Emmanuel Joseph v. Publix Super Markets, Inc. ( 2005 )


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                   IN THE UNITED STATES COURT OF APPEALS
    
                            FOR THE ELEVENTH CIRCUIT
    
                              ________________________                   FILED
                                                               U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                               Nos. 04-12042 & 04-13262            September 16, 2005
                              ________________________            THOMAS K. KAHN
                                                                        CLERK
                         D. C. Docket No. 00-07327 CV-DMM
    
    
    EMMANUEL JOSEPH,
    
                                                      Plaintiff-Appellee,
    
                                          versus
    
    PUBLIX SUPER MARKETS, INC.,
    
                                                      Defendant-Appellant.
    
                              ________________________
    
                      Appeals from the United States District Court
                          for the Southern District of Florida
                            _________________________
                                 (September 16, 2005)
    
    Before TJOFLAT, PRYOR and ALARCÓN*, Circuit Judges.
    
    PER CURIAM:
    
          Publix Super Markets, Inc. (“Publix”) appeals from the denial of its motion
    
    for judgment as a matter of law pursuant to Rule 50(b)(2)(B) of the Federal Rules
    of Civil Procedure1, and the final judgment entered by the District Court. The jury
    
    found that Emmanuel Joseph’s race and color were substantial or motivating
    
    factors in denying him a transfer to a higher volume store that would increase his
    
    compensation. Publix also seeks reversal of the orders granting back pay and front
    
    pay, attorney’s fees and costs, as well as prejudgment interest.
    
          Publix contends that the evidence presented at trial was not legally
    
    sufficient for a reasonable jury to find that Mr. Joseph was not transferred to a
    
    higher volume store because of his race. Publix also seeks reversal of the District
    
    Court’s final judgment based on the prejudicial impact of its erroneous evidentiary
    
    rulings.
    
          We affirm the order denying the motion for judgment as a matter of law
    
    
          1
               Fed. R. Civ. P 50(b) states:
                     Renewing Motion for Judgment After Trial; Alternative Motion for
                     New Trial. If, for any reason, the court does not grant a motion for
                     judgment as a matter of law made at the close of all the evidence, the
                     court is considered to have submitted the action to the jury subject to
                     the court's later deciding the legal questions raised by the motion. The
                     movant may renew its request for judgment as a matter of law by
                     filing a motion no later than 10 days after entry of judgment--and may
                     alternatively request a new trial or join a motion for a new trial under
                     Rule 59. In ruling on a renewed motion, the court may:
                     (1) if a verdict was returned:
                       (A) allow the judgment to stand,
                       (B) order a new trial, or
                       ©) direct entry of judgment as a matter of law; or
                     (2) if no verdict was returned:
                       (A) order a new trial, or
                      (B) direct entry of judgment as a matter of law.
    
                                                        2
    because we conclude that a reasonable jury could have found, based on sufficient
    
    relevant and admissible evidence, that Publix discriminated against him because
    
    he is an African-American. We reverse the District Court’s final judgment and
    
    remand for a new trial, however, because it abused its discretion in admitting
    
    evidence whose prejudicial effect substantially outweighed its probative value.
    
                                              I
    
          Mr. Joseph was promoted to the position of produce manager for Publix in
    
    November 1993. He was assigned to a “no-chart store.” Publix rates its stores on
    
    sales volume and determined the monetary bonuses a manager was eligible to
    
    receive on the store’s earnings and profitability. No-Chart Stores were stores that
    
    had less than $20,000 in sales volume. Category C Stores were stores that had
    
    between $20,000 and $40,000 in sales volume. Category A stores were stores that
    
    had over $80,000 in sales volume.
    
          Mr. Joseph filed this action in the District Court on December 8, 2000
    
    pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
    
    20000 et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1981. He alleged that
    
    he had been repeatedly denied a transfer to a Category A Store because of his race
    
    and color. In his complaint he requested compensatory damages, payment for
    
    emotional distress and mental anguish, back pay and front pay, prejudgment
    
                                             3
    interest, as well as attorney’s fees and costs.
    
          Prior to the filing of this action, the Equal Employment Opportunities
    
    Commission (“EEOC”) filed a claim against Publix for pattern and practice
    
    discrimination. The EEOC claim was settled. Over Publix’s objection, Mr. Joseph
    
    offered into evidence a document referred to at trial as the “Kemp Notice.” It was
    
    written by Mr. Howard Jenkins, Publix’s Chief Executive Officer. The Kemp
    
    Notice summarized the terms and conditions of the settlement agreement.
    
          The district court allowed Mr. Joseph to enter the following quotation from
    
    Mr. Howard’s letter into evidence:
    
                 So, as the EEOC investigation progressed, the EEOC
                 focused upon the rate of promotions of blacks from full-
                 time employment into retail management jobs. Based upon
                 their analyses, EEOC contended that in some years, and in
                 some locations, promotions of full time black associates to
                 or within management lagged behind the rate of promotion
                 of non-black associates.
    
          At trial, Mr. Joseph testified that he overheard former Publix district
    
    manager Richard Cabel refer to Mr. Joseph as a “nigger.” Specifically, Mr. Joseph
    
    testified that when he asked Mr. Cabel about a transfer to a new store, his reaction
    
    was “this nigger keep on bugging them about a promotion and he will never
    
    amount to be nothing.” Publix objected to this testimony on the grounds that it was
    
    hearsay, elicited by someone who was not a decision maker. Mr. Cabel was Mr.
    
                                               4
    Joseph’s district manager in 1992 or 1993. Mr. Cabel retired from working for
    
    Publix prior to the rejection of Mr. Joseph’s requests for a transfer at issue in this
    
    case.
    
            In response to a special verdict form, the jury found by a preponderance of
    
    the evidence that race was a substantial and motivating factor in the denial of Mr.
    
    Joseph’s request for a transfer to a higher volume store. The jury did not award
    
    Mr. Joseph any damages for emotional pain and mental anguish. The District
    
    Court awarded Mr. Joseph back and front pay, attorney’s fees and costs, as well as
    
    prejudgment interest.
    
            Publix has timely appealed the final judgment of the District Court. This
    
    Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
    
                                               II
    
            We first consider Publix’s contention that the District Court erred in
    
    denying its motion for judgment as a matter of law. Were we to agree with Publix
    
    regarding this issue, we would be required to reverse the judgment and instruct the
    
    District Court to enter a final judgment in favor of Publix without deciding
    
    whether it erred in its evidentiary rulings and in its award of back pay, front pay,
    
    attorney’s fees and costs, as well as prejudgment interest.
    
            Publix contends, based on discrete theories, that the District Court erred in
    
                                               5
    denying its motion for judgment as a matter of law. First, it argues that Mr. Joseph
    
    offered evidence of job discrimination based on a pattern and practice instead of
    
    an individual disparate discriminatory treatment claim. Second, Publix maintains
    
    that Mr. Joseph failed to present sufficient evidence to establish a prima facie case
    
    of individual employment discrimination for failure to transfer him to a store
    
    where he would receive higher pay. Finally, Publix asserts that Mr. Joseph failed
    
    to demonstrate that its reasons for failing to transfer Mr. Joseph were pretextual.
    
                                             A
    
          Publix contends that “[w]ith the court’s approval, Plaintiff tried a pattern-
    
    and-practice case, all but ignoring his own individual claim.” Appellant’s Initial
    
    Brief at 27 n.10 (emphasis added). Publix presented a similar contention in
    
    attacking the allegations of the complaint in its unsuccessful motion for summary
    
    judgment.
    
          Mr. Joseph alleged in his complaint that he was denied a transfer to a
    
    Category A Store based on his race and color. At trial, he presented evidence that
    
    his repeated requests for a transfer were not granted, notwithstanding the fact that
    
    he had more experience and was better qualified than non-African-Americans who
    
    were transferred to Category A Stores as produce managers.
    
          Publix appears to contend that the fact that Mr. Joseph presented the
    
                                              6
    testimony of three other employees to demonstrate that Publix had a pattern and
    
    practice of discriminating against African-Americans converted his individual
    
    disparate treatment claim into a disparate impact claim. We disagree.
    
          Pattern and practice evidence is admissible to demonstrate that an
    
    employer’s employment decision conformed to a general policy of discrimination
    
    against African-Americans and that “the presumptively valid reasons for [an
    
    employee’s] rejection were in fact a coverup for a racially discriminatory
    
    decision.” McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 805 (1973). As we
    
    explain below, Mr. Joseph presented sufficient evidence to persuade a reasonable
    
    jury that his requests for a transfer were denied because of his race and color.
    
    Evidence of Publix’s general policy and practice with respect to requests for a
    
    transfer to Category A Stores was admissible to demonstrate that Publix’s reasons
    
    for denying Mr. Joseph’s requests were pretextual. Publix has failed to
    
    demonstrate that Mr. Joseph abandoned his disparate treatment claim by offering
    
    evidence of Publix’s discriminatory pattern and practice to rebut Publix’s evidence
    
    of a legitimate business reason for declining to transfer Mr. Joseph.
    
                                              B
    
          Publix further maintains that Mr. Joseph failed to present sufficient
    
    evidence to demonstrate a prima facie case of employment discrimination of
    
                                              7
    disparate treatment because of his race and color. In their presentations to this
    
    Court, both parties have ignored the rule announced in United States Postal
    
    Service Board of Governors v. Aikins, 
    460 U.S. 711
     (1983), that the question
    
    whether a plaintiff has failed to establish a prima facie case is not relevant “when
    
    the defendant fails to persuade the district court to dismiss the action for lack of a
    
    prima facie case, and responds to the plaintiff’s proof by offering evidence of the
    
    reason for the plaintiff’s rejection[.] [T]he factfinder must then decide whether the
    
    rejection was discriminatory within the meaning of Title VII. At this stage, the
    
    McDonnell-Douglas presumption drops from the case.” Id. at 714-15 (internal
    
    quotations and footnote omitted); see also Cleveland v. Home Shopping Network,
    
    Inc., 
    369 F.3d 1189
    , 1194 (11th Cir. 2004) (holding that, in a suit brought under
    
    the Americans with Disabilities Act, “[a]fter a trial on the merits, an appeals court
    
    should not revisit whether the plaintiff established a prima facie case. . . . The only
    
    relevant question becomes whether the [employee’s] termination was motivated by
    
    her disability.”).
    
                                              C
    
           Thus, in a disparate treatment case fully tried on the merits, our review of
    
    the validity of a judgment as a matter of law is limited to the question whether the
    
    plaintiff presented sufficient evidence to prove each element of his or her claim.
    
                                               8
    Collado v. United Parcel Service Co., No. 04-11297, 
    2005 U.S. App. LEXIS 15850
    , at *18 (11th Cir. August 2, 2005). Publix maintains that the district court
    
    erred in denying his motion for judgment as a matter of law because Mr. Joseph
    
    failed to present sufficient evidence to persuade a reasonable jury that it failed to
    
    transfer Mr. Joseph to a Category A Store because of his race and color.
    
          After the jury returned its verdict, Publix renewed its motion for judgment
    
    as a matter of law pursuant to Rule 50(b)(2)(B). The District Court denied the
    
    motion on February 12, 2003. A judgment as a matter of law may be issued by a
    
    district court if “there is no legally sufficient evidentiary basis for a reasonable
    
    jury” to find for the non-moving party or any element of the cause of action. Fed.
    
    R. Civ. P. 50(a)(1).
    
                 If, for any reason, the court does not grant a motion for
                 judgment as a matter of law made at the close of all the
                 evidence, the court is considered to have submitted the
                 action to the jury subject to the court’s later deciding the
                 legal questions raised by the motion.
    
    Fed. R. Civ. P. 50(b).
    
                 A district court may enter judgment as a matter of law if a
                 party has been fully heard on an issue and there is no
                 legally sufficient basis for a reasonable jury to find in favor
                 of that party on that issue. When considering such a
                 motion, the court must evaluate all of the evidence,
                 together with any logical inferences therefrom, in the lights
                 most favorable to the nonmoving party.
    
                                               9
    Carter v. DecisionOne Corp., 
    122 F.3d 997
    , 1003 (11th Cir. 1997).
    
          In this matter, the District Court correctly instructed the jury regarding the
    
    elements of a Title VII claim. Jury Instruction No. 6 reads as follows:
    
                        In this case the Plaintiff makes a claim under the
                 Federal Civil Rights statutes that prohibit employers from
                 discriminating against employees in the terms and
                 conditions of their employment because of the employee’s
                 race.
                        More specifically, the Plaintiff claims that he was
                 denied a transfer to a higher volume store by the Defendant
                 because of the Plaintiff’s race.
                        The Defendant denies that the Plaintiff was
                 discriminated against in any way and asserts that the
                 Plaintiff was transferred to a higher volume store and was
                 offered a second transfer to an even higher volume store.
                        In order to prevail on this claim, the Plaintiff must
                 prove each of the following facts by a preponderance of the
                 evidence:
    
                 First:       That the Plaintiff was denied a
                              transfer to a higher volume store
                              by the Defendant; and
    
                 Second:      That the Plaintiff’s race was a
                              substantial or motivating factor
                              that prompted the Defendant to
                              take that action.
    
          In Collado, this Court noted that the first step of the McDonnell-Douglas
    
    burden-shifting framework of a prima facie claim of employment discrimination
    
    includes components that are not elements of a Title VII claim. Collado, 
    2005 U.S. 10
    App. LEXIS 15850, at *28. “At the end of a trial . . . the question whether the
    
    plaintiff properly made out a prima facie case . . . is no longer relevant.” Id.
    
    (citation and quotation marks omitted). This rule “serves as a bar, prevents a look
    
    back, where a component of the prima facie case that is not an element of the
    
    claim is concerned.” Id. In Collado, this Court illustrated the difference between
    
    the circumstantial evidence – evidence that creates a rebuttable presumption of
    
    discriminatory motive under McDonnell-Douglas – and the elements of a Title VII
    
    claim, as follows:
    
                        An example that comes to mind is a Title VII
                 discriminatory failure to promote claim. The components
                 of the prima facie case are: (1) that the plaintiff is a
                 member of a protected class; (2) that he was qualified for
                 and applied for the promotion; (3) that he was rejected; and
                 (4) that other equally or less qualified employees who were
                 not members of the protected class were promoted. Combs,
                 106 F.3d at 1539 n.11. The fourth component, the one
                 requiring outside-the-class comparators, is not an element
                 of the claim itself. Once a district court has denied a Rule
                 50(a) motion for failure to show a prima facie case, neither
                 that court nor this one may conclude that judgment as a
                 matter of law should be granted under Rule 50(b) solely
                 because no outside-the-class comparators were shown.
                 Although the absence of comparators may be relevant to
                 whether the plaintiff has proven that his failure to be
                 promoted was the result of discrimination, it is not
                 necessarily a claim-killing fact at the post-Rule 50(b) stage.
                 Difficult as it might be to prove, a promotion could be
                 denied for discriminatory reasons even though no one
                 outside the protected class was promoted – even though
    
                                              11
                 there were no comparators and therefore no prima facie
                 case.
    
    Id. at *29-30.
    
          Publix contends that Mr. Joseph failed to identify “a specific position that
    
    he was denied as a result of any alleged discrimination.” Appellant’s Initial Brief
    
    at 31. Clearly, if a plaintiff does not request a transfer to a vacant position, he or
    
    she cannot demonstrate that the failure to transfer was based on race or color.
    
    “Unless the individual plaintiff can point to some specific instance of
    
    discrimination, there is no wrong for the court to remedy.” Carmichael v.
    
    Birmingham Saw Works, 
    738 F.2d 1126
    , 1131 (11th Cir. 1984).
    
          Mr. Joseph presented evidence that would support an inference that non-
    
    African-American’s who had less experience than he had as a produce manager
    
    were transferred to Category A. Stores. He also presented evidence that no
    
    African-American was transferred to serve as a produce manager in a Category A
    
    Store until after he filed a complaint with the EEOC. Because Publix did not
    
    publish a notice of available positions for produce manager, however, Mr. Joseph
    
    could not identify each specific transfer he was denied as a result of racial
    
    discrimination.
    
          Tanya Piniero Brown was called as witness by Mr. Joseph. She testified that
    
    
    
                                               12
    she was a human resources investigator for Publix. She stated that between 1993
    
    and 1997, Publix did not publish a notice to its employees when vacancies in
    
    produce manager positions in existing stores became available. Ms. Brown also
    
    stated that Publix did not have a testing process for transfers to higher volume
    
    stores. She further testified that the only African-American transferred to a
    
    produce manager position at a high volume store was Albert Brown. Mr. Brown
    
    was transferred in March 1999, after Mr. Joseph filed a complaint with the EEOC
    
    in November 1998 alleging discriminatory treatment by Publix against African-
    
    Americans because of their race and color. Prior to Mr. Brown’s transfer to a
    
    Category A store, no African-American produce manager had served as such in a
    
    Category A Store.
    
          Mr. Joseph testified that he trained Randy Quinn as a produce manager. Mr.
    
    Quinn was thereafter transferred to Store 432, a Category A Store, while Mr.
    
    Joseph was transferred to a Category C Store. Other white employees who were
    
    serving as produce clerks received transfers to higher volume stores while Mr.
    
    Joseph was passed over.
    
          After Mr. Joseph filed a claim of discriminatory treatment with the EEOC in
    
    November 1998, he was offered a transfer to Store 267, a Category A Store. Mr.
    
    Joseph requested time to speak to his attorney and his wife before he could make a
    
                                             13
    decision. He was given twenty minutes to do so. Mr. Joseph was not able to
    
    contact his attorney. He did contact the produce manager at Store 267 to find out
    
    the volume of business in the produce department. Mr. Joseph was informed that
    
    the volume was good but the bonus he would receive was not much different than
    
    he was receiving in his present position at Store 114. Mr. Joseph was also told that
    
    in about five or six months Publix was going to open a new store about two miles
    
    away which would have a negative impact on the sales volume at Store 267. After
    
    receiving this information, Mr. Joseph declined the transfer to Store 267. On
    
    cross-examination, Mr. Joseph stated he wanted to confer with his attorney about
    
    the transfer offer because it did not include reimbursement for his attorney’s fees
    
    or compensation for all his emotional distress.
    
          Contrary to Publix’s contention, Mr. Joseph did present evidence of specific
    
    transfers to Category A Stores that he was denied before he filed his claim with the
    
    EEOC. He presented evidence that he was denied a transfer to Category A Store
    
    90 in 1999. Publix offered evidence that it did not offer the position to Mr. Joseph
    
    because “Mr. Joseph had not expressed any interest in a transfer to district
    
    manager Glass until after the vacancy had been filled.” Specifically, Mickey Glass,
    
    who had the authority to make the transfer decision, testified that before he
    
    decided who would fill the opening at Store 90, Mr. Joseph had not made a
    
                                             14
    transfer request. Publix did not offer any evidence to demonstrate that it posted a
    
    notice that there was a vacancy at Store 90.
    
          Mr. Joseph also presented evidence that a vacancy at Store 70, a Category A
    
    Store, was filled in July of 1999 by Shakir Hussein. Mr. Hussein was appointed as
    
    a produce manager in 1995. Thus, he had two years less experience in that position
    
    than Mr. Joseph. A reasonable jury could have concluded that Mr. Joseph was not
    
    transferred to Category A Store 70 because of Publix’s highly informal procedures
    
    for transfers to higher volume stores enabled it to engage in highly subjective and
    
    discriminatory employment decisions. “The failure to establish ‘fixed or
    
    reasonably objective standards and procedures for hiring’ is a discriminatory
    
    practice.” Watson v. National Linen Service, 
    686 F.2d 877
    , 881 (11th Cir. 1982)
    
    (quoting Brown v. Gaston County Dyeing Machine Co., 
    457 F.2d 1377
    , 1382 (4th
    
    Cir. 1972).
    
          Viewing the evidence in the light most favorable to Mr. Joseph, the record
    
    shows that he repeatedly informed his Publix supervisors, orally and in writing,
    
    that he wanted a transfer to the next available position as a produce manager.
    
    Without notice of vacant positions, or an objective criteria for eligibility for a
    
    transfer to a Category A Store, it was not possible for Mr. Joseph to apply for a
    
    transfer to a specific location before it was filled.
    
                                               15
          In Carmichael, this Court held that the failure of an employer to use formal
    
    procedures for posting notice of available promotions or for determining who
    
    would be offered a promotion “can lead to racial discrimination, both because
    
    important information may be available only to whites and because such
    
    procedures place no check on individual biases.” Carmichael, 738 F.2d at 1133.
    
