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United States Court of Appeals,
Fifth Circuit.
No. 94-50595.
Hector POLANCO, Plaintiff-Appellee,
v.
CITY OF AUSTIN, TEXAS, Defendant-Appellant.
March 28, 1996.
Appeal from the United States District Court for the Western
District of Texas.
Before POLITZ, Chief Judge, and WISDOM and STEWART, Circuit Judges.
STEWART, Circuit Judge:
In this employment discrimination action, Hector Polanco, a
Mexican American police officer, alleges that he received more
severe disciplinary treatment than his colleague because of his
national origin. The City of Austin terminated Polanco after
seventeen years with the Austin Police Department (APD), while
giving his colleague only a written reprimand although the conduct
which provoked disciplinary action was virtually the same for both
men. Polanco sued the City under Title VII (42 U.S.C. � 2000e-5)
and the Civil Rights Act (42 U.S.C. �� 1981, 1983). The jury found
impermissible discrimination and awarded Polanco $75,000 for
expenses incurred, $150,000 for emotional pain and suffering, and
$125,000 for injury to his reputation. The district court
partially granted the City's motion for remittitur.
The City appeals the district court's remitted judgment of
$290,000 as well as the $28,337 award for attorneys' fees and
costs. On appeal, the City challenges the district court's denial
1

of its motion for judgment as a matter of law and/or alternatively
its motion for a new trial. Likewise, the City contests the
district court's exclusion of testimony of a witness who allegedly
could have proven that Polanco did not have a reputation for
truthfulness, and therefore, Polanco's reputation sustained no
injury from the City's actions. The record amply supports the
decisions of the district court. Therefore, we affirm the judgment
entered in favor of the plaintiff.
FACTS
The relevant facts concern Polanco's experience and reputation
in the homicide division. Polanco joined the Austin Police force
in March, 1976. Although Polanco worked in several units within
the police department, Polanco spent three and one-half years
working in the homicide division as an investigator before being
promoted to the position of Senior Sergeant, which he held at the
time of his termination.
While in the homicide division, Polanco developed a reputation
of being a premier investigator. He received over forty-five
commendations during his seventeen year tenure on the force, some
of which he received for exemplary homicide investigations
conducted when he was not assigned to the homicide division.
Several commendations arose because of Polanco's assistance
with victims who could speak only Spanish. Polanco openly
demonstrated his strong affinity with Hispanics and his Mexican
heritage. In fact, Polanco became known around the APD as being
outspoken on minority issues, especially those involving Hispanics.
2

Polanco's concern for Hispanics resulted in a conflict with his
supervisor, Lieutenant Andy Waters, regarding Waters' use of the
term "misdemeanor murder." A misdemeanor murder is an informal,
derogatory term used by some Anglo APD officers to refer to murders
of minority victims. The term is consistent with the perception
held by many that murders of minorities received low priority in
the APD, and consequently, received less funding, fewer resources,
and less time for investigating.
In February 1992, Polanco was assigned as the head of the task
force devoted to solving the "yogurt shop murders," a highly
publicized group of murders in December, 1991, in which four
teenage girls were murdered, mutilated, and burned as they closed
the yogurt shop where they worked. Polanco obtained a written
confession for the murders from a suspect named Alex Briones in
March, 1992. The confession was thrown out after Briones failed a
polygraph test regarding the confession.1 Polanco was removed as
head of the task force shortly thereafter.
Suspecting that Polanco coerced the Briones' confession, the
Travis County District Attorney initiated an investigation. The
grand jury did not return an indictment. When the district
attorney completed its investigation without taking any other
action, the internal affairs division of the APD inquired into the
1Briones was given a second polygraph five days later. The
second polygrapher concluded that Briones was a psychopath and
could not be polygraphed. He therefore concluded that Briones was
a viable suspect.
3

alleged misconduct.2
The district attorney's and the internal affairs division's
investigations blossomed into a probe of both Polanco and Sergeant
Brent McDonald surrounding the confession they received for the
February, 1991 murder of a Travis County Sheriff's Deputy named
William Redman. Polanco was not working in the homicide division3
or connected with the Redman investigation at the time he assisted
McDonald, the investigator in charge of the case, in eliciting a
confession from suspect John Salazar. Salazar began giving
McDonald a statement but terminated the interview and refused to
complete the statement.
Approximately three hours later, however, Polanco elicited a
signed confession from Salazar. The confession specifies that both
McDonald and Polanco gave Salazar his Miranda warnings but that
Salazar gave his statement to McDonald. Polanco's involvement in
the interview is undeniable because some descriptions in the
statement match almost exactly the wording of the notes Polanco
took during the interview. Unbeknownst to either Polanco or
McDonald, about fifteen minutes before Salazar signed the
2The APD continued to pursue the investigation because the
burden in its administrative investigation would be the lower
burden of proof by a preponderance of the evidence, whereas the
burden in Polanco's criminal investigation was proof beyond a
reasonable doubt.
3Polanco did not transfer into the homicide division until
August 1991. Because of a three month injury leave and because no
other capital murders of law enforcement officers occurred in
Austin during that time, Polanco did not participate in any other
homicide investigations of law enforcement officers between
February and August of 1991.
4

