Gruppo v. Fedex Freight System, Inc. , 296 F. App'x 660 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
October 15, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ANGELO THOMAS GRUPPO,
Plaintiff-Appellant,
v.
FEDEX FREIGHT SYSTEM, INC., No. 08-1006
a Delaware Corporation; TERRY (D.C. No. 1:05-cv-02370-MSK-KLM)
STAMBAUGH, Vice President Human (D. Colo.)
Resources FedEx Freight System, Inc.,
an individual; STEVE MOORE,
Vice President IT Development,
FedEx Freight System, Inc.,
an individual,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiff-appellant Angelo Thomas Gruppo appeals the judgment of the
district court granting judgment as a matter of law under Fed. R. Civ. P. 50
(JMOL) to defendants on his claim of retaliation under 29 U.S.C. § 2615, a
portion of the Family and Medical Leave Act (FMLA). Mr. Gruppo argues the
district court erred in limiting him in the pretrial order to one exhibit or one
witness per fact or element in his case-in-chief and then granting JMOL to
defendants because of his evidentiary insufficiency. He further argues the grant
of JMOL was error because, contrary to the district court’s ruling, he did establish
a prima facie case of FMLA retaliation because, along with the other elements, he
proved a causal link between his alleged protected activity and defendants’
termination of his employment, even though he did not explicitly reference the
FMLA.
Background
Mr. Gruppo was Senior Manager of electronic data interchange at the
Colorado Springs facility of FedEx Freight System, Inc. (FedEx). In August
2005, FedEx management became concerned that one of the employees
Mr. Gruppo supervised was experiencing repeated absences from work.
Mr. Gruppo informed management that those absences were sometimes due to
health-related issues of both the employee and her children, but Mr. Gruppo also
testified that he “did not know all of the laws about this” and “did not know if she
were protected under – under anything; for instance, FMLA or other type of laws
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that could be there.” Aplt. App. at 108. His main concern was that “terminating
for cause could create an issue.” Id.There is some dispute about whether Mr. Gruppo was told to terminate the
employee’s position, or whether he was simply instructed to take corrective action
to address the problem. Whatever his marching orders, Mr. Gruppo was opposed
to them and conveyed that opposition to FedEx’s human resources personnel in
Colorado Springs and ultimately to Terry Stambaugh, the vice president for
human resources at corporate headquarters in Harrison, Arkansas. An email to
himself, which he eventually forwarded to Mr. Stambaugh, summarizes
Mr. Gruppo’s opinion about the situation:
Being required to manage an individual into failure, rather
than continuing on a successful track, appears to me as, if not
unethical, it is at least counter to company policies, and can expose
the company to a number of obvious law suits, and if not that, it is at
least not just or moral.
Id. at 138. On Thursday, September 1, 2005, after about a month of discussions
with the human-resource people in Colorado Springs, Mr. Gruppo met with
Mr. Stambaugh at corporate headquarters in Harrison. At that meeting,
Mr. Gruppo expressed his disagreement with the way the employee was being
treated, particularly her treatment by Steve Moore, a vice president for IT
development in Colorado Springs and one of Mr. Gruppo’s supervisors.
Shortly after the meeting in Harrison, Mr. Gruppo prepared and apparently
sent to Mr. Stambaugh a document summarizing the events leading up to the
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Harrison meeting and recapped the meeting itself. He indicated he did not think
terminating the employee was “ethical or even legal,” id. at 143, and stated since
he had put all of his information and accusations on record, he would need
protection against any retribution from FedEx and specifically from Steve Moore,
id. at 146. On Tuesday, September 6, Mr. Gruppo’s first day back to work after
the Harrison meeting, his employment with FedEx was terminated.
Mr. Gruppo’s initial complaint, filed in state court and removed to federal
court by defendants, included state breach-of-contract and tort claims and a claim
of retaliatory discharge in violation of the FMLA. By the time the case went to
trial, only the FMLA retaliatory discharge claim remained. At the close of
Mr. Gruppo’s case, the district court granted JMOL in favor of FedEx and the
remaining individual defendants finding that Mr. Gruppo had failed to establish a
prima facie case of retaliation, and Mr. Gruppo appeals. 1
Analysis
“Rule 50 allows the trial court to remove cases or issues from the jury’s
consideration when the facts are sufficiently clear that the law requires a
particular result.” Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1089 (10th Cir.
2001) (quotations omitted). We review the grant of JMOL de novo, id., and after
1
As part of its Rule 50 ruling, the district court determined Mr. Gruppo had
failed to make out a prima facie case of FMLA retaliation against defendants
Stambaugh and Moore. Aplt. App. at 78. Mr. Gruppo does not appeal from that
determination.
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this review we agree with the district court that Mr. Gruppo failed to establish the
required causation to sustain his prima facie case. Judgment for defendants was
therefore required.
Mr. Gruppo’s first issue, that the district court erred in limiting him in the
pretrial order to only one evidentiary exhibit or witness per fact or element to be
proved during his case in chief, was not preserved for appellate review because
Mr. Gruppo did not object in the district court to that order or seek to have it
amended. See United States v. Rayco, Inc., 616 F.2d 462, 464 (10th Cir. 1980).
Even if the issue were before us, however, we would find no merit in it. While
the pretrial order does initially limit the parties to one exhibit or witness per fact,
additional exhibits or witnesses were allowed for rebuttal, Aplt. App. at 47, and
Mr. Gruppo introduced several exhibits in his case-in-chief without objection
from defendants or prohibition from the bench. In light of the fact that
Mr. Gruppo’s counsel admitted at trial that any exhibits she would have
introduced beyond the ones already in evidence would have been cumulative and
redundant, id. at 70-71, we find counsel’s argument on this point to be
unprofessional and a waste of this court’s and defendants’ time and resources.
