Doc.133. On April 14, 2005, the court held an evidentiary hearing on the Plaintiffs’ motion for front pay and injunctive relief. Doc.143. On May 5, 2005, the court entered an order denying front pay and nearly all of the EEOC’s requested injunctive relief. Doc.145. On May 16, 2005, the Plaintiffs filed a notice accepting the remittitur of the compensatory damage award to $350,000, and on May 26, 2005, the court entered final judgment for the Plaintiffs. Doc.146;Doc.148. FedEx and the EEOC filed timely appeals. Doc.151,166. 2. Statement of Facts Ted Maines was an outstanding FedEx employee for twenty-one years before his constructive discharge in March of 2001. He joined FedEx in 1979, when he was twenty-one years old. Doc.173,pg.103. By 1982, FedEx promoted Maines to management, and by 1984 Maines was a senior manager. Doc.173,pg.103. By 2001, Maines was Senior Manager of Revenue Services. Doc.173,pg.104. In the last performance evaluation he received before his discharge, Maines earned a 3.8 on a 4.0 scale from his supervisor, Managing Director Karen Christian. Doc.173,pg.105-06;Doc.117,Ex.2. In 2000, Maines earned a “superstar” rating in recognition of his superior performance and “outstanding leadership.” Doc.173,pg.107-08. Christian and her supervisor, Diane Mattman, who was third down from FedEx’s president as the Vice President of Worldwide Revenue Operations, approved the rating. Doc.173,pg.105,108; Doc.175,pg.516-17. On January 16, 2001, Christian and Mattman also approved Maines’s discretionary bonus for outstanding performance. Doc.173,pg.109-10. As Senior Manager of Revenue Services, Maines oversaw approximately 150 employees, including 100 employees at a call center in Maitland, Florida that handled customer problems with bills or invoices. Doc.173,pg.104-05. The call center was the only center that took calls from both English and Spanish-speaking customers. Doc.173,pg.120-21. Prior to Maines’s constructive discharge, however, no managers spoke Spanish. Doc.173,pg.120-21. Maines’s Hispanic secretary, Guadalupe Miller, frequently took Spanish-speaking customer calls and either translated or handled calls when a Spanish-speaking customer asked to speak to a manager. Doc.173,pg.119-21;Doc.175,pg.419. On November 16, 2000, Maines signed a personnel requisition form authorizing the hiring of two customer account service manager positions that would report to Maines. Doc.173,pg.112-13;Doc.117,Ex.23. Both Christian and Mattman also signed the form. Doc.117,Ex.23;Doc.175,pg.470. The duties for the two manager positions included monitoring calls from customers with invoice and billing questions. Doc.173,pg.116-17. Maines, who had been involved in over 500 FedEx interviews, was responsible for assembling and serving on the interview panel. Doc.173,pg.110- 11,113. Because no other senior managers at Maines’s level were available at the time, Christian approved having a lower-level manager, Joni Smith, on the panel. Doc.173,pg.113-14;Doc.175,pg.470-71. Before the interviews, Christian called Maines. Doc.173,pg.114. She told him that Mattman was “high on” Lauren Ruston, a Caucasian female who had worked in the Pittsburgh office for a few months. R.173,pg.114-15. Maines chose fifteen candidates to interview. Doc.173,pg.115;Doc.174, pg.291. Because the two management positions were in Orlando, and because everyone in Orlando reported to Maines, many of the interviewees worked under Maines. Doc.173,pg.158. FedEx had no policies against interviewing subordinates. Doc.173,pg.159. To the contrary, it was common practice, Doc.174,pg.276,Doc.173,pg.158, and Maines had interviewed several times with his direct supervisors. Doc.173,pg.159. Four of the interviewees were FedEx managers. Doc.173,pg.115. The remaining interviewees were from FedEx’s “ASPIRE” program, which provided a means for non-management employees to apply for management positions. Doc.173, pg.115. The ASPIRE candidates included Miller and an African- American named Annette Reece. Doc.173,pg.117. To score the ASPIRE candidates, Maines used a spread sheet he had created and used hundreds of times before. Doc.173,pg.159-60;Doc.117,Ex.32. The ASPIRE candidates’ final scores were a combination of their ASPIRE scores, which were derived from ASPIRE forms they had filled out, and their interview score, which Maines and Smith jointly gave. Doc.173,pg.116,127;Doc.174, pg.269;Doc.117,Ex.32. At the time, Maines believed that Miller met the minimum job qualifications. Doc.173,pg.122. Three years later, however, he learned that Miller erroneously indicated on the “minimum specifications summary sheet” of her ASPIRE resume that some of her experience was for “full-time exempt” when it actually was “full-time non-exempt.” Doc.173,pg.123;Doc.117,Ex.38,pg.4. The only unusual interview was Ruston’s. Doc.173,pg.124. She seemed “a little unprepared” and “wasn’t the least bit nervous” when she “didn’t know the answer to [a] question.” R.173,pg.124. Maines and Smith had the impression that Ruston thought the job was already hers. Id.; R.174,pg.272-73. Ruston also brought her husband down from Pittsburgh with her, which had never happened in Maines’s previous involvement in 500 interviews. Doc.173,pg.124. After the interviews, Maines plugged in the scores and determined that Reece and Miller were, respectively, the top two candidates. Doc.174,pg.273. Smith believed that “they were good selections.” Id. Maines called Christian, who knew Miller was his secretary, and told her about the selections. Doc.175,pg.460;Doc.173,pg.128. She told him that Mattman was “going to be pissed because [she] liked [] Ruston.” Doc.173,pg.128. After further discussion, however, Christian told Maines that she was confident that “these are the right people” and authorized their offers. Doc.173,pg.128. Pursuant to FedEx’s written policy, Maines next sought approval from the personnel department, which was charged with auditing the qualifications of selected candidates. Doc.173,pg.129,131. Maines hand-delivered the interview materials to Senior Personnel Representative Eddie Jenkins. Doc.173,pg.129. Maines told Jenkins, “in accordance with policy you need to audit these and go through them and make sure the applicants are qualified before I give the job offer letters.” Doc.173,pg.129. Later that day, Jenkins authorized Maines to make the offers. Doc.173,pg.129-30. Maines made offers to Miller and Reece, which they accepted. Doc.173,pg.131. After Maines sent out a February 2, 2001, e-mail announcing the promotions, Christian told him that Mattman was unhappy with the hirings and had alluded to there having been only one management position. Doc.173,pg.132; Doc.118,Ex.17. Maines offered to fax Christian the personnel requisition form authorizing two positions. Doc.173,pg.132. According to Mattman, she was concerned that Maines had promoted his secretary. Doc.175,pg.495. The next day Christian told Maines that Mattman wanted to nullify both promotions. Doc.173,pg.133. Over the next two days, Maines tried to reach Mattman to discuss the situation with her, but she did not return his messages. Doc.173,pg.134. For several reasons, he was concerned that Mattman’s decision might have been racially motivated. Doc.173,pg.137. First, Maines had done some diversity training for his department as a result of a race-related complaint that several African-American employees had lodged against Mattman. R.173,pg.137-38. Second, in the 500 interviews he had conducted he had never had a vice president get involved with the selection of operations managers. Doc.173,pg.138; see also Doc.174,pg.277-78 (Smith’s testimony that Mattman left promotion decisions to her senior managers and managing directors). Third, in his 500 interviews he had never seen offers nullified. Doc.173,pg.138,135; see also Doc.175,pg.406,420 (Karen Ings’ testimony that in twenty-two years as a FedEx manager she had never heard of offers being nullified). Fourth, at an all- department meeting in Memphis, Mattman had chastised the group for poor customer service. Doc.173,pg.138. Mattman later apologized to Maines, stating that her comments were not meant for him or his managers but “were all addressed about them.” Doc.173,pg.139. The way Mattman said “them” made Maines think about the fact 80-85% of the group was African-American. Id. Her comment made his “skin crawl” and gave him “a weird feeling.” Id. Fifth, at a dinner that night, Mattman sat at an all-Caucasian table, even though 80-85% of the group was African-American. Id. Concerned about FedEx’s liability for Mattman’s racial discrimination, on February 7, 2001, Maines called Greg Richards, Senior Counsel of FedEx’s legal department. Doc.173,pg.135,141-42. Maines told Richards his concerns. Doc.173,pg.142. Richards replied, “what would you like me to do with this information?” Doc.173,pg.143. Maines told Richards – at least three times – that he wanted Richards “to do what’s in the best interest of the company.” Doc.173,pg.143. Eventually Richards said that he would contact Mattman and that Maines should not worry about retaliation. Doc.173,pg.144. That day, Richards told Mattman about Maines’s call. Doc.174,pg.336. On February 8, 2001, Mattman called Christian and told her that Richards had contacted her. Doc.175,pg.475. According to Christian, Mattman was “upset because Ted [Maines] had called legal” and told Christian, “you got this totally out of control and I’m removing the operation from you.” Doc.175,pg.476-77. That morning, Christian and Jenkins called Maines. Doc.173,pg.145. In a “frantic” tone, they told him that Mattman “was furious at [Maines] for calling the legal department.” Id. Jenkins said, “listen, Ted, you’ve got to be very careful because Diane can do anything she wants.” Id. Also during that morning – and without reviewing any of the paperwork for the interview process – Mattman officially nullified the offers to Reece and Miller. Doc.173,pg.147;Doc.175,pg.474,517. In the afternoon, Mattman removed Christian and replaced her with Lex Lannom. Doc.173,pg.145;Doc.175,pg.475. Mattman also called Maines. Doc.173,pg.146. Although she was usually very friendly, this time “she was very curt, very rude, very abrupt.” Id. She told Maines to send her the paperwork for the job interviews, which he did. Id. That night, Jenkins called Maines at home. Doc.173,pg.147. Jenkins again warned Maines “to be careful” and told him “at least ten times” that Mattman “can do anything she wants. She’s a vice president.” Doc.173,pg.148; Doc.175,pg.538. He also said, “you have sicked the wolves on her and now she is mad at you.” Doc.173,pg.148. Maines said that he “was trying to protect the company.” Doc.173,pg.149. Jenkins’s only advice to Maines was to be careful. Id. Maines’s work environment immediately changed. Doc.173,pg.165. Reports from his department were criticized as overly detailed while revised versions were criticized as “too brief,” “too vague” and “incomplete.” Doc.173,pg.165. Neither Maines nor his subordinate managers could do anything right. Doc.173,pg.166. Maines grew concerned about the job security of his subordinate managers. Doc.173,pg.166. According to Karen Ings, one of Maines’s subordinate managers, there was increased scrutiny of the department following Maines’s complaint. Doc.175, pg.434. She “felt like someone was looking over [her] shoulder the entire time.” Doc.175,pg.435. An alarm on her computer alerted her that someone was monitoring her computer, which she confirmed with a computer technical support person. Doc.175,pg.431-32. She reported it to Maines. Doc.175,pg.436. According to Ings, the increased scrutiny interfered with Maines’s ability to do his job. Doc.175,pg.436. Maines also received an unusual phone call that made him concerned that his phone and computers were being monitored. Doc.173,pg.177; Doc.174,pg.239. The day after the call, two information technology employees arrived near his office. Doc.173,pg.177. When Maines asked what was going on, one of them pointed his head towards Maines’s door. Doc.173,pg.177. Maines connected their visit to the concern he had about his e-mail and phones being monitored. Doc.173,pg.178. Within a few hours, Maines discovered that his e-mail capacity had been diminished, interfering with his ability to send and receive e-mails he needed to perform his job. Doc.173,pg.178-79.