Tuttle v. Metro Govt Nash ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0028p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant/ -
PATRICIA BURLIN TUTTLE,
Cross-Appellee, -
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Nos. 05-6055/6471
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v. >
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METROPOLITAN GOVERNMENT OF NASHVILLE AND
Defendant-Appellee/ -
DAVIDSON COUNTY, TENNESSEE,
Cross-Appellant. -
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 03-01063—William J. Haynes, Jr., District Judge.
Argued: July 18, 2006
Decided and Filed: January 18, 2007
Before: MARTIN and RYAN; Circuit Judges; MARBLEY, District Judge.*
_________________
COUNSEL
ARGUED: Douglas B. Janney III, Nashville, Tennessee, for Appellant. Kevin C. Klein,
METROPOLITAN DEPARTMENT OF LAW, Nashville, Tennessee, for Appellee. ON BRIEF:
Douglas B. Janney III, Nashville, Tennessee, for Appellant. Kevin C. Klein, METROPOLITAN
DEPARTMENT OF LAW, Nashville, Tennessee, for Appellee.
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by
designation.
1
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 2
_________________
OPINION
_________________
ALGENON L. MARBLEY, District Judge.
I. INTRODUCTION
Plaintiff Patricia Burlin Tuttle appeals from the district court’s entry of judgment as a matter
of law in favor of Defendant, stemming from Defendant’s termination of Plaintiff’s employment.
Following a full trial on the merits, which resulted in a jury verdict in favor of Tuttle in the amount
of $199,200.00, the district court granted Defendant’s renewed motion for judgment as a matter of
law on Tuttle’s claims under the Age Discrimination in Employment Act of 1967 and retaliation.
After the district court entered its judgment, and after Tuttle timely filed a Notice of Appeal,
Defendant filed a Motion for the Conditional Grant of a New Trial, which the district court denied
as untimely. Defendant filed a Notice of Cross-Appeal. For the reasons set forth below, we
AFFIRM in part and REVERSE in part the district court’s decisions.
II. BACKGROUND
A. Facts
1. Tuttle’s Employment with Metro
Plaintiff Patricia Burlin Tuttle (“Tuttle”) is a 63-year-old woman who was employed by
Defendant Metropolitan Government of Nashville and Davidson County, Tennessee (hereafter,
“Metro”) from November 14, 1994 until March 4, 2002, when Defendant fired her.
Tuttle worked in various clerical positions at Metro until 1998, when she was promoted to
Account Clerk II in Metro’s Department of Public Works. As an Account Clerk II, Tuttle received
positive employment reviews from her supervisor, Renesa Davis (“Davis”). On October 1, 1999,
Tuttle was promoted to Account Clerk III, where her duties included answering and dispatching
telephone calls, submitting payroll information, recording employee attendance, and processing
work orders, among other things. Tuttle successfully completed the standard six-month
probationary period for the Account Clerk III position.
Tuttle’s first supervisor in the Account Clerk III position was Mike McCallister. When
McCallister resigned in July 2000, George Sullivan (“Sullivan”) became Tuttle’s next supervisor.
On one occasion, Sullivan instructed Tuttle to correct some payroll errors that had occurred when
Metro began using a new payroll system. Tuttle resisted making the corrections, arguing that the
employee who caused the problems should correct them and explaining that she had substantial
work of her own to do because she recently had been out of the office for medical reasons.
In August 2000, Tuttle reported to John Walker (“Walker), the human resources manager
for Metro’s Department of Public Works, that she had observed Sullivan and Cheryl Harrington
(“Harrington”), one of Tuttle’s co-workers, destroying documents. Sullivan and Harrington denied
that they had destroyed any documents. Metro investigated, but it did not identify any evidence to
support Tuttle’s accusation. Thereafter, Tuttle’s relationship with Harrington began to decline.
On October 3, 2000, Sullivan submitted a performance evaluation for Tuttle, and he rated
her “below expectations” in the area of peer relations, referencing the incident when Tuttle refused
to follow his instructions to make payroll corrections. This was the first time Tuttle ever received
any unfavorable performance evaluation in her time at Metro. Tuttle maintains that Sullivan was
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 3
motivated by retaliation for Tuttle having reported the complaint against Sullivan and Harrington
regarding the destruction of documents.
When Sullivan retired from Metro on February 28, 2001, Chase Anderson (“Anderson”)
became Tuttle’s new supervisor. During the time that Anderson supervised Tuttle, there were
various complaints issued by Metro employees against Tuttle.1 When Anderson consulted Walker
about some of Tuttle’s performance deficiencies, Walker instructed him to begin documenting any
of Tuttle’s employment issues2 for her file. Anderson subsequently reassigned Tuttle’s payroll
responsibilities to Harrington.
Anderson did not complete timely Tuttle’s annual performance evaluation, which was due
on October 1, 2001. On several occasions after October 1, 2001, Tuttle reminded Anderson that she
needed him to complete her evaluation so3 that she could obtain her annual pay increase, but
Anderson did not complete her evaluation. Anderson timely completed and submitted his other
subordinate employees’ performance evaluations. He completed Tuttle’s evaluation, which was
unfavorable, on January 15, 2002, more than three months late.