confession, the true perpetrators confessed to the Redman murder.
Salazar's confession eventually was declared "false" because
Salazar was actually in APD custody at the time the murder took
place. Despite the falsity of the confession, Polanco received the
Department's Basics Award because of his assistance with the Redman
investigation.
During the trial of the first suspect (Jose Flores) regarding
the Redman murder, Polanco testified that he had not obtained a
confession from Salazar. The testimony reads as follows:
Q. And at any point did you go into the interview room where
Sergeant McDonald was interviewing Mr. John Salazar?
A. Yes, ma'am.
Q. Did you ever take a written statement or any sort of
written confession or written statement from John Salazar?
A. No, ma'am. I didn't.
Q. Did you speak with him?
A. Yes, ma'am. I did.
. . . . .
CROSS EXAMINATION
Q. Sergeant, did you try to take a statement from him?
A. No. Sir. I was uniform line supervisor. I was more in
there for support.
Q. You were pinch hitting that night, right?
A. That's correct.
Q. Okay. Did you all try to get a written statement from him?
A. He was interviewed, yes, sir, by several investigators that
I know of and Sergeant McDonald as well as myself. Yes, sir.
Q. And was that in an effort to take a written statement from
him?
5

A. Yes, sir.
Q. Did you ever do a draft of a written statement?
A. No, sir. I did not.
Q. Did Sergeant McDonald?
A. Not to my knowledge.
Q. Did you ever--did John Salazar ever sit down and write
anything out in his own hand?
A. Not to my knowledge.
In the same trial, McDonald and Salazar testified that Salazar had
made a confession to Polanco and McDonald. McDonald's testimony in
the Flores' trial reads as follows:
Q. At some point did you attempt to take a written statement
from Mr. Salazar?
A. Yes, ma'am.
. . . . .
Q. And did you in fact complete and take a written statement
from Mr. Salazar?
A. No, ma'am.
. . . . .
Q. Did you in fact ever complete a statement from John
Salazar, give it to him to look over and him sign it and then
notarize it?
A. No, ma'am.... John Salazar terminated the interview.
CROSS EXAMINATION
Q. And no one ever put anything down on paper during this
time?
A. Formally or informally? There were notes taken. There
were, you know, notes taken, but as far as a formal
confession, completely filled out, notarized as she mentioned,
that did not occur.
Q. Okay. Were these drafts, draft statements that were taken?
6

A. No, sir.
Q. What were they, just your notes?
A. They would have just been notes of what he was saying at
the time.
Contrary to this testimony, in the second suspect's (Ernest Perez)
case, just twenty-one days later, McDonald testified that he did
not take a statement from Salazar, and further said that he just
listened to what Salazar had to say.
Q. Officer, the first person who you interviewed as far as the
people there at the apartment was Mr. Salazar; is that
correct, Officer?
A. Yes, sir.
Q. Sergeant, I apologize. Sergeant, did you take a written
statement from Mr. Salazar?
A. No, sir.
Q. You just listened to what he had to say; is that right?
A. Yes, sir.
On April 15, 1992, McDonald discovered in his office the confession
Salazar made to Polanco and the notes Polanco made during the
interview. The phrase "Not Needed" appeared in McDonald's
handwriting on the outside of the envelope containing the false
confession and notes.
The internal affairs division charged Polanco with aggravated
perjury, with failure to supplement reports, and with bringing
discredit upon the police force. The division charged McDonald
with bringing discredit upon the APD. The APD and the Disciplinary
Review Board sustained the charges. Polanco was suspended
indefinitely after rejecting a thirty-day disciplinary suspension.
7

McDonald agreed to a written reprimand. Although Polanco received
reinstatement on appeal, the APD refused to allow Polanco to return
to the homicide division. Instead, the APD assigned him to a
walking unit.
Polanco sued the City, alleging employment discrimination.
After a three-day trial, the jury awarded Polanco $75,000 for
expenses incurred, $150,000 for emotional pain and suffering, and
$125,000 for injury to his reputation. The court partially granted
the City's motion for remittitur and entered a judgment awarding
Polanco $290,200 in damages and $28,337 for attorney's fees.
DISCUSSION
I. JUDGMENT AS A MATTER OF LAW.
The City argues that the district court should have rendered
judgment as a matter of law in its favor because Polanco presented
no evidence of discrimination and because the jury's verdict went
against the great weight of the evidence. The City further notes
that its witnesses expressly testified that national origin did not
factor into the disciplinary decision.
Polanco responds that the City has waived this issue. We
disagree. We do not believe the City has waived the right to
challenge the sufficiency of the evidence.
A. Standard Of Review.
The standard of review of a denial of a motion for judgment
as a matter of law depends on whether the defendant has properly
preserved the issue by moving for judgment as a matter of law at
the conclusion of all of the evidence. See Bunch v. Walter, 673
8

