IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ No. 02-60039 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and LISA PETTIS Plaintiff-Intervenor-Appellee, v. ROYER HOMES OF MISSISSIPPI, INC., Defendant-Appellant. _________________________________________________________ On Appeal from the United States District Court for the Southern District of Mississippi _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7018 Washington, DC 20507 (202) 663-4737 TABLE OF CONTENTS STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .1 Nature of the Case. . . . . . . . . . . . . . . . . . . . .1 Statement of Facts. . . . . . . . . . . . . . . . . . . . .3 District Court Decision . . . . . . . . . . . . . . . . . .9 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. THE EVIDENCE IS SUFFICIENT TO SUPPORT THE JURY'S FINDING OF RETALIATION.. . . . . . . . . . . . . . . . . . . . 12 II. DEFENDANT'S OTHER CHALLENGES TO THE DISTRICT COURT'S DECISION SHOULD ALSO BE REJECTED. . . . . . . . . . . . . . . . . . . . 22 A. Pettis's Charge was Timely. . . . . . . . . . . . . . 22 B. The District Court Properly Awarded $75,000 in Damages. . . . . . . . . . . . . . . . . . . . . . . 23 C. Defendant's Other Arguments Also Lack Merit.. . . . . 26 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . . . . . . .17 Arnold v. Department of Interior, 213 F.3d 193 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . .25 Barber v. CSX Distributing Services, 68 F.3d 694 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . .15 Batiansila v. Advanced Cardiovascular System, Inc., 952 F.2d 893 (5th Cir. 1992) . . . . . . . . . . . . . . . . .21 Brock v. Casey Truck Sales, Inc., 839 F.2d 872 (2d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . .18 EEOC v. Board of Governors, 957 F.2d 424 (7th Cir. 1992) . . . . . .22 Giles v. General Electric Co., 245 F.3d 474 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . .24 Green v. Administrators of the Tulane Education Fund, 284 F.3d 642 (5th Cir. 2002) . . . . . . . . . . . . . . . . .14 Jefferies v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir. 1980) . . . . . . . . . .18 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . . . . . .18 Mota v. University of Texas Houston Health Science Center, 261 F.3d 512 (5th Cir. 2001) . . . . . . . . . . . . .19 O'Hara v. Global Natural Resources, Inc., 898 F.2d 1015 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . .16 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . . . . . . . .17 Rubenstein v. Administrators of the Tulane Educational Fund, 218 F.3d 392 (5th Cir. 2000) . . . . . . . . . . . . . .25 Shaheen v. B.F. Goodrich Co., 873 F.2d 105 (6th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . .16 Stephens v. C.I.T. Group/Equipment Finance, Inc., 955 F.2d 1023 (5th Cir. 1992) . . . . . . . . . . . . . . . . .24 Thomas v. Texas Department of Criminal Justice, 220 F.3d 389 (5th Cir. 2000) . . . . . . . . . . . . . . . . .12 Vance v. Union Planters Corp., 279 F.3d 295 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . .24 FEDERAL STATUTES AND REGULATIONS 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 1343(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Title VII of the Civil Rights Act of 1964 .. . . . . . . . . . . . . 2 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 1981a(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . .26 § 1981a(b)(3) . . . . . . . . . . . . . . . . . . . . . 2, 23-25 27 C.F.R. § 1601.21 . . . . . . . . . . . . . . . . . . . . . . . . 8 STATEMENT OF JURISDICTION The district court had subject matter jurisdiction over the Commission's claims of sex discrimination and retaliation pursuant to 28 U.S.C. §§ 1331 (federal question), 1343(a)(4) (statutory civil rights claim), and 1345 (U.S. as plaintiff). The district court entered a final judgment disposing of all claims as to all parties on June 28, 2001. Record Excerpts ("RE") 9, 31-32. On July 2, the defendant filed a timely post-judgment motion for judgment as a matter of law or a new trial. RE 9. On November 26, 2001, the district court denied that motion. RE 10, 33-38. Defendant filed a timely notice of appeal on December 20, 2001. RE 10, 11. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the evidence is sufficient to support the jury's finding that the defendant violated Title VII by retaliating against Lisa Pettis for refusing to release her claims of sex discrimination by the defendant. 2. Whether the district court erred in entering judgment on the jury's award of damages. 