<1> Because he believed his phones were being monitored, Maines was afraid to use the telephone out of fear that what people said to him about Lannom and Mattman would be used against them. Doc.174,pg.256. In consultation with Lannom (who knew about Maines’s call to the legal department) and the personnel and legal departments, Mattman decided on Maines’s discipline. Doc.175,pg.502-03,506,572-73. On February 16, 2001, Lannom called Maines, who was in his office with two managers. Doc.173,pg.152. Lannom said that as a result of the hiring decisions and Miller’s filing of an internal complaint, he was issuing Maines an ultimatum. Doc.173,pg.152. Maines could either accept a “strongly worded warning letter” or a five-level demotion to a non-management position reporting to Joni Smith (Maines’s subordinate), with an attendant pay cut of $50,000 that would return Maines to the same level he had been at nineteen years earlier. Doc.173,pg.152- 54;Doc.174,pg.231. Lannom warned Maines that if he chose the warning letter, “Diane wants you to know that the next mistake you make you will be terminated.” Doc.173,pg.153. Maines was visibly upset and “very rattled.” Doc.174,pg.429. Maines refused either the letter or the demotion. Doc.173,pg.155. On February 23, 2001, Lannom issued a warning letter, which Mattman approved. Doc.173,pg.155;Doc.117,Ex.17;Doc.175,pg.519. The letter stated that an investigation had been done. Doc.117,Ex.17. According to Lannom, Mattman performed the investigation and he had no role in it. Doc.175,pg.577. Mattman, however, denied having done the investigation. Doc.175,pg.520. It is undisputed that no one interviewed Maines, which was, in his experience, a prerequisite to issuing a warning letter. Doc.174,pg.253-54. The letter stated that it was for Maines’s “lack of judgement [sic] and leadership failure” in connection with the nullified promotions. Doc.117,Ex.17. FedEx’s policies do not define “leadership failure,” Doc.175,pg.571, but the letter stated that Maines’s “leadership failure” “included” the conduct in the following six bullet points. Doc.117,Ex.17. The first bullet point stated, “lack of personnel review and involvement in the interview or final selection process,” although Jenkins – the Senior Personnel Representative – and Christian had approved the interview panel and Jenkins, per FedEx policy, had approved the offers. Doc.173,pg.156-57;Doc.175,pg.542-45. Similarly, the second bullet point stated, “no involvement from management outside of your immediate staff with a high number of internal candidates from your own organization,” even though Christian and Jenkins had approved the interview panel, it was common to interview one’s subordinates, and – as Lannom and Mattman later admitted – FedEx’s written policies do not require having outside management on the interview panel. Doc.173,pg.157-59;Doc.175,pg.482-83,520,545,579. The third bullet point stated that Maines had allowed himself to be 55% of the interview panel when an interviewee was a direct report, even though Mattman and Lannom agree that doing so did not violate any of FedEx’s written policies. Doc.175,pg.482-83,520- 21,579-80;Doc.173,pg.158-59. The fourth and fifth bullet points stated that Maines had misused the ASPIRE scoring matrix and had used the ASPIRE and interview scores inconsistently, Doc.117,Ex.17, although no one had ever questioned Maines’s use of the ASPIRE scoring matrix in hundreds of prior interviews and Lannom admitted that no FedEx policy had been violated. Doc.173,pg.159-60;Doc.175,pg.580. The final bullet point stated that one of the applicants had served as an administrative support person for both panel members. Doc.173,pg.160. Miller, however, had served only as Maines’s administrative support, not Smith’s, Doc.173,pg.160, and, as Mattman and Lannom have admitted, interviewing a subordinate did not violate any FedEx hiring or selection policies. Doc.175,pg.483,523,581;Doc.174,pg.276. The letter also incorrectly stated that “[t]his is the second occurrence within 90 days for which the interview selection process had to be nullified for your open management positions.” Doc.175,pg.485(emphasis added);Doc.117,Ex.17. The letter also prohibited Maines from submitting a Job Change Application for one year. Doc.117,Ex.17. The letter further warned that any future leadership or behavior problems could result in more severe discipline, including termination. Id. Given Mattman’s warning that his next mistake would be his last, and that Maines’s department was in “charge of a department that essentially handled mistakes that the company made,” Maines thought, “it’s not going to take them 12 months to get rid of me now, it’s just a question of how soon.” Doc.173,pg.163. Although Maines had disciplined employees, he had never threatened anyone with a five-level demotion or with a statement from the vice president that the next mistake would be the last. Doc.173,pg.162-64. In his experience, “warning letters” were reserved exclusively for behavior problems (like fighting). Doc.173,pg.164. In contrast, performance problems were addressed in “performance reminders.” Id. Christian and Jenkins were also disciplined in connection with the hirings, although not as severely as Maines. Christian was given a choice between a three- level demotion and a warning letter. Doc.175,pg.504. Her discipline, however, resulted not just from the nullified promotions but also from “fairly significant” performance problems she had begun having several months beforehand. Doc.175, pg.504. Jenkins was given only a “performance reminder,” which was less severe than a warning letter. Doc.175,pg.536-37;Doc.173,pg.164-65. The day he received the warning letter Maines left Richards a message that he needed to talk about “a warning letter which [he] perceived as retaliation for [his] complaint against Diane Mattman.” Doc.173,pg.180. Although Maines left similar messages with Richards four or five times over the next three days, Richards did not return Maines’s calls. Doc.173,pg.180. On February 26 or 27, 2001, Maines finally reached Richards in the legal department. Doc.173,pg.180, 256-57. Maines explained that he thought he was being retaliated against by Lannom and Mattman and asked Richards for help. Doc.173,pg.182,256-57. Richards did not offer any. Doc.173,pg.182. After Maines faxed Richards the letter, Richards e-mailed Maines that if he “had a problem with the warning letter th[en] [he] should file a grievance through the guaranteed fair treatment policy [GFTP].” Doc.173,pg.182-83. Maines also contacted Tierney Robinson in the personnel department and asked for help. Doc.173,pg.183. Maines told her that he “was being retaliated against for reporting discrimination” and that he “was very upset and concerned.” Doc.173,pg.183. He specifically named Lannom and Mattman. Doc.173,pg.256- 57. Maines said that Richards had told him to file a GFTP complaint, which he had never done before. Doc.173,pg.186. Robinson explained how to file a GFTP complaint electronically, which Maines did on February 27, 2001, but offered no other assistance. Doc.173,pg.186;Doc.117,Ex.27. Nor did anyone from personnel follow up with Maines about his complaint. Doc.173,pg.186. Maines’s GFTP complaint stated that many of the details in the warning letter were inaccurate and that the letter was undeserved. Doc.173,pg.188. Although he did not name Mattman or Lannon, as he had when he spoke to Richards and Robinson, he wrote that the warning letter was “an act of retaliation by upper management.” Doc.173,pg.188. Although in Maines’s experience all GFTP complaints suggesting discrimination or retaliation were deferred to the legal and personnel departments, Doc.174,pg.243, the personnel department told him that his complaint would go to Mattman. Doc.173,pg.189. Maines was unable to sleep and started having panic attacks. Doc.173, pg.191. At work, Maines appeared to be “almost continually upset.” Doc.175,pg.433. Some days it “was very difficult for him to maintain his composure.” Id. Although he continued to try and perform his job, “he was upset a lot by activities that were going on” and Ings grew concerned about his health and “for the operations.” Id. A few times, Ings saw Maines cry in his office. Doc.175,pg.436. Afraid for himself and his subordinate managers, on March 2, 2001, Maines submitted a memo to Mattman and Lannom requesting settlement pay and stating that his “current employment situation [wa]s intolerable” and that he wanted to leave FedEx. Doc.173,pg.190-91;Doc.118,Ex.28. Although Maines had hoped that someone would recognize his twenty-one years of service and try to dissuade him from leaving, no one did. Doc.173,pg.192. On March 7 or 8, 2001, Maines went on administrative leave to review a release FedEx had rushed him, which he eventually rejected. Doc.174,pg.250;Doc.173,pg.192-94. While on leave, a friend offered Maines a position as a medical office administrator making $85,000 per year, which was substantially less than the $135,134 annual compensation, including benefits, he was making at FedEx. Doc.173,pg.196;Doc.145,pg.4. Feeling that he was “soon going to be without work,” Maines accepted the offer. Doc.173,pg.201-02,196. On April 5, 2001, Lannom sent Maines a letter telling him to return to work by April 9, 2001, to resume the GFTP procedure “at step 1,” which meant that the complaint would be directed to Mattman. Doc.173,pg.196-97;Doc.118,Ex.32;Doc.175,pg.587. To Maines, the letter confirmed that his FedEx career was over. Doc.173,pg.197-98. On April 9, 2001, Maines submitted a letter of resignation with a subject line of “Notice of Constructive Discharge.” Doc.173,pg.198;Doc.117,Ex.12; Doc.175,pg.599. The letter stated that he was not voluntarily retiring but had been forced out under “extreme duress” because of “the illegal retaliatory actions” of Lannom and Mattman. Doc.117,Ex.12. Lannom never called to tell Maines that he was mistaken about being forced out. Doc.175,pg.588-89. Later that month, FedEx hired Ruston for the customer service manager position. Doc.173,pg.141. On April 21, 2001, Maines filed a charge of discrimination with the EEOC. At the time of trial, Mattman was still employed as the vice president of worldwide operations and Lannom was still the managing director of revenue. Doc.175,pg.492-93,559. 