Cham v. Station Operators, Inc. , 685 F.3d 87 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1988
OUSMAN CHAM,
Plaintiff, Appellant,
v.
STATION OPERATORS, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
Mark P. Gagliardi for appellant.
Neal J. McNamara, with whom Nixon Peabody LLP was on brief,
for appellee.
July 16, 2012
LYNCH, Chief Judge. In this employment discrimination
suit, Ousman Cham alleges that the defendant, Station Operators,
discriminated against him on the basis of race and national origin,
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and retaliated against him for taking
medical leave, in violation of the Family and Medical Leave Act
(FMLA), 29 U.S.C. § 2601 et seq.
This appeal follows two trials. At the first trial, the
district court dismissed the Title VII claims before the case was
submitted to the jury, and the jury returned a verdict in favor of
Cham on the FMLA claim. The district court then granted Station
Operators's motion for a new trial. Only the FMLA retaliation
claim was at issue in the second trial, and the jury returned a
verdict for Station Operators on that claim.
Cham appeals, challenging (1) the dismissal of his
disparate treatment Title VII claim during the first trial, (2) the
grant of the defendant's motion for a new trial, and (3) the
exclusion of certain evidence during the second trial. We reject
Cham's claims of error and affirm.
I.
A. Factual Background
Ousman Cham was at the time of the second trial a thirty-
two year old Muslim and a native of The Gambia who had immigrated
to the United States in 2000. Cham worked for the defendant,
-2-
Station Operators, Inc. (a division of Exxon Mobil) from May 13,
2003, to May 20, 2005, at an Exxon Mobil gas station and
convenience store in Smithfield, Rhode Island.
Cham was hired by Station Operators as a sales associate,
a term for a cashier and clerk, and so remained for the duration of
his employment. Cham was hired as a part-time hourly employee and
shortly thereafter became a full-time hourly employee. Cham
testified that he was regularly scheduled to work forty hours per
week once he became a full-time employee. The undisputed testimony
at trial was that no employee was entitled to any particular shift
and that Cham did not have a contract with Station Operators
guaranteeing him any shifts or even forty hours per week. Full
benefits were provided at thirty-two hours a week.
In February 2004, Andrew Pelletier became the new
assistant manager at the Smithfield store and so became Cham's
supervisor. Pelletier took over scheduling responsibilities in
September of 2004, and became manager in December 2004. Cham
claims his hours began to be reduced when Pelletier took over
scheduling.
While under Pelletier's supervision, on December 20,
2004, Cham was scheduled to work an eight-hour shift, but did not
come in or inform the store that he would not be able to work.
Cham testified that his car broke down on the way back from New
York and he did not have access to a phone to call in to work.
-3-
Cham was placed on probation for violating company policy by
failing to notify the store that he would not be able to make it to
work.
A few weeks later, on January 17, 2005, Cham was injured
in a car accident. The next day, Cham informed Pelletier that he
was taking FMLA leave from January 18 to February 15, 2005, due to
a back injury sustained in the accident, on his doctor's
recommendation. At some point during this leave, Cham informed
Pelletier that his leave would need to be extended until March 14,
2005, and Cham remained out of work until March 14.1
When Cham returned to work, he was consistently scheduled
to work thirty-two hours per week, although his actual work hours
fluctuated. Sometimes he worked less than scheduled. For example,
Cham "called out" on two shifts; that is, he called to say he could
not work those shifts. Cham claimed this reduction in scheduled
hours was in retaliation for taking FMLA leave and in violation of
Title VII. Cham quit his employment at Station Operators on May
20, 2005, two days after suffering a panic attack at work that sent
him to a hospital emergency room for treatment.
1
While Cham's leave ended on March 14, Pelletier did not
schedule Cham for any hours during that week. Payroll records
indicate that Cham did in fact work 25.5 hours that week.
-4-
B. Procedural History
Cham filed suit against Station Operators on May 6, 2008,
in Rhode Island state court.2 Cham's initial complaint alleged
that Station Operators discriminated against him on account of
race, national origin, and religion, in violation of Title VII and
certain state-law provisions. The complaint pled disparate
treatment, failure to promote, and hostile work environment
theories under Title VII.
Station Operators removed the case to federal court on
August 29, 2008. Cham filed a second amended complaint on February
2, 2010, which added new claims of interference with FMLA rights
and retaliation in violation of the FMLA. The second amended
complaint also added sex discrimination as one of the bases of the
Title VII claim.
Cham's FMLA and Title VII theories were advanced in his
pretrial memorandum as pled in the second amended complaint, with
Cham additionally contending that the disparate treatment amounted
to a constructive discharge. At a January 18, 2011 pretrial
conference, Cham agreed to dismissal of his Title VII failure to
promote claim and his FMLA interference claim as time-barred.
2
Cham filