Morris v. Jefferson Parish She ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30153
AL MORRIS,
Plaintiff-Appellee,
versus
JEFFERSON PARISH SHERIFF’S OFFICE; ET AL.,
Defendants,
HARRY LEE, Sheriff, in his official capacity,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-1656-K)
_________________________________________________________________
June 20, 2002
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
The principal issue on appeal is whether sufficient evidence
supports the jury’s verdict that Al Morris was not rehired by Harry
Lee, Sheriff of Jefferson Parish, Louisiana, because Morris opposed
same-sex harassment in the workplace. Sheriff Lee appeals the
denial of his pre-verdict FED. R. CIV. P. 50(a) motions for judgment
as a matter of law (he did not so move post-verdict, pursuant to
Rule 50(b)) and his FED. R. CIV. P. 59 motion for new trial,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
following a judgment of, inter alia, $5,000 in compensatory damages
and $47,000 in back pay. AFFIRMED.
I.
Morris was hired by Sheriff Lee in 1988. Two former
supervisors reported that Morris never received written reprimands
while under their supervision. One testified, however, that Morris
and several others were habitually late, but that Morris was never
late often enough to warrant a suspension.
While on First District day watch from February 1996 until the
Fall of 1997, Morris witnessed a series of events, which he
characterized as homosexual harassment, directed against Deputy
Jeffrey Picone by Sergeant James Schanbein (their supervisor).
These events included unwelcome, public sexual advances, sexual
comments during roll call prior to the beginning of day watch, and
false statements to third parties concerning Picone’s sexual
orientation. Morris confronted Sergeant Schanbein, which resulted
in Sergeant Schanbein’s becoming upset, screaming at Morris, and
storming out of district headquarters.
Morris complained to Lieutenant James Cavalier, Sergeant
Schanbein’s immediate supervisor, about Sergeant Schanbein’s
harassment during August or September 1996, but Lieutenant Cavalier
did nothing. Morris did not complain, however, to Lieutenant
Joseph Torres, Morris’ watch commander.
Following these complaints, during the fall of 1996: Morris
received several suspensions and reprimands for tardiness and
unsatisfactory performance; Sergeant Schanbein would “return[]
2
every report that [Morris] filled out”; and Sergeant Schanbein
routinely screamed at Morris about problems with his reports.
Morris then complained about the harassment to Lieutenant
Cavalier’s immediate supervisor, Major Lawrence Juster, on 2
December 1996. At that meeting, Lieutenant Cavalier accused Morris
of having “a mental problem”. The next day, Morris was ordered to
DePaul Psychiatric Hospital for three weeks. (Had Morris refused
to go, he probably would have been fired.) Morris contends being
ordered to DePaul was for no particular reason, and doctors found
no medical necessity for his being there.
Sergeant Schanbein’s harassment of Deputy Picone continued
during the early part of 1997, with Deputy Picone filing an
internal affairs report against Sergeant Schanbein that April.
That May, Morris’ supervisor, Major Sue Ellen Monfra, recommended
Sergeant Schanbein’s being suspended for ten days, but no one ever
told Major Monfra that Morris witnessed or complained of Sergeant
Schanbein’s harrasment. Chief Craig Taffaro later increased
Sergeant Schanbein’s punishment to a 30-day suspension and
demotion.
Morris followed Deputy Picone’s complaint in April 1997 with
his own complaint to Jefferson Parish Sheriff’s Office (JPSO)
Internal Affairs that June. This complaint was filed several days
after Morris was reassigned from the day to the midnight watch.
Morris claims his personnel files were “doctored” to reflect
poor work; at trial, however, he could not specifically identify
what was changed. Following his Internal Affairs complaint,
3
Morris, in August 1997, received letters confirming his suspensions
for incidents of tardiness that occurred in October 1996. (Morris
claims, throughout his brief here, that he was “suspended” multiple
times for the same incidents. However, it appears that the second
“suspensions” were confirmations of earlier imposed suspensions.)
Morris was also put on probation for an automobile accident and
other minor incidents.
Morris filed his first discrimination charge with the EEOC on
3 November 1997, claiming retaliation for complaining about same-
sex harassment. Shortly thereafter, on 12 November, he received
another letter of reprimand confirming his suspension for tardiness
in October 1996.