F.2d 127, 130 n. 4 (5th Cir.1982). If the City properly moved for
judgment as a matter of law, we must analyze the sufficiency of
Polanco's evidence. See Armendariz v. Pinkerton Tobacco Co., 58
F.3d 144, 148 (5th Cir.1995) (citing Boeing Co. v. Shipman, 411
F.2d 365, 374-75 (1969)). If Polanco did not present sufficient
evidence, then the district court erred in denying the City's
motion for judgment as a matter of law.
The standard for evaluating the sufficiency of evidence is
whether the evidence has such quality that reasonable and
fair-minded persons would reach the same conclusion. The Fifth
Circuit has explained the standard as follows: "We will reject a
verdict in those instances when, despite considering all the
evidence in the light and with all reasonable inference most
favorable to the verdict, we find no evidence of such quality and
weight that reasonable and fair-minded men in the exercise of
impartial discretion could arrive at the same conclusion." Thrash
v. State Farm Fire & Cas. Co., 992 F.2d 1354, 1356 (5th Cir.1993)
(quotations omitted). A "mere scintilla" of evidence is not enough
to send a case to the jury. Boeing, 411 F.2d at 374.
However, the standard for review changes if the defendant
failed to move for judgment as a matter of law at the conclusion of
all the evidence. See McCann v. Texas City Refining Co., 984 F.2d
667, 673 (5th Cir.1993). Where the defendant failed to timely move
for judgment as a matter of law, we will consider the issue as
waived by the defendant and will treat the issue as being raised
for the first time on appeal. Accordingly, we then review the
9

issue of sufficient evidence for mere "plain error." The absence
of a motion challenging the evidence prior to submission to the
jury precludes the appellate court from evaluating and weighing the
evidence to test its sufficiency. See Bunch, 673 F.2d at 130 n. 4.
When there has been no timely motion, we review only whether the
plaintiff has presented any evidence in support of his claim. Id.
("the question before this Court is not whether there was
substantial evidence to support the jury verdict, but whether there
was any evidence to support the jury verdict" [emphasis added] ).
If the plaintiff presented any evidence, this court will sustain
the denial of the motion for judgment as a matter of law. If,
however, we find that no evidence can support the verdict under the
lower standard, we will not simply enter judgment for the
defendant; instead, we must order a new trial. Id.
In response to Polanco's waiver arguments, the City asserts
that this circuit construes rule 50(b) liberally. We agree. This
court has concluded that
[t]o demand a slavish adherence to the procedural sequence and
to require these defendants, in this case, to articulate the
words of renewal once the motion had been taken under
advisement, would be to "succumb to a nominalism and a rigid
trial scenario as equally at variance as ambush with the
spirit of the rules."
Bohrer v. Hanes Corp., 715 F.2d 213, 217 (5th Cir.1983). Even with
a liberal interpretation, however, this circuit has never
completely disregarded the requirement that the defendant must move
for judgment as a matter of law at the close of all of the
evidence. See McCann, 984 F.2d at 672. Indeed, in cases where
this court has strayed from the requirement that the defendant must
10

move for judgment as a matter of law at the close of the evidence,
the departure from the rule was "de minimis," and the purposes of
the rule were deemed accomplished.
Technical noncompliance with rule 50(b) is gauged by whether
the purposes of the rule are satisfied, not by a formula regarding
the number of witnesses, the amount of testimony, or the passage of
time after the initial motion. We have repeatedly articulated that
"[t]his rule serves two basic purposes: to enable the trial court
to re-examine the sufficiency of the evidence as a matter of law
if, after verdict, the court must address a motion for judgment as
a matter of law, and to alert the opposing party to the
insufficiency of his case before being submitted to the jury."
MacArthur v. University of Texas Health Center Tyler, 45 F.3d 890,
897 (5th Cir.1995). Thus, even when substantial evidence is
presented after the motion, we may still find that only a "de
minimis" departure from the 50(b) requirement has occurred if the
court and the opposing party have been put on notice, before the
case goes to the jury, that the plaintiff's proof may be lacking.
This generally requires (1) that the defendant made a motion for
judgment as a matter of law at the close of the plaintiff's case
and that the district court either refused to rule or took the
motion under advisement, and (2) and an evaluation of whether the
motion sufficiently alerted the court and the opposing party to the
sufficiency issue. See Purcell v. Seguin State Bank & Trust Co.,
999 F.2d 950, 956 (5th Cir.1993). Compare McCann, 984 F.2d at 672
(where the judge flatly denied the defendant's motion at the close
11

of the plaintiff's case) and Hinojosa v. City of Terrell, 834 F.2d
1223, 1228 (5th Cir.1988) (where the defendant failed to move for
judgment at any time before the court submitted the case to the
jury and failed to challenge any of the interrogatories submitted
to the jury).
For example, in MacArthur, the defendant moved for judgment as
a matter of law on all claims at the close of the plaintiff's case.
45 F.3d at 897. The judge decided to "carry that motion along ...
for the time." The defendants presented numerous witnesses, and
the plaintiff presented two rebuttal witnesses. The defendant
renewed the judgment as a matter of law as to all claims but the
intentional infliction of emotional distress claim. The judge
denied the motion. Because the jury returned a verdict in favor of
the plaintiff on the intentional infliction of emotional distress
claim, on appeal the defendant challenged the sufficiency of the
evidence regarding this claim. This court found that the
defendant's technical noncompliance had not "blind-sided" the
plaintiff by failing to call her attention to the sufficiency of
her evidence. Accordingly, the MacArthur court excused the
defendant's noncompliance and examined the evidence under Boeing v.
Shipman. See also Bohrer, 715 F.2d at 217 (although the defendants
presented substantial evidence after the court took the initial
motion under advisement, the court excused the defendant's failure
to renew the motion at the close of all the evidence because the
purposes of the rule were satisfied).
Here, although the City did not renew its motion at the close
12