    This Court also noted in Carmichael that “when there is not formal notice of the
    
    job’s availability, the plaintiff may have no means within his own knowledge of
    
    showing whether the employer considered him or not.” Id. We are persuaded that
    
    the principles announced in this Court’s Title VII jurisprudence concerning hiring
    
    and promotions also requires employers to post adequate notice of vacant
    
    positions that are available for lateral transfer to better paying jobs, and to
    
    promulgate objective standards for an employer to determine his or her eligibility
    
    and ranking in order to provide an employee with access to facts that may
    
    demonstrate a discriminatory animus. Because Publix failed to post notice of
    
    vacancies for produce managers in higher volume stores, Mr. Joseph was not
    
    required to demonstrate that he asked for a transfer “when he did not know about
    
    and when there was no formal mechanism for expressing his interest.” Id. at 1132-
    
    33.
    
          Mr. Joseph presented evidence at trial that he had positive performance
    
                                              16
    reviews as a produce manager, that he was equally, if not more, qualified than the
    
    white employees that were promoted to Category A Stores over him, and that three
    
    other black produce managers with similar qualifications to Mr. Joseph had also
    
    been denied transfers to Category A Stores. Mr. Joseph also submitted evidence
    
    that in the twenty-year period prior to the date he filed his claim, Publix never
    
    promoted a black produce manager to a Category A Store and that it had no black
    
    store managers, district managers, regional managers or executives.
    
          Viewed in the lights most favorable to Mr. Joseph, the evidence presented at
    
    trial of (1) the failure to post notice of vacancies in Category A Stores, (2) the
    
    failure to follow objective procedures in rating the employees who were eligible
    
    for such transfers, (3) the failure to honor Mr. Joseph’s repeated requests for a
    
    transfer, and (4) the failure to offer to any African-American such a position prior
    
    to the initiation of EEOC procedures by Mr. Joseph was sufficient to persuade a
    
    reasonable jury to find that his race was a substantial or motivating factor in
    
    Publix’s failure to transfer him to a Category A Store. The district court did not err
    
    in denying the motion for Rule 50(b)(2)(B) for judgment as a matter of law.
    
                                              III
    
          Publix seeks reversal of the judgment in favor of Mr. Joseph on the ground
    
    that the district court committed prejudicial error in admitting portions of the
    
                                              17
    Kemp Notice in violation of 42 U.S.C. § 2000e-5(b), and also receiving evidence
    
    of racial slurs.
    
           A district court’s evidentiary rulings are reviewed under the abuse of
    
    discretion standard. Piamba Cortes v. American Airlines, 
    177 F.3d 1272
    , 1305-06
    
    (11th Cir. 1999). This Court has explained that
    
                         [w]e review a district court’s ruling on the
                  admissibility of evidence for abuse of discretion, and
                  evidentiary rulings will be overturned only if the moving
                  party establishes that the ruling resulted in a “substantial
                  prejudicial effect.” Judd v. Rodman, 
    105 F.3d 1339
    , 1341
                  (11th Cir.1997). When applying an abuse of discretion
                  standard, “we must affirm unless we at least determine that
                  the district court has made a ‘clear error of judgment,’ or
                  has applied an incorrect legal standard.” SunAmerica Corp.
                  v. Sun Life Assurance Co. of Canada, 
    77 F.3d 1325
    , 1333
                  (11th Cir.1996) (citation omitted).
    
    Id.
    
           42 U.S.C. §2000e-5(b) provides in part:
    
                  If the Commission determines after [an] investigation that
                  there is reasonable cause to believe that the charge [of
                  unlawful employment practices] is true, the Commission
                  shall endeavor to eliminate any such alleged unlawful
                  employment practice by informal methods of conference,
                  conciliation, and persuasion. Nothing said or done during
                  and as part of such informal endeavors may be made
                  public by the Commission, its officers or employees, or
                  used as evidence in a subsequent proceeding without the
                  consent of the persons concerned.
    