Morris initially filed this action against JPSO in June 1998,
claiming retaliation in violation of Title VII in the form of
reprimands, suspensions, poor performance reviews, and the
psychiatric evaluation’s being ordered. In July, he amended his
complaint to add Sheriff Lee, in his official capacity as Sheriff
of Jefferson Parish. (The district court subsequently granted an
unopposed motion to dismiss JPSO because, under Louisiana law, that
entity lacks the legal capacity to sue or be sued.)
Following Morris’ second EEOC charge in October 1998, he was
investigated for aggravated rape and weapons violations, which
included a search of his home. In February 1999, he was required
to give a statement concerning an incident involving use of his
JPSO automobile by his friend Paulette Doyle, who was involved in
other incidents, discussed below.
4
In March 1999, Morris was investigated for criminal extortion
and conspiracy to commit murder. On 16 March, he was questioned
about the conspiracy allegations and was suspended indefinitely,
pending investigation into the criminal charges. (Morris asserts
throughout his brief that he was charged with conspiracy to commit
murder; his trial testimony confirms he was never charged with that
crime by the District Attorney.)
That April, Morris filed his third charge of discrimination
with the EEOC. He claimed the investigations were a part of
ongoing retaliation.
Morris was terminated on 20 May 1999, after the District
Attorney accepted for prosecution the criminal extortion charge.
(In Morris’ subsequent unemployment compensation hearing, Sheriff
Lee admitted Morris was fired because of the pending felony
extortion charges.) Morris was arrested that June.
That August, Morris amended his complaint in this action. He
added false arrest claims against several JPSO officers involved in
investigating the extortion charges and added a false imprisonment
claim for the incident concerning the psychiatric hospital.
Morris was acquitted in an October bench trial on the
extortion charge. Nevertheless, Sheriff Lee refused to rehire him.
The criminal allegations against Morris from late 1998 through
1999 (aggravated rape, weapons violations, conspiracy to commit
murder, and extortion) involved the same individuals. At that
time, Eric LeBlanc shared a security apartment with Morris and his
wife, Dawn Morris. LeBlanc was involved in an extra-marital affair
5
with Paulette Doyle, the above-named friend of Morris and his wife.
Morris believes Shawn Doyle, Paulette Doyle’s husband, instigated
the rape complaint against Morris because Shawn Doyle was upset
with Morris’ role in facilitating LeBlanc’s affair with Shawn
Doyle’s wife, Paulette Doyle.
The conspiracy to commit murder complaint (which, as noted,
was never pursued beyond the investigative stage) arose because
Morris: allegedly made violent threats against Shawn Doyle; and
believed Paulette Doyle might be taking nude photographs of Morris’
child while she was babysitting.
The extortion charge involved Morris’ alleged attempt to
extort concessions from a woman in the process of adopting a child
fathered by LeBlanc. The biological mother was Paulette Doyle.
Morris’ conversation with the woman, in which Morris revealed he
was a JPSO deputy and mentioned his colleagues knew how to wrest
custody of a child away from others, was recorded and provided to
JPSO by the Volunteers of America (the adoption agency).
This civil action was tried over five days in mid-2000. Kevin
Nardelle, a friend of the Morrises, Doyles and LeBlanc, testified
JPSO officers coerced him into giving a false statement concerning
Morris’ involvement in a conspiracy to commit murder. However,
Nardelle admitted Morris told him that he (Morris) would defend
himself if Doyle ever threatened him.
In Sheriff Lee’s defense, Deputy Jeffrey Galpin testified
Sergeant Schanbein was obnoxious and picked on all of the deputies.
Two officers investigating the conspiracy to commit murder
6
allegations flatly denied coercing Nardelle and testified Nardelle
admitted to being afraid of Morris. Further, Deputy Chief James
Miller testified he knew nothing of Morris’ complaint of workplace
sexual harassment when he (Deputy Chief Miller) was first informed
of the potential extortion charge against Morris.
Finally, Chief Newell Normand testified he was the person who
declined to rehire Morris following his acquittal, with the sole
reason for not rehiring him being Morris’ attempt to interfere with
the adoption. Chief Normand conceded on cross-examination that
Morris’ complaint for this civil action had to have come across his
desk because he (Chief Normand) has the sole authority to assign
attorneys to defend against discrimination actions.
At the close of Morris’ case in chief, and pursuant to FED. R.