3. Disposition Below The jury returned a verdict for the EEOC and Maines, finding that Maines had engaged in statutorily protected activity and that his constructive discharge was causally related to his protected activity. Doc.116. The jury also found that FedEx had taken another adverse action against Maines that was causally related to his protected activity. Doc.116. The jury awarded $201,010.30 in back pay, which was the full amount the EEOC’s expert had testified to, Doc.174,pg.312, and $1,370,000 in compensatory damages. Doc.116. The Plaintiffs subsequently filed a motion for front pay and injunctive relief. Doc.140. Although Maines had intended to work for another eighteen years, the Plaintiffs requested front pay for only ten years. Doc.140,pg.11. The EEOC further requested that: 1) FedEx be permanently enjoined from retaliating against employees; 2) FedEx redistribute its anti-retaliation policy to all employees in its Maitland facility and to all management officials with supervisory authority over those employees; 3) FedEx implement an annual half-day training session for five years at the Maitland facility and for those with supervisory authority over its employees about Title VII’s anti-retaliation provision and FedEx’s anti-retaliation policy; 4) FedEx post notice of the disposition of this action and its commitment to Title VII’s anti-retaliation provision in conspicuous locations in its Maitland facility for five years; 5) FedEx file quarterly reports with the EEOC for five years regarding any discrimination or retaliation complaints at the Maitland facility and FedEx’s response. Doc.140,pg.16-18. On April 14, 2005, the district court held an evidentiary hearing. Doc.179. The EEOC offered expert testimony from economist Joyce Eastridge about Maines’s front pay damages. Eastridge gave two methods for calculating the award. Under the first scenario, Eastridge assumed that Maines’s salary at FedEx would have increased at the same rate as his current salary, meaning that Maines would never match his FedEx salary, making the present value of his front pay $785,963. Doc.179,pg.18-19,21,23. Under the second scenario, Eastridge assumed that by the end of ten years Maines’s salary would have matched what he would have been making at FedEx, making his front pay $432,616. Doc.179,pg.23-24. Maines testified at the hearing that he had some college education but lacked a college degree, had started at FedEx in 1979, was promoted within three years to management and the next year to senior management, was 46 years old, “never even thought for one minute of leaving” FedEx, and had planned to work until he was 63. Doc.179,pg.40-43,49,50. Maines also testified that he regularly looked for other employment in the newspaper and on monster.com, had joined networking groups, and had applied for at least 40 – and probably closer to 50 – positions at DHL, UPS, Sprint, AAA, Walt Disney World, Marriott, Universal Studios, Emery Worldwide, Featherlight, the National Deaf Academy, Westgate Resort, the Orlando Public Library, and manufacturing companies. Doc.179,pg.45-48,53,56. Although he interviewed for several positions, Doc.179,pg.56, none offered salaries comparable to what he had earned at FedEx. Doc.179,pg.47. Nor did Maines find a position comparable to the senior management position he had held. Doc.179,pg.48. Lannom testified that one of his job duties was to research other call centers in Orlando and that there were about seventy-five of them. Doc.179,pg.60-61. He admitted that FedEx’s call center was “more specialized to the billing.” Doc.179,pg.62. Lannom also testified that FedEx had been recognized as one of the top 100 best places to work, sections of the HR department were dedicated to diversity and EEO issues and provided training regarding Title VII, FedEx still had its GFTP and EEO complaint procedures, no one had filed any discrimination or retaliation complaints since Maines’s constructive discharge, Mattman “retired in the fall of 2003” and had no ongoing connection with FedEx, notice of EEO policies was posted in break rooms, FedEx regularly communicated to employees and management about diversity, and EEO policies were in employee handbooks. Doc.179,pg.63-76. In its pleadings, FedEx also submitted “the current on-line addition of Orlando’s Bell South Yellow pages,” which listed “88 businesses engaged in the package-delivery industry,” and an internet print-out of Florida call centers. Doc.141,Ex.A&B. In a May 5, 2005, order the court denied a front pay award and nearly all of the EEOC’s requested injunctive relief. Doc.145. As to its front pay ruling, the court found that Maines was “an articulate, successful manager with many marketable skills who was only forty-two at the time of his discharge more than four years ago.” Doc.145,pg.5. The court also noted that Maines had quickly worked his way up at FedEx. Id. Stating that Maines had sent out forty resumes in four years, the court called Maines’s efforts to find comparable work “modest.” Id. Quoting Weaver v. Casa Gallardo, 922 F.2d 1515, 1529 (11th Cir. 1991), the court concluded that “the nearly four years for which Maines has already been compensated is a sufficient length of time for [him] to have ‘attain[ed] an opportunity to move to his ‘rightful place.’” Doc.145,pg.6. Therefore, the court found, front pay was inappropriate. Id. As to the EEOC’s request for injunctive relief, the court concluded that only limited relief was warranted because FedEx had shown that the violation was unlikely to recur. Id. at 7. In reaching this conclusion, the court noted the absence of discrimination complaints at the Maitland office since Maines’s constructive discharge. Id. The court then ordered only that FedEx redistribute its “anti- discrimination policy” (not its anti-retaliation policy) to its management officials with supervisory authority over its employees at its Maitland facility. Id. at 7-8. 4. Standard of Review The trial court’s denial of a new trial is reviewed for abuse of discretion, which is found only when the jury’s verdict is contrary to the great weight of the evidence. Ramsey v. Chrysler First, 861 F.2d 1541, 1544 (11th Cir. 1988). “Deference must be given to the judgment of the trial judge, who observed the witnesses and considered the evidence in the context of a living trial.” Id. (internal quotation and citation omitted). This Court reviews the denial of a motion for judgment as a matter of law de novo. Castle v. Sangamo Weston, 837 F.2d 1550, 1558 (11th Cir. 1988). Such a motion should be granted only when, viewing the evidence in the light most favorable to the non-moving party, the facts and inferences point so strongly in favor of one party that reasonable persons could not arrive at a contrary verdict. See id.; Fed. R. Civ. P. 50(a)(1) (motion should be granted only if no “legally sufficient evidentiary basis for the jury to find for that party on that issue” exists). This Court applies “a deferential standard of review to a trial court’s jury instructions.” Bearint ex rel. Bearint v. Dorrell Juvenile Group, 389 F.3d 1339, 1351 (11th Cir. 2004). This Court reviews the district court’s decision to deny equitable relief, including front pay and injunctive relief, under an abuse of discretion standard. EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244, 1253 (11th Cir. 1997); Castle, 837 F.2d at 1558. SUMMARY OF THE ARGUMENT This Court should affirm the judgment based on the jury’s verdict in favor of the EEOC on its retaliation claim. Contrary to FedEx’s arguments on appeal, the district court properly denied FedEx’s motions for judgment as a matter of law and for a new trial because a reasonable jury could find – and, indeed, did find – that FedEx subjected Maines to adverse actions in retaliation for having engaged in statutorily protected activity. The evidence supports the jury’s finding that Maines engaged in statutorily protected conduct because he had a good faith belief when he called FedEx’s legal department that Mattman’s nullification of the promotion of two minorities constituted racial discrimination. The evidence also supported the jury’s finding that FedEx constructively discharged Maines and took another adverse action against him because of his complaints of racial discrimination. He and his subordinates were subject to increased scrutiny and criticism and monitoring of their phones and e-mails. Maines was also given a “choice” between a five- level/$50,000 demotion and a warning letter. When he refused either option, FedEx issued the warning letter, which came with Mattman’s warning that his next mistake would be his last. The letter also stated that Maines would be unable to apply for a job change in the next year, which would prohibit him from competing for promotions or new positions. A jury, considering credibility and demeanor, could reasonably have found that Maines’s working conditions were so intolerable that a reasonable person would have felt forced to resign. This evidence also supported the jury’s finding that FedEx subjected Maines to an adverse action in addition to constructive discharge. The jury could have found that the warning letter constituted an adverse action and/or that FedEx’s retaliatory actions, taken collectively, amounted to an adverse action. The close temporal proximity between Maines’s complaint to the legal department and the retaliatory actions FedEx immediately took against him support the jury’s finding of a causal nexus between his protected activity and FedEx’s adverse actions. Additional evidence that Mattman was “furious” that Maines had called the legal department also supports the jury’s conclusion. The jury’s finding that FedEx’s asserted legitimate non-discriminatory reasons were a pretext for retaliation is also amply supported by the record. In addition to the above evidence, the EEOC showed that the purported reasons for Maines’s discipline were untrue. Specifically, the evidence showed that none of the alleged misconduct described in Maines’s warning letter actually violated any FedEx policy. The evidence also showed that before he called the legal department, FedEx viewed Maines as a “superstar” employee with outstanding leadership abilities. The court abused its discretion, however, in denying the EEOC’s motion for a ten-year front pay award. The EEOC offered undisputed evidence that Maines had planned to remain with FedEx for another eighteen years and had diligently been searching for comparable employment since his constructive discharge. The EEOC also offered expert evidence as to the amount of the award. FedEx failed to meet its burden of showing that Maines did not mitigate his front pay damages. The company did not offer any evidence of past or present available positions for which Maines was qualified but had failed to apply. The court also abused its discretion in concluding that FedEx met its burden of showing that future violations were unlikely and therefore that only limited injunctive relief was appropriate. The absence of discrimination or retaliation complaints since Maines’s constructive discharge does not establish that future violations are unlikely; it is just as likely, if not more likely, that FedEx’s employees, having witnessed Maines’s fate, are afraid to complain. Mattman, who was primarily responsible for the retaliation, remains employed as the vice president of worldwide operations and has never been disciplined. The fact that such a high-ranking employee retaliated against Maines underscores the fact that FedEx’s antidiscrimination and antiretaliation policies are not being enforced and injunctive relief is a necessary corrective measure. Therefore, the court erred in denying broader injunctive relief. ARGUMENT FedEx’s Appeal, Case No. 05-13448 I. The district court properly denied FedEx’s motions for judgment as a matter of law and for a new trial because the evidence supported the jury’s finding that FedEx retaliated against Maines for engaging in statutorily protected conduct. Title VII makes it unlawful to “discriminate against any . . . employee[]” because “he has opposed any practice made an unlawful employment practice.