3. Whether defendant's other arguments lack merit. STATEMENT OF THE CASE Nature of the Case This is an appeal from a final judgment entered by the United States District Court for the Southern District of Mississippi (Gex, J.). The jury found for plaintiffs on their retaliation claim and awarded $75,000, and found for defendant on the plaintiffs' discrimination claims. The district court entered judgment on that verdict. The Commission filed its complaint in September 1999, alleging that defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 & 2000e-3, by discriminating against Lisa Pettis based on her sex and retaliating against her. RE 3. In August 2000, Pettis was allowed to intervene to allege the same violations. RE 5. The answers defendant filed in March and September 2000, under the heading "Affirmative Defenses," contained the following statement: "Defendant would affirmatively show that the amount of recovery, if any, to which any aggrieved party may be entitled under Title VII is limited by United States statute." The district court denied defendant's motion for summary judgment in June 2001. RE 7- 8. The case was tried before a jury for two days in June 2001, and the district court entered judgment on the jury verdict as described above. After trial, defendant moved for judgment as a matter of law or a new trial. In its motion for judgment as a matter of law, defendant advanced two arguments for vacating or reducing the damage award: defendant argued that 42 U.S.C. § 1981a(b)(3) does not authorize compensatory damages for victims of retaliation, and that even if compensatory damages are available, the evidence of harm Pettis suffered was not sufficient to support an award of $75,000. Defendant did not ask the district court to reduce the damages to conform with any of the caps established in § 1981a(b)(3). After the district court denied defendant's motion, defendant filed a timely notice of appeal. RE 9-10. Statement of Facts Lisa Pettis was hired by Royer Homes in July 1995 to sell manufactured homes at defendant's retail location in Gulfport, Mississippi. Trial Transcript ("TT") 188. There is no evidence in the record showing the total number of persons Royer Homes employed. Royer Homes was owned by Larry and Patsy White. TT 282-83. Their son Joely White ("Joely") (and, to a certain extent, his wife Amanda) managed the Gulfport lot, and Pettis reported to Joely. TT 81-82, 383, 496. Starting in November 1995, Kenny Starita became the finance and insurance ("F & I") manager at Gulfport. TT 197-98. The Gulfport lot specialized in selling Palm Harbor homes. TT 276. Several witnesses testified that Pettis became quite knowledgeable about Palm Harbor homes and was skilled at properly "spec"-ing them: i.e., supplying the manufacturer with the appropriate specifications for the home so that the manufacturer would deliver a home that met the customer's expectations. TT 83-87, 471-72, 505. There was evidence that other salespeople at Gulfport frequently turned to Pettis for assistance in ascertaining their customers' preferences and in ordering the homes properly. TT 87 ("So we went pretty much to Lisa for everything."). The other salespeople turned to Pettis for assistance both because they recognized her expertise and willingness to help and because Joely and Starita had instructed them to go to Pettis for assistance. TT 83, 471-73. Several witnesses testified that Joely often left her in charge of the Gulfport office when he was away. TT 81, 95-96, 197. According to Pettis, when the White family went on vacation in the spring of 1996, she was left in charge of setting up the new office space at Gulfport and she trained several new salespeople. TT 196-200. Royer Homes usually had a manager at each lot who was in charge of sales. TT 407, 524. Pettis was interested in a promotion from salesperson to sales manager. TT 262-63. According to Pettis, Joely repeatedly told her that she would receive one of the next sales manager slots to become available. TT 215-27, 284. In addition, defendant had Pettis attend a number of management training sessions in the fall of 1996; she was the only Royer Homes employee attending those sessions who was not already a manager. TT 219-20. Royer Homes had two openings for sales managers in May 1996, and four or more openings for sales managers between April and August 1997. TT 303-08. Royer Homes did not promote Pettis to any of these slots. Id. Joely testified that he offered Pettis sales manager positions at Slidell and Vicksburg, but Pettis testified that never happened. TT 215, 501-02. Defendant offered evidence that it decided not to promote Pettis to sales manager at one of the company's larger lots, including Gulfport, because, among other things: (a) she was not one of defendant's top salespeople; (b) Joely believed that she lacked the skills to lead a sales team; and (c) she allegedly often failed to dress appropriately and arrive at work on time. TT 521-23, 531. Plaintiffs offered evidence on the basis of which the jury could have found that Joely refused to promote Pettis to sales manager in significant part because she was a woman. For example, Mary Sexton, one of Pettis's co-workers, testified that Joely told her (Sexton) and several co-workers that they would not get anywhere in management at Royer Homes unless they had penises and played golf. TT 107. April Pulley, another co-worker, testified that she heard Joely say much the same thing directly to Pettis: that she (Pettis) would not get anywhere in the company until she could "grow a dick." TT 481. In March and April 1997, there were two sales manager openings, one at Gulfport (because Joely was being promoted to zone manager over several locations) and one at Slidell, Louisiana. TT 225. Pettis testified that Joely had repeatedly discussed these