In October 2001, Anderson transferred Tuttle out of her office position to the “scale house
booth” at Metro’s thermal plant, where Tuttle worked twelve-hour days in relative isolation
weighing Metro’s garbage trucks. The scale house booth was about four miles away from the office
where Tuttle previously had worked. When he transferred Tuttle to the scale house booth, Anderson
told her that it would be a temporary transfer, and he estimated that she would only work there for
thirty to thirty-five days, after which she would return to her Account Clerk III position. Tuttle
worked for five months in the scale house booth with no documented job performance problems.
2. Tuttle’s EEOC Complaint Against Metro
On December 6, 2001, Tuttle filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (the “EEOC”) against Metro, alleging that she had been discriminated
against on the basis of her age. Metro was served with the Charge on December 10, 2001.
On December 19, 2001, Walker drove out to the scale house booth, where Tuttle was
working at the time. When he arrived at the scale house booth, Walker told Tuttle that she would
have either to transfer out of the Metro’s Department of Public Works and into another Metro
department or else she would receive an unfavorable evaluation and be demoted or terminated.
Tuttle responded to Walker that she wanted to think about it before she made the decision to transfer
out of the Department of Public Works. Shortly thereafter, Tuttle requested a transfer to the Metro’s
1
The workplace disagreements involving Tuttle include: (1) a dispute between Harrington and Tuttle over
Tuttle’s alleged removal of perfect attendance documentation from Harrington’s employee file; (2) complaints about
three incidents (in March, June, and July of 2001) when Tuttle did not submit payroll information by the noon deadline,
in accordance with Metro policy; (3) a dispute with another Metro employee over a candy dish; (4) a complaint by Jack
Tucker, one of Tuttle’s co-workers, that Tuttle had placed public phone lines on “do not disturb” when employees were
in the office, allegedly in violation of a direct order; (5) complaints from Kristen Dietrick that Tuttle improperly routed
public telephone calls; (6) a complaint from one of Metro’s mechanics that Tuttle had been rude to him; and (7) a
complaint that Tuttle had removed records from another employee’s desk without permission.
2
Additionally, Anderson gave Tuttle the mock title “Supervisor of the ‘Fridge,’” which required Tuttle to clean
out the office refrigerator on a weekly basis. No other Metro employee has ever been assigned that title or those
responsibilities.
3
Eventually, to obtain her pay raise, Tuttle went before a benefit review board, which gave her the pay increase
over three months late.
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 4
Motor Pool Department, but she was advised that the Motor Pool Department would not entertain
any new transfers because of a hiring freeze.
3. Tuttle’s Termination From Metro and Her Administrative Appeals
On January 15, 2002, Anderson submitted Tuttle’s annual performance evaluation, which
she failed. In an addendum to the evaluation, Anderson noted that Tuttle’s job performance was not
acceptable due to her “poor social skills,” “poor work habits,” and “lack of honesty.” Moreover,
Anderson recommended, based on her poor evaluation, that Tuttle be subject to discipline, up to and
including termination. After a disciplinary hearing before Walker in February 2002, Walker
concluded that there was ample evidence to terminate Tuttle’s employment. Walker then
recommended to the Director of the Department of Public Works that Tuttle’s employment be
terminated, and Metro terminated Tuttle’s employment, effective March 4, 2002. On March 18,
2002, Tuttle filed a second Charge of Discrimination with the EEOC against Metro, alleging age
discrimination and retaliatory discharge.
Tuttle next appealed her discharge to the Metro Civil Service Commission (the
“Commission”), an administrative agency. On July 17, 2003, an administrative law judge ruled that,
based on its factual findings, Metro had just cause to terminate Tuttle.4 The full Commission upheld
the administrative law judge’s decision in an order dated September 10, 2003. Finally, Tuttle
pursued review of the administrative record with the Chancery Court for Davidson County,
Tennessee, which upheld the Commission’s decision by an order dated August 24, 2004.
Significantly, the Commission did not consider or decide Tuttle’s age discrimination or retaliation
claims because it did not have jurisdiction to adjudicate them.
B. Procedural History
1. Pre-Trial Proceedings
On November 12, 2002, Tuttle filed a suit in federal court against Metro and Chase
Anderson, asserting claims of age discrimination, retaliatory discharge, and intentional and negligent
misrepresentation under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§§ 621 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.,
the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. §§ 4-21-101 et seq., and the
Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304, as well as Tennessee
common law claims of misrepresentation and outrageous conduct. Each of Tuttle’s claims arose
from her treatment during and termination of her employment with Metro. Anderson was included
as a defendant in Tuttle’s complaint because he was Tuttle’s supervisor prior to her termination.
On September 30, 2004, Metro and Anderson filed a motion for summary judgment, and on
January 21, 2005, the district court dismissed Tuttle’s outrageous conduct claim, but it otherwise
denied the defendants’ motion. In April 2005, Metro and Anderson each filed a motion for judgment
on the pleadings, and on May 31, 2005, the district court granted those motions, leaving only the
ADEA claims against Metro and the common law misrepresentation claim against Anderson for
trial. On June 3, 2005, the district court entered an order, pursuant to a negotiated settlement
4
The administrative judge who heard Tuttle’s case found that Tuttle: (1) failed to answer the main office
telephone line; (2) failed to notify persons to cover her telephone duties when she was out of the area; (3) continuously
put the main telephone line on hold; (4) failed to put payroll information in by the deadline and required other employees
to fulfill her obligation; (5) put fuel tickets erroneously into the computer, and failed to cooperate with her co-workers
who attempted to correct her; (6) altered time sheets of a co-employee, Ms. Harrington, by crossing out references to
her perfect attendance; and (7) created serious employee problems over ownership of a candy dish.
