Quwanda Phillips v. FedEx Ground Package System, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10005
Non-Argument Calendar
____________________
QUWANDA CANNION PHILLIPS,
Plaintiff-Appellant,
versus
FEDEX GROUND PACKAGE SYSTEM, INC.,
"Fed Ex" or the "Company",
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cv-02137-RBD-LHP
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2 Opinion of the Court 23-10005
____________________
Before WILSON, J ORDAN, and L AGOA , Circuit Judges.
PER CURIAM:
Quwanda Phillips, proceeding pro se, appeals the district
court’s judgment against her, which was entered following a jury
trial on her various race-based discrimination and retaliation claims
against her former employer, FedEx Ground. Specifically, she as-
serts that the district court should have remanded the case to state
court following FedEx Ground’s improper removal, and that the
district court erred in granting FedEx Ground’s judgment as a mat-
ter of law as to her 42 U.S.C. § 1981 discrimination claim and in
giving the jury a coercive Allen charge, see generally Allen v. United
States, 164 U.S. 492, 501–02 (1896), during deliberations. Ms. Phil-
lips also asserts that the jury’s verdict in favor of FedEx Ground on
her Title VII claims was inconsistent and unsupported by the evi-
dence, and thus the district court should have granted her motion
to vacate the judgment and grant a new trial.
I1
Ms. Phillips worked as a part-time package handler for
FedEx Ground in Cocoa, Florida, from March of 2013 through her
official termination in July of 2017. Starting in October of 2013, Ms.
1 We assume the parties’ familiarity with the facts and procedural history and
set out only what is necessary to explain our decision. As to issues not dis-
cussed, we summarily affirm.
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23-10005 Opinion of the Court 3
Phillips began making internal complaints accusing her managers
at the time (Ken Thompson and David Antun) of discriminatory
conduct and remarks addressed to her and other Black employees.
FedEx Ground investigated those complaints and found them to
lack merit. Specifically, Ms. Phillips alleged that Mr. Thompson
favored white employees in hiring and other employment deci-
sions, and that he—along with Mr. Antun—would sabotage her
work by writing her up for unwarranted misloads of her truck. Ms.
Phillips believed this sabotage was an attempt to terminate her
based on her race and she filed her first of four grievances with the
EEOC in October of 2013. In that grievance, she also noted that
Mr. Antun allegedly stated that “Blacks are not smart enough to
load trucks.”
At trial, neither Marquel Kimbrough (another employee)
nor Ms. Phillips testified to having directly heard that statement
and, in fact, testified that they had not directly heard Mr. Antun
make that statement. Ms. Phillips and Mr. Kimbrough did, how-
ever, testify that Mr. Antun asked them whether they were affili-
ated with “the Bloods and Crips” gangs, which both perceived as
an inappropriate stereotype based on their race. Mr. Thompson
was transferred to another FedEx location in October of 2014
(three years prior to Ms. Phillips’ termination), and Mr. Antun was
transferred another location in May of 2016 (more than a year prior
to her termination).
In October of 2015, Ms. Phillips suffered a knee injury which
required certain accommodations. At the time of the injury,
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4 Opinion of the Court 23-10005
Roberto Springer was Ms. Phillips’ sort manager and was responsi-
ble for her accommodations. Following her injury, Ms. Phillips was
out on medical leave for a period—about a year and a half, only
coming into work “on and off”—but eventually returned at some
(but not full) capacity, which included weight restrictions. Accord-
ing to Ms. Phillips, Mr. Springer was not responsive to her accom-
modation requests and would not accept her doctor’s notes regard-
ing her absences. Though Ms. Phillips asserted that her doctor put
her “out indefinitely” in 2016, she acknowledged that Mr. Springer
never told her that she could stay out indefinitely.