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) an adverse employment action occurred, and (3) the adverse action was causally related to the plaintiff’s protected activities. Coutu v. Martin County Bd. of County Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995). After a jury has reached a verdict, however, the evidence presented in support of the prima facie case should be evaluated to determine only “whether a reasonable jury could disbelieve [FedEx’s] proffered nondiscriminatory reasons for its actions” and find that retaliation was instead the true reason. Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481 (1983) (“[W]hen the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection, the fact finder must then decide whether the rejection was discriminatory” and the McDonnell Douglas “presumption drops from the case.”) (internal quotation and citation omitted). Contrary to FedEx’s arguments on appeal, the district court properly denied FedEx’s motion for judgment as a matter of law because a reasonable jury could have found – and did find – that FedEx subjected Maines to constructive discharge and another adverse action because he had engaged in protected conduct. Similarly, the court, which “observed the witnesses and considered the evidence in the context of a living trial,” acted well within its discretion when it concluded that the jury’s verdict was not contrary to the weight of the evidence. Castle, 837 F.2d at 1558. Finally, giving appropriate deference to the district court’s jury instructions, this Court should reject FedEx’s argument that the court erred in instructing the jury on adverse actions other than constructive discharge. Even if this was error, it was a harmless one given the jury’s finding of a constructive discharge. A. Maines engaged in statutorily protected conduct when he called the legal department to voice his concern that Mattman’s nullification of the promotion of two minorities constituted unlawful race discrimination. FedEx asserts that Maines did not engage in statutorily protected conduct because he lacked a good-faith reasonable belief that he was opposing unlawful discrimination when he contacted the legal department. Br. at 22-24; see Little v. United Tech., 103 F.3d 956, 960 (11th Cir. 1997) (plaintiff must show that his belief that employer was engaging in unlawful discrimination was subjectively and objectively reasonable). FedEx argues that the promotion process was unfair and that Maines “compound[ed] his misconduct by” reporting his concerns to the legal department, entitling FedEx to discipline Maines. Br. at 24. This argument reflects a fundamental misunderstanding of the appropriate legal inquiry and completely ignores key evidence presented to the jury. The EEOC had to show that Maines “subjectively (that is, in good faith) believed that [FedEx] was engaged in unlawful employment practices” and that “his belief was objectively reasonable in light of the facts and record presented.” Little, 103 F.3d at 960 (emphasis in original). The EEOC did not have to prove that Mattman actually engaged in an unlawful employment practice; the EEOC had to show only that Maines’s belief “though perhaps mistaken, was objectively reasonable.” Id. FedEx tries to side-step this analysis by arguing that Maines botched the promotion process and “was running amok.” Br. at 24. Whether Maines made an error in calculating Miller’s ASPIRE score, however, is not the issue. Nor is the issue whether Mattman actually discriminated based on race when she nullified the offers. Instead, the issue is whether Maines had a good faith, reasonable belief that Mattman’s nullification of the promotion of two minorities was racially discriminatory when he called the legal department to report it. The evidence on this point – which FedEx completely ignores in its brief – supports the jury’s finding that he did. FedEx has never rebutted Maines’s testimony that at the time he selected Miller and Reece he believed that both were qualified and that it was not until years later that he learned that Miller had incorrectly entered information on her ASPIRE form. R.173,pg.122-23. Thus, Maines had no reason to think that there was any proper ground for Mattman’s nullification of the promotions. The circumstances surrounding the nullification of the offers was also irregular, which reasonably made Maines concerned that Mattman was discriminating based on race. First, in his twenty-one years with FedEx Maines had never seen a vice- president get involved in selecting operation managers and had never heard of offers being nullified. R.173,pg.138,135. Ings and Smith corroborated this evidence by testifying, respectively, that nullifying offers was unprecedented and that Mattman left promotion decisions to senior management. Doc.175,pg.420; Doc.174,pg.277-78. Second, Mattman nullified the offers without even reviewing any of the paperwork, Doc.173,pg.147;Doc.175,pg.474. Third, Mattman nullified not only Miller’s offer but also Reece’s, despite the fact no one had questioned Reece’s qualifications. Fourth, even before the interviews, Mattman had expressed her preference for Ruston, a Caucasian, and both Smith and Maines had the impression at Ruston’s interview that she thought the job was already hers. Doc.173,pg.114-15,124;Doc.174,pg.272. Evidence of Maines’s past experience and interactions with Mattman also support the jury’s finding that he opposed what he believed in good faith to be unlawful discrimination. First, Maines knew that several African-American employees had previously filed a race discrimination complaint against Mattman. Doc.173,pg.137-38. Second, at an all-department meeting with 80-85% African- American employees, Mattman’s reference to “them” “made [Maines’s] skin crawl” and gave him “a weird feeling.” Doc.173,pg.139. Third, at dinner that night Mattman, a high-ranking FedEx official, elected to sit at an all-Caucasian table although 80-85% of the attendees were African-American. Doc.173,pg.139. The EEOC also offered evidence that Maines immediately reported his suspicion that Mattman had discriminated based on race. This provides further evidence to support the jury’s finding. Cf. Little, 103 F.3d at 960 (holding that “no rational jury could find [plaintiff]’s belief that his opposition to [a] racist remark constituted opposition to an unlawful employment practice to be objectively reasonable” where plaintiff never reported comment to management and first mentioned it at a team meeting eight months later). Accordingly, when viewed in the light most favorable to the EEOC, the evidence presented to the jury was more than sufficient to support the jury’s finding that Maines opposed what he believed in good faith to be unlawful discrimination. Doc.116,pg.1. B. The jury’s finding that FedEx took another adverse action against Maines is well supported by the record and the law. 1. Constructive Discharge To prove constructive discharge the EEOC had to show that working conditions were so intolerable that a reasonable person in Maines’s position would have felt compelled to resign. Akins v. Fulton County, 420 F.3d 1293, 1302 (11th Cir. 2005). FedEx argues that the EEOC failed to meet this standard because FedEx did not subject Maines to a “hellish” hostile work environment. Br. at 12- 17. This argument ignores well-established case law making clear that a hostile work environment is not the only kind of discriminatory action that can precipitate a constructive discharge. The district court recognized this when it refused to instruct the jury that the intolerable conditions had to be a hostile work environment. R.175,pg.609. In any event, FedEx waived any argument that the court erred in failing to instruct the jury that the hostile work environment must be “hellish” because FedEx did not argue the “hellish” standard below. Moreover, “hellish” is not the standard in this circuit for hostile work environment claims. The Supreme Court recently stated that sexual harassment cases are “one subset of Title VII constructive discharge claims.” Penn. State Police v. Suders, 542 U.S.129, 131, 124 S.Ct. 2342, 2352 (2004) (emphasis added); see generally 1 Lex K. Larson, Employment Discrimination, § 15.08 (2d ed. 1999 & Supp. 2005) (stating that most common basis for constructive discharge is harassment but that “constructive discharge claims also may be based on other kinds of intolerable working conditions” such as “an involuntary transfer” to less desirable position “or assigning an employee to extremely unattractive duties”). Accordingly, this Court has recognized that discriminatory actions besides a hostile work environment – such as a transfer – can precipitate a constructive discharge. Maddow v. Proctor & Gamble, 107 F.3d 846, 852 (11th Cir. 1997) (“[R]equiring a transfer can be a constructive discharge.”); see also Poole v. Country Club, 129 F.3d 551, 553 (11th Cir. 1997) (without conducting hostile-work-environment analysis, holding that being “[s]tripped of all responsibility, given only a chair and no desk, and isolated from conversations with other workers” could be constructive discharge). Other courts have also recognized that “[w]hen an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns, the employer’s conduct may amount to a constructive discharge.” EEOC v. Univ. of Chicago Hospitals, 276 F.3d 326, 332 (7th Cir. 2002); see Burks v. Oklahoma Publ’g, 81 F.3d 975, 978 (10th Cir. 1996) (“[A]n employee can prove a constructive discharge by showing that she was faced with a choice between resigning or being fired.”); Lopez v. S.B. Thomas, 831 F.2d 1184, 1188-89 (2d Cir. 1987) (holding that plaintiff raised factual issue as to constructive discharge where employer told him he would be fired at end of probationary period no matter what he did). Here, a reasonable jury could have found that FedEx subjected Maines to intolerable conditions that would have compelled a reasonable person in his position to resign. As discussed, supra at 10-13, these conditions included the following retaliatory actions: the ultimatum between the demotion and the warning letter, with Mattman’s threat that if Maines took the letter his next mistake would result in his termination; issuance of the letter, which prohibited Maines for one year from applying for a job change; increased scrutiny and criticism of Maines’s work and that of his subordinates; monitoring of Maines’s phones and e-mails; monitoring of the e-mails of Maines’s subordinates; and reduction of Maines’s e- mail capacity. Under this Court’s precedent, this evidence was more than sufficient for the jury to have reasonably concluded that FedEx constructively discharged Maines. See Akins, 420 F.3d at 1302 (plaintiffs’ claims that employer removed work duties, excluded them from meetings, told co-workers not to talk to them, required public display of time sheets, and sabotaged bids supported constructive discharge); Poole, 129 F.3d at 553 (holding that being “[s]tripped of all responsibility, given only a chair and no desk, and isolated from conversations with other workers” could be constructive discharge). A reasonable jury also could have found that the warning letter and FedEx’s other retaliatory actions were “the handwriting on the wall and [Maines] quit just ahead of the fall of the axe.” Lindale v. Tokheim, 145 F.3d 953, 956 (7th Cir. 1998). Jenkins and Christian had told Maines that Mattman was “furious” that he had called the legal department. Doc.173,pg.145. When Lannom gave Maines a choice between demotion and the warning letter, he warned Maines that if he chose the letter, “Diane wants you to know that the next mistake you make you will be terminated.” Doc.173,pg.153. The warning letter, which falsely stated that this was Maines’s second occurrence in ninety days, warned that