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 5
between the parties, that dismissed all claims against Anderson, leaving only the ADEA claims
against Metro for trial.
2. Trial Proceedings
Tuttle’s ADEA claims against Metro were tried before a jury from June 14, 2005 through
June 17, 2005. During trial, Tuttle testified that various Metro employees made discriminatory age
related statements directed at her. For example, in February 2001, Sullivan, Tuttle’s former
supervisor, allegedly said to her, “How old are you? . . . You will be retiring quicker than you
think.” In March 2001, Tucker, one of Tuttle’s co-workers who supervised the office when
Anderson was out, authored an email to Anderson stating, “This woman has no business on a PC.”
On another occasion, when Tuttle asked Anderson whether he was trying to “get rid” of her,
Anderson allegedly replied, “There have been others, and they took their retirement or pension.”
In a meeting between Anderson and Tuttle in July 2001, Anderson told her, “I want to apologize for
causing you stress. I wouldn’t want anything to happen to my mother and dad.” Finally, in August
2001, another Metro employee commented to Tuttle that “there will always be problems with hiring
people over the age of 55.”
Tuttle also testified that the negative reviews of her job performance were discriminatory.
According to Tuttle, during her employment with Metro, she was treated differently than other
similarly situated employees. She noted that her unfavorable reviews resulted in Metro stripping
her of her job duties, giving her menial tasks, such as the responsibility of being “Supervisor of the
‘Fridge,” transferring her to the scale house booth, and ultimately terminating her. In comparison,
Kristen Dietrick, one of Tuttle’s younger former co-workers, received a negative performance
evaluation from Anderson based upon, inter alia, her difficulty in working with others, but Metro
gave her an opportunity to improve without consequence. Harrington, who took over Tuttle’s
payroll responsibilities, made mistakes entering the payroll, but Metro never disciplined her at all
for them. Additionally, Tuttle offered testimony from another former Metro employee who believes
he was subjected to adverse employment actions because of his age, and from her husband, a current
Metro employee, who testified to how Tuttle’s termination affected her.
After the close of Tuttle’s case-in-chief, Metro made an oral motion for judgment as a matter
of law (“JMOL”) on Tuttle’s age discrimination and retaliation claims. First, Metro argued that
Tuttle’s age discrimination claim failed because she did not present proof to support the required
element that she was replaced by a younger employee. Second, Metro contended that the age
discrimination claim failed because Tuttle did not provide evidence to show pretext. Third, with
respect to the retaliation claim, Metro claimed that Tuttle failed to provide evidence to show that
there was a causal link between Tuttle’s first Charge of Discrimination with the EEOC, a protected
activity, and her termination. Tuttle responded to Metro’s arguments, and the district court reserved
judgment on Metro’s JMOL.
During Metro’s case-in-chief, it focused its proof on the substance of Tuttle’s various
disputes with other Metro employees and her other job performance deficiencies to show that it had
a legitimate, non-discriminatory reason to terminate her. During the trial, Walker, Anderson,
Harrington, Tucker, and Davis, among others, each testified.
At the close of its proof, Metro orally renewed its motion for JMOL. Again, Tuttle
responded, and the district court reserved judgment on Metro’s motion for JMOL. Subsequently,
the district court delivered the jury instructions, including Tuttle’s claims of age-related disparate
treatment, discriminatory discharge, and retaliation.
On June 17, 2005, after deliberation, the jury returned a verdict in favor of Tuttle on her
ADEA and retaliation claims. The jury awarded Tuttle $199,200.00 in damages. The district court
then excused the jury.
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 6
3. Post-Trial Proceedings
After the district court excused the jury, Metro renewed its JMOL. In response, the district
court orally ruled on Metro’s motion for JMOL, stating:
I am going to grant the motion for judgment as a matter of law in favor of the
defendant. The Court finds, based upon all the proof, that there is no basis for the
conclusion that the defendant’s decision in this case was based upon the plaintiff’s
age. The Court finds that there is also insufficient proof that the decision made by
the defendant in terminating her was in retaliation for her filing of an Equal
Employment Opportunity charge.
Later that day, the district court entered a written order granting Metro’s motion for JMOL
and dismissing the case with prejudice. In its written decision, the district court stated:
The proof presented at trial demonstrated overwhelming evidence that: (1) Defendant
had legitimate, non-discriminatory bases for terminating Plaintiff’s employment, as
reflected in the final state court judgment based upon several administrative
hearings; (2) the alleged age-based comments directed at Plaintiff were made by
Plaintiff’s co-workers and a retired acting supervisor who did not decide to terminate
Plaintiff, and the one alleged remark made by a supervisor was made at a time not
temporally connected with Defendant’s decision to terminate Plaintiff; and (3)
notwithstanding Plaintiff’s poor performance evaluations, Defendant exercised its
best efforts to retain Plaintiff as an employee.
The Court is convinced that the jury verdict was based solely on the jury’s sympathy
to the Plaintiff and not the facts and law at issue in this action. The Court concludes
that honoring the jury verdict would constitute a miscarriage of justice.