Turning to the merits of Mr. Gruppo’s FMLA retaliation case, § 2615(a)(2)
makes it unlawful “for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by”
subchapter I of the FMLA. Because such claims are subject to the McDonnell
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Douglas burden-shifting analysis, Metzler v. Fed. Home Loan Bank of Topeka,
464 F.3d 1164, 1170 (10th Cir. 2006) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973)), Mr. Gruppo initially was required to establish a
prima facie case of retaliation. Id. To do that, he had to show (1) he engaged in
activity protected by the FMLA; (2) FedEx “took an action that a reasonable
employee would have found materially adverse;” and (3) a causal connection
between the protected activity and the adverse action exists. Id. at 1171.
We agree with the district court that “the evidence is inadequate to
establish a causal relationship due to the ambiguity of the communications by
Mr. Gruppo to management and due to the fact that there is no evidence to
establish that management ever understood that Mr. Gruppo was trying to
communicate, if he was, about a potential violation of the FMLA.” Aplt. App.
at 94. As thoroughly explained by the district court and confirmed by our
de novo review, there was no evidence that Mr. Gruppo informed defendants that
he thought what they were proposing to do to the employee was illegal because it
was contrary to the FMLA, or even more generally, because it interfered with the
employee’s right to take specific amounts of unpaid medical leave without
suffering adverse employment consequences. Counsel’s statements in her
opening brief indicating that such evidence was before the court, see Aplt. Br.
at 21, 32-33, are wrong and deliberately misleading. While there are references
in the record to Mr. Gruppo’s own belief that terminating the employee may have
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been generally illegal under the circumstances, see Aplt. App. at 107-08, 138,
143, and that he communicated as much to defendants, id. at 143, his vague
generalizations about possible illegality were insufficient to put defendants on
notice that he was engaged in protected opposition to policies which he believed
violated the FMLA. See Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188
(10th Cir. 2002) (holding absence of reference to unlawful racial or religious
discrimination “can preclude a retaliation claim because an employer cannot
engage in unlawful retaliation if it does not know that the employee has opposed
or is opposing a violation of Title VII”). Counsel’s argument that the district
court granted JMOL against her client because he introduced only one evidentiary
exhibit on causation is disingenuous. Mr. Gruppo lost in the district court
because his evidence, considered in its entirety, did not establish causation, an
element essential to his case.
In his third argument, Mr. Gruppo contends the district court granted JMOL
on the causation issue because he did not specifically reference the FMLA in his
communications with defendants. This was not the basis of the district court’s
ruling, and counsel’s phrasing of the issue mischaracterizes what the district court
did. The district court specifically explained that ordinary employees are not
“required to invoke laws by name in order to engage in protected activity,” and
that “you don’t have to use magic words.” Aplt. App. at 82. But while
Mr. Gruppo did not have to specifically reference the FMLA in his
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communications with defendants, something more than a general charge of
potential legal problems was required. See generally Peterson, 301 F.3d at 1188(supporting conclusion that defendants’ retaliation against Mr. Gruppo would be
prohibited under 29 U.S.C. § 2615 only if defendants knew that his opposition to
their treatment of the employee was motivated by his belief that they were, in the
words of the statute, “engaging in a practice made unlawful” by the FMLA).
Because Mr. Gruppo did nothing more than convey his general concern that
terminating the employee might be illegal, he did not adequately inform
defendants of his protected opposition under FMLA.
Defendants have requested sanctions against Mr. Gruppo’s counsel under
28 U.S.C. § 1927 on the grounds that this appeal is groundless and frivolous.
Despite having the opportunity to respond to this request in a reply brief,
counsel has not done so. Section 1927 provides in pertinent part that “[a]ny
attorney . . . who so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.”
As indicated in this order and judgment, all of the issues brought on appeal are
meritless at best or disingenuous at worst. “At the appellate level the bringing of
the appeal itself may be a sanctionable multiplication of proceedings,” and,
indeed, “[t]his appeal appears to have been frivolously and vexatiously
undertaken ab initio.” Braley v. Campbell, 832 F.2d 1504, 1513 (10th Cir. 1987)
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(en banc). Counsel’s conduct of this appeal “manifests either intentional or
reckless disregard of the attorney’s duties to the court.” Id. at 1512. In this case,
as in Hertzfeld & Stern v. Blair, 769 F.2d 645, 647 (10th Cir. 1985), “[t]he many
instances in which counsel’s references to the record are contrary to what is found
indicate that [she] has been either cavalier in regard to [her] approach to this case
or bent upon misleading the court. . . . These acts have added grievously to the
frivolous nature of this appeal,” and we believe sanctions are not only proper but
necessary. We emphasize that these sanctions are assessed solely against counsel
for the appellant, “who is responsible for this case and its presentation.” Id.Mr. Gruppo bears no responsibility in this regard.
The judgment of the district court is AFFIRMED, and defendants-appellees
are awarded excess costs, expenses, and reasonable attorneys’ fees for this appeal.
See 28 U.S.C. § 1927. This matter is REMANDED to the district court for a
hearing to determine the amount of attorneys’ fees and costs to be awarded and
entry of judgment in accordance with that determination. After that amount is
determined, counsel for Mr. Gruppo shall remit such amounts directly to
defendants-appellees.
Entered for the Court
John C. Porfilio
Circuit Judge
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