of all the evidence, the district court had taken the matter under
advisement. The City took one and one-half days eliciting
testimony from thirteen witnesses during its case. Polanco
presented no rebuttal evidence. We find that the City's failure to
renew its motion qualifies as a "de minimis" departure from Rule
50(b). Our precedent makes clear that a strictly mechanical
application of rule 50(b) is not required when the court reserves
its ruling and the defendant has given notice of insufficiency. A
renewed motion by the City would have served no purpose because the
district court had already taken the motion under advisement. The
initial motion alerted Polanco and the court of the City's
challenge to the sufficiency of Polanco's proof of discrimination.
The motion, therefore, was essentially in the same posture at the
close of the case as it was when the district court took it under
advisement. Under these circumstances, we hold that failure to
raise another motion for judgment as a matter of law is not
detrimental to the City's insufficient evidence claims.
Consequently, the standard of review of the sufficiency of
Polanco's evidence is whether he has presented evidence with such
quality that reasonable and fair-minded persons would reach the
same conclusion that the Polanco jury made.
B. Sufficiency Of The Evidence Presented.
In responding to the merits of the City's insufficient
evidence claims, Polanco argues that he presented more than enough
evidence to support the jury's finding that his nationality
prompted the firing. Polanco claims that the record portrays
13

McDonald's conduct as being far more worthy of discipline than his
actions. Additionally, he alleges that the City's justification
for the disparate treatment was not believable. Further, Polanco
claims that he presented evidence of discrimination other than
evidence regarding the disparate treatment that he and McDonald
received.
We must evaluate the sufficiency of the evidence in an
employment discrimination case using the three-tier McDonnell
Douglas analysis: (1) the plaintiff must establish a prima facie
case of employment discrimination, (2) the burden shifts to the
defendant to produce a legitimate, nondiscriminatory reason for its
actions, and (3) the burden returns to the plaintiff to prove that
the reason was a pretext for discrimination and that the real
reason was to discriminate. Marcantel v. Louisiana Dep't of
Transp. & Dev., 37 F.3d 197, 199 (5th Cir.1994) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973)).
The City concedes, and we agree, that Polanco has established
a prima facie case of discrimination. The burden of production
then shifted to the City to present a legitimate nondiscriminatory
reason for its actions.
Accordingly, we must determine whether the City satisfied its
burden of production by articulating a nondiscriminatory reason for
the disparate disciplines imposed on McDonald and Polanco. The
employer satisfies the burden of production regardless of the
persuasive effect of the proffered reason. St. Mary's Honor Center
14

v. Hicks, 509 U.S. 502, ----, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407
(1993). The City presented evidence that McDonald and Polanco were
not similarly situated and that the differences warranted different
charges.4 The City portrayed Polanco as a very good investigator,
who had an excellent record and an extraordinary memory. The
evidence suggested that Polanco's memory regarding the written
false confession should have been clear because it was the only
murder that Polanco investigated during the relevant time period.
Further, it was an homicide investigation on which he worked while
assigned to another division. On the other hand, McDonald was an
average policemen with a poor memory. McDonald usually had to rely
on notes to trigger his memory and had to be coached extensively
before testifying. Further, McDonald could have confused the
investigation with other murder investigations in which he
participated during the relevant time period. Additionally, there
was testimony that Polanco was considered an expert investigator
and possessed the duties of a supervisor, whereas McDonald was
being closely supervised in his investigations because of his
amateur status in the homicide division. We find that the City's
evidence, demonstrating that the varying experience levels of the
men prevented them from being "similarly situated" and warranted
different charges for virtually the same offense, is sufficient to
satisfy the City's burden of production.
4We are focusing on the City's justifications for charging
Polanco with a more severe penalty because the criminal charge
chosen actually dictated the disciplinary action that the City took
in Polanco's case. The Civil Service Code mandates the
disciplinary action applicable for a particular charge.
15

Thus, the issue of sufficiency in this case rests entirely on
whether Polanco has proven that the City's reasons for the
disparate treatment was a pretext for discrimination against him
and that the City discriminated against him. See St. Mary's Honor
Center v. Hicks, 509 U.S. 502, ----, 113 S.Ct. 2742, 2752, 125
L.Ed.2d 407 (1993). The Supreme Court in Hicks explained that a
plaintiff must prove both that his employer discriminated against
him and that discrimination was a motivating factor in the
treatment the plaintiff received.
The defendant's "production" (whatever its persuasive effect)
having been made, the trier of fact proceeds to decide the
ultimate question: whether plaintiff has proven "that the
defendant intentionally discriminated against [him]" because
of his race.... The factfinder's disbelief of the reasons put
forward by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together with
the elements of the prima facie case, suffice to show
intentional discrimination. Thus, rejection of the
defendant's proffered reasons, will permit the trier of fact
to infer the ultimate fact of intentional discrimination, and
... upon such rejection "[n]o additional proof of
discrimination is required"....
Hicks, 509 U.S. at ----, 113 S.Ct. at 2749. If the factfinder's
verdict apparently rejects the defendant's proffered reason, enough
evidence must exist in the record for the factfinder to infer that
discrimination was the true reason for the disparate treatment.
See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1995)
(en banc).
Accordingly, in the present case, the jury first had to reject
the City's reason that McDonald and Polanco were not similarly
situated. The evidence had to contradict the legitimacy of the
City's explanation that the differences between Polanco and
16

McDonald justified the different charges and penalties, such that
the factfinder could reject the proffered reason. See EEOC v.
Louisiana Office of Community Serv., 47 F.3d 1438, 1443-44 (5th
Cir.1995).
Here, the jury reasonably could have concluded that the
differences in memory capacity and experience were not as
exaggerated as the City contended. McDonald began working on the
APD in 1974, two years before Polanco. Even assuming that
McDonald's memory was not as keen as Polanco's memory, his memory
most certainly should have been jogged by the questions he answered
during the trial of the first suspect (Jose Flores) in the Redman
murder. A jury could believe that it was inexcusable for McDonald
to have given a different answer to virtually the same line of
questioning in the second suspect's trial (Ernest Perez), just
twenty-one days later. A reasonable factfinder could find
implausible the argument regarding the incompetence of McDonald's
memory in light of the surrounding circumstances.
Similarly, a reasonable juror could have disregarded the
City's arguments that the men were not similarly situated because
Polanco had a motive to lie. The record shows that McDonald was no
less culpable than Polanco. McDonald had begun taking a statement
from Salazar. McDonald had possession of the false confession.
McDonald should have supplemented the Redman file; he was in
charge of the investigation, and he actually had the document.
That McDonald probably had custody of Salazar's confession since it
was obtained is a conclusion the jury could easily have reached.
17

The envelope containing the confession bore McDonald's handwriting.
McDonald found the envelope in his office. A jury reasonably could
conclude that McDonald's harboring the false confession prevented
him from wearing a badge of innocence. A reasonable and
fair-minded juror could reach the conclusion that the alleged
differences between the two men could not mask the fact that both
men testified inaccurately and, therefore, committed the same
offense. Thus, the jury could have properly rejected the
nondiscriminatory reason articulated by the City that McDonald and
Polanco were not similarly situated. A fact issue therefore
existed regarding the City's true reason for treating Polanco and
McDonald differently. See Rhodes, 75 F.3d at 994.
Having concluded that a reasonable jury could have rejected
the City's nondiscriminatory reason, we still must evaluate the
entire record to determine whether Polanco presented sufficient
evidence from which a reasonable jury could infer that the City
intended to discriminate against Polanco because of his national
origin. Polanco had to prove by a preponderance of the evidence
that the City's reasons were actually a pretext for discrimination.
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir.1993).
In Rhodes, this court clarified the plaintiff's burden to produce
sufficient circumstantial evidence to overcome judgment as a matter
of law after the record reasonably allows the jury to reject the
employer's proffered reason:
To sustain a finding of discrimination, circumstantial
evidence must be such as to allow a rational factfinder to
make a reasonable inference that age was a determinative
reason for the employment decision. The factfinder may rely
18

on all the evidence in the record to draw this inference of
discrimination. In tandem with the prima facie case, the
evidence allowing rejection of the employer's proffered
reasons will often, perhaps usually, permit a finding of
discrimination without additional evidence. Thus, a plaintiff
can avoid summary judgment and judgment as a matter of law if
the evidence taken as a whole (1) creates a fact issue as to
whether each of the employer's stated reasons was what
actually motivated the employer and (2) creates a reasonable
inference that age was a determinative factor in the actions
of which plaintiff complains.
Id. at 994. This court indicated that, under Hicks, the evidence
in the record (taken as a whole) must create a fact issue regarding
the reason for the employment action and must raise an inference of
discrimination. If the evidence is such that fair-minded jurors
would reach the same conclusion (i.e., that a fact issue is raised
and that discrimination was the true reason), then the plaintiff
has satisfied his burden even though he does not present any
additional evidence on rebuttal. It is within these parameters
that we will evaluate Polanco's evidence of discrimination.
We find that the record raises the necessary fact issue (as
discussed above) and also allows a permissible inference of
discrimination. Polanco testified that he did not intentionally
testify inaccurately. Polanco said that he testified truthfully
according to the information and beliefs he possessed at the time
of trial. Further, he testified that he often refreshed his memory
regarding a case by reading the case file shortly before
testifying. Polanco said that he would not have testified the way
he did if the confession had appeared in the "case jacket" with all
19

the other information regarding the Redman case.5
Additionally, evidence adduced at trial minimized the
significance of the fact that the confession was false, and
demonstrated that the falsity of a confession does not guarantee
that it will be remembered. Polanco presented testimony from
Officer Robert Martinez, who is the most decorated officer on the
APD, that during his tenure in homicide he had taken confessions
that turned out to be false. Similarly, Sergeant Gary Flemings,
who handled the internal affairs investigation of Polanco,
testified that he has taken between twenty-five and thirty
confessions that he later discovered were false. Sergeant Michael
Kimbro also testified that getting an untrue confession does not
happen every day, but it happens.
Polanco's testimony that he did not independently recollect
taking Salazar's statement was bolstered by testimony elicited on
cross examination from defense witness Sergeant Michael Huckabee.
Huckabee obtained the false written confession from Alex Briones in
the highly publicized yogurt shop murders investigation. Polanco
and a fellow officer had obtained a confession from Briones on
tape; however, Huckabee reduced the confession to writing and had
obtained Briones' signature. Despite the publicity, the falsity of
5The City emphasizes that if Polanco had supplemented the
record, he would have seen a reference to the false confession when
he read the case file shortly before testifying. However, Officer
Robert Martinez testified that it was not unusual for homicide
investigators not to write supplements to case files. Also,
Martinez said he had never been disciplined when he failed to
supplement a case file regarding his participation in an interview
for a case to which he had not been assigned.
20