On June 21, 2005, Tuttle timely filed a Notice of Appeal, seeking review of the district
court’s ruling on Metro’s motion for JMOL and of the district court’s refusal to give a requested jury
instruction. On June 27, 2005, Defendant filed a Motion for Conditional Grant of a New Trial in
an attempt to preserve its right to a new trial if the district court’s decision on its motion for JMOL
were reversed on appeal, but on August 30, 2005, the district court denied that motion as untimely.
On September 9, 2005, Metro timely filed a Notice of Cross-Appeal, seeking review of the district
court’s denial of its Motion for Conditional Grant of a New Trial and of the district court’s allegedly
inadequate jury instruction.
III. ANALYSIS
As a threshold matter, we must address Tuttle’s appeal of the district court’s ruling on
Metro’s motion for JMOL because if we uphold the district court’s ruling on that issue, we need not
consider the other issues on appeal, as they will be moot.
A. Judgment as a Matter of Law in Favor of Metro
We review de novo a district court’s grant of judgment as a matter of law pursuant to Rule
50 of the Federal Rules of Civil Procedure. Kusens v. Pascal Co., Inc., 448 F.3d 349, 360 (6th Cir.
2006); Snyder v. A.G. Trucking, Inc., 57 F.3d 484, 490 (6th Cir. 1995). Rule 50 provides:
If during a trial by jury a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find for that party on that
issue, the court may determine the issue against that party and may grant a motion
for judgment as a matter of law against that party with respect to a claim or defense
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 7
that cannot under the controlling law be maintained or defeated without a favorable
finding on that issue.
Motions for judgment as a matter of law may be made at any time before submission
of the case to the jury. Such motions shall specify the judgment sought and the law
and the facts on which the moving party is entitled to the judgment.
Fed. R. Civ. P. 50(a). We have held that “[j]udgment as a matter of law may only be granted if,
when viewing the evidence in a light most favorable to the non-moving party, giving that party the
benefit of all reasonable inferences, there is no genuine issue of material fact for the jury, and
reasonable minds could come to but one conclusion in favor of the moving party.” Barnes v. City
of Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005) (citations omitted).
On appeal, Tuttle argues that the district court erred when it granted Metro’s JMOL, pursuant
to Rule 50(b) of the Federal Rules of Civil Procedure,5 because the district court did so on grounds
Metro did not advance in its pre-verdict motion, and because Tuttle presented sufficient evidence
for its age discrimination and retaliation claims to support the jury’s verdict.
1. Whether the District Court Granted Metro’s Motion for JMOL on Grounds Metro Did Not
Advance
A post-verdict judgment as a matter of law “is not available at anyone’s request on an issue
not brought before the court prior to submission of the case to the jury.” Amer. & Foreign Ins. Co.
v. Bolt, 106 F.3d 155, 160 (6th Cir. 1997) (referencing Adv. Comm. Note, Fed. R. Civ. P. 50) (“A
post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict
motion.”).
At the close of Tuttle’s evidence during trial, Metro made an oral motion for JMOL, in which
it argued that Tuttle’s age discrimination claims failed because she had not submitted evidence to
show that she was replaced by a younger employee or evidence to show pretext, and that Tuttle’s
retaliation claim failed because she failed to submit evidence to show that there was the requisite
causal connection between some protected activity and her termination. The district court reserved
judgment on Metro’s motion. Metro orally renewed its motion for JMOL after the close of its own
evidence during trial. Once again, the district court reserved judgment on Metro’s motion. Finally,
after the jury returned its verdict in favor of Tuttle, and Metro renewed its motion for JMOL for a
second time, and the district court orally ruled on the motion, stating on the record:
I am going to grant the motion for judgment as a matter of law in favor of the
defendant. The Court finds, based upon all the proof, that there is no basis for the
conclusion that the defendant’s decision in this case was based upon the plaintiff’s
age. The Court finds that there is also insufficient proof that the decision made by
5
Rule 50(b), in relevant part, provides:
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 motion for new trial, or join a motion for new trial under
Rule 59.
Fed. R. Civ. P. 50(b).
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 8
the defendant in terminating her was in retaliation for her filing of an Equal
Employment Opportunity charge.
We find this oral ruling on the record, which granted Metro’s motion for JMOL, was in fact
based on Metro’s oral arguments in its pre-verdict motions. The district court could have based its
decision to dismiss Tuttle’s age discrimination claims on either a finding that Tuttle had not
presented evidence to show that she was replaced by a younger employee or a finding that Tuttle
had not presented evidence to show pretext. Metro argued both of these issues in its pre-verdict
motion for JMOL. Similarly, the district court could have based its decision to dismiss Tuttle’s
retaliation claim on a finding that Tuttle did not present sufficient evidence to show a causal
connection between some protected activity and her termination, which Metro also argued in its pre-
verdict motion for JMOL.6 While we would have preferred for the district court to discuss its
findings with more specificity so that we could review its decision more meaningfully, we cannot
reverse the district court’s decision on Metro’s motion for JMOL for that reason.
Even so, we still must determine whether the district court erred when it found that the
evidence in the record does not support the jury’s verdict for Tuttle on her age discrimination and
retaliation claims.