vacancies with her, telling her she would get one of them. Rather than put Pettis in either spot, however, Joely filled both slots with men. He promoted Starita to F & I/sales manager at Gulfport and hired Tom Palumbo, a close friend, as sales manager at Slidell. TT 232. Believing she had been promised one of these slots, Pettis went to Joely and protested the promotions. She told Joely that Starita in particular should not be promoted to sales manager because he had not been performing his F & I duties satisfactorily, as Joely allegedly well knew, and because he had been having affairs with more than one co-worker and with a customer. TT 232-34. Over the next several months, sales manager openings at defendant's lots in Brookhaven, Vicksburg and Jackson were all filled by men. TT 307-09. At some earlier point the Gulfport lot had sold a home to a customer named Henley, and Pettis and Starita had both received commissions on that sale.<1> TT 251-52. When the sale fell through, Royer Homes, in lieu of making Pettis return the commission that she had received on the sale, required her to sell another home without receiving a commission. TT 251. It was Pettis's understanding at the time that this requirement applied also to Starita. TT 251-52. In July 1997, Pettis learned that Starita had been allowed to keep his commissions from both these sales. TT 252. She also learned that Royer Homes had filled yet another sales manager position, this time at Jackson, Mississippi, without her even knowing about the vacancy until it had been filled by someone else. Id. Accordingly, around the end of July, Pettis again went to Joely to protest. TT 251-53. Pettis testified that when she asked Joely why Starita had been allowed to keep the commissions while she had not, Joely told her that Starita got to keep his commissions because he was in management and because he was a man. TT 252. Pettis became so upset that she left Joely's office in tears. Id. According to Pettis, this conversation was the last straw. She concluded that she would never be promoted to sales manager at Royer Homes because Joely "had no respect for women." Id. A few weeks later Pettis submitted her resignation; her last day of work was September 1. TT 253; Ex. P-3, p. 2. Pettis testified that when she left Royer Homes, the company owed her about $3,000: $1,000 in salary and about $2,000 in commissions. TT 247, 254. Pettis faxed the appropriate documents to the company's corporate headquarters, and asked Joely and Amanda White and Starita to make sure she got her money promptly, but defendant did not send her the money. TT 254. Pettis testified that, when she talked to Joely in the middle of September, he told her that "there was no way I was going to get my last paycheck unless I signed a sheet of paper . . . giving up all my legal rights." TT 255. If she signed the release, Joely allegedly told her, he "would give me $1,000 of the $3,000 he owed me." Id. Pettis did not sign a release, and Royer Homes did not pay her any of the money it owed her. TT 254-55; Ex. P-3, p. 3. Pettis contacted the EEOC about a week after her conversation with Joely in September. TT 255; Ex. P-3, p. 1. On September 23 the Commission sent her a questionnaire to fill out. Ex. P-3, p. 1. Pettis signed the completed questionnaire on November 20, and the Commission received it November 24. Ex. P-3, pp. 1, 4. In the questionnaire Pettis alleged retaliation as well as sex discrimination and complained about "[w]ithholding pay." Ex. P-3, p. 3. On December 12, 1997, Pettis filed a formal charge with the Commission. Ex. D-3, p. 45. During 1998 and early 1999, Pettis cooperated in various ways with the EEOC's investigation of her charge. TT 265. In mid-March 1999, a Commission investigator told Joely that the investigators had recommended that the Commission issue a "cause finding," i.e., a finding that there was reasonable cause to believe Royer Homes had violated Title VII. Ex. D-3, p. 18a; see 27 C.F.R. § 1601.21. Later that month, according to Pettis' testimony, Joely called her on a Sunday evening and warned her "if I didn't drop this case that he was going to sue me for slander, and . . . if I knew what was good for me, I would drop this case . . . or else." TT 266. District Court Decision In its post-judgment motion, Royer Homes urged the district court to vacate the judgment for plaintiffs on the retaliation claim because the plaintiffs had allegedly failed to prove that Pettis had engaged in protected activity before Joely withheld her final paycheck. The district court rejected this contention. The court held that the plaintiffs had presented sufficient evidence of protected activity by presenting evidence that: Pettis complained repeatedly to Joely about men being promoted to sales manager slots ahead of her; Joely himself indicated that Pettis was denied these promotions because she was a woman; and Pettis refused to waive her Title VII rights in order to receive money that Royer Homes owed her when she left the company. ER 36- 37. The district court also rejected Royer Homes' argument that there was insufficient evidence to support the award of damages. The court held that Pettis's