CIV. P. 50(a), Defendants (Sheriff Lee and the individual officers)
moved for judgment as a matter of law (JML) on all claims. The
court dismissed all federal and state claims for false imprisonment
stemming from Morris’ psychiatric treatment and dismissed, on
qualified immunity grounds, the false arrest claims against the
individual officers. The court deferred ruling on the Title VII
claim.
Sheriff Lee renewed his Rule 50(a) motion at the close of all
the evidence. The motion was denied.
Following the jury verdict and award of $5,000 in compensatory
damages and $47,000 in back pay, the district court entered
judgment on 28 August 2000. Because Schanbein no longer worked for
JPSO and Morris had little contact with those making employment
7
decisions, the court ordered his reinstatement rather than front
pay.
Pursuant to FED. R. CIV. P. 59, Sheriff Lee moved for a new
trial and, in the alternative, to alter or amend the judgment to
remit the back pay award by any earnings realized by Morris during
the relevant time period. But, Sheriff Lee did not make a post-
verdict motion for JML pursuant to FED. R. CIV. P. 50(b). Following
a hearing on the Rule 59 motion (in which no argument concerning
JML was made), the court denied the motion.
II.
Again, post-verdict, Sheriff Lee only sought a new trial; he
did not move for JML pursuant to Rule 50(b). On appeal, however,
he seeks either a new trial (based upon his Rule 59 motion) or
reversal of the jury verdict based upon insufficiency of the
evidence (the equivalent of JML). It goes without saying that
whether Sheriff Lee can now seek reversal on insufficiency grounds
is important because of the differing standards of review.
“The denial [of a new trial motion] will be affirmed unless,
on appeal, the party that was the movant in district court makes a
clear showing of an absolute absence of evidence to support the
jury’s verdict, thus indicating that the trial court had abused its
discretion in refusing to find the jury’s verdict contrary to the
great weight of the evidence.” Whitehead v. Food Max of Miss.,
Inc., 163 F.3d 265, 269 (5th Cir. 1998) (emphasis in original;
internal quotation marks omitted; quoting Hidden Oaks Ltd. v. City
of Austin, 138 F.3d 1036, 1049 (5th Cir. 1998)). On the other
8
hand, for a JML denial, we will overturn a jury verdict only if
“there is no legally sufficient evidentiary basis for a reasonable
jury to find for” the nonmovant. Id. (quoting FED. R. CIV. P.
50(a)); see also Mato v. Baldauf, 267 F.3d 444, 450-51 (5th Cir.
2001). In short, Sheriff Lee’s burden is not as great under the
standard of review for JML as it is for a new trial. Whitehead,
163 F.3d at 269 & n.2.
A.
The Federal Rules of Civil Procedure were amended in 1991 to
change the terminology for pre-verdict motions for directed verdict
and post-verdict motions for judgment notwithstanding the verdict
(JNV). Prior to the adoption of the 1991 amendments to FED. R. CIV.
P. 50, it was well-established that failure to move, pursuant to
Rule 50(b), for JNV within ten days of the verdict precluded
granting JNV on appeal. See, e.g., Johnson v. New York, New Haven
& Hartford R.R. Co., 344 U.S. 48, 50 (1952) (“We have said that in
the absence of a motion for [JNV] made in the trial court within
ten days after reception of a verdict the rule forbids the trial
judge or an appellate court to enter such a judgment.” (emphasis
added)); Zervas v. Faulkner, 861 F.2d 823, 832 n.9 (5th Cir. 1988)
(if appellant does not move for JNV, new trial is only available
relief); Smith v. Trans-World Drilling Co., 772 F.2d 157, 160, 162
(5th Cir. 1985).
In Johnson, appellant moved for a directed verdict at the
close of all evidence; but, following an adverse jury verdict,
appellant moved only to set aside the verdict as excessive. 344
9
U.S. at 49. Restated, a JNV motion was not filed. Nevertheless,
on appeal, appellant asserted that the relief sought post-verdict
should be treated as a motion for JNV. Id. at 50-51. The Court
disagreed: “Rule 50(b) was designed to provide a precise plan to
end the prevailing confusion” surrounding directed verdicts and
JNV, id. at 52; Rule 50(b) required a timely post-verdict motion as
“an essential part of the rule, firmly grounded in principles of
fairness”; the Court had previously rejected an amendment allowing
appellate courts to enter judgments for parties who failed to
timely move for JNV, id. at 53; and, because the appellant only
timely moved to set aside the verdict and for new trial, it was
“entitled only to a new trial, not to a judgment in its favor”,
id. at 54.