In June of 2017, Ms. Phillips gave FedEx Ground a physician
assistant’s note stating that she should be excused from work “if
the left knee bec[ame] ecchymotic.” This was the last time Ms. Phil-
lips came into work and she never contacted FedEx Ground there-
after regarding her return. According to FedEx Ground’s employ-
ees, they made various attempts to contact Ms. Phillips via tele-
phone and mail but never received a response. Accordingly, FedEx
Ground determined that Ms. Phillips should be terminated for job
abandonment. Ms. Phillips asserts that she did not know she was
fired until February of 2019, when she received a letter from the
EEOC regarding her termination.
Ms. Phillips filed suit in state court and the case was removed
to the district court in November of 2019. Relevant to this appeal,
Ms. Phillips asserted claims for discrimination and retaliation under
Title VII, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981. The case pro-
ceeded to a jury trial. After the close of evidence, FedEx Ground
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23-10005 Opinion of the Court 5
moved for judgment as a matter of law as to all claims, which the
district court granted as to Ms. Phillips’ § 1981 claim and denied as
to her Title VII claims. Following deliberations, the jury entered a
verdict against Ms. Phillips and in favor of FedEx Ground as to
those remaining claims. Based on that verdict, the district court
entered judgment against Ms. Phillips, who then moved to set aside
or vacate the judgment and for a new trial. That motion was de-
nied, and the instant appeal followed.
II
Ms. Phillips first asserts that the district court erred by failing
to grant her motion to remand. Because she did not list the district
court’s order denying that motion in her notice of appeal, FedEx
Ground argues that we lack jurisdiction to address the issue. We
disagree.
A notice of appeal must “designate the judgment, order, or
part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). Our prior
caselaw explained that we generally have jurisdiction to review
“only those judgments, orders, or portions thereof” that are desig-
nated in an appellant’s notice of appeal. See, e.g., Osterneck v. E.T.
Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). But Rule
3 was amended in 2021, so that now a notice of appeal encompasses
all orders that merge into the appealable order. See Fed. R. App. P.
3(c)(4).
Ms. Phillips’ notice of appeal, filed by since-withdrawn coun-
sel, lists the district court’s order granting judgment as a matter of
law, the final judgment, and the order on plaintiff’s motion to set
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6 Opinion of the Court 23-10005
aside judgment. The notice of appeal did not list Ms. Phillips’ mo-
tion to remand, but it did not have to. Under Federal Rule of Ap-
pellate Procedure 3(c)(4), the district court’s interlocutory remand
order merged into its final judgment on appeal, such that it is re-
viewable on appeal along with that final judgment. See Fed. R.
App. P. 3(c)(4); Fed. R. App. P. 3 advisory committee’s note to 2021
amendment. Moreover, Ms. Phillips, now proceeding pro se, ex-
plicitly stated in her initial brief that is appealing the district court’s
failure to remand and there is no indication that her notice of ap-
peal prejudiced or misled FedEx Ground, as FedEx Ground also
fully briefed the remand issue. See Forman v. Davis, 371 U.S. 178,
181–82 (1962). Accordingly, we have jurisdiction to review her ap-
peal of the district court’s remand order.
We review the denial of a motion to remand to state court
de novo. Moore v. N. Am. Sports, Inc., 623 F.3d 1325, 1328 (11th Cir.
2010). A defendant may remove “any civil action brought in a State
court of which district courts . . . have original jurisdiction.” 28
U.S.C. § 1441. Federal district courts have original jurisdiction over
cases brought under the “[United States] Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. A defendant may
remove an action from state court “within 30 days after the receipt
by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such
action or proceeding is based.” Id. § 1446(b)(1). “A removing de-
fendant bears the burden of proving proper federal jurisdiction,”
Leonard v. Enter. Rent A Car, 279 F.3d 967, 972 (11th Cir. 2002), and
a plaintiff may seek remand back to state court based on two
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23-10005 Opinion of the Court 7
grounds—a lack of subject matter jurisdiction or a procedural de-
fect in the removal of the case. See Russell Corp. v. Am. Home Assur.
Co., 264 F.3d 1040, 1043–44 (11th Cir. 2001).