    
    
                                              18
    42 U.S.C. §2000e-5(b) (emphasis added). Because the excerpted portion of the
    
    Kemp Notice clearly reiterated something “said or done” by the EEOC, it was
    
    inadmissible “as evidence in a subsequent proceeding.” See Olitsky v. Spencer
    
    Gifts, Inc., 
    842 F.2d 123
    , 126 (5th Cir. 1988) (reviewing plaintiff’s age
    
    discrimination case brought under Title VII, and holding that Section 706(b)
    
    “clearly prohibits any use of EEOC conciliation material in subsequent litigation,
    
    even by the parties to the agency proceeding”). In light of this holding, it is
    
    unnecessary for us to determine whether the Kemp notice should not have been
    
    admitted for the additional reasons articulated by Publix.
    
          Publix maintains that the testimony regarding Mr. Cabel’s reference to Mr.
    
    Joseph as a “nigger” was not relevant because Mr. Cabel was a supervisor who
    
    retired from Publix prior to Publix’s alleged discrimination against Mr. Joseph
    
    between 1996 and 1999. We agree. Because of the temporal remoteness of the
    
    racial slur, and the fact that it was uttered by a person who had no role in
    
    determining whether Mr. Joseph’s requests for a transfer should be honored, the
    
    statement was not relevant to prove any element of Mr. Joseph’s Title VII claim.
    
    Pursuant to Rule 402 of the Federal Rules of Evidence, “[e]vidence which is not
    
    relevant is not admissible.” Furthermore, admission of the racial slur was highly
    
    prejudicial and should have been excluded under Rule 403 even if the District
    
                                              19
    Court concluded in the exercise of its discretion that it was relevant; the
    
    statement’s “probative value, if any, was substantially outweighed by the danger
    
    of unfair prejudice, confusion of the issues, or misleading the jury . . . .”
    
    Fed.R.Evid. 403.
    
          The cumulative effect of the erroneous admission of the Kemp Notice and
    
    the racial slurs by a person who did not participate in the transfer decisions at
    
    issue in this case had a substantial prejudicial effect. The jury may have viewed
    
    Mr. Howard’s recitation of the EEOC’s contention of discrimination as a
    
    concession of liability to Mr. Joseph by Publix. Mr. Joseph’s counsel argued to the
    
    jury that the excerpt from the Kemp Notice “confirmed the racism of [Publix].”
    
    The admission of the racial slurs may have caused the jury to infer that the
    
    decision makers at Publix were biased against African-Americans. Accordingly,
    
    we conclude that the district court abused its discretion in admitting evidence of
    
    the EEOC’s contention in unrelated settlement proceedings, and allowing the jury
    
    to hear what Publix has properly characterized as noxious racial slurs. Because of
    
    the prejudicial impact of these erroneous rulings, we conclude that we must set
    
    aside the judgment. Since the judgment must fall, we also must vacate the award
    
    of back pay and front pay, attorney’s fees and costs, and prejudgment interest.
    
          For the guidance of the parties and the district court in the event of a retrial,
    
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    we address Publix’s contention that the district court abused its discretion in
    
    calculating its award of back pay. The district court based its calculation of back
    
    pay on the difference between Mr. Joseph’s average bonuses at low volume stores
    
    and the 1997 bonus of Chris Teague, which represented the highest bonus of any
    
    produce manager during the 1996-99 period. There is no evidence, however, that
    
    Mr. Joseph would have earned the equivalent of Mr. Teague’s bonus for six
    
    consecutive years if he had not been denied a transfer. An award of back pay is
    
    designed to make a plaintiff whole, not to give the plaintiff a windfall or to punish
    
    the employer. Franks v. Bowman Trans. Co., 
    424 U.S. 747
    , 763-66 (1976).
    
          The district court also erred in awarding Mr. Joseph back pay from the onset
    
    of the limitations period for his § 1981 action and the date of the judgment. Back
    
    pay is designed to “place the injured party in the position he or she would have
    
    been in absent the discriminatory actions.” EEOC v. Smith Pontiac GMC, Inc., 
    896 F.2d 524
    , 529 (11th Cir. 1990) (quotations omitted). The district court should have
    
    calculated Mr. Joseph’s back pay with reference to the first discriminatory act
    
    within the limitations period, rather than with reference to the onset of the
    
    limitations period.
    
          The parties shall bear their own costs.
    
          AFFIRMED in part, and REVERSED in part.
    
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