Statement of Jurisdiction

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) brought this lawsuit to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-16c (“Title VII”). The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(4), and 1345. See also 42 U.S.C. § 2000e-5(f)(1).

This Court has jurisdiction over this appeal under 28 U.S.C. § 1291 because the district court entered a final judgment that disposed of all claims raised by the parties. ROA.1321–ROA.1322. The district court entered a final judgment on August 6, 2015, ROA.1321–ROA.1322, and denied EmCare’s post-judgment motions on April 28, 2016, ROA.15–ROA.16. EmCare filed a timely notice of appeal on May 11, 2016. ROA.1559.

Statement of the Issue

Did the district court properly rule that the Commission offered sufficient evidence to support the jury’s verdict that EmCare’s termination of Luke Trahan was retaliatory?

Statement of the Case

The Commission brought this public enforcement action against EmCare, alleging in its complaint that EmCare subjected employee Gloria Stokes to a sexually hostile work environment and terminated Stokes and fellow employees Luke Trahan and Yvonne Shaw in retaliation for their complaints about the offensive conduct. ROA.18–ROA.19.

A. Background

EmCare provides physicians (“providers”) and physician management services to hospitals and emergency departments. Clinical Partners was a smaller company that performed the same functions, but specialized in doctors and nurses who provide anesthesiological services. ROA.2481–ROA.2482. In August 2008, EmCare acquired Clinical Partners, which became the AnesthesiaCare division of EmCare. ROA.1787–ROA.1788; ROA.1940; ROA.2481–ROA.2483.

In November 2008, AnesthesiaCare hired Luke Trahan as a physician recruiter. ROA.1723–ROA.1724; ROA.1763. About a month later, Jim McKinney, AnesthesiaCare’s CEO, promoted Trahan to recruiting manager, heading both the credentials team and the billing enrollment team. ROA.1763.

McKinney supervised Trahan for several months. ROA.1730. In late March 2009, AnesthesiaCare hired Sean Richardson as its chief operating officer. ROA.2621–ROA.2623. Richardson became Trahan’s supervisor in April. ROA.1751–ROA.1752; ROA.2670.

Karen Thornton, EmCare’s vice president for human relations, headed AnesthesiaCare’s HR office, and supervised Lewis Johnson, the division’s HR manager. ROA.2174; ROA.2184–ROA.2185. Thornton and Johnson talked with each other every day, ROA.2213, and Thornton testified that if anyone had complained to Johnson about significant sexual harassment, “he would have come to my office immediately and made me aware of those allegations.” ROA.2254.

B. The Harassment and Complaints

Gloria Stokes was hired in November 2008 as McKinney’s executive assistant. ROA.922. Yvonne Shaw was hired in April 2009 as a senior credentialing coordinator. ROA.922; ROA.1849–ROA.1850.

Trahan testified to the jury that McKinney made inappropriate sexual remarks and gestures frequently and persistently, and Shaw and Stokes testified that he did so every day he was in the office. ROA.1783; ROA.1863–ROA.1865; ROA.1980–ROA.1981. All three gave various examples of McKinney’s offensive conduct. McKinney commented on Shaw’s body every time he saw her, usually asking her to lower her blouse or shirt to show more cleavage, to hike her skirt up to show more leg, or to turn around so he could see her behind. ROA.1864–ROA.1865. He made similar comments to other women in the office. ROA.1865–ROA.1866. He told Stokes once that he was “hot,” and another time asked her for a cold soda because he was feeling “hot and horny.” ROA.1781; ROA.1974–ROA.1975. And he told AnesthesiaCare finance director Renaye Jenkins that she had “luscious lips” and that her tight jeans “accentuated her ass,” and frequently called her his “brown sugar.” (Jenkins was African-American.) ROA.1733–ROA.1734; ROA.1779–ROA.1780; ROA.1967–ROA.1968.