the confession, and Huckabee's direct participation in eliciting
the confession, he testified that he did not recall whether he had
gotten a completed statement because he did not remember Briones
signing the confession. Briones had, in fact, signed the false
confession. Defense witness Huckabee made credible Polanco's story
that he misremembered. A jury was, therefore, free to find that
Polanco's testimony was inaccurate, but was not intentionally
untrue. Further, Sergeant Gary Flemings clarified that inaccurate
testimony is not synonymous with perjured testimony.
Polanco also exposed deficiencies in the evaluations conducted
by the Disciplinary Review Board and Polanco's supervisors
regarding McDonald's testimony. Polanco specifically sought
explanations regarding McDonald's inaccurate testimony in the Perez
trial, which was given twenty-one days after the Flores' trial.
The following testimony was read repeatedly to the jury:
Q. Sergeant, did you take a written statement from Mr.
Salazar?
A. No, sir.
Q. You just listened to what he had to say; is that right?
A. Yes, sir.
When questioned about McDonald's testimony in the Perez trial, some
APD officials indicated that the testimony was not considered at
all, while others gave ambivalent answers to explain why McDonald
had not perjured himself by giving inaccurate testimony regarding
information with which he should have been very familiar. When
Darla Espinoza met with McDonald before the Flores trial, they
discussed the incomplete statement that McDonald began. Further,
21

McDonald testified about the partial statement just twenty-one days
prior to the Perez trial. McDonald was well aware that he had done
more than listen to Salazar when interviewing him. A reasonable
factfinder could have rejected the less than satisfactory
explanations regarding McDonald's inaccurate testimony. In sum,
the evidence allowed a reasonable jury to conclude that the City's
reason for charging Polanco with aggravated perjury while charging
McDonald with bringing discredit, although both men were guilty of
giving inaccurate testimony, was merely a pretext for
discrimination. Both offenses warranted similar charges and
penalties. The failure to give equal treatment to the same offense
allowed the jury to assume the presence of mendacity.
Not only does the record contain evidence that the City's
reason was a pretext for discrimination, Polanco also presented
evidence of national origin discrimination from other officers.
First, Polanco introduced testimony from Sergeant Carlos Botello,
who worked in internal affairs for fourteen years, that the
internal affairs investigation process is a biased procedure
tainted by discrimination. Botello also identified aspects of the
Polanco investigation that deviated from other investigations. For
example, Botello said it was extremely unusual that internal
affairs conducted an investigation of Polanco, who already had been
investigated, after he was terminated. Botello also found
suspicious the close investigation that took place between the
district attorney's office and internal affairs. Normally,
simultaneous investigations by the two entities remain completely
22

separate, while in this case the district attorney and internal
affairs coordinated their efforts.
Second, Polanco presented testimony regarding a pervasive
discriminatory attitude toward Hispanic officers in the APD. He
explained that this attitude was particularly exhibited by some of
the men involved with the decision to suspend him.6 Martinez
testified that Lieutenant David Parkinson was very prejudiced
against Hispanics. Parkinson treated Hispanic officers differently
from Anglo officers and used racial slurs involving Mexicans.
Martinez also testified that Robert Gross mishandled some
disturbances involving Hispanics and treated Hispanic officers
differently than Anglo officers. Further, Martinez testified that
Deputy Chief Ken Muennick treated Hispanic officers differently
than Anglo officers. Sergeant Rodrigo Herrera testified that
Parkinson hid his prejudices against Hispanics. Herrera also said
that Captain Bobby Shirley was prejudiced and suspended Herrera for
five days because of his Hispanic heritage. Captain Juan Gonzalez
also believed that he received a harsher discipline because of his
ethnicity.
Finally, Polanco demonstrated that discrimination against
Hispanics pervaded the quality and length of homicide
investigations involving Hispanic victims. Officer Martinez
6Four of the five men on the Disciplinary Review Board voted
to sustain the allegations against Polanco: Deputy Chief Robert
Gross, Captain Bruce Mills, Captain Pete Neal, and Lieutenant Paul
Looney. Lieutenant Michael Kimbro, Polanco's representative, voted
not to sustain the perjury charge. Lieutenant Davis Parkinson and
Captain Bobby Shirley both were in Polanco's chain of command and
involved in the decision to discipline Polanco.
23

discussed Lieutenant Parkinson's use of the term "misdemeanor
murders." He testified that Parkinson said, "This Mexican here,
this is a misdemeanor murder. And we don't need no overtime on
this. We'll get on it tomorrow." Similarly, Parkinson instructed
officers that they had only twenty-four hours to solve a minority's
murder. Martinez explained: "I have observed [Parkinson] not
paying attention to Hispanic victims getting murdered, several
times, and assigning detectives just for 24 hours and then giving
them something else to do. In other words, I've heard him say that
any time a Hispanic or black gets killed, it's misdemeanor murder,
especially if they get killed in a bar room fight." For these
reasons, the murders of minorities often remained unsolved.
The record demonstrates that there were two sides to this
discrimination case. The jury heard both sides and chose to
believe Polanco's view of the evidence. See Wilson v. Monarch
Paper Co., 939 F.2d 1138, 1146 (5th Cir.1991). The jury has
spoken. It is not within the province of this court to disturb a
jury's finding which is supported by the record, even if this court
would have been inclined to rule differently had the matter been
presented to it in the first instance. This court explained in
Wilson that when the jury chooses between two clearly identifiable
factual stories in a discrimination case, the jury's verdict must
be affirmed:
The jury heard both sides and the jury spoke. That is about
all there is to say about age discrimination liability in this
case. There were clearly two sides to this case. The jury
chose to believe Wilson and his evidence; it did not believe
Gozon and Monarch. Consequently, the jury's verdict on age
discrimination is affirmed.
24