further misconduct could result in termination and prohibited Maines from applying for job changes for the next year. Doc.173,pg.162. Because Maines’s department handled invoice mistakes, Maines believed it would not take FedEx even a year to get rid of him. Id. Finally, Lannom sent Maines a letter on April 5, 2001, telling him to report back to work to resume his GFTP procedures at “step one,” which would have sent Maines’s complaint back to Mattman, the person who had initiated the retaliation against him. Doc.173,pg.197-98. This evidence was more than sufficient for a jury to find that “a reasonable employee standing in [Maines’s] shoes would have believed that had []he not resigned, []he would have been terminated.” University of Chicago Hospitals, 276 F.3d at 332 (finding that EEOC showed constructive discharge where plaintiff was warned of plan to discharge her, her evaluations worsened, she was accused of failing to follow work directives, she was told that this was “the last straw,” and she came to work to find her office packed up). Mattman’s threat of termination in conjunction with the warning letter was sufficient to “communicate to a reasonable employee that []he” would “be terminated” if he did not quit. Id. at 332; see Welch v. Univ. of Tex., 659 F.2d 531, 533-34 (5th Cir. Unit A Oct. 15, 1981) (affirming finding of constructive discharge where supervisor said he did not want a female doctor working for him and that plaintiff was overqualified and then asked her when she was leaving). This conclusion is supported by the fact FedEx never rebutted Maines’s assertion in his GFTP complaint that he would be subject to further acts of retaliation or his assertion in his resignation letter that he was being constructively discharged. Doc.175,pg.588-89;Doc.117,Ex.27,pg.14. See Welch, 659 F.2d at 533, 534 n.4 (finding additional support for constructive discharge where plaintiff told personnel she believed she was being fired a month before her resignation and personnel “did nothing to rebut her claim”). Similarly, Maines’s letter itself, which described the retaliation and his duress over being forced out, provided evidence in support of the EEOC’s constructive discharge claim. Cf. Hipp v. Liberty Nat. Life Ins., 252 F.3d 1208, 1241 (11th Cir. 2001) (finding that plaintiff’s resignation letter undercut constructive discharge claim because it never suggested discrimination and, in fact, said he enjoyed company and would consider returning). FedEx nevertheless argues that Maines’s resignation did not constitute a constructive discharge because FedEd did not subject him to a “hellish work environment.” Br. at 12. This argument fails for several reasons. As previously noted, a hostile work environment is not a requirement of a constructive discharge claim. Furthermore, FedEx never requested that the court use the “hellish” standard in either its jury instructions or verdict form. Doc.175,pg.607-09; Doc.56(proposed instructions). FedEx has therefore waived any argument that the court failed to instruct the jury on this standard. Nor did FedEx argue the “hellish” standard in its motion for judgment as a matter of law or for a new trial. Doc.127. Even if it had, the “hellish” standard for a hostile work environment comes from the Seventh Circuit, and FedEx has failed to cite a single case from this Court adopting it. Br. at 14. Therefore, the EEOC did not need to show a “hellish” environment. In addition, the evidence is sufficient to support a reasonable jury’s finding that FedEx subjected Maines to a hostile work environment that became so intolerable that a reasonable person in his shoes would have quit. See Hipp, 252 F.3d at 1231 (“The standard for proving a constructive discharge claim is higher than the standard for proving a hostile work environment.”). Whether an environment is hostile turns on “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., 510 U.S. 17, 23, 114 S.Ct. 367, 371 (1993). Nearly all of FedEx’s retaliatory actions occurred during a twenty-three day period between February 7, 2001, when Maines called the legal department, and March 2, 2001, when he went on administrative leave. A jury could therefore find that the retaliatory conduct – including the ultimatum, the warning letter and termination threat, the increased scrutiny and criticism of his work and that of subordinates, and the monitoring of phones and e-mails –was “frequent.” A reasonable jury could also find that the conduct was “severe” and “humiliating” because Maines, an outstanding employee for twenty-one years, was given the intolerable choice between a five-level/$50,000 demotion reporting to his subordinate and a warning letter accompanied by the threat that “the next mistake you make will result in your termination.” A reasonable jury could also find that the harassment unreasonably interfered with Maines’s work performance based on the following evidence: reduction of Maines’s e-mail capacity, which interfered with his ability to do his job, Doc.173,pg.178-79; increased scrutiny and criticism of Maines’s work and that of his subordinates, which interfered with his job and made him fear for his subordinates’ jobs, eventually prompting his resignation, Doc.173,pg.166,&191, Doc.175,pg.436; monitoring of Maines’s phone, which made him afraid to use the telephone for fear that what callers said to him about Lannom and Mattman would be used against them, Doc.174,pg.256; and the fact that Maines was “very stressed” and “continually upset” at work and even cried in his office several times, Doc.175,pg.433,436. This evidence was sufficient for a reasonable jury to conclude not only that FedEx subjected Maines to a hostile work environment, but that the environment was so intolerable that a reasonable person would have felt compelled to resign. Thus, viewed in the light most favorable to the EEOC, the evidence presented at trial was more than sufficient to support the jury’s finding that FedEx constructively discharged Maines. 2. Other adverse actions FedEx also argues that the court erred in allowing the jury to consider over FedEx’s objection whether “the discrete acts of alleged harassment could individually constitute adverse employment actions.” Br. at 17-22. This argument fails for several reasons. First, FedEx mischaracterizes the jury’s instructions and contradicts what it argued at trial. The jury was not asked whether each “discrete act” constituted an adverse employment action. Instead, the court instructed the jury generally about what constitutes an adverse action, Doc.115,pg.9, and then asked, in the jury verdict – over FedEx’s objections – whether FedEx subjected Maines “to an adverse employment action other than constructive discharge.” Doc.116,pg.2;Doc.175,pg.612-13.<2> Second, assuming FedEx is trying to argue that the evidence did not support a finding that Maines was subject to another adverse action apart from the constructive discharge, this argument fails because a reasonable jury could have found that the warning letter constituted an adverse action. Additionally, or in the alternative, a reasonable jury could have found that FedEx’s collective actions against Maines constituted an adverse action. a. warning letter A reasonable jury could find that the warning letter was an adverse action. As FedEx acknowledges, this Court has held that an adverse action must “meet some threshold level of substantiality” but need not be an ultimate employment decision. Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1456 (11th Cir. 1998) (“Permitting employers to discriminate against an employee who files a charge of discrimination so long as the retaliatory discrimination does not constitute an ultimate employment action, could stifle employees’ willingness to file charges of discrimination.”). This Court has suggested that a performance memorandum that renders an employee ineligible for promotional opportunities would meet this standard. See Davis v. Town of Lake Park, 245 F.3d 1232, 1241 (11th Cir. 2001) (“[C]ourts are wisely reluctant to treat job performance memoranda as actionable . . . where they do not trigger any more tangible form of adverse action such as . . . ineligibility for promotional opportunities . . . .”); see also Akins, 420 F.3d at 1301 (“[A] negative work evaluation can constitute an adverse employment action under some circumstances . . . .”). Accordingly, a written reminder that “result[s] in the outright closing of job openings . . . and the loss of opportunity to compete for any position” could support a retaliation claim. Gagnon v. Sprint, 284 F.3d 839, 851 (8th Cir. 2002). Here, Maines’s warning letter met the “threshold level of substantiality” required for adverse actions. Wideman, 141 F.3d at 1456. As in Gagnon, the letter resulted in the “outright closing of job openings” and the “loss of opportunity to compete for any position” for one year. Gagnon, 284 F.3d at 851 (holding that, if true, plaintiff’s claim that he could not apply for any position for six months without approval from vice president could support retaliation claim); see Doc.117,Ex.17,Doc.173,pg.162. Because the letter made Maines ineligible for any job openings, which would necessarily include promotions, a reasonable jury could find that the letter constituted an adverse action. See Davis, 245 F.3d at 1241 (suggesting that performance memorandum making employee ineligible for promotional opportunities constitutes adverse action). b. Collectively A reasonable jury also could have found that the warning letter in conjunction with FedEx’s other retaliatory actions constituted an adverse action. This Court has repeatedly found that even when individual actions do not rise to the level of adverse actions, they may collectively constitute an adverse action when they rise to “some threshold level of substantiality.” Wideman, 141 F.3d at 1456; see also Shannon v. BellSouth Telecomms., 292 F.3d 712, 716 (11th Cir. 2002) (actions considered collectively constituted adverse action); Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1118 (11th Cir. 2001) (same). Here, the jury reasonably could have found that the numerous individual actions taken against Maines collectively constituted an adverse action, even if not every individual act was an adverse action. As discussed, supra, at pages 10-13, these actions included monitoring Maines’s phones and e-mails and the e-mails of subordinates, increased scrutiny and criticism of his work and that of subordinates, reduction of Maines’s e-mail capacity, giving him an ultimatum between a demotion and a warning letter, and issuing the warning letter, which was the first reprimand Maines had received in his twenty-one years at FedEx, along with the warning that his “next mistake would result in his termination.” Under this Court’s precedent, the jury reasonably could have concluded that these retaliatory actions – which included the warning letter – collectively amounted to an adverse action. See Shannon, 292 F.3d at 715-16 (holding that actions considered collectively were adverse where plaintiff was denied overtime, reassigned, given more severe suspension and trouble swapping workdays, given un-air-conditioned van, sent home to change for non-uniform pants, and denied time to get safety glasses or change soiled clothes); Bass, 256 F.3d at 1117-18 (holding that being denied routine work assignments, forced to perform custodial/clerical work under less senior personnel, transferred without being told to non-budgeted position not covered by union contract, and ordered to take tests to retain paramedic pay were, considered collectively, adverse action); Wideman, 141 F.3d at 