McKinney was particularly focused on women’s breasts. When Stokes stooped down in his office to recover a dropped item and he saw more cleavage than usual, he exclaimed, “Whoa! You are about to bust through.” ROA.1731–ROA.1732; ROA.1974. He made other comments referring to the size of her breasts and other female employees’ breasts. ROA.1733; ROA.1865–ROA.1866; ROA.1971; ROA.2706. An EEOC investigator testified that AnesthesiaCare employee Sherry Sanchez told her that she called McKinney “the boob man” because he so frequently commented on her breasts and other women’s breasts. ROA.2706. Stokes testified that McKinney would also make groping gestures while commenting on Jenkins’s breasts and EmCare employee Kathy Russo’s breasts, and he would engage in intimate hugs with Russo. ROA.1968–ROA.1971.

Trahan had a photo of his wife on his desk, and McKinney told Trahan—and then Trahan’s wife—that she was out of Trahan’s league. ROA.1735–ROA.1736. On a number of occasions McKinney talked with employee David Copple about becoming intimate with Copple’s wife. ROA.1978. When Trahan toured clients’ hospitals with him, McKinney would frequently tell Trahan which female employees were “hotties” and which ones had “nice long legs.” ROA.1744–ROA.1745.

Trahan and Shaw testified that HR VP Thornton or HR manager Johnson was sometimes present when McKinney made these offensive remarks, but they never admonished him at the time. ROA.1731–ROA.1732 (Thornton said nothing about McKinney’s “bust through” comment); ROA.1866–ROA.1867 (Johnson laughed at McKinney’s offensive comment and walked away). According to Shaw, Richardson was present for at least one of McKinney’s offensive statements, and he reacted by stating that “one day” McKinney was “going to get us in trouble.” ROA.1866–ROA.1867.

Trahan, Shaw, and Stokes all testified that they complained to HR VP Thornton and/or HR manager Johnson about the hostile environment in the AnesthesiaCare office. Trahan complained to HR at least four times. ROA.1738. For example, he complained to Thornton about McKinney’s “bust through” comment to Stokes. Thornton replied that she did not know what he was talking about, even though she had been present at the time. ROA.1732–ROA.1733. Shaw complained to Johnson about McKinney’s inappropriate comments, repeating them to him. ROA.1867–ROA.1868. Stokes complained about McKinney’s conduct “numerous times” to Thornton and more than once to Johnson. ROA.1983–ROA.1985; ROA.2015–ROA.2017. On many of these occasions, the HR official promised to look into the matter, but the complaining employee was never interviewed further and never heard anything about the outcome of any purported investigation. ROA.1732–ROA.1733; ROA.1738–ROA.1739; ROA.1869–ROA.1870; ROA.1872–ROA.1873. Moreover, Trahan testified that each time he complained to HR about McKinney, McKinney would tell him shortly thereafter that he “needed to shape up and do things better,” but when Trahan asked McKinney to point out specific deficiencies, he did not do so. ROA.1751.

COO Richardson and HR VP Thornton gave the jury a dramatically different picture. Thornton admitted that McKinney was “very casual with his employees” for a divisional CEO, ROA.2176, but Richardson and Thornton both testified that they did not remember hearing McKinney make any sexually offensive comments. ROA.2234–ROA.2235; ROA.2664. In addition, Thornton testified that neither Trahan, Stokes, nor Shaw ever came to HR to complain about offensive conduct by McKinney, except that Stokes complained to HR about McKinney’s conduct after she had been notified of her termination in May 2009. ROA.2186–ROA.2187; ROA.2195; ROA.2233; ROA.2248. She was terminated allegedly for poor performance and because she was “too nice” to work for McKinney. ROA.922; ROA.2021–ROA.2022.