In cases where no JNV motion was made, our court followed
Johnson with respect to limiting the available remedy to a new
trial. See Zervas, 861 F.2d at 832 n.9 (citing cases back to 1970
and noting the 11th Circuit followed 5th Circuit precedent in this
regard). In such instances, however, when a pre-verdict directed
verdict motion was timely made, our standard of review was the same
as if a post-verdict JNV motion had been made. Trans-World, 772
F.2d at 160 (reversal required if “the facts and inferences point
so strongly in [appellant’s] favor that reasonable men could not
arrive at a contrary verdict”). Trans-World held that a directed
verdict motion properly preserved sufficiency of evidence issues
for appeal, but the failure to move for JNV limited the available
relief to a new trial. Id. at 159, 162.
10
Logically, this result is correct given the circumstances.
Based on appellant’s directed verdict motion, appellee (nonmovant)
was put on notice his evidence might be insufficient. However,
because the appellant failed to request JNV following the verdict,
as required by Rule 50, his relief should be limited to what he
requested post-verdict in the trial court - a new trial.
A similar result is logical under Rule 50 as it exists today
because, pursuant to the Rule, the court should only consider JML
post-judgment upon the movant’s renewal of that motion, and the
renewed JML must be made within 10 days of the entry of judgment.
See FED. R. CIV. P. 50(b) (“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:....” (Emphasis added.)).
Again, the 1991 amendments to Rule 50 merely changed the
terminology, and not the substance, of the Rule, see 9A Wright &
Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2537 (1995).
Accordingly, in Satcher v. Honda Motor Co., 52 F.3d 1311 (5th Cir.
1995), our court followed the pre-1991 approach:
To fully preserve error on appeal for failure
to grant a motion for judgment, the moving
party must file both a pre-verdict Rule 50(a)
motion at the close of all the evidence and
the renewed Rule 50(b) motion. An appellant
who failed to do so in the district court is
not entitled to rendition of judgment in his
favor on appeal, but is at most entitled to a
new trial.
11
Id. at 1315 (emphasis added); see also Whitehead, 163 F.3d at 271.
In Satcher, our court concluded that Honda’s technical
noncompliance with Rule 50(b) (styling the post-verdict motion as
one for new trial but, in the body of the motion, arguing for JML
in the alternative) was de minimus because Rule 50's two basic
purposes were satisfied: alerting the opposing party of potential
insufficiency prior to submitting the case to the jury; and
enabling the trial court to re-examine the sufficiency of the
evidence following the verdict. 52 F.3d at 1315; see also Bohrer
v. Hanes Corp., 715 F.2d 213, 216 (5th Cir. 1983), cert. denied,
465 U.S. 1026 (1984).
In this case, with his Rule 50(a) motions, Sheriff Lee
certainly satisfied this first purpose of Rule 50; however, his
failure to renew his Rule 50(a) motion with one under Rule 50(b)
did not allow the district court post-verdict to re-evaluate the
sufficiency of the evidence. Consequently, although we will review
to determine whether “there is no legally sufficient evidentiary
basis for a reasonable jury to find for” Morris, Sheriff Lee’s only
available remedy is a new trial. Whitehead, 163 F.3d at 269.
B.
Under the well-known, McDonnell Douglas framework, which
applies when, as here, plaintiff presents only circumstantial
evidence of retaliatory animus, plaintiff must present a prima
facie case; defendant bears the burden of producing a legitimate,
non-discriminatory reason; and, if defendant does so, plaintiff
must show the proferred reason is merely a pretext for intentional
12
discrimination. E.g., Price v. Fed. Express Corp., 283 F.3d 715,
719-20 (5th Cir. 2002); Montemayor v. City of San Antonio, 276 F.3d
687, 692 (5th Cir. 2001).
A prima facie Title VII retaliation case requires Morris to
show: he engaged in protected conduct; he was subject to an
adverse employment action; and the adverse employment action was
motivated by the protected conduct. E.g., Chaney v. New Orleans
Public Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999).