1455-56 (actions considered collectively were adverse where plaintiff was listed as no-show on scheduled off day, given written reprimands and one-day suspension although she had no other reprimands in preceding eleven months, not scheduled for work, and threatened, and where employer delayed authorizing needed medical treatment and solicited negative statements about her). Accordingly, the evidence was more than sufficient to support the jury’s finding that FedEx subjected Maines “to an adverse employment action other than constructive discharge,” Doc.116,pg.2. Even if the court erred, however, in allowing the jury to consider adverse actions other than constructive discharge, this was a harmless error because it did not prejudice FedEx. See Fed. R. Civ. P. 61 (error must be “inconsistent with substantial justice” to constitute ground for granting a new trial or setting aside a verdict). The jury’s finding that FedEx constructively discharged Maines is sufficient, standing alone, to affirm the jury’s finding of liability and its award of back pay and compensatory damages. C. A causal nexus existed between Maines’s call to the legal department and the adverse actions FedEx took against him immediately thereafter. The record supports the jury’s finding of a causal nexus between Maines’s protected activity and FedEx’s adverse actions. Doc.116,pg.2. “The causal link element is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (internal quotations and citations omitted). As FedEx acknowledges, “[c]lose temporal proximity between the protected activity and the adverse action may be sufficient to show that the two were not wholly unrelated.” Shannon, 292 F.3d at 716-17 (internal quotation and citation omitted). Here, FedEx does not dispute that Mattman knew about Maines’s complaint to the legal department at the time of the adverse actions. See Clover v. Total Sys. Servs., 176 F.3d 1346, 1354 (11th Cir. 1999) (decisionmaker must know of protected activity at time of adverse actions); Doc.175,pg.501 (Richards told Mattman of Maines’s complaint on February 7, 2001). FedEx nevertheless contends that the EEOC failed to establish a causal nexus because Mattman testified without rebuttal “that she made the discipline decision before Maines complained.” Br. at 25 (citing Doc.175,pg.500). This simply is not true. Mattman’s testimony at the cited page was merely that on February 5, 2001, she and Guzman discussed “the possibility of disciplin[ing]” Maines. Doc.175,pg.500. Mattman actually testified that the final decision to discipline Maines, and how to do so, was made after the investigation that followed Lannom’s February 8, 2001, appointment as head of operations. Doc.175, pg.505-506. Since Maines called the legal department on February 7, 2001, the actual undisputed evidence establishes that the decision to discipline Maines was made after he complained to the legal department. Doc.173,pg.141. In fact, the decision was made almost immediately after he complained. Just nine days later, on February 16, 2001, Lannom called Maines and gave him an ultimatum: either accept a “strongly worded warning letter” or a five-level demotion with a $50,000 pay cut. Doc.173,pg.152-54. Seven days later, after Maines refused either option, Lannom issued the February 23, 2001, warning letter. Doc.173,pg.155. Other retaliation also followed immediately after Maines’s call to the legal department. Doc.173,pg.165. Suddenly, Maines’s work – and that of his subordinates – was subject to increased scrutiny and criticism. Doc.173,pg.165-66. Both Maines and Ings believed that their computers were being monitored. Doc.174,pg.431-32; Doc.173,pg.177. Maines also received a phone call making him think his phone was being monitored. Doc.173,pg.177. Maines’s e-mail capacity was reduced. Doc.173,pg.178. Other evidence besides the close temporal proximity between Maines’s protected activity and the adverse actions supports the jury’s finding. The day after Maines called Richards, Christian and Jenkins told him that Mattman “was furious at [Maines] for calling the legal department.” Doc.173,pg.145. They warned that Mattman could do “anything she wants.” Id. Although she was usually very friendly, when Mattman called Maines later that day she was “very curt, very rude, very abrupt.” Doc.173,pg.146. That night, Jenkins called Maines at home and repeatedly warned him to be careful because Mattman was a vice president and could do “anything she wants.” Doc.173,pg.148. Jenkins added, “you have sicked the wolves on her and now she is mad at you.” Id. Christian also admitted that Mattman was “upset because Ted [Maines] had called legal.” Doc.175,pg.476-77. Given the close temporal proximity between the protected activity and adverse actions, the warning letter, the increased scrutiny and criticism, and Mattman’s awareness of – and furious reaction to – Maines’s complaint to the legal department, the jury reasonably found a causal nexus. See Weaver v. Casa Gallardo, 922 F.2d 1515, 1525 (11th Cir. 1991) (“The pronounced increase in negative reviews and the careful scrutiny of Weaver’s performance, coupled with testimony suggesting that management personnel were acutely aware of Weaver’s EEOC charge, is sufficient to establish a causal link for Weaver’s prima facie case of retaliatory discharge.”), superseded by statute on other grounds; Bass, 256 F.3d at 1119 (finding that plaintiff established causal nexus where adverse actions began soon after the filing of discrimination charge). D. A reasonable jury could have disbelieved FedEx’s proffered non- discriminatory reasons for its retaliatory actions. Finally, FedEx half-heartedly argues that the evidence was insufficient to show that its actions were a pretext for retaliation. Br. at 26-27. The Supreme Court has stated that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109 (2000); see also Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005) (in determining pretext, courts examine whether “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer’s proffered legitimate reasons for its action [exist] that a reasonable factfinder could find [all of the reasons] unworthy of credence”) (internal quotations and citation omitted). Whether judgment as a matter of law is appropriate depends on a number of factors such as “the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law.” Reeves, 530 U.S. at 148-49, 120 S.Ct. at 2109. Here, FedEx argues that the warning letter does not support an inference of pretext. Br. at 26-27. This argument fails for several reasons. First, FedEx ignores all of the evidence, discussed supra, that supports the EEOC’s prima facie case, including the extremely close temporal proximity between Maines’s call to the legal department and the retaliation that occurred immediately thereafter, Mattman’s abrupt change in attitude towards Maines, and evidence that Mattman was upset and angry that Maines had called the legal department. See Reeves, 530 U.S. at 148-49, 120 S.Ct. at 2109 (strength of prima facie case relevant to pretext). Second, the EEOC offered evidence challenging each reason given in the warning letter for disciplining Maines. See Hinson v. Clinch County, 231 F.3d 821, 830-31 (11th Cir. 2000) (finding that plaintiff’s prima facie case and evidence of the falsity of employer’s reasons for adverse action would allow jury to infer discrimination). As discussed supra, the undisputed evidence at trial established that none of the alleged leadership misconduct contained in the warning letter actually violated any FedEx policy. FedEx does not dispute this, Br. at 26-27, but nevertheless argues that the EEOC ignored the letter’s “clear reference to Maine’s overall leadership failure and the specific reference to that term in FedEx’s policy.” Br. at 27. FedEx’s argument misses the point. Given that the evidence discredited the warning letter’s enumerated instances of “leadership failure,” and that FedEx’s policy does not otherwise define “leadership failure,” the jury was free to believe that FedEx’s justifications for the warning letter (and for the ultimatum that preceded it) were unworthy of belief and infer that retaliation was the real reason. The jury could have found further support for this conclusion from other inconsistencies and contradictions in the letter. FedEx does not dispute that the letter wrongly states that this was Maines’s “second occurrence within 90 days” requiring nullification of the interview process. Doc.117,Ex.17. The letter also states that an investigation was done, but Lannom testified that Mattman did the investigation while Mattman denied having been involved in it, and no one ever interviewed Maines. Doc.175,pg.520,577;Doc.174,pg.254. Similarly, the letter stated that one of the applicants had served as an administrative support person for both panel members, but it is undisputed that Miller served only as Maines’s administrative support person – not Smith’s. Doc.173,pg.160. Additionally, although Mattman initially expressed concern that the hiring should have been for one position, Doc.173,pg.132, the EEOC offered undisputed evidence that Mattman herself had authorized two positions. Doc.117,Ex.23. Finally, although FedEx argued below and on appeal that Miller was unqualified for the position, the warning letter is conspicuously void of this allegation, casting further doubt on whether this was the real reason for Maines’s discipline. The EEOC also offered evidence of the irregular circumstances surrounding Maines’s discipline, which could allow a jury to infer pretext. See Vessels, 408 F.3d at 771 (inconsistencies or contradictions in proffered legitimate reasons can allow factfinder to find reasons unworthy of belief). Maines testified that a “warning letter” was normally used for behavior problems, not performance problems. Doc.173,pg.164. Maines further testified that a prerequisite to issuing a warning letter was to interview the employee. Doc.174,pg.253. No one, however, interviewed Maines before he received the warning letter. Doc.174,pg.254. The EEOC cast further doubt on FedEx’s proffered reasons for disciplining Maines by introducing evidence that prior to February 7, 2001, Maines had received accolades for his leadership abilities. It is undisputed that FedEx viewed Maines as an outstanding employee for the twenty-one years before the retaliation began. In the year before his discharge, Mattman authorized Maines’s receipt of a “superstar” rating for his “outstanding leadership.” Doc.173,pg.108. Just a month before his complaint to the legal department, Mattman also approved a discretionary bonus for Maines in recognition of his outstanding performance. Doc.173,pg.109-10;Doc.117,Ex.6. Given Mattman’s recognition of Maines’s outstanding leadership abilities, a reasonable jury could have disbelieved that FedEx disciplined Maines for a “leadership failure” and reasonably inferred that the real reason was retaliation. See Hairston v. Gainesville Sun Publ’g, 9 F.3d 913, 921 (11th Cir. 1993) (jury could find pretext where plaintiff received above- average evaluations before filing complaints but then received negative evaluations “and was subject to increased scrutiny and harassment”); Welch, 659 F.2d at 534 (holding that evidence of plaintiff’s “good work performance and defendant’s total lack of testimony of poor work performance or failure to get along with other employees, establishes the pretextual nature of defendant’s” claim that plaintiff voluntarily resigned). Accordingly, when viewed in the light most favorable to the EEOC, the evidence was more than sufficient to support the jury’s finding that FedEx retaliated against Maines by