C. Trahan’s and Shaw’s Performance

EmCare required its providers to enter into written contracts, and one of Trahan’s principal duties was to draft and edit those contracts. ROA.1752. Many of Clinical Partners’ providers became AnesthesiaCare providers. Clinical Partners had had only verbal agreements with about half of the providers it recruited. ROA.1752; ROA.2483–ROA.2484. (Dr. Harold Bolnick, one of Clinical Partners’ principals, did not like putting things in writing. ROA.2483–ROA.2484.)

If the provider had been a Clinical Partners provider with a written contract, Trahan had to revise the provider’s Clinical Partners contract. ROA.1747. If Clinical Partners had had only a verbal agreement with the provider, Trahan had to get the details of that verbal agreement from Bolnick or, more often, AnesthesiaCare regional vice president Kory Johnson, who had also been a principal at Clinical Partners, and draft a written contract incorporating that information. ROA.1752–ROA.1753. He often had trouble getting accurate and timely information from Johnson. ROA.1753–ROA.1754; ROA.2671. When Trahan told Richardson about this problem, Richardson told him to work it out with Johnson, even though Johnson was above Trahan in the corporate hierarchy. ROA.1754.

About a month after Trahan started at AnesthesiaCare, McKinney visited El Paso to convert the providers there from Clinical Partners to AnesthesiaCare. ROA.1747. Trahan edited those providers’ Clinical Partners contracts into AnesthesiaCare contracts and emailed them to McKinney, but when McKinney opened the documents in El Paso, they were still Clinical Partners contracts. ROA.1747. Concerned that his computer was malfunctioning, Trahan emailed the contracts to Jenkins, the division’s finance director. ROA.1747; ROA.2276–ROA.2277. She reviewed and approved the contracts and emailed them to McKinney, but they still showed up as Clinical Partners contracts when McKinney opened them in El Paso. ROA.1747. Unable to solve the computer problem, Trahan printed hard copies of the AnesthesiaCare contracts in his office in Dallas and flew to El Paso to deliver the contracts to McKinney in person. ROA.1748.

Trahan received very limited feedback about his performance from CEO McKinney or COO Richardson during his tenure with the company. In approximately February 2009, McKinney gave Trahan a 90-day performance review, giving him only positive feedback and telling him to continue doing what he was doing. ROA.1750–ROA.1751. Richardson, Trahan’s new supervisor, met with Trahan in May and told him to make sure that his work product was accurate, verified, and complete. ROA.2658–ROA.2660; ROA.2889.

Trahan met with McKinney and Richardson in late June, and McKinney told Trahan that sometimes his work was incomplete and not reviewed carefully enough. ROA.1749. When Trahan asked McKinney to be more specific, the only example McKinney cited was the problems they had had with the El Paso contracts back in December. ROA.1749. In mid-July, Richardson told Trahan that everything was looking really good, and he should just keep on doing what he was doing. ROA.1760.

As for Shaw, she testified that neither of her supervisors—Richardson and Trahan—criticized her performance until the day Richardson told her she was being terminated. ROA.1861–ROA.1863; ROA.2665–ROA.2667.

D. Trahan, Shaw, and Co-Worker Ken Thompson Complained to HR Together and Then Were Terminated Together.

McKinney’s pattern of sexually inappropriate behavior came to a head in late June 2009 when AnesthesiaCare hosted a Bring Your Child to Work Day (“BYCTW Day”). ROA.2251. Shaw brought her fifteen-year-old daughter Shelby to the office. Shaw introduced Shelby to McKinney and, when he learned Shelby’s age, McKinney remarked, “There is no way she is fifteen with breasts like that.” ROA.1737, ROA.1871. Shaw was shocked and angry that he would say that in front of her daughter and told him his comment was “totally inappropriate.” His response was to laugh. ROA.1871. Trahan was also present and testified that Shaw was “shaking and visibly upset” after the encounter. ROA.1737– ROA.1738.

Shaw decided to go to HR to complain, and Trahan and Ken Thompson, another credentialer, accompanied her to back up her story and because she was so upset. ROA.1738; ROA.1872. When they told HR manager Johnson what had happened, he appeared upset by the story, asked them to submit a written complaint about the incident, and promised to look into it. ROA.1738–ROA.1739; ROA.1872. Trahan prepared a formal complaint and delivered it to Johnson later that day. ROA.1739.