The Supreme Court has unanimously held that “a district
court’s error in failing to remand a case improperly removed is not
fatal to the ensuing adjudication if the federal jurisdictional require-
ments are met at the time judgment is entered.” Caterpillar v. Lewis,
519 U.S. 61, 64 (1996). It cannot be disputed that Ms. Phillips’ com-
plaint—which asserted claims under Title VII (42 U.S.C. § 2000e)
and 42 U.S.C. § 1981—established federal question jurisdiction. As
such, because “timeliness of removal is a procedural defect—not a
jurisdictional one,” any untimeliness in the filing of the notice of
removal would be an insufficient basis to vacate the judgment and
remand for a new trial. See Moore, 623 F.3d at 1329 (quoting Pretka
v. Kolter City Plaza II, Inc., 608 F.3d 744, 751–52 (11th Cir. 2010)).
III
Ms. Phillips next asserts that the district court erred in grant-
ing FedEx Ground’s motion for judgment as a matter of law on her
§ 1981 discrimination claim.
Rule 50(a) permits a party to move, during trial, for judg-
ment as a matter of law before a verdict has been returned. See Fed.
R. Civ. Pro. 50(a). A district court may grant the motion before
submitting the case to the jury if a party has been fully heard on an
issue during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find for the
party on that issue. See id.
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8 Opinion of the Court 23-10005
We review the grant of a judgment as a matter of law de
novo, applying the same legal standards as used by the district court.
See Bishop v. City of Birmingham Police Dep’t, 361 F.3d 607, 609 (11th
Cir. 2004). Those standards require us to consider “whether the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–
52 (1986). We consider all evidence, and the inferences drawn
therefrom, in the light most favorable to the nonmovant. See
Bishop, 361 F.3d at 609. “If the facts and inferences point over-
whelmingly in favor of one party, such that reasonable people
could not arrive at a contrary verdict, then the motion was
properly granted.” Carter v. City of Miami, 870 F.2d 578, 581 (11th
Cir. 1989).
Title VII of the Civil Rights Act of 1964 outlaws employment
discrimination because of “race, color, religion, sex, or national
origin.” 42 U.S. § 2000e-2(a)(1). Likewise, § 1981 prohibits employ-
ers from intentionally discriminating based on race in employment
contracts. See Tynes v. Fla. Dep’t of Juvenile Justice, 88 F.4th 939, 944
(11th Cir. 2023). To prove a claim under either statute, a plaintiff
can use direct evidence, circumstance evidence, or both. See id.
Nonetheless, “[u]nlike a Title VII discrimination claim—where a
lesser ‘motivating factor’ standard sometimes applies—a § 1981
claim requires proof that race was a but-for cause of [the] termina-
tion.” Ossmann v. Meredith Corp., 82 F.4th 1007, 1014 (11th Cir.
2023) (citing Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media,
140 S. Ct. 1009, 1013, 1017 (2020)). This does not require a plaintiff
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23-10005 Opinion of the Court 9
to prove that race was the exclusive cause of his or her termination,
but it does require a plaintiff to prove that but for his or her race,
the plaintiff would not have been terminated. See Ossmann, 82 F.4th
at 1014.
Thus, to survive FedEx Ground’s motion for judgment as a
matter of law as to her § 1981 claim, Ms. Phillips needed to have
produced enough evidence during trial to permit a reasonable jury
to find that, had she not been Black, she would not have been ter-
minated. See id. Both below and on appeal, Ms. Phillips offers the
alleged statement made by Mr. Antun that “Black workers are not
smart enough to load trucks” as “direct evidence” of intentional
discrimination. See Appellant’s Br. at 6.2
Even if we were to consider this direct evidence—we would
likely not, see Fernandez v. Trees, Inc., 961 F.3d 1148, 1156 (11th Cir.