subjecting him to adverse actions because he had engaged in statutorily protected conduct. See Reeves, 530 U.S. at 148, 120 S.Ct. at 2109. Therefore, this Court should affirm the judgment, based on the jury’s verdict, finding that FedEx violated Title VII by retaliating against Maines. EEOC’s Cross-Appeal, No. 05-14108 I. The District Court abused its discretion in denying the EEOC’s request for front pay because FedEx failed to meet its burden of showing that Maines did not mitigate his front pay damages. Prevailing Title VII plaintiffs are presumptively entitled to either reinstatement or front pay as part of Title VII’s remedial “make whole” policy. Weaver, 922 F.2d at 1528; Nord v. U.S. Steel, 758 F.2d 1462, 1473 (11th Cir. 1985). The district court properly held that reinstatement was not feasible in this case. See EEOC v. W&O, 213 F.3d 600, 619 (11th Cir. 2000) (stating that court may award front pay in lieu of reinstatement “when extenuating circumstances warrant”) (internal quotation and citation omitted); Doc.145,pg.3-4. The court abused its discretion, however, in concluding that the presumption in favor of awarding front pay did not apply here because Maines had already received a four- year back pay award and should have “work[ed] his way back up” to a comparable position during that time. Doc.145,pg.5. This conclusion was erroneous for two reasons. First, the court failed to appreciate that FedEx – not the EEOC – had the burden of establishing failure to mitigate front pay damages. The court’s order is silent as to who bears the burden on mitigation. Doc.145,pg.3-6. The law is clear, however, that although Maines had “a duty to mitigate,” Castle, 837 F.2d at 1562, “[t]he failure to mitigate one’s damages is an affirmative defense[.]” Munoz v. Oceanside Resorts, 223 F.3d 1340, 1347 (11th Cir. 2000); Hipp v. Liberty Nat’l Life, 29 F. Supp. 2d 1314, 1322 (M.D. Fla. 1998) (“Defendant bears the burden of proving a failure to mitigate damages” as to front pay award.). Accordingly, once the EEOC provided “the district court with the essential data necessary to calculate a reasonably certain front pay award,” Bruso v. United Airlines, 239 F.3d 848, 862 (7th Cir. 2001) (internal quotations and citation omitted), the burden shifted to FedEx to establish a lack of mitigation. It is undisputed that the EEOC provided the district court with the data needed to calculate a reasonably certain front pay award, including “the amount of the proposed award, the length of time the plaintiff expects to work for the defendant, and the applicable discount rate.” Id. (internal quotations and citation omitted). Maines also offered undisputed testimony that he had “never even thought for one minute of leaving” FedEx and had planned to work at least “another 18 years.” Doc.173,pg.49-50. The EEOC offered expert testimony that Maines’s front pay damages for ten years amounted to $785,963 or, under the unlikely scenario in which Maines’s was able to “close the gap” between his FedEx salary and his current salary within ten years, $432,616. Doc.178,pg.18- 19,21,23-24. Accordingly, the EEOC presented sufficient evidence to calculate a reasonably certain front pay award. Therefore, the burden shifted to FedEx to show that Maines had failed to meet his duty to mitigate his front pay damages. See Munoz, 223 F.3d at 1347. To establish a lack of mitigation, FedEx needed to “show that [Maines] did not make reasonable efforts to obtain comparable work, or that comparable work was available and [he] did not seek it out.” Reiner v. Family Ford, 146 F. Supp. 2d 1279, 1286 (M.D. Fla. 2001) (internal quotations and citation omitted). This FedEx failed to do. The company never offered the testimony of a vocational expert or evidence of job postings or classified newspaper ads showing the existence of comparable positions in the Orlando area for which Maines was qualified but had failed to apply. Instead, FedEx’s attempts to show a lack of mitigation were limited to the following: cross-examination questions asking Maines if he had applied to Suntrust Bank, AT&T, AOL, and Bright House’s call center; the submission of internet print-outs listing Orlando package delivery businesses and Florida call centers for large employers; Lannom’s testimony that Orlando has approximately 75 call centers and his guess that there might be 60 management positions at those centers; and Lannom’s testimony that he had seen two job postings the night before the hearing, one for a director of the Bright Horizons call center and one for a local grocery distributor making $80,000- $120,000 per year. Doc.179. These efforts fall far short of establishing a lack of mitigation. The mere existence of call centers or package delivery businesses in the Orlando area does not demonstrate that any of these companies had – or will have – any job openings that would have put Maines back in a comparable position. Although Lannom testified there are about 75 call centers in the Orlando area with approximately 60 management positions, he also testified that he has no expertise in vocational research and had no idea whether the estimated 60 management positions (which was just a guess) were actually open positions to which Maines could have applied. Doc.179,pg.69,72-73. As for the two open positions he had found the night before the hearing, Lannom testified as to the salary of only one of those positions – at the grocery distributor – and he admitted that he did not even know whether the jobs required a college degree, which Maines lacks. Doc.179,pg.70-71. Consequently, FedEx failed it meet its “burden of showing that comparable positions were available” for which Maines was qualified and had failed to apply. See Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125 (2d Cir. 1996) (affirming front pay award where employer failed to show availability of comparable positions). Not only did FedEx fail to meet its burden of showing a lack of mitigation, but the EEOC offered evidence that Maines continually sought comparable employment from his termination up until the hearing. Doc.179,pg.45,47. His job search included looking in the Orlando Sentinel newspaper “every week” and on www.monster.com. Doc.179,pg.48. He submitted at least 40, and “probably closer to 50 or 60” resumes during the four years between his termination and the hearing. Doc.179,pg.47. He sent resumes to FedEx’s largest competitors, DHL and UPS. Doc.179,pg.45. He applied three or four times to AAA, and he applied three to five times at Disney World. Doc.179,pg.46. He also applied to Marriott, Universal Studios, Emery Worldwide, Featherlight (a luxury coach builder), Staples, Sprint, West Gate Resorts, and The National Deaf Academy. Doc.179, pg.45-49,53. Maines interviewed for a number of jobs, including one at the Orlando Sentinel call center, as director for a psychiatric hospital for deaf children, a management position at the Orlando Public library, and management positions in a manufacturing company and in a warehouse. Doc.179,pg.56. None of the positions he interviewed for, however, offered a salary or position comparable to his position at FedEx. Doc.179,pg.47-48. Although Maines did not employ a head-hunter, he did join networking groups. Doc.179,pg.48. The EEOC also offered evidence suggesting at least four reasons why Maines was unable to work his way back up. First, Maines was 42 at the time of his constructive discharge and 46 at the time of the front pay hearing, which could hamper his search for comparable work. Doc.179,pg.43. See Gotthardt v. Nat’l R.R. Passenger, 191 F.3d 1148, 1157 (9th Cir. 1999) (affirming front pay award of 11 years where court took “into account [plaintiff’s] age (59)”). Second, Maines had come to FedEx without any supervisory or package delivery experience and worked for FedEx for the next twenty-one years, R.179,pg.40, which could reasonably be expected to make his search for a comparable position more difficult than if he had broader work experience. Additionally, his work at the Maitland call center was specialized; Lannom testified that Maines dealt with “billing issues very specific to Federal Express.” Doc.179,pg.73-74. Fourth, Maines never graduated from college, Doc.179,pg.40, further impairing his ability to find a comparable senior-level management position overseeing 150 employees. See, e.g., Gotthardt, 191 F.3d at 1157 (affirming eleven-year front pay award where court rested its decision, in part, on the plaintiff’s “educational and vocational background”). Thus, the court abused its discretion in concluding that because Maines was a “successful manager with many marketable skills” he should have worked his way up to a comparable position during the four years since his discharge and FedEx had shown a lack of mitigation. See Pierce v. Atchison, Topeka & Santa Fe Ry., 65 F.3d 562, 575 (7th Cir. 1995) (court properly refused to reduce plaintiff’s front pay award to reflect his marketable skills where the plaintiff, a senior analyst, “actively pursued comparable employment but had been unable to find anything other than minimum wage (or lower) jobs during the three and one-half years since his discharge”); Padilla, 92 F.3d at 125 (concluding that plaintiff’s failure to try and find comparable position did not constitute a failure to mitigate where plaintiff “had only a high-school education and had worked solely for the railroads since the age of 22” and had “unique and narrow work qualifications”). In reaching a contrary finding, the district court erroneously relied on Weaver v. Casa Gallardo. In Weaver this Court vacated the district court’s front pay award to a discrimination victim. In doing so, this Court observed that the district court had failed to state why the plaintiff “should not have been able to work his way up from management trainee to a supervisory position” during the three years for which he received back pay. Weaver, 922 F.2d at 1529. This Court noted that the district court had reduced the plaintiff’s back pay award “by a modest amount for failure to mitigate damages” and stated, “[t]aking this into account, we see no reason to award him front pay in addition.” Id. (emphasis added). Here, however, the jury awarded Maines his full back pay damages of $201,010.30. The jury therefore necessarily found that Maines had mitigated his back pay damages. The district court also denied FedEx’s motion to amend the judgment by reducing the back pay award, thereby agreeing that the evidence supported the jury’s conclusion. Doc.133,pg.4. Accordingly, Weaver is distinguishable. Because Maines did not have “an opportunity to move to his ‘rightful place,’” a front pay award is necessary to fully compensate him for FedEx’s retaliation and to achieve “the remedial purposes” of Title VII. Weaver, 922 F.2d at 1529. Therefore, this Court should hold that the district court abused its discretion in denying front pay. See Julian v. City of Houston, 314 F.3d 721, 729 (5th Cir. 2002) (district court abused its discretion in denying front pay when plaintiff presented “information necessary to calculate an award, including wage and benefit data”); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1189 (2d Cir. 1992) (affirming 17-year front pay award of $667,000 under state law where “jury’s deliberations were well-cabined by the expert testimony of expected income, possible future earnings from other employment, and expected worklife”). II. The district court abused its discretion in finding that FedEx showed that future retaliation is unlikely to recur and in therefore denying nearly all of the EEOC’s requested injunctive relief. The district court abused its