testimony provided sufficient evidence that defendant's decision to withhold her final paycheck injured Pettis by exacerbating her family's financial difficulties, her marital problems, and her emotional distress. ER 38. Finally, after reviewing all of the evidence, the district court also denied defendant's alternative request for a new trial, holding that the interests of justice did not require granting that motion. ER 35, 38. SUMMARY OF ARGUMENT The jury was free to find, based on the record evidence, that Pettis was qualified to become a sales manager and was repeatedly promised a sales manager slot; that Royer Homes had five openings for sales managers between March and August 1997 and filled all those slots with men; that Royer Homes treated Pettis differently with respect to commissions than it treated Starita; that when Pettis complained to Joely about the promotions and the commission problem, Joely openly acknowledged that she was being discriminated against because she was a woman; that Pettis and Joely accordingly both knew in September 1997 that Pettis had a viable Title VII claim against Royer Homes; that when Pettis resigned in August 1997, Royer Homes owed her $3,000 in salary and commissions for work she had already performed; and that Royer Homes refused to pay Pettis any of the money it owed her unless she first signed a release of all claims, including her potential Title VII claim. On these facts, Pettis's refusal to sign the release – her insistence on preserving her statutory right to sue Royer Homes under Title VII – was protected activity under § 704(a) of Title VII. Had Royer Homes first paid Pettis all the money it owed her, it would then have been free to offer her some additional money as consideration for a release. Royer Homes violated § 704(a), however, when it required Pettis to give up her statutory rights in order to receive money the company already owed her. A central purpose of § 704(a) is maintaining unfettered access to statutory remedial mechanisms. Private lawsuits are one of the principal ways Title VII is enforced. Private enforcement of Title VII could be gutted if employers were free to require their employees to release all potential claims in order to receive their paychecks. Royer Homes suggests that it was merely offering to settle a legitimate dispute between Pettis and the company about their mutual financial obligations, but the record is devoid of any evidence that such a legitimate dispute existed. Royer Homes also maintains that the Commission should have been required to show that the company treated Pettis differently from other departing employees. Defendant waived this argument by not raising it below, and in any event it lacks merit, because defendant's retaliatory act of requiring a release before paying Pettis money it owed her violated § 704(a) whether defendant imposed this requirement on only Pettis or on all its departing employees. Defendant's attack on the timeliness of Pettis's charge is misdirected, because defendant focuses on the promotions that were denied Pettis in April 1997, which were relevant to plaintiffs' discrimination claim. Plaintiffs' retaliation claim is based on the company's refusal to pay Pettis in September, well within the charge-filing period. Finally, Royer Homes contends that the district court erred in not reducing the jury's $75,000 damage award to $50,000 to conform with the statutory cap in § 1981a(b)(3) . Again, Royer Homes waived this argument by failing to raise the issue with the district court except by a single general statement in its answer, and by failing to introduce the necessary supporting evidence. ARGUMENT I. THE EVIDENCE IS SUFFICIENT TO SUPPORT THE JURY'S FINDING OF RETALIATION. Based on the evidence offered at trial, the jury was entitled to find the following facts:<2> that Royer Homes sent Pettis to management training sessions, left her in charge of the Gulfport lot when the managers were away, and instructed other salespersons to turn to Pettis for assistance in "spec"-ing the homes they sold, TT 95-96, 219-20, 472-73; that Joely had frequent discussions with Pettis in which he indicated that she would get one of the next sales manager openings, TT 215-27; that five sales manager positions became vacant between April and August 1997, and defendant filled each of those positions with a man, TT 303-08; that when the Henley sale fell through, defendant made Pettis return her commission on that sale but allowed Starita to keep his, TT 251-52; that when Pettis complained to Joely about the unfair treatment with respect to commission rebates and about losing out on several sales manager vacancies to men, Joely told her that Starita was allowed to keep his commission on the failed sale in part because he was a man, and that she would not get anywhere in management at Royer Homes until she could "grow a dick." TT 252, 481. The jury was also justified in finding that Royer Homes owed Pettis $3,000 in back pay and commissions when she left the company, TT 247, 254; that Royer Homes refused to pay her the money it owed her, TT 254; that when Pettis asked Joely why the company had not paid her, Joely told her