In July, shortly after Trahan, Shaw, and Thompson complained to HR about the events on BYCTW Day, HR VP Thornton suggested that Trahan’s and Shaw’s units be audited. ROA.2244; ROA.2246.[1] Victoria Feather from EmCare’s management services department reviewed the performance of Trahan’s unit and created a document summarizing her findings that she gave to Richardson. ROA.2264–ROA.2265; ROA.2652. Her report included suggestions on how various issues within the recruiting division could be addressed,[2] described Trahan as “the go-to guy for many people in the region,” ROA.2679, and documented that Trahan was far more productive than Greg Burrell, the recruiter who was retained when Trahan was fired, ROA.2680–ROA.2681.[3] At no point in her report did Feather recommend that Trahan be fired. Trahan did not receive any oral or written criticism of his performance based on the Feather audit until his termination. ROA.2682–ROA.2684

Debra Panneck, EmCare’s director of credentialing and enrollment, audited the credentialers’ files. ROA.2596; ROA.2600. Shaw testified that after reviewing three of her files, Panneck told her she did not need to review any others because the three she had already reviewed had no deficiencies. ROA.1880 (they “were in 100 percent compliance with EmCare”). Shaw did not receive any oral or written criticism of her performance based on the Panneck audit. ROA.1880; ROA.2667.[4]

On August 7, 2009, EmCare terminated three (and only three) AnesthesiaCare employees, one right after the other: Trahan, Shaw, and Thompson. ROA.1761; ROA.1778–ROA.1779; ROA.2661. EmCare terminated them about six weeks after they complained to HR about McKinney’s offensive conduct on BYCTW Day. ROA.2251. Richardson and Thornton met with Trahan, and Richardson told Trahan he was being terminated because “it was [not] working anymore.” ROA.1761. No one had told Trahan in June or July that his job was in danger. ROA.1760. Richardson and Thornton then met with Shaw, and Richardson told her she was being terminated because she was not maintaining the EmTrac database satisfactorily. Like Trahan, Shaw had received no warning in June or July that her job was in danger. ROA.1861–ROA.1862.

Although Richardson testified that he decided to terminate Trahan and Shaw, ROA.2354; ROA.2661; ROA.2669, he acknowledged that he discussed both Trahan’s and Shaw’s terminations with Thornton—and Trahan’s with McKinney—before terminating them. ROA.2354–ROA.2355; ROA.2669; ROA.2684.[5] In addition, HR VP Thornton entered Trahan’s and Shaw’s terminations in EmCare’s computer database, even though she performed that function only “occasionally”: when HR had a backlog or she “was personally involved in the transaction.” ROA.2198–ROA.2200.

E. Proceedings in District Court

EmCare did not seek dismissal or summary judgment. The case was tried to a jury for six days in October 2014. ROA.10–ROA.11. The jury found for the EEOC on its retaliation claims on behalf of Trahan and Shaw and on its hostile environment claim on behalf of Stokes, who had intervened. ROA.950–ROA.962. The jury awarded $167,000 in back pay for Trahan, $82,000 in back pay for Shaw, and $250,000 in punitive damages for Stokes. ROA.958–ROA.959; ROA.961. EmCare filed a post-judgment motion for judgment as a matter of law or a new trial, and the judge denied that motion. ROA.306; ROA.15–ROA.16. Shaw and Stokes have settled their claims, ROA.1519; Joint Stipulation filed Oct. 4, 2016, and EmCare is appealing only the judgment finding retaliation against Trahan.