2020)—this was not part of the record evidence at trial. Ms. Phillips
admitted that she never heard Mr. Antun make this comment, and
Mr. Kimbrough also testified that the only direct statement he
heard Mr. Antun make was the “Bloods and Crips” statement made
years before Ms. Phillips’ termination. See D.E. 147 at 160–61; D.E.
148 at 116–19, 148.
Ms. Phillips did not produce adequate circumstantial evi-
dence from which a reasonable jury could infer that intentional
2 Ms. Phillips’ initial brief seems to focus on her Title VII claim with respect to
the district court’s judgment as a matter of law, but the district court did not
grant FedEx Ground’s motion on those claims. We read her pro se argument
liberally.
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10 Opinion of the Court 23-10005
discrimination was the but-for cause of her termination. Nor did
she prove that FedEx Ground’s non-discriminatory reason for her
termination—job abandonment—was pretextual. The statements
referred to above, as well as the purported sabotage regarding the
written-up misloads, all occurred years before her termination by
managers that were transferred to other facilities by the time she
was ultimately terminated. She admitted that she never returned
to work for nearly two years, nor did she reach out once to FedEx
Ground once that time period.
Liberally construed, Ms. Phillips also asserts that because the
jury ultimately found that, under her Title VII discrimination
claim, race was a “motivating factor” in FedEx Ground’s adverse
employment action, it was therefore error for the district court to
not have allowed the § 1981 claim to proceed to the jury. But the
Supreme Court has explained that Title VII’s statutory “motivating
factor” standard is inapposite to § 1981 claims. See Comcast Corp.,
140 S. Ct. at 1017. Indeed, it is a lower burden. And here, the fact
that the jury ultimately found that FedEx Ground would have fired
her even had it not considered her race as a motivating factor, ac-
tually cuts against her but-for causation argument.
In sum, because Ms. Phillips failed to establish evidence at
trial from which a reasonable jury could infer that her race was the
but-for cause of her termination, the district court did not err in
granting FedEx Ground’s motion for judgment as a matter of law
as to that claim.
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IV
After about three hours of deliberations, the jury in Ms. Phil-
lips’ trial indicated that they were deadlocked. The district court
then gave an Allen charge, see Allen, 164 U.S. at 501–02, instructing
the jury to keep deliberating until a verdict was reached. As her
final argument, Ms. Phillips asserts that this Allen charge was coer-
cive, and therefore, an abuse of discretion. See Rubinstein v. Yehuda,
38 F.4th 982, 992 (11th Cir. 2022).
While sometimes controversial, see id. at 996, our precedent
condones the practice of giving an Allen charge as long as the dis-
trict court does not “coerce any juror to give up an honest belief.”
United States v. Anderson, 1 F.4th 1244, 1269 (11th Cir. 2021) (inter-
nal quotations omitted). Whether an Allen charge is coercive de-
pends on two things: “the language of the charge and the totality
of the circumstances under which it was delivered.” Id.
We reject Ms. Phillips’ argument that the language used by
the district court was coercive, as it was nearly identical to the pat-
tern Eleventh Circuit jury instruction. See Rubenstein, 38 F.4th at
996. To the extent Ms. Phillips takes issue with the pattern lan-
guage indicating that jurors in the minority should consider
whether their beliefs are reasonable, we have approved of such lan-
guage on multiple occasions and find no error here today. See id.
See also Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068, 1085 n.5
(11th Cir. 2018).
In reviewing the totality of the circumstances, five are par-
ticularly (but not exclusively) relevant to the coerciveness analysis:
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(1) the total length of deliberations; (2) the number of times the
jury reported being deadlocked and was instructed to resume de-
liberations; (3) whether the judge knew of the jury’s numerical split
when he instructed the jury to continue deliberating; (4) whether
any of the instructions implied that the jurors were violating their
oaths or acting improperly by failing to reach a verdict; and (5) the
time between the final supplemental instruction and the jury’s ver-
dict. See Brewster v. Hetzel, 913 F.3d 1042, 1053 (11th Cir. 2019). We
have held that fifteen minutes of deliberation between an Allen
charge and the verdict did not indicate coercion. See Rubinstein, 38
F.4th at 997.