Id. We are, therefore, obligated to affirm the jury's verdict,
provided that the record before us supports the jury's finding.
After a thorough review of the record, we are confident that
sufficient evidence existed for the jury to reach the conclusion
that the City's disparate treatments of McDonald and Polanco
emanated from a discriminatory motive. See Purcell v. Seguin State
Bank & Trust Co., 999 F.2d 950, 957 (5th Cir.1993) (noting that it
is not unusual for a discrimination case to consist mostly of
circumstantial evidence); and Ray v. Iuka Special Mun. Separate
Sch. Dist., 51 F.3d 1246, 1251 (5th Cir.1995) (acknowledging that
even when the evidence is less than compelling, it is not the
appellate court's role to weigh the evidence).
We reach this conclusion even though a significant amount of
Polanco's evidence involved proof of discriminatory practices in
the workplace. Evidence of the APD's hostile treatment of and
attitude toward Hispanics is probative of whether Polanco was
terminated because of his nationality. See Kelly v. Boeing
Petroleum Servs., 61 F.3d 350, 358-59 (5th Cir.1995) (acknowledging
the probative value of an atmosphere of discrimination). The APD's
discriminatory treatment of Hispanic officers and victims has
significant bearing on the issue of whether the same discriminatory
motive affected the decisions concerning Polanco. Evidence of the
discriminatory atmosphere and the biased investigation combined
with the rejection of the City's proffered reason support the
jury's finding of discrimination. Because sufficient evidence
existed for reasonable, fair-minded factfinders to reach the same
25

conclusion, we hold that the district court did not err in denying
the City's motion for judgment as a matter of law. We, therefore,
will not disturb the jury's determination that the City terminated
Polanco because of his nationality.
II. NEW TRIAL.
The City argues that the district court erred in not granting
it a new trial because the evidence was insufficient and because
the verdict was against the weight of the evidence. It asserts
that its witnesses, seven of whom were directly involved with
Polanco's disciplinary decision, testified that national origin was
not a factor in the decision to suspend Polanco and that there were
marked differences between Polanco's and McDonald's testimony. The
City argues that by contrast, Polanco's witnesses had no personal
knowledge about Polanco's investigation and testified only about
remote discriminatory incidences that were unrelated to Polanco.
The denial of a motion for new trial based on insufficiency
of the evidence is reviewed for an abuse of discretion. See Lloyd
v. Georgia Gulf Corp., 961 F.2d 1190, 1196 (5th Cir.1992). The
district court abuses its discretion if "there is an absolute
absence of evidence to support the jury's verdict." Roberts v.
Wal-Mart Stores, Inc., 7 F.3d 1256, 1259 (5th Cir.1993); see also
Bunch v. Walter, 673 F.2d 127, 130-31 n. 4 (5th Cir.1982).
Similarly, the decision to deny a motion for new trial because the
verdict was against the weight of the evidence is reviewable under
an abuse of discretion standard. United States v. Dula, 989 F.2d
772, 778 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 172,
26

126 L.Ed.2d 131 (1993). When the party has had the opportunity to
challenge the witnesses credibility and the factfinder has chosen
to believe the witnesses, the appellate court will not generally
intrude on the decisions reached. Id. The trial court does not
abuse its discretion in accepting the jury's evaluations regarding
the witnesses' credibility. Id.
As we detail above, Polanco presented sufficient evidence for
a reasonable jury to conclude that the City discriminated against
Polanco because of his national origin. The jury chose to believe
Polanco and his witnesses. The trial court did not abuse its
discretion by accepting the jury's credibility determinations.
III. PREJUDICE, BIAS, AND SYMPATHY FACTOR.
The City argues that jury prejudice, bias, and sympathy is
evidenced in the excessive jury award. Also, the City asserts that
the jury's award exceeds by about 200% the relief requested by
Polanco. Further, during deliberations, the jury asked whether
answering "yes" to question two would disallow relief to Polanco.
The City contends that the jury's question suggests that the jury
did not want to adhere to the district court's instructions.
Polanco counters that because the award is supported by
sufficient evidence, it is not reflective of prejudice, bias, and
sympathy. Further, he indicates that the amount of the award
demonstrates the jury's attempt to afford complete compensation.
Polanco indicates that the judge granted the City's motion for
remittitur and cured any potential harm to the City caused by any
alleged overcompensation. Finally, he suggests that the judge's
27