2. Whether Tuttle Presented Sufficient Evidence to Support the Jury’s Verdict on her Age
Discrimination Claims
To establish a prima facie claim of age discrimination under the ADEA, a plaintiff must
show that: (1) she was at least 40 years old at the time of the alleged discrimination; (2) she was
subjected to an adverse employment action; (3) she was otherwise qualified for the position; and
(4) she was replaced by a younger worker. Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d
544, 547 (6th Cir. 2004) (citation omitted). The fourth element may be satisfied “by showing that
similarly situated non-protected employees were treated more favorably.” Coomer v. Bethesda
Hosp., Inc., 370 F.3d 499, 511 (6th Cir. 2004) (quoting Talley v. Bravo Pitino Rest., 61 F.3d 1241,
1246 (6th Cir. 1995)); see also Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th
Cir. 1998) (“[T]o be deemed ‘similarly situated’ in the disciplinary context, ‘the individuals with
whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor,
have been subject to the same standards, and have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the employer’s7
treatment of them for it.’”) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)).
If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to
articulate a non-discriminatory reason for its adverse employment action. Id. (citation omitted). If
the defendant then articulates such a reason, the plaintiff must demonstrate by a preponderance of
the evidence that the defendant’s proffered reason was a pretext for age discrimination. Id. (citation
omitted).
During its oral motion for JMOL on Tuttle’s ADEA claims before the district court, Metro
argued that it should be dismissed because Tuttle could not satisfy the fourth element of that claim,
6
Tuttle bases her entire argument on this issue by analyzing the district court’s written order granting Metro’s
motion for JMOL, but she never addresses the effect of that court’s oral ruling on the record. We agree that the written
order, in and of itself, may have been based inappropriately on grounds that Metro did not advance, but we find that the
district court’s written order should be analyzed as a supplement to, and not a substitute for, the district court’s ruling
from the bench on the record.
7
We note that “[w]hen reviewing the facts of a discrimination claim after there has been a full trial on the
merits, we must focus on the ultimate question of discrimination rather than on whether a plaintiff made out a prima facie
case.” Barnes, 401 F.3d at 736 (6th Cir. 2005).
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 9
and thus, she could not establish a prima facie case of age discrimination. Additionally, Metro
contended that Tuttle’s age discrimination claims failed because she did not introduce evidence to
show pretext after it provided a legitimate, non-discriminatory reason for terminating her
employment. We will address both of Metro’s arguments here.
a. Fourth element of the prima facie case
One way that Tuttle could satisfy the fourth element of her age discrimination claim is by
providing evidence that she was replaced by a younger worker. Rowan, 360 F.3d at 547. During
the trial, Tuttle presented evidence that Jennifer Campbell Henry, a woman in her twenties who
Metro classified as a temporary employee, 8assumed Tuttle’s Account Clerk III job duties after Metro
transferred Tuttle to the scale house booth. Walker, Anderson, and Harrington each testified at trial
that Ms. Henry performed Tuttle’s former job responsibilities in the office,9 but they suggested that
Tuttle was not replaced by Ms. Henry because she was simply a temporary employee. We find that
the fourth element of the prima facie case in an age discrimination case can be met even where the
new hire, who is a member of the non-protected class, has the title of “temporary” employee. In
cases where the new hire takes on the plaintiff’s former job responsibilities, merely designating the
new hire “temporary” will not defeat the fourth element. Based upon the testimony presented during
trial, the jury had a “legally sufficient evidentiary basis”to find for Tuttle on the issue of whether she
had been replaced by a younger worker. See Fed. R. Civ. P. 50(a).
Alternatively, Tuttle could satisfy the fourth element of her prima facie claim of age
discrimination by providing evidence that similarly situated non-protected employees were treated
more favorably than she was treated. Coomer, 370 F.3d at 511. During trial, Tuttle presented
evidence and testimony that Anderson, Tuttle’s former supervisor, treated two of her younger former
co-workers, Harrington and Kristen Dietrick, more favorably than he treated her, despite their
comparable workplace issues. For example, Anderson testified that one reason why Tuttle was
terminated is that there were three documented occasions on which Tuttle has problems completing
her payroll responsibilities. Anderson continued that when Harrington assumed those
responsibilities in July 2001, however, her mistakes on the payroll were never documented in her
personnel file. Similarly, Metro argued during trial that Tuttle was discharged because of the annual
performance evaluation Anderson completed for her in January 2002, which Tuttle failed, based
largely upon her perceived inability to work well with others. Nevertheless, when Anderson
evaluated Dietrick similarly in May 2003,10 he did not recommend Dietrick’s discharge. Based
8
The record indicates that Harrington was assigned Tuttle’s previous payroll responsibilities in July 2001,
before Metro transferred Tuttle to the scale house booth.
9
In fact, during Harrington’s trial testimony, Tuttle’s counsel reviewed Harrington’s prior sworn testimony
when she was questioned on this issue. In that prior testimony, Harrington stated:
Question. And the position [Tuttle] was in has been filled?
Answer. No, I had an [sic] temp.
Question. Are the reports being done by that temp, or are those job responsibilities
that were [Tuttle’s]?
Answer. The temp is doing just about all the jobs, except I’ll kind of help her still
with the billing. But other than that, she’s doing all of the fuel tickets. She’s doing
it all.