Summary of Argument

The Commission introduced sufficient evidence to support the jury’s verdict finding that Trahan’s termination was retaliatory. EmCare argues that the district court erred in denying the company’s post-trial motion for judgment as a matter of law because, it contends, the EEOC did not offer any evidence that Richardson, who allegedly decided on his own to terminate Trahan, knew when he made that decision that Trahan had complained about McKinney’s sexually offensive conduct. The company can make this argument only by ignoring the substantial evidence showing that the termination was retaliatory: McKinney, the divisional CEO, known by at least one employee as “the boob man,” commented to Shaw and her fifteen-year-old daughter about the size of the girl’s breasts, and Trahan, Shaw, and Thompson went to HR together to complain. (Trahan and Shaw had complained to HR about McKinney a number of times before.) Six weeks later, after consulting with HR, Richardson fired those same three employees, one right after the other, allegedly for poor performance, although there was substantial evidence that their performance was quite satisfactory. EmCare’s argument should accordingly be rejected.

Argument

Standard and Focus of Review

This Court reviews the denial of a motion for judgment as a matter of law de novo and applies the same standard as the district court does. EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 451 (5th Cir. 2013) (en banc). A party cannot obtain judgment as a matter of law “‘unless the facts and inferences point so strongly and overwhelmingly in the movant’s favor that reasonable jurors could not reach a contrary conclusion.’” Id. (quoting Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012)) (internal quotation marks omitted). This Court is “especially deferential” when reviewing a jury’s verdict. Id. It is uniquely the jury’s function “‘to weigh conflicting evidence and inferences, and determine the credibility of witnesses.’” Id. at 452 (quoting Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th Cir. 2012)).

To establish a prima facie case of retaliation under Title VII, the Commission must show that an employee engaged in protected activity, the employer took an adverse action against him, and the protected activity was a but-for cause of the adverse action. Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir. 2015). If the employer articulates a non-retaliatory reason for taking the adverse action, the plaintiff then bears the burden of showing that the alleged reason was a pretext for retaliation. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008).

However, as the Commission’s claim on behalf of Trahan has been fully tried to a jury, this Court “‘need not address the sufficiency of the prima facie case,’” but instead proceeds directly “‘to the ultimate question of whether the plaintiff presented enough evidence for a jury to find that [retaliation] occurred.’” Zamora, 798 F.3d at 333 (quoting Thomas v. Tex. Dep’t of Criminal Justice, 220 F.3d 389, 393 (5th Cir. 2000)).

The Commission Offered Sufficient Evidence that Trahan’s Termination was Retaliatory.

EmCare terminated Trahan and Shaw on August 7, 2009, and it was undisputed that these terminations were adverse actions. ROA.1761; ROA.1778–ROA.1779. At trial, however, the parties vigorously disputed the facts relevant to the other two elements in the Commission’s retaliation claims: whether McKinney engaged in sexually offensive conduct almost every day he was in the office, including on BYCTW Day; whether Trahan and Shaw complained repeatedly to HR about McKinney’s offensive conduct, including on BYCTW Day; and whether that protected activity was a but-for cause of their terminations. The jury considered all the evidence presented and concluded that the version of events presented by the defendant was not credible. [6]

HR VP Thornton and COO Richardson testified that they never observed McKinney engaging in sexually offensive conduct at the office. ROA.2234–ROA.2235; ROA.2252–ROA.2253; ROA.2662; ROA.2664. Thornton testified that Trahan, Shaw, and Stokes never complained to HR about offensive conduct by McKinney (except that Stokes lodged such a complaint after she was told she was being terminated). ROA.2184–ROA.2187; ROA.2248–ROA.2249. Richardson testified that he made the decisions to terminate Trahan and Shaw, and implied that when he made those decisions he was unaware that either employee had complained about McKinney’s conduct. ROA.2637– ROA.2639; ROA.2643–ROA.2645; ROA.2661–ROA.2662. Had the jury believed this version of the facts, it would have found for EmCare on all of the Commission’s claims, because under this version of the facts McKinney did not create a hostile environment, Trahan and Shaw did not participate in protected activity, and their terminations were therefore not caused by their (non-existent) protected activity.