Once Sheriff Lee offered a non-discriminatory reason for his
failure to rehire Morris, any inference of discrimination drops
away; Morris must prove the failure to rehire would not have
occurred but for his protected conduct. See Montemayor, 276 F.3d
at 692. However, even though plaintiff presents a prima facie case
and provides sufficient evidence to reject defendant’s explanation,
an employer would be entitled to [JML] if the
record revealed some other, nondiscriminatory
reason for the employer’s decision, or if the
plaintiff created only a weak issue of fact as
to whether the employer’s reason was untrue
and there was abundant and uncontroverted
independent evidence that no discrimination
had occurred.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148
(2000). In other words, if the employee would have been terminated
even in the absence of the protected conduct, the employer is not
liable for unlawful retaliation even if the plaintiff’s conduct is
a substantial element in the employer’s termination decision. Long
v. Easterfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996).
13
1.
Sheriff Lee contends the evidence: is insufficient to support
the jury’s verdict that Morris was fired because he opposed same-
sex harassment in the workplace; does not establish causation
(necessary for Morris’ prima facie case) because of the three-year
gap between Morris’ complaint and the adverse employment action;
and, in the light of the extortion charges brought against Morris,
fails to prove, as pretextual, using the extortion charge as a
reason for not rehiring Morris.
Morris counters: the evidence was sufficient; and the series
of reprimands, suspensions, transfers, and investigations mitigate
against finding a three-year gap between his protected conduct and
the adverse employment action. Further, quoting the portion of
Reeves set out above, Morris contends Reeves placed the factfinder
in the position to determine discrimination vel non. Reeves, 530
U.S. at 148. In this regard, when a reviewing court is asked to
overturn a jury verdict, it “must disregard all evidence favorable
to the moving party that the jury [was] not required to believe”.
Id. at 151.
The jury had evidence that Sheriff Lee did not retaliate
against Morris: evidence (including his own admission) of habitual
tardiness, poor work performance, and, in less than six months,
four complaints involving criminal misconduct (one of which went to
trial). On the other hand, it is, of course, the function of the
jury to weigh the evidence and make credibility determinations.
E.g., id. at 150; Green v. Adm’rs of the Tulane Educ. Fund, 284
14
F.3d 642, 652 (5th Cir. 2002). As Sheriff Lee correctly observes,
“a plaintiff’s prima facie case, combined with sufficient evidence
[of pretext], may permit a trier of fact to find” discrimination.
Reeves, 530 U.S. at 148. Apparently, that is what occurred here:
the jury weighed the evidence; made credibility determinations
concerning witnesses; and found evidence of discrimination.
Chief Normand testified that: JPSO investigates all criminal
reports, particularly those lodged against JPSO officers; and
Morris’ attempted interference with the adoption procedures
justified his not rehiring Morris. But, as noted, the jury was not
required to believe this testimony.
To support causation and pretext, Morris testified he was
unaware of anyone else being disciplined for tardiness as he had
been following his same-sex harassment complaints (Sheriff Lee
produced no evidence to refute this); the evidence suggested a
pattern of adverse actions (while probably not reaching the level
of adverse employment actions) over the course of several years
following Morris’ harassment complaints; the jury could have
inferred that Chief Normand knew about this civil action when he
made the decision not to rehire Morris; and Chief Normand could not
dispute that Sheriff Lee hired two officers with felony records
after Normand refused to rehire Morris (even though Morris was not
convicted of extortion).
Sheriff Lee’s position was that he terminated Morris because
of pending criminal charges and did not rehire him because of the
conduct which led to those charges. There is no “other
15
nondiscriminatory reason” provided or “abundant and uncontroverted
independent evidence that no discrimination had occurred”. Id. at
148. The jury was provided evidence supporting and contradicting
both Sheriff Lee’s and Morris’ theories. Accordingly, given our
standard of review requiring us to disregard all evidence favorable
to the moving party that is controverted, the evidence, which the
jury was permitted to believe, could support the jury’s finding
that Morris’ complaints concerning same-sex harassment motivated
Sheriff Lee’s decision not to rehire Morris following his
acquittal.
2.
Obviously, because there was sufficient evidence to support
the jury’s verdict, we need not address whether there was “an
absolute absence of evidence” to support Sheriff Lee’s Rule 59 new
trial motion. See Whitehead, 163 F.3d at 269.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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