10
In an addendum to her May 2003 performance evaluation, Anderson stated:
Ms. Dietrick [] needs to work on her ability to work with others. She needs to treat peers as peers and
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 10
upon the testimony and documents presented during trial, the jury had a “legally sufficient
evidentiary basis” to find for Tuttle on the issue of whether Metro treated other similarly situated
non-protected employees more favorably than her. See Fed. R. Civ. P. 50(a).
b. Pretext
In its JMOL motion, Metro further argued that Tuttle’s age discrimination claims failed
because she did not introduce evidence to show pretext after Metro provided a legitimate, non-
discriminatory reason for terminating her employment.11 In an age discrimination case, a plaintiff
can establish pretext by demonstrating “either (1) that the proffered reasons had no basis in fact,
(2) that the proffered reasons did not actually motivate [her] discharge, or (3) that they were
insufficient to motivate discharge.” Tisdale v. Fed. Express Corp., 415 F.3d 516, 529 (6th Cir.
2005) (internal quotation marks and citation omitted).
Tuttle argues that she established pretext at trial by pointing out inconsistencies in
Anderson’s sworn testimony regarding his failure to complete timely Tuttle’s annual performance
evaluation and his intentions when he transferred Tuttle to the scale house booth. Under state civil
service rules, Anderson was obligated to complete Tuttle’s annual performance evaluation by
October 1, 2001. The record indicates that, on a few occasions, Tuttle reminded Anderson that her
evaluation was past due, yet Anderson did not complete it until January 15, 2002, over 105 days
late.12 When he testified before the Metro Civil Service Commission about the reason for his
untimely completion of Tuttle’s evaluation, Anderson stated that it had “slipped his mind.” During
his deposition testimony in this case, he testified that he was “too busy” to complete Tuttle’s
evaluation. During trial, Anderson testified that he did not complete Tuttle’s evaluation on time
because he thought she was planning to transfer to another Metro department, and he did not want
his unfavorable performance evaluation of her to affect her transfer opportunities. With respect to
Tuttle’s transfer to the scale house booth, Anderson initially explained to Tuttle that it would only
be a 30-day temporary transfer, after which Tuttle could return to her Account Clerk III duties.
Tuttle actually spent nearly five months working in the scale house booth, and Anderson testified
that, at the time of her transfer, he never intended for Tuttle to return her Account Clerk III position.
Tuttle argues that Anderson’s inconsistent statements on these issues are evidence that Metro’s
bring co-workers into the campaign to increase recycling and clean up Nashville. A case in point was
a dispute that she had with another employee. Although Ms. Dietrick had well founded complaints,
she refused to acknowledge the other person’s wishing to work in an environment free from name
calling and other detrimental acts. Ms. Dietrick’s refusal to acknowledge this simple request, shows
an immaturity in working within a team structure.
11
To prove its legitimate, non-discriminatory reason for terminating Tuttle, Metro introduced testimony and
documents to describe many of Tuttle’s work deficiencies while she was employed as an Account Clerk III.
Additionally, to meet its burden of production on that issue, Metro relied upon the factual findings of the Metro Civil
Service Commission, which ruled that Metro had just cause to terminate Tuttle. Those findings, however, do not
preclude Tuttle’s claims here because the Metro Civil Service Commission did not consider the issue of age
discrimination in its decision. See Cooper v. City of North Olmsted, 795 F.2d 1265, 1268–70 (6the Cir. 1986) (holding
that an administrative agency or a state court’s finding that an employer had just cause to terminate a plaintiff is not
preclusive with regard to the plaintiff’s discrimination claim against the employer).
On appeal, Metro argues that it is entitled to JMOL because Tuttle cannot establish pretext due to the “honest
belief rule,” the “same actor” defense, and a staleness argument, but we will not consider any of these issues here
because Metro did not present them to the district court in its motion for JMOL. Foster v. Barilow, 6 F.3d 405, 407 (6th
Cir. 1993) (“Issues not presented to the district court but raised for the first time on appeal are not properly before the
court.”) (internal quotation marks and citation omitted).
12
Anderson’s trial testimony indicates that he completed the performance evaluations for each of his other 135
subordinate Metro employees. The only evaluation that he submitted late was Tuttle’s.
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 11
proffered reasons for firing her did not actually motivate her discharge. See Tisdale v. Fed. Express
Corp., 415 F.3d at 529.
Furthermore, Tuttle testified that various Metro employees made discriminatory age-related
statements to or about her. See Talley, 61 F.3d at 1248 (“[T]he plaintiff’s evidence regarding racial
slurs may also have been considered on the issue of whether [a defendant’s legitimate, non-
discriminatory] reason was merely a pretext.”). During trial, Tuttle provided evidence of the
following age-related statements directed toward her: in February 2001, Sullivan, Tuttle’s former
supervisor, said to her, “how old are you? . . . you will be retiring quicker than you think”; in March
2001, Tucker, one of Tuttle’s co-workers who supervised the office when Anderson was out,
authored an email to Anderson stating, “this woman has no business on a PC”; on another occasion,
when Tuttle asked Anderson whether he was trying to “get rid” of her, Anderson replied, “there have
been others, and they took their retirement or pension”; in a meeting between Anderson and Tuttle
in July 2001, Anderson told her, “I want to apologize for causing you stress. I wouldn’t want
anything to happen to my mother and dad.” While these statements may not rise to direct evidence
of age discrimination, they could have provided circumstantial evidence to the jury of such
discrimination.
Based upon the evidence Tuttle presented during trial as to Anderson’s inconsistent
testimony and statements regarding Tuttle’s 2001 performance evaluation and her transfer to the
scale house booth, in addition to the age-related statements directed at Tuttle from fellow Metro
employees and other evidence of discrimination, we find that the jury had sufficient evidence to find
for Tuttle on the issue of pretext.