The Commission’s witnesses painted a radically different picture of the relevant facts. They testified that McKinney engaged in sexually offensive conduct every day he was in the office, remarking freely on women’s breasts, legs, and buttocks. ROA.1783; ROA.1863–ROA.1866; ROA.1980–ROA.1981. On BYCTW Day, he even commented to Shaw on the size of her daughter’s breasts when the fifteen-year-old was standing right in front of him. ROA.1737; ROA.1871. HR VP Thornton, HR manager Johnson, and Richardson were each sometimes present when McKinney made these comments. ROA.1731–ROA.1732; ROA.1741; ROA.1866–ROA.1867.

Trahan and Shaw testified that they engaged in protected activity by complaining repeatedly to AnesthesiaCare’s HR officials about McKinney’s sexually offensive conduct. Trahan complained at least four times on his own; Shaw complained on her own at least once; and Trahan, Shaw, and Thompson went together to complain to Lewis Johnson on BYCTW Day. ROA.1731–ROA.1733; ROA.1738; ROA.1867– ROA.1868; ROA.1872. The Commission thus presented ample evidence that Trahan and Shaw participated in protected activity. See Gorman v. Verizon Wireless Tex., LLC, 753 F.3d 165, 167 (5th Cir. 2014) (complaining to the human resources department is protected activity); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595 (6th Cir. 2007) (same).

On appeal, EmCare concedes that the jury had ample evidence before it to find that Trahan engaged in protected activity. EmCare Br. 14, 16. EmCare now focuses on a single element of the retaliation claim: causation. But the Commission offered sufficient evidence that Trahan’s protected activity caused his termination. EmCare terminated Trahan about six weeks after he went to HR to complain about McKinney’s offensive conduct on BYCTW Day. ROA.1761; ROA.2251. This six-week period is well within the four-month period that this Court has repeatedly stated can serve as evidence of a causal connection. See Feist v. La., Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 454–55 (5th Cir. 2013) (“‘a time lapse of up to four months’ may be sufficiently close”) (quoting Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001)); see also Marra v. Phil. Housing Auth., 497 F.3d 286, 306 (3d Cir. 2007) (jury could have reasonably inferred causal connection based in significant part on the “close temporal proximity” of six weeks).

Here, in addition to the timing, the causal connection was further underscored by the fact that EmCare fired three (and only three) employees on August 7, one right after the other, and those three employees were the ones who had gone to HR to complain on BYCTW Day. ROA.1778–ROA.1779; ROA.1872. See, e.g., Greater Omaha Packing Co. v. NLRB, 790 F.3d 816, 821 (8th Cir. 2015) (affirming Board’s finding that the employer’s termination of three employees in one morning was retaliatory where one had openly opposed the wages the employer paid and the company believed the other two were leaders of a work stoppage planned for that day); EEOC v. New Breed Logistics, 783 F.3d 1057, 1069–70 (6th Cir. 2015) (affirming judgment on verdict as to two employees who had engaged in similar protected activity and were fired on the same day).