answer to the jury's question cured any potential problem that
existed.
The decision to deny a motion for new trial, which has been
requested because the jury's verdict reflects prejudice, bias, or
sympathy, is reviewed for an abuse of discretion. Eiland v.
Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir.1995); and
Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 178 (5th Cir.1992).
The district court abuses its discretion if it enters a clearly
excessive verdict. Id. "A verdict is excessive if it is contrary
to right reason or entirely disproportionate to the injury
sustained." Id. (Quotations omitted).
In the case at bar, the district court recognized that the
verdict was excessive and partially granted the City's motion for
remittitur. The City correctly indicates that technically Fifth
Circuit jurisprudence dictates that the court is supposed to grant
a new trial rather than remittitur when an award results from
passion or prejudice. See Lowe v. General Motors Corp., 624 F.2d
1373, 1383 (5th Cir.1980). However, the Fifth Circuit in Lowe
explained that when the award is deemed merely "excessive," the
district court may remit the award. Further, where the district
court has remitted the award, the Fifth Circuit will assume that
the district court believed that the award did not result from
passion or prejudice. Id. ("By suggesting that the verdicts in
the case before us could be cured by remittiturs, ... we conclude
that the District Court did not really believe that a new trial on
this issue was absolutely necessary due to bias, passion and
28

prejudice. It was, instead, addressing the similar although
distinct question of "just too much,' that is, excessiveness.").
We find that by remitting the award, the district court
acknowledged that the large amount was not necessarily due to
prejudice, bias, or sympathy. Also, the district court either did
not read anything into the jury's question or believed that its
answer cured any problems possibly underlying the question.7 Thus,
we hold that the present remitted award is reasonable and not
reflective of prejudice, bias, or sympathy.
IV. EXCLUSION OF TESTIMONY.
The City argues that it is prejudiced by the omission of
testimony from Officer Kim Nolte, a colleague with whom Polanco had
had an extra-marital affair. The City claims that the evidence
allegedly would have addressed Polanco's reputation for
truthfulness. The City feels Nolte's past relationship should have
gone to the weight of her evidence rather than operated to exclude
her testimony on admissibility grounds. Further, the City contends
that the absence of the evidence effected the verdict because the
jury awarded Polanco $125,000 for damage to his reputation. Nolte
developed an opinion regarding Polanco's reputation from a personal
and professional perspective. Because none of the City's other
witnesses attacked Polanco's reputation, the City maintains that
the jury received no contradictory evidence that the City harmed
7The judge responded to the jury's question as follows:
"Answer the question or questions following the instructions of the
Court and based on the preponderance of the evidence. The Court
will later determine the effect of your answers regarding any
judgment to be entered in this case."
29

Polanco's reputation with the suspension. On the other hand,
Polanco argues that the evidence was properly omitted because Nolte
is simply an angry ex-girlfriend.
We review a ruling to exclude evidence only for "abuse of
discretion." Grizzle v. Travelers Health Network, Inc., 14 F.3d
261, 271 (5th Cir.1994). The district court does not abuse its
discretion if the error is merely "harmless." Id. We "will not
disturb an evidentiary ruling, albeit an erroneous one, unless it
affects a substantial right of the complaining party." Polythane
Sys. Inc. v. Marina Ventures Int'l, Ltd., 993 F.2d 1201, 1208 (5th
Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1064, 127 L.Ed.2d
383 (1994). We will consider the record as a whole when
ascertaining whether an error prejudices the complaining party by
effecting the verdict. Id. at 1209.
Rule 403 provides that "evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice ... or needless presentation of cumulative evidence."
Courts have allowed testimony from witnesses who were once
intimately involved with a party, even where the testimony is
challenged under a privilege. See, e.g., United States v. Brown,
605 F.2d 389, 396 (8th Cir.1979), cert. denied, 444 U.S. 972, 100
S.Ct. 466, 62 L.Ed.2d 387 (1979) (the court found no basis to
reverse the conviction where the wife testified against her husband
although her husband had left her two weeks after they married, she
had not seen him since his departure, and he had forged her name on
several checks); United States v. Lustig, 555 F.2d 737, 743 (9th
30

Cir.1977), cert. denied, 434 U.S. 926, 98 S.Ct. 408, 54 L.Ed.2d 285
(1977) (after the court denied the defendant's motion to exclude
testimony of his former wife, he argued that her "testimony was
given because of a desire for revenge arising out of certain
unrelated events;" the appellate court found no error in the trial
court's decision to allow the testimony). Although the cited cases
involved challenges under the marital privilege, the cases
demonstrate that "anger" and "revenge," emotions often associated
with ex-spouses and ex-girlfriends who parted on less than friendly
terms, are not sufficient (by themselves) to outweigh the probative
value of the testimony. However, the potential prejudice caused by
testimony from a particular ex-spouse or ex-companion must be
assessed within the context of the particular case at hand.
Nolte's status as an angry ex-mistress should have tilted the
balancing test in Rule 403 in favor of exclusion. Nolte's
testimony regarding Polanco's truthfulness stemmed directly from
the three and one-half years extra-marital affair he was having
with her. During the hearing regarding Nolte's testimony, the City
admitted that Nolte would testify regarding Polanco's character for
truthfulness based upon the relationship she had with him. It was
obvious from the City's proffered testimony that Nolte's testimony
was imbued with her frustrations regarding their failed
relationship. The lies she discussed in the proffer demonstrated
that Nolte could only testify regarding lies Polanco allegedly told
to her. Nolte did not indicate that Polanco told these lies to
anyone else, and she mentions nothing about Polanco's reputation
31

for truthfulness in either the department or the community.
Consequently, the jury would be compelled to focus on the
extra-marital relationship rather than Polanco's reputation for
truthfulness in the community. Under these circumstances, Nolte's
testimony would have been unduly prejudicial. We hold, therefore,
that the district court did not abuse its discretion in excluding
testimony from an angry ex-mistress where the circumstances
indicate the testimony would have been more prejudicial than
probative.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.

32