the company would not give her any of the money it owed her unless she first signed a release relieving Royer Homes of any liability for any claims she might have against it, including Title VII claims, TT 255; and that when Pettis refused to sign such a release, Royer Homes withheld the entire $3,000 it owed her. TT 254-55. Finally, the jury was entitled to find that Pettis filed a charge with the Commission, that the Commission investigated that charge, and that Pettis cooperated with the Commission in its investigation, TT 265; Ex. P-3, p. 45; that the agency's investigators notified Joely in mid-March 1999 that they were recommending that the Commission issue a cause finding on Pettis's allegations, Ex. D-3, p. 18a; and that within a week or two of receiving that letter, Joely telephoned Pettis at her home and threatened to sue her for slander if she didn't agree to "drop this case." TT 265-66. In the face of this evidence, Royer Homes insists that the Commission failed to establish a prima facie case of retaliation. This argument should be rejected. To establish a violation of § 704(a), the Commission must show that an employee engaged in protected activity, that she suffered an adverse action, and that there was a causal connection between the protected activity and the adverse action. Green v. Administrators of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002). Defendant's principal argument is that the Commission failed to show that Pettis engaged in protected activity. Royer br. 17-19. Defendant contends that when Pettis complained to Joely about the several promotions she had been denied and about the disparate treatment with respect to commissions, she allegedly did not indicate to Joely clearly enough that she believed she was being discriminated against on the basis of her sex. Royer br. 17. Section 704(a) forbids discrimination against an employee or former employee "because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). Pettis's complaints are covered by the plain language of this provision. The jury could have found that Pettis engaged in protected opposition activity when she repeatedly protested practices (discriminating against women in promotions and commissions) that are in fact unlawful employment practices under Title VII, and that Joely openly acknowledged were discriminatory practices. A retaliation plaintiff is usually required to show that a reasonable employer would have understood that she was alleging unlawful discrimination. See, e.g., Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995) (plaintiff claiming retaliation for opposition activity must show he complained that the challenged action was discriminatory; complaining it was unfair is insufficient). That requirement is not necessary in a situation like this one, where the employer itself acknowledged that it was discriminating on the basis of gender. But even if Pettis's protests in the spring and summer of 1997 were not specific enough to constitute protected activity, she clearly engaged in protected activity in mid-September when she refused to capitulate to Joely's demand for a release. Again, the jury could have found that Pettis and Joely both knew at that point that she had a viable Title VII claim against Royer Homes (because they could have found that Joely openly acknowledged that he was discriminating on the basis of gender), and that Joely pressured her to give up her statutory right to pursue that claim by withholding from her the $3,000 that the company owed her for work she had already performed. Many courts, including this one, have held that an employer may lawfully offer a departing employee benefits to which the employee is not already entitled in exchange for a release, and that these benefits could then constitute adequate consideration for a binding release. See, e.g., O'Hara v. Global Natural Res., Inc., 898 F.2d 1015, 1017 (5th Cir. 1990) (consideration was adequate, so voluntary release was binding) (ADEA). But if the employee is already entitled to the consideration offered, as was the case here, it would not be adequate and the release would not be binding. See O'Hara, 898 F.2d at 1017 (benefits employer gave employee to obtain release constituted adequate consideration only because employee was not already entitled to receive them); Shaheen v. B.F. Goodrich Co., 873 F.2d 105, 107-08 (6th Cir. 1989) (same). Accordingly, in this case, if Pettis had signed the release in order to obtain the money that Royer already owed her, the release would have been unenforceable. It is equally clear that Royer engaged in prohibited retaliation when it punished Pettis, by withholding money it owed her, because she refused to release her Title VII claims.<3> The whole point of the provision prohibiting retaliation is to ensure that employees (and former employees) remain free to protest alleged violations of Title VII by filing charges and by filing lawsuits. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) ("a primary purpose" of § 704(a) is "maintaining unfettered access to statutory remedial mechanisms."). It is crucial that employees remain free to sue their employers under Title VII because such suits are one of the principal ways Title VII is enforced. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974) ("The private right of action remains an essential means of obtaining judicial enforcement of Title VII. In such cases, the private litigant not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices."); McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358 (1995) (stating, in the context of stressing the parallels between the ADEA and Title VII, "The private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the ADEA."). It cannot be true, as Royer implies, that it is legal for an employer to demand a release of potential Title VII claims before paying an employee for work already performed. If it were, employers would be able to gut enforcement of the anti-discrimination statutes by routinely requiring each employee to release all claims before receiving each paycheck. Employers should not be permitted to demand releases before giving their employees compensation already owed them. Accordingly, this Court should hold that, just as an employee engages in protected activity when she files a Title VII charge or lawsuit, she also engages in protected activity when she insists on preserving her statutory right to do so. Cf. Jefferies v. Harris County Cmty. Action Ass'n, 615 F.2d 1025, 1035-36 (5th Cir. 1980) (employee engaged in protected activity under § 704(a) when she told management that she planned to file a charge in the near future, even though the employer fired her before it learned that she had actually filed the charge); Brock v. Casey Truck Sales, Inc., 839 F.2d 872, 879 (2d Cir. 1988) (employer violated FLSA's anti- retaliation provision when it "terminated the five employees because they insisted upon or refused to repudiate rights guaranteed to them under the FLSA"). Royer's contention that the evidence fails to establish adverse actions causally connected to Pettis's protected activity is equally meritless. Joely White left no doubt that his refusal to pay Pettis the money Royer owed her was due to her refusal to sign a release covering her Title VII claims. This Court has made clear that a reduction in compensation is an adverse action for purposes of § 704(a). See Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir. 2001). Accordingly, there is ample evidence that Pettis suffered an adverse action caused by her refusal to release her rights under Title VII. Finally, although Royer does not clearly make this argument, there are statements in its brief suggesting that the company's offer of money to Pettis in exchange for a release was made as part of a settlement of a legitimate dispute with Pettis over moneys owed at the time of her resignation. Thus, the company states as fact in its brief the following: that before issuing Pettis her final paycheck, defendant, pursuant to its usual practice, checked to see if Pettis owed the company any money, and that defendant believed, as a result of its investigation, that Pettis owed Royer Homes more money than the company owed her. Royer br. at 6-8. From this Royer implies that it had a legitimate dispute with Pettis in September 1997 about which party was indebted to the other and that defendant offered Pettis less than she believed the company owed her as a compromise settlement of this dispute. Royer br. at 6-8, 15, 22. The first and principal problem with this argument is that defendant has failed to direct this Court's attention to any evidence in the record that supports its factual assertions.<4> The record contains no evidence that Royer Homes reviewed its records in September 1997 and concluded that Pettis owed the company more than $3,000 and no evidence that Royer Homes believed – or communicated to Pettis – that the company viewed the $1,000 Joely offered Pettis as a settlement of disputed claims. But even assuming arguendo that the record contained evidence supporting such findings, that would not justify Royer's conduct in this case. A compromise settlement of disputed financial obligations may have entitled Royer Homes to require a release of Pettis's claims that the company owed her any additional salary or commissions, but it would not have entitled the company to demand a release of all claims that she might have against the company, including Title VII claims. Royer Homes complains that the district court should have required the Commission to prove that the company treated Pettis differently than it treated its other employees. First, defendant has again failed to identify where in the record it raised this argument in the district court. The company did not raise this argument in this motion for summary judgment, during trial, or in its motion for JML. It is accordingly waived. See Batiansila v. Advanced Cardiovascular Sys., Inc., 952 F.2d 893, 896 (5th Cir. 1992) ("This Court usually refuses to consider issues not raised before the trial court. An exception is often made when the new issue raises a pure question of law, and failure to consider it would result in a miscarriage of justice," but not when "consideration of the newly raised issue in the trial court would have resulted in additional facts being