EmCare offered testimony on the basis of which the jury could have decided that Trahan’s termination was not retaliatory. EmCare argues in its brief to this Court that the jury could have found that Richardson alone made the termination decision and that he remained unaware of the complaints that the CEO was making numerous sexually offensive comments. EmCare Br. 7–8, 16–19. But the jury was not required to credit this testimony. On the contrary, to reach the verdicts it did, the jury necessarily decided that HR VP Thornton and COO Richardson had each lied to protect EmCare from liability. While Thornton testified that she never observed McKinney engaging in sexually offensive conduct, ROA.2234–ROA.2235; ROA.2252–ROA.2253, the jury evidently believed the testimony of the Commission’s witnesses that McKinney engaged in such conduct on a regular and persistent basis, and that Thornton was sometimes present when this occurred. ROA.1731–ROA.1732; ROA.1783; ROA.1863–ROA.1866; ROA.1965; ROA.1980. Thornton testified that neither Trahan nor Shaw complained to HR about McKinney’s comments, ROA.2184–ROA.2187; ROA.2248–ROA.2249; ROA.2260, but the jury credited Trahan’s and Shaw’s testimony that they did complain. ROA.1732–ROA.1733; ROA.1738; ROA.1867–ROA.1869; ROA.1872. Richardson testified that he never heard McKinney make sexually offensive remarks, ROA.2662; ROA.2664, but Shaw testified that not only was Richardson present when McKinney commented offensively on a woman’s breasts, but he reacted to McKinney’s comment by stating that “one day” McKinney was “going to get us in trouble.” ROA.1866–ROA.1867. Richardson testified that Feather’s audit “further substantiated” his own criticisms of Trahan’s performance, ROA.2660–ROA.2661, but the audit report contained only minor criticisms of Trahan and documented that he was significantly more productive than Burrell, the recruiter Richardson retained. ROA.2674–ROA.2681.

Having decided that Thornton and Richardson lied about some facts, the jury was entitled to reject their testimony about other facts. Jury charge at ROA.944 (“A witness may be ʻimpeached’ or discredited by contradictory evidence . . . . If you believe that any witness has been so impeached, it is in your exclusive province to give the testimony of that witness such credibility or weight, if any, as you think it deserves.”); see Boh Bros., 731 F.3d at 452 (it is the jury’s function to determine the credibility of the witnesses); Castro v. DeVry Univ., Inc., 786 F.3d 559, 572 (7th Cir. 2015) (jury rejecting decision-makers’ testimony on one point can reasonably reject their testimony on others). For example, HR VP Thornton admitted that in July 2009, shortly after BYCTW Day, she suggested that EmCare audit the performance of Trahan’s and Shaw’s units, ROA.2244; ROA.2246, contradicting Richardson’s testimony that the audits were his idea. ROA.2635–ROA.2636; ROA.2652. Richardson conceded that he discussed Trahan’s and Shaw’s terminations with Thornton before terminating them, and that he relied on the audit reports in deciding to terminate Trahan and Shaw. ROA.2354–ROA.2355; ROA.2639–ROA.2641; ROA.2660–ROA.2661; ROA.2669. And Thornton acknowledged that she personally posted their terminations in the computer, although that was not her common practice. ROA.2198–ROA.2200. The jury was entitled to infer that Thornton, who in the jury’s view knew about Trahan’s and Shaw’s protected activity, had a larger role in the decision to terminate Trahan and Shaw than Thornton and Richardson admitted.

Trahan testified that each time he complained to HR about McKinney’s conduct, McKinney would shortly thereafter criticize his performance. ROA.1751. The jury was entitled to infer from this that HR VP Thornton and/or HR manager Johnson would regularly tell Trahan’s supervisors—McKinney and Richardson—that Trahan had been making trouble by lodging complaints. See Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) (the decision-maker’s awareness of the employee’s protected activity “may be established by circumstantial evidence”).

Finally, Richardson and Thornton testified that EmCare fired Trahan and Shaw because of problems with their performance, ROA.2244–ROA.2246; ROA.2634–ROA.2635; ROA.2640–ROA.2641; ROA.2650–ROA.2651; ROA.2660–ROA.2661, but the jury was entitled to find this explanation pretextual because the Commission offered evidence that their performance was satisfactory, and that neither Trahan nor Shaw had received the kinds of criticisms or warnings a supervisor would normally give an employee in danger of termination. Trahan was significantly more productive than the recruiter AnesthesiaCare retained. ROA.2680–ROA.2681. The most recent feedback Richardson had given Trahan was to tell him—in mid-July—that “everything was looking really good” and he should “just keep [doing] what [he] was doing.” ROA.1760. Feather’s audit of Trahan’s unit found only minor criticisms of his performance. ROA.2674–ROA.2679. Similarly, Richardson had never criticized Shaw’s performance, and Panneck told Shaw her files were error-free. ROA.1861–ROA.1863; ROA.1880. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 144–45 (2000) (plaintiff can show pretext by rebutting employer’s reasons for termination); Machinchick v. PB Power, Inc., 398 F.3d 345, 354-55 (5th Cir. 2005) (same). The jury accordingly could reasonably find that EmCare’s asserted reliance on Trahan’s and Shaw’s allegedly poor performance was pretextual and that EmCare would not have terminated them but for their protected activity.