3. Whether Tuttle Presented Sufficient Evidence to Support the Jury’s Verdict on her Retaliation
Claim
To establish a prima facie claim of retaliation, a plaintiff must show that: (1) she engaged
in a protected activity; (2) this exercise of protected rights was known to the defendant; (3) the
defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was
subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal
connection between the protected activity and the adverse employment action or harassment. Morris
v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (citations omitted). If and when
a plaintiff has established a prima facie case, the burden of production of evidence shifts to the
employer to articulate a legitimate, non-discriminatory reason for its actions. Id. at 793 (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The plaintiff then must demonstrate
that “the proffered reason was not the true reason for the employment decision.” Id. (citation
omitted).
The only argument Metro raised during the trial in its oral motion for JMOL as to Tuttle’s
retaliation claim was that she failed to submit evidence on the element that there was a causal
connection between her filing of an EEOC charge against Metro on December 6, 2001 and her
termination, which took effect on March 4, 2002.13
The law is clear that temporal proximity, standing alone, is insufficient to establish a causal
connection for a retaliation claim. Little v. BP Exploration & Oil Co., 265 F.3d 357, 363–64 (6th
13
In its appellate brief, Metro argues, for the first time, that it was also entitled to JMOL because Tuttle failed
to submit evidence on the issue of pretext. The record does not indicate that Metro ever made this argument as part of
its oral motion for JMOL on Tuttle’s retaliation claim. Furthermore, the issue of pretext is separate from the prima facie
inquiry. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578–79 (6th Cir. 2000). Because we generally do not
consider arguments on appeal that were not raised at trial, Foster, 6 F.3d at 407, we will not address Metro’s argument
that it is entitled to JMOL because Tuttle did not show evidence of pretext on her retaliation claim.
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 12
Cir. 2001); Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000). There are, however,
circumstances where temporal proximity, considered with other evidence of retaliatory conduct
would be sufficient to establish a causal connection. See, e.g., Moore v. KUKA Welding Sys., 171
F.3d 1073 (6th Cir. 1999). In Moore, we determined that “[t]he causal connection between the
adverse employment action and the protected activity, here the filing of a complaint with the EEOC,
may be established by demonstrating that the adverse action was taken shortly after plaintiff filed
the complaint and by showing that he was treated differently from other employees.” 171 F.3d at
1080.
In this case, it is undisputed that Metro terminated Tuttle’s employment less than three
months after she filed an EEOC complaint against it. Tuttle also testified that on December 19,
2001, Walker, one of Metro’s human resources managers, visited her at the scale house booth and
threatened her that he was going either to demote her or to cut her wages if she did not transfer
voluntarily14into another Metro department, which Tuttle viewed as a reaction to her EEOC
complaint. Following the logic of Moore, we conclude that, in light of the close proximity of time
between Tuttle’s first EEOC filing and her subsequent termination and Tuttle’s trial testimony about
Walker’s verbal threats on December 19, 2001, Tuttle presented sufficient evidence to support a
jury’s finding that her EEOC complaint against Metro caused her termination.
B. Jury Instructions
Having found that the district court erred when it granted Metro’s motion for JMOL, we next
address Tuttle’s appeal and Metro’s cross-appeal relative to the jury instructions that the district
court delivered during the trial proceedings. Tuttle claims that the district court erred when it
refused to instruct the jury on the issue of whether Metro committed willful violations of the ADEA,
and she requests that we either double the jury’s damages award or award her prejudgment interest
from the date of her discharge, March 4, 2002, and her reasonable attorneys’ fees and costs under
the ADEA. Metro claims that the district court erred when it instructed the jury that Tuttle could
prevail on her ADEA claim by showing that she received an unfavorable job performance appraisal
because of her age.
1. Whether the District Court Erred When it Refused to Instruct the Jury on the Issue of
Willfulness
We review a district court’s refusal to give requested jury instructions for an abuse of
discretion. King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000). To find an abuse of
discretion, we must have “a definite and firm conviction that the trial court committed a clear error
of judgment.” Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996). A district court’s refusal
to give a requested jury instruction constitutes reversible error if: (1) the omitted instruction is a
correct statement of the law; (2) the instruction is not substantially covered by other delivered
charges; and (3) the failure to give the instruction impairs the requesting party’s theory of the case.
Williams v. Eau Claire Public Sch., 397 F.3d 441, 445 (6th Cir. 2005) (citation omitted).
Nevertheless, “[i]t is error . . . to instruct the jury on an issue when there has been insufficient
evidence presented to support a jury finding on that issue.” Toth v. Grand Trunk R.R., 306 F.3d 335,
351 (6th Cir. 2002) (internal quotation marks and citation omitted).
The statutory language provides that a court may award a plaintiff liquidated damages in the
event that the plaintiff can show a willful violation of the ADEA. 29 U.S.C. § 626(b). A violation
of the ADEA is considered “willful” if “the employer either knew or showed reckless disregard for
the matter of whether its conduct was prohibited by the ADEA.” Trans World Airlines, Inc. v.
14
Evidence in the record indicates that Metro received notice of Tuttle’s EEOC complaint on December 10,
2001.
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 13
Thurston, 469 U.S.111, 128–29 (1985). But because the record appears to be devoid of any
evidence to support a finding that Metro knowingly violated or recklessly disregarded the ADEA,
we cannot hold that the district court erred when it refused to deliver a jury instruction on the issue
of willfulness.