developed there."). Even if it is not waived, the argument lacks merit. If Pettis's refusal to release any potential Title VII claims she might have had was a protected activity under § 704(a), defendant's withholding of the pay due her was unlawful whether the company took this action only with respect to Pettis or with respect to all its employees. If Royer Homes did not require its other employees to sign releases before giving them their final paychecks, its decision to require that of Pettis constitutes retaliation for the reasons spelled out supra. If Royer Homes required all its employees to waive all Title VII claims before giving them their final paychecks, then the company had a policy of retaliating against its employees, and that too would be unlawful. See EEOC v. Board of Governors, 957 F.2d 424, 428-29 (7th Cir. 1992) (a retaliatory policy is a per se violation of an anti-retaliation provision) (ADEA). II. DEFENDANT'S OTHER CHALLENGES TO THE DISTRICT COURT'S DECISION SHOULD ALSO BE REJECTED. A. Pettis's Charge was Timely. Royer Homes complains that Pettis's charge was untimely. The argument is puzzling. Defendant focuses on whether the charge Pettis filed in mid-December 1997 was timely with respect to the decisions in March or April 1997 to deny Pettis a promotion. Royer br. 11. That argument would have been relevant had the Commission prevailed on its claim that the April promotion denials were discriminatory, but the jury rejected that claim. Since Pettis did not start complaining to Joely about promotion denials until after the April 1997 denials, the Commission did not argue below that those April decisions were retaliatory. And since the Commission prevailed only on its retaliation claim, it is not relevant whether Pettis's charge was timely with respect to adverse actions that the Commission did not claim were retaliatory. There is no question that Pettis's charge was timely with respect to defendant's refusal in mid-September to give Pettis her final paycheck. B. The District Court Properly Awarded $75,000 in Damages. In challenging the amount of damages awarded by the jury, Royer first attempts to rely on the statutory cap on damages in § 1981a(b)(3). In the district court, defendant stated in its pleadings that it "would affirmatively show that the amount of recovery, if any, to which any aggrieved party may be entitled under Title VII is limited by United States statute." That sentence was the only reference Royer Homes made in the entire district court record to § 1981a(b)(3) or the concept of a statutory cap. At no point did Royer Homes inform the district court which cap it believed applied. Nor does the record contain evidence showing the total number of persons the company employed. Defendant's motion for JML asked the district court to reduce the damage award, but made no reference to § 1981a(b)(3) or the concept of a statutory cap. Under these circumstances, it is too late for Royer Homes to argue on appeal that the district court erred in not applying the $50,000 cap. Royer Homes never asked the district court to limit the damage award to $50,000 because of § 1981a(b)(3), and did not introduce the evidence that would have been necessary to justify such a reduction. The argument is accordingly waived. See, e.g., Stephens v. C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023, 1026 (5th Cir. 1992) (if the employer failed to raise a defense at trial or in its motions for summary judgment and for JML, and mentioned it only in a general statement in its answer, the defense is waived). This case is not like Vance v. Union Planters Corp., 279 F.3d 295 (5th Cir. 2002), where this Court reduced the district court's damage award from $300,000 to $100,000 because the district court, over defendant's objection, had used the wrong "employer" to determine the appropriate cap. Nor is it like Giles v. General Electric Co., 245 F.3d 474 (5th Cir. 2001), where this Court allowed the employer to rely on the statutory cap of $300,000 even though the employer had failed to raise the statutory cap as an affirmative defense in its pleadings, because it had plainly raised the defense at trial, and the plaintiff had not been unfairly surprised. In both of those cases, the district court was aware that the employer was invoking § 1981a(b)(3), and knew which cap the employer believed appropriate. Here, in contrast, the employer failed to alert the court during or after trial that it was relying on § 1981a(b)(3), and failed to inform the court which cap it believed applied. In sum, the district court should not be faulted for failing to apply the $50,000 cap when Royer Homes failed to ask the court to apply § 1981a(b)(3), and failed to offer the evidence that would have been required to impose a $50,000 cap. Defendant raises a second objection to the damage award, but the legal basis for this objection is not clear. At times it seems that defendant is arguing, citing Arnold v. Department of Interior, 213 F.3d 193 (5th Cir. 2000), that the district court should not have awarded damages for the promotion denials because Royer Homes would not have given Pettis any of those promotions anyway – even if