Well, this is definitely going to wreck some defense lawyers’ holiday! The Eighth Circuit affirms a jury verdict in a Title VII religious accommodation case, solely on the ground that the defendant failed to renew its motion for judgment as a matter of law after the entry of judgment pursuant to Rule 50(b). The Second Circuit, in an unpublished decision, vacates and remands summary judgment in an age discrimination case.
EEOC v. Southwestern Bell Telephone, No. 08-1096 (8th Cir. Dec. 19, 2008): The trial concerned two individuals (Jose Gonzalez and Glenn Owen) terminated when they wished to schedule days off to attend a Jehovah’s Witness conference. At trial, the employer raised Fed. R. Civ. P. 50(a) motions for judgment as a matter of law at the close of the plaintiff’s case and the trial; both were denied. “The jury found in favor of the EEOC, awarding Gonzalez $396,000 and Owen $390,000 in damages based on their lost wages, benefits and compensatory damages. The district court then ordered AT&T to reinstate Gonzalez and Owen and awarded them front pay until the date of reinstatement. AT&T failed to renew its motion for judgment as a matter of law under Rule 50(b) within ten days of the entry of judgment.” [Emphasis added.]
Bad move, there, Southwestern Bell! Without the renewed motion, the Eighth Circuit holds it lacked any basis to review the judgment for sufficiency of the evidence or (because the defendant also did not file a Rule 59 motion) to order a new trial. The panel rejects the idea also that it can review the denial of summary judgment on appeal: “because the parties had a full trial on the merits, we will not review the district court’sdecision to deny AT&T’s motion for summary judgment.” So possibly meritorious arguments concerning the remedies, the “undue burden” defense, and whether the employees held “a sincere religious belief requir[ed] their attendance at the conference” drop out by default.
Finally, the lawyers try to shift blame to the district court judge, who implored the defendant on the record not to repeat their Rule 50(a) arguments again at the close of the case. But this ploy fails too: “The court did not direct AT&T not to file a Rule 50(b) motion after the entry of the judgment, and the law was well established that AT&T was required to do so to preserve the issue for appeal.” Pitiless!
Carras v. MGS 782 Lex, Inc., No. 07-4480 (2d Cir. Dec. 19, 2008): In a nutshell, the case facts — “Plaintiff George Carras appeals from a judgment of the District Court granting defendants’ motion for summary judgment. The defendants are MGS 728 Lex, Inc. (‘MGS’), a shoe importer; Stephano Maraolo, the former President of MGS; and Agostino Nastasi, the former Vice President of Marketing at MGS. Plaintiff worked at MGS from March 1999 until his termination in April 2001, serving for his entire tenure as the company’s Chief Financial Officer. . . . The specific circumstances include that he was 62 years old and was replaced by a person 26 years old, that his co-worker Nastasi repeatedly complained to Maraolo that plaintiff was too old, and that while firing plaintiff, Maraolo told him that he (Maraolo) ‘had enough of [Nastasi],’ (Carras Dep. 57:6-8), implying that he no longer wanted to rebuff or listen to Nastasi’s oft-repeated objections to plaintiff’s age.”
The district court found that the plaintiff failed to contest adequately the employer’s reason for eliminating his job (cost-cutting). Yet the employee advanced some evidence, including “(1) Maraolo’s reference to Nastasi while firing plaintiff; (2) Nastasi’s prior comment to plaintiff about plaintiff’s age; (3) deposition testimony by Winegard, plaintiff’s replacement, that Maraolo and Nastasi had openly joked about plaintiff’s age on several occasions; (4) plaintiff’s offer to work for $60,000 annually-less than Winegard’s salary as CFO; and (5) the approximately 40-year age difference between plaintiff and Winegard.”
The Second Circuit holds that this record sufficed to present a variable issue on pretext. It calls the district court on weighing inferences in favor of the movant:
“Although the record shows that MGS was in a difficult financial position and was attempting to cut costs, the District Court’s repeated references to the company’s financial situation reflect, in our view, an impermissible weighing of the evidence. For example, although the District Court acknowledged plaintiff’s offer to work for a reduced salary, the Court concluded that ‘even a $60,000 salary would have presented a substantial [financial] issue.’ (Opinion 14.) However, a jury could have determined, based on plaintiff’s offer to work for less than what was paid to Winegard, that the employer’s motivation for firing him was not cost cutting but was rather discrimination against his age.”
The court also finds that even on a mixed-motive, Price Waterhouse theory, the plaintiff should get a trial:
“For substantially similar reasons, summary judgment under Price Waterhouse-the District Court’s alternative basis for judgment-is not justified. Based on the record before us, plaintiff has ‘presented evidence sufficient to support an inference of impermissible discrimination.’ Kirsch v. Fleet St., Ltd., 148 F.3d 149, 162 (2d Cir. 1998) (applying Price Waterhouse). Although defendants argued that plaintiff’s termination was inevitable in light of the company’s financial situation, their evidence did not exclude a question of material fact on this issue. Defendants failed to show entitlement to summary judgment on the Price Waterhouse theory.”
The standard of proof sufficient to place the burden of the employer to disprove discrimination under Price Waterhouse is, coincidently, an issue in the Supreme Court this very term (Gross v. FBL). Too bad this decision was not published.