discretion in denying nearly all of the Commission’s requested injunctive relief. See Kidder, Peabody & Co. v. Brandt, 131 F.3d 1001, 1003 (11th Cir. 1997) (denial of injunctive relief reviewed for abuse of discretion). In evaluating a request for injunctive relief, a district court must exercise its discretion in light of the prophylactic purposes of federal law: deterrence of future discrimination and make-whole relief for victims of discrimination. Albemarle Paper v. Halifax Local No. 425 United Paperworkers & Paperworkers, AFL-CIO, 422 U.S. 405, 415-17 (1975); see also Kilgo v. Bowman Transp., 789 F.2d 859, 880 (11th Cir. 1986) (court has duty to deter future discrimination). This Court has indicated that it agrees with the Seventh Circuit that “the EEOC is normally entitled to injunctive relief where it proves discrimination against one employee and the employer fails to prove that the violation is not likely to recur.” Massey Yardley, 117 F.3d at 1253 (citing EEOC v. Harris Chernin, 10 F.3d 1286, 1291 (7th Cir. 1993)). This is because the “EEOC represents the public interest when litigating claims, and, through injunctive relief, seeks to protect not only the rights of the individual claimant, but those of similarly-situated employees by deterring the employer from future discrimination.” Id. Here, the jury found that FedEx retaliated against Maines. Nevertheless, the only injunctive relief the court ordered was that FedEx redistribute its antidiscrimination policy to management officials with supervisory authority over its Maitland employees. Doc.145,pg.7-8. The court reasoned that broader relief was unwarranted because FedEx had shown that “the violation is not likely to recur,” stating that the retaliation “was an isolated incident by a single manager who is no longer employed by FedEx.” Doc.145,pg.7. Additionally, the court noted, no employee at the Maitland facility had filed a discrimination complaint since Maines’s discharge. Id. The court’s reasoning, however, is flawed. As a factual matter, the court erred in finding both that Mattman was the only manager involved in the retaliation and that she is no longer employed at FedEx. The evidence at trial showed that Lex Lannom, who was – and remains – a managing director, participated in the retaliation by issuing Maines’s baseless warning letter. Doc.175,pg.560,564-65;Doc.179,pg.59. Although Lannom testified that Mattman retired in the fall of 2003 and has no ongoing connection with FedEx, Mattman testified at trial that she is the vice president of worldwide revenue operations. Doc.179,pg.65;Doc.175,pg.492. Thus, although Mattman may not be involved in FedEx’s daily operations, the record does not support the court’s finding that she is no longer employed by FedEx. The court also erred in reasoning that because FedEx has not received any discrimination or retaliation complaints in its Maitland facility since Maines’s discharge, no discrimination or retaliation occurred and FedEx had shown that future violations are unlikely. Given FedEx’s punitive response to Maines’s complaints of race discrimination and retaliation, it is reasonable to believe that FedEx’s employees are afraid, with good reason, to complain – not that they have nothing to complain about. To adopt the district court’s reasoning – that the absence of complaints establishes that future violations are unlikely – would actually reward employers whose retaliatory actions have successfully intimidated their employees into silence. The district court’s reliance on the absence of complaints is also inconsistent with this Court’s analysis in EEOC v. Massey Yardley. In that case, this Court held that the evidence suggested that the employer had failed to prove that the violation was unlikely to recur, notwithstanding that there was apparently no evidence of any post-violation discrimination. See Massey Yardley, 117 F.3d 1244. Instead, in reaching its conclusion, this Court relied on the facts that the harassers “remain in the same supervisory positions . . . without, so far as can be ascertained, having been disciplined for their behavior,” “no one at the company seems to have admitted to any wrongdoing,” and the employer had not shown that it had adopted an antidiscrimination policy. Id. at 1254. Accordingly, under Massey Yardley, the absence of post-violation complaints does not establish an employer’s burden of showing that future violations are unlikely to recur. Massey Yardely actually supports the finding that future violations are likely to recur. As in Massey Yardley, the two managers responsible for retaliating against Maines – Mattman and Lannom – remain in their supervisory positions. Although retired, Mattman still holds a very high-ranking position at FedEx and therefore has the potential to influence FedEx’s conduct. Also like the employer in Massey Yardley, FedEx presented no evidence that either Lannom or Mattman were ever disciplined or that anyone at FedEx has admitted to any wrongdoing. Nor has FedEx offered any evidence that anyone in the personnel and legal departments, which also helped decide Maines’s discipline, Doc.175,pg.506, and ignored his requests for help, were ever disciplined for retaliation. Although FedEx, unlike the employer in Massey Yardley, has anti- discrimination and anti-retaliation policies, the existence of these policies does not establish that future retaliation is unlikely. To the contrary, “if [FedEx’s] upper echelon of management felt free to ignore [FedEx’s] policies in the past, there is no reason to believe that those same members of management will abide by them in the future.” Bruno, 239 F.3d at 864 (holding that court abused its discretion in denying injunctive relief); Mohr v. Chicago Sch. Reform Bd. of Trustees, 155 F. Supp. 2d 923, 931 (N.D.Ill. 2001) (ruling that injunction was warranted despite defendant’s antidiscrimination policy and grievance procedure because they were ineffective in preventing the underlying discriminatory events). Consequently, the existence of FedEx’s policies provides no assurance against future retaliation. The response of FedEx’s legal and personnel departments to Maines’s concerns about racial discrimination and retaliation further undermines the district court’s conclusion that FedEx showed that future violations are unlikely. When Maines called Richards, the Senior Counsel for the legal department, to express his concern that Mattman’s nullification decision might have been racially motivated, Richards responded by stating, “okay, what would you like me to do with this information?” Doc.173,pg.143. Only after Maines stated three times that he wanted Richards to “do what’s in the best interest of the company” did Richards state that he would contact Mattman and that Maines would not be retaliated against. Doc.173,pg.143-44. Similarly, when Maines contacted Richards to voice his concern that the warning letter was retaliatory, Richards’s only response was to tell Maines to file a GFTP complaint. Thus, Richards’s responses reveal that, despite the existence of anti-harassment and anti-retaliation policies, FedEx’s own legal department remains ignorant of – or indifferent to – its Title VII obligations to respond to discrimination and retaliation complaints. The personnel department was equally indifferent to FedEx’s Title VII obligation to prevent and remedy retaliation. Eddie Jenkins, the Senior Personnel Representative, never offered Maines any advice about the retaliation, despite telling Maines that Mattman was furious that Maines had “sicked the wolves on her” and could do whatever she wanted because she was a vice president. Doc.173,pg.147-48. Similarly, when Maines called the personnel department and asked for help because he was being retaliated against, the only assistance he received was information on how to electronically file a GFTP complaint. Doc.173,pg.185-86. When Maines filed his GFTP complaint about the warning letter and “retaliation by upper management,” the personnel department told him that his complaint would be directed to Mattman – the very person responsible for the retaliation. Doc.173,pg.188-89. Thus, like Richards’ response, the response of the personnel department shows that FedEx does not know how to respond appropriately to retaliation complaints. This evidence shows that full injunctive relief was warranted because FedEx’s policies are not enforced and therefore are ineffective in preventing or remedying retaliation. See Mohr, 155 F. Supp. 2d at 931 (injunction warranted where policies ineffective in preventing discrimination). Perhaps the most telling evidence of the need for broader injunctive relief is FedEx’s statement in its brief that Maines “compound[ed] his misconduct” when he called the legal department to report his concern that Mattman had discriminated based on race. Br. at 24. This statement betrays FedEx’s continued belief that employees who raise concerns about discrimination to their company’s own legal department have engaged in “misconduct” and, presumably, are subject to discipline. With this attitude, FedEx is almost certain to engage in future violations of Title VII. Accordingly, this Court should remand this case to the district court with instructions to grant all of the EEOC’s requested injunctive relief, which was designed to apprise employees and supervisors of their respective rights and duties under Title VII and FedEx’s own policies and to ensure that those rights and duties are fulfilled. See Massey Yardley, 117 F.3d at 1252, 1254 (remanding with instruction to either state reasons for denying injunctive relief or to grant relief, including an order barring further discrimination and requiring training and posting notice about case). CONCLUSION This Court should affirm the judgment based on the jury's verdict in favor of the EEOC on its retaliation claim and reverse the district court's denial of a front pay award and injunctive relief. Respectfully submitted, JAMES LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the 16,500 word limit approved by this Court's November 2005, order (as verbally relayed to the undersigned counsel by the clerk's office on November 16, 2005). The brief contains 14, 405 words. ______________________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I hereby certify that one copy of the foregoing brief was sent overnight mail, postage prepaid, on this 16th day of November, 2005 to the following counsel of record: Counsel for Defendant Federal Express Corporation Jay Grytdahl Federal Express Corp. 3620 Hacks Cross Rd., Bldg. B Memphis, TN 38125 Counsel for Intervenor-Plaintiff Ted Maines Marcia K. Lippincott Marcia K. Lippincott, P.A. 864 Bright Meadow Dr. Lake Mary, FL 32746 ______________________ Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 *********************************************************************************** <> <1> On February 7, 2001, the day Maines called the legal department, he also submitted a tech request concerning problems with his e-mail capacity. Doc.174,pg.241-42. <2> FedEx actually requested that if the court permitted the jury to consider other adverse actions that the court instruct the jury to consider whether each discrete act – including “the warning letter,” “email monitoring,” “phone monitoring,” “nitpicking by Lex Lannom” and Mattman’s assignment to hear Maines’s GFTP complaint – qualified as an adverse action. Doc.176,pg.623-24. Thus, to the extent that FedEx argues that the court erred in allowing the jury to consider whether each discrete act constituted an adverse action – which the court did not do anyway – FedEx cannot now complain that the court did so.