EmCare argues that there is “absolutely no evidence” that Richardson knew about Trahan’s protected activity and “no evidence” that Thornton influenced the termination decision, and that the Commission cannot prevail by relying only on “speculative inferences.” EmCare Br. 16–17. It is true that a jury “may not rest its verdict on mere speculation or conjecture.” Pregeant v. Pan Am. World Airways, Inc., 762 F.2d 1245, 1250 n.5 (5th Cir. 1985). But a jury “may make reasonable inferences from the evidence,” and those inferences “may constitute sufficient proof, overcoming at times, direct contrary testimony.” Id. EmCare relies on Lee v. Kansas City Southern Railway Co., 574 F.3d 253 (5th Cir. 2009), EmCare Br. 17, but the Commission offered far more evidence supporting an inference of retaliation here than Lee did. The only evidence Lee offered was that managers at the railroad generally knew about employees’ complaints and that his supervisor had discussed his termination with the company’s labor relations director. Id. at 258. Here the Commission offered substantial evidence supporting a reasonable inference of causation: Richardson and Thornton lied about having witnessed offensive conduct by McKinney; Thornton lied about Trahan’s and Shaw’s complaints to HR; Trahan’s supervisor criticized his performance after he complained to HR about McKinney; Thornton suggested the audits that led to Trahan’s and Shaw’s terminations; EmCare fired Trahan, Shaw, and Thompson, one after the other, six weeks after they complained to HR about a particularly offensive comment by McKinney; and Richardson’s alleged reasons for firing Trahan and Shaw were pretextual. The jury’s verdict was thus hardly based on mere speculation.

Conclusion

The district court properly ruled that the Commission offered sufficient evidence to support the jury’s verdict that EmCare’s termination of Trahan was retaliatory. The Commission therefore respectfully urges this Court to affirm the district court’s judgment on that claim.

[1] Richardson testified that he arranged these audits on his own. ROA.2635–ROA.2636; ROA.2652. He did not mention that Thornton had suggested them.

[2] The report listed four problems in the unit’s performance that were caused by regional VP Kory Johnson’s failure to perform his duties promptly and accurately, a failure that Trahan had earlier reported to Richardson. ROA.2674–ROA.2680; ROA.1753–ROA.1754.

[3] Trahan’s co-workers and subordinates also praised his performance and knowledge. Thompson said Trahan worked hard, was very dedicated, and was a far better recruiter than Burrell. ROA.2366–ROA.2368. Shaw described Trahan as “the guy that we always went to for everything, . . . the one that knew everything from beginning to end regarding the physician [being recruited].” ROA.1882.

[4] Thompson, who worked closely with Shaw and sat right next to her, described her as a “top notch” credentialer. ROA.2360–ROA.2361.

[5] The decision to terminate Thompson was also apparently made by Richardson. ROA.2598–ROA.2599; ROA.2609.

[6] As Shaw and Stokes have each settled EmCare’s appeal of the judgment with respect to their claims, those claims are not at issue in this appeal. But much of the evidence that the jury heard involving Shaw and Stokes was relevant to the Commission’s retaliation claim on behalf of Trahan, overlapping with and reinforcing the evidence that involved only Trahan. See Marra v. Phil. Housing Auth., 497 F.3d 286, 304 (3d Cir. 2007) (evidence showing retaliation against one plaintiff can support other plaintiff’s retaliation claim as well).