2. Whether the District Court Erred When it Instructed the Jury that Tuttle Could Prevail on
Her ADEA Claim by Showing that She Received an Unfavorable Job Performance Appraisal
Because of Her Age
It is the well-settled law of this Circuit that “[o]ur inquiry into jury instructions is limited to
whether, taken as a whole, the instructions adequately inform the jury of the relevant considerations
and provide the jury with a sound basis in law with which to reach a conclusion.” McCombs v.
Meijer, Inc., 395 F.3d 346, 357 (6th Cir. 2005) (quoting United States v. Wells, 211 F.3d 988, 1002
(6th Cir. 2000)). We will reverse a district court only when the instructions, viewed as a whole,
were confusing, misleading, or prejudicial. Williams, 397 F.3d at 445; Beard v. Norwegian
Caribbean Lines, 900 F.2d 71, 72–73 (6th Cir. 1990) (citation omitted).
Metro argues that the district court erred when it instructed the jury that:
The issues that you must address are as follows:
(1) Whether plaintiff has established that defendant discriminated against plaintiff based
upon her age in violation of the Age Discrimination in Employment Act by issuing unfavorable job
performance appraisals and/or terminating plaintiff; and if so, what are the appropriate damages,
if any . . .
(emphasis added).
At issue here is whether the district court properly instructed the jury that Metro could have
committed an adverse employment action against Tuttle when it issued her an unfavorable job
performance appraisal based upon her age. As Metro itself notes, a negative performance evaluation
does not constitute an adverse employment action, unless the evaluation has an adverse impact on
an employee’s wages or salary. Hollins v. Atlantic Co., Inc. 188 F.3d 652, 662 (6th Cir. 1999)
(citing Crady v. Liberty Nat’l Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)); see
also Smart v. Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996) (holding that a negative criticism
or performance evaluation, unaccompanied by a materially adverse change in the terms or conditions
of employment, does not constitute adverse employment action). In this case, the district court could
have found that the unfavorable job performance appraisals Metro issued on Tuttle likely resulted
in both her transfer to the scale house booth and, later on, her termination from employment. The
evidence in the record supports such a finding. At any rate, we conclude that the district court’s jury
instructions, taken as a whole, were not confusing, misleading, or prejudicial.
C. Metro’s Motion for Conditional Grant of a New Trial
Finally, Metro argues that the district court erred when it denied Metro’s Motion for a
Conditional Grant of a New Trial. The district court granted Metro’s motion for JMOL on June 17,
2005, after the jury returned a verdict in favor of Tuttle and awarded her damages. On June 21,
2005, Tuttle timely filed a Notice of Appeal, seeking review of the district court’s ruling on Metro’s
motion for JMOL and of the district court’s refusal to give a requested jury instruction. On June 27,
2005, Defendant filed a Motion for Conditional Grant of a New Trial in an attempt to preserve its
right to a new trial if the district court’s decision on its motion for JMOL were reversed on appeal.
But on August 30, 2005, the district court denied that motion as untimely. Metro now appeals that
ruling.
Nos. 05-6055/6471 Tuttle v. Metropolitan Gov’t of Nashville Page 14
We review a district court’s denial of a motion for new trial for an abuse of discretion.
Kusens v. Pascal Co., Inc., 448 F.3d 349, 367 (6th Cir. 2006). A district court abuses its discretion
when, inter alia, it applies the law improperly or uses an erroneous legal standard. Id. (citing
Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995)). In its entirety, Rule 50(c) provides:
If the renewed motion for judgment as a matter of law is granted, the court shall also
rule on the motion for new trial, if any, by determining whether it should be granted
if the judgment is thereafter vacated or reversed, and shall specify the grounds for
granting or denying the motion for the new trial. If the motion for a new trial is thus
conditionally granted, the order thereon does not affect the finality of the judgment.
In case the motion for a new trial has been conditionally granted and the judgment
is reversed on appeal, the new trial shall proceed unless the appellate court has
otherwise ordered. In case the motion for new trial has been conditionally denied,
the appellee on appeal may assert error in that denial; and if the judgment is reversed
on appeal, subsequent proceedings shall be in accordance with the order of the
appellate court.
Any motion for a new trial under Rule 59 by a party against whom judgment as a
matter of law is rendered shall be filed no later than 10 days after entry of the
judgment.
Fed. R. Civ. P. 50(c). The text of Rule 50(c) appears to suggest that a party should make a motion
for a conditional grant of new trial along with its motion for JMOL. See id. Moreover, according
to the rule, only a party against whom a court renders judgment as a matter of law can make a
motion under Rule 59 for a new trial within ten days of the court’s judgment. See id. The record
indicates that Metro did not file its Motion for Conditional Grant of a New Trial until after the
district court had entered its judgment in this case, and after Tuttle filed its Notice of Appeal.
Therefore, we cannot hold that the district court used an erroneous legal standard when it denied
Metro’s motion as untimely.
IV. CONCLUSION
For the reasons set forth herein, we REVERSE the district court’s decision granting Metro
judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, and we
AFFIRM the district court on the alleged jury instructional errors and on its denial of Metro’s
Motion for New Trial. This case is REMANDED to the district court with instructions to reinstate
the jury’s verdict in favor of Tuttle as well as its award of $199,200.00 in damages.