discriminatory or retaliatory motives had not affected those decisions. See Royer br. 13-14. Again, this argument confuses the Commission's discrimination claim, which the jury rejected, with its retaliation claim, which the jury accepted. The adverse action in mid-September was withholding the $3,000 Royer Homes owed Pettis, and defendant introduced no evidence that it would have withheld that money even if Pettis had agreed to sign the release, and the jury made no such finding. At other times defendant seems be advancing the argument that it raised somewhat more clearly below in objecting to the jury instructions (TT 638) and in its JML motion (at pp. 13-14): that since it is unclear in this circuit whether § 703(m) of Title VII applies to retaliation claims, see Rubenstein v. Administrators of the Tulane Educational Fund, 218 F.3d 392, 403 (5th Cir. 2000), it follows that it is also uncertain whether § 1981a applies to retaliation claims: i.e., whether a victim of retaliation is eligible for compensatory damages. But the latter does not follow from the former. The uncertainty about whether § 703(m) applies to retaliation claims arises from the text of § 703(m), which refers only to discrimination on the basis of "race, color, religion, sex, or national origin." There is no comparable lack of clarity in § 1981a, because it expressly applies to violations of § 704. 42 U.S.C. § 1981a(a)(1). C. Defendant's Other Arguments Also Lack Merit. Royer Homes points to several alleged errors the Commission made and several alleged errors in the district court's November 2001 decision. Royer br. 15-16, 26-27. Some of the statements or actions defendant protests were not errors at all. More important, many of the "errors" defendant points to are trivial, and relevant only to facts that were not material to the Commission's retaliation claim, and defendant fails to show that the "errors" it complains of justify reversing the judgment entered on the jury's verdict. Similarly, defendant's post-verdict attack on the veracity and credibility of Pettis's testimony, Royer br. 27-31, provides no basis for reversing the jury's verdict. Royer Homes had an opportunity to challenge the veracity and credibility of Pettis's testimony at trial, and the jury chose to believe those aspects of her testimony that were necessary for it to find unlawful retaliation by Royer Homes. CONCLUSION The Commission introduced sufficient evidence to support the jury's retaliation verdict, and the district court did not err in entering judgment on the jury's damage award. The Commission accordingly respectfully urges this Court to affirm the judgment of the district court. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7018 Washington, D.C. 20507 (202) 663-4737 CERTIFICATE OF SERVICE I hereby certify that two paper copies and one electronic copy of the foregoing brief were served by mailing them on this date first class, postage prepaid, to the following counsel of record: Jack G. Price P.O. Box 461 McComb, MS 39649 William Kulick Kulick & Assoc., P.C. 707 Bienville Blvd. Ocean Springs, MS 39564 Paul D. Ramshaw Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7816 Washington, DC 20507 (202) 663-4737 June 5, 2002 ********************************************************************************** <> <1> In their capacities as interior designer and F & I manager, Pettis and Starita each received a commission on every home sold at Gulfport. TT 247, 430-34. <2> This Court reviews a district court’s denial of judgment as a matter of law (“JML”) de novo, and its denial of a new trial for abuse of discretion. Thomas v. Texas Dep’t of Criminal Justice, 220 F.3d 389, 392 (5th Cir. 2000). A motion for JML should be denied “[i]f reasonable persons could differ in their interpretation of the evidence.” Id. This Court “accord[s] great deference to the jury’s verdict when evaluating the sufficiency of the evidence, viewing all the evidence and drawing all reasonable inferences in the light most favorable to the verdict.” Id. <3> Royer Homes contends that Pettis conceded that the company’s refusal to release her final paycheck was not retaliatory. Royer br. 24-26. Royer Homes misinterprets the testimony. Pettis did not testify that the company’s refusal to pay her was not retaliatory. Rather, she testified that the refusal to pay her was not retaliation for her having filed a charge (which she had not yet done), but rather it was retaliation for her refusal to sign the release. TT 275 (“I didn’t say it was about the EEOC charges, I said his retaliation was because I wouldn’t sign my legal rights away.”). <4> On p. 8 it gives two citations. One is to a deposition that was not entered into evidence at trial. The other is to p. 274 of the transcript. At p. 274 Pettis testified that she resigned in part because of the disagreement she had had with Royer Homes about its requirement that she, but not Starita, sell a home without receiving a commission in order to make up for the commission she had received on the Henley sale that had fallen through. Pettis did not state or imply at p. 274 that in September 1997 she still owed Royer Homes money in connection with the Henley sale.