Upon review, the circumstances here do not raise any spec-
tre of coercion. The jury deliberated for an additional two hours
after receiving the Allen charge and only reported being deadlocked
once. There is also no indication that the district court knew of the
jury’s numerical split when it gave the charge, nor was there any
implication from the instructions that the jurors were violating
their oaths or otherwise acting improperly. The district court,
therefore, did not abuse its discretion.
V
Following the jury’s verdict in favor of FedEx Ground, Ms.
Phillips moved to vacate the judgment and for a new jury trial.
Specifically, Ms. Phillips asserted that the jury’s verdict as to her
Title VII discrimination and retaliation claims was inconsistent and
against the weight of the evidence produced at trial.
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23-10005 Opinion of the Court 13
Under Rule 59(e), a district court may “alter or amend a
judgment” that is based on “manifest errors of law or fact.” Metlife
Life & Annuity Co. of Conn. v. Akpele, 886 F.3d 998, 1008 (11th Cir.
2018); Fed. R. Civ. P. 59(e). Additionally, under Rule 59(a), a dis-
trict court may grant a motion for a new trial if it believes that the
verdict rendered was contrary to the great weight of the evidence
or will result in a miscarriage of justice. See Rosenfield v. Wellington
Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987). We review
a district court’s denial of either motion for an abuse of discretion.
See McGinnis v. Am. Home Mortg. Servicing, Inc., 901 F.3d 1282, 1288
(11th Cir. 2018); Akpele, 886 F.3d at 1003.
We disagree with Ms. Phillips’ contention that the jury ver-
dict as to her Title VII claims was inconsistent for two reasons.
First, Ms. Phillips (through counsel) did not timely raise the pur-
ported inconsistency with the district court. Second, and in any
event, the verdict was not legally inconsistent.
A verdict is inconsistent when there is “no rational, non-
speculative way to reconcile . . . two essential jury findings” Witt v.
Norfe, Inc., 725 F.2d 1277, 1278 (11th Cir. 1984) (internal quotations
and citation omitted). A district court “must make all reasonable
efforts to reconcile an inconsistent jury verdict and if there is a view
of the case which makes the jury’s answers consistent, the court
must adopt that view and enter judgment accordingly.” Burger King
Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983). See also Atl. &
Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962)
(“When there is a view of the case that makes the jury’s answers to
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14 Opinion of the Court 23-10005
special interrogatories consistent, they must be resolved that
way.”).
But “[a] party must object to a verdict as inconsistent before
the jury has been dismissed.” Reider v. Philip Morris USA, Inc., 793
F.3d 1254, 1259 (11th Cir. 2015) (citing Walter Int’l Prods., Inc. v. Sa-
linas, 650 F.3d 1402, 1419–20 (11th Cir. 2011)). Indeed, failure to
object to an inconsistent verdict before the jury is excused forfeits
the objections. See Reider, 793 F.3d at 1259. See also Mason v. Ford
Motor Co., 307 F.3d 1271, 1275–76 (11th Cir. 2002) (“[The defend-
ant’s] failure to raise its objection before the jury was discharged
waived the right to contest the verdicts on the basis of alleged in-
consistency.”). “The reason for this particular raise-it-or-lose-it rule
is that if the inconsistency is raised before the jury is discharged, the
jury can be sent back for further deliberations to resolve the incon-
sistency in its verdict or interrogatory answer,” but “that is not pos-
sible” once the jury is gone. See Pensacola Motor Sales, Inc. v. E. Shore
Toyota, LLC, 684 F.3d 1211, 1225 (11th Cir. 2012). Ms. Phillips’
counsel did not object either to the verdict form itself or the jury’s
verdict as inconsistent until her post-trial motion was filed on July
11, 2022—long after the jury had been discharged.
In any event, the jury’s verdict on the Title VII claims can be
reconciled and is therefore legally consistent. The verdict was also
supported by the evidence.
Under Title VII, it is unlawful for an employer to fail or re-
fuse to hire or to discharge any individual, or otherwise to discrim-
inate against any individual with respect to his compensation,
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23-10005 Opinion of the Court 15
terms, conditions, or privileges of employment, because of such in-
dividual’s race, color, religion, sex, or national origin. 42 U.S.C. §
2000e–2(a)(1). An employer may not retaliate against an employee
because she has opposed any practice made unlawful under that
law, and a protected activity means an employee participated in fil-
ing a formal complaint with the EEOC or in the investigation of
proceedings under Title VII. See 42 U.S.C. § 2000e-3(a); EEOC v.
Total Sys. Serv. Inc., 221 F.3d 1171, 1174 (11th Cir. 2000).
In a Title VII race discrimination case, even if the plaintiff
provides evidence that the defendant, in making an adverse em-
ployment decision, was motivated in part by an impermissible con-
sideration, such as race, the defendant can prevail if it can prove by
a preponderance of the evidence that it would have made the same
decision even in the absence of the discriminatory consideration.
See 42 U.S.C. § 2000e-2(m); Pullman v. Tallapoosa Cnty. Jail, 185 F.3d
1182, 1184 (11th Cir. 1999). Thus, defendants in Title VII employ-
ment discrimination cases may prove as an affirmative defense that
they would have reached the same employment decision even in
the absence of bias. See 42 U.S.C. § 2000e-5(g)(2)(B); Pullman, 185
F.3d at 1184.
To establish a claim of retaliation under Title VII, a plaintiff
must prove that she engaged in statutorily protected activity, she
suffered a materially adverse action, and there was some causal re-
lation between the two events. See Goldsmith v. Bagby Elevator Co.,
513 F.3d 1261, 1277 (11th Cir. 2008). After the plaintiff has estab-
lished the elements of a claim, the employer has an opportunity to
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16 Opinion of the Court 23-10005
articulate a legitimate, nonretaliatory reason for the challenged
employment action as an affirmative defense to liability. See id.
The plaintiff bears the ultimate burden of proving retaliation by a
preponderance of the evidence and that the reason provided by the
employer is a pretext for prohibited retaliatory conduct. See id.
Regarding her Title VII discrimination claim, the jury found
that FedEx Ground took an adverse employment action against
Ms. Phillips and that her race was a motivating factor in that ad-
verse action. But, per the verdict, the jury also found that FedEx
Ground would have taken the same adverse action against Ms.
Phillips even if FedEx had not taken her race into account. As to
her Title VII retaliation claim, the jury found that Ms. Phillips en-
gaged in protected activity, but that FedEx Ground did not termi-
nate Ms. Phillips because of that protected activity.
These findings are not inconsistent. It is reasonable that a
jury could conclude—based on the evidence introduced by the par-
ties at trial—that FedEx Ground would have fired Ms. Phillips for
reasons other than her race (such as her abandonment of the job),
and that, as such, her internal complaints and EEOC claims were
not the cause of her ultimate termination. Though the jury also
found that race was a motivating factor in the adverse actions taken
by FedEx Ground, it does not necessarily follow that her race-based
complaints were the reason she was fired.3 Indeed, there is overlap
3 Ms. Phillips introduced evidence at trial that she was subject to various ac-
tions, including unwarranted write-ups and refusals for injury
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23-10005 Opinion of the Court 17
between FedEx Ground’s “same decision” affirmative defense and
its articulation of a legitimate, nonretaliatory reason for Ms. Phil-
lips’ termination.
The district court did not abuse its discretion in denying Ms.
Phillips’ request to set aside or vacate the judgment, or the request
to grant a new trial.
VI
We affirm the district court’s judgment against Ms. Phillips
and its order denying her motion to set aside that judgment and/or
for a new trial.
AFFIRMED.
accommodations, which could have been considered adverse by the jury (and
indeed, were argued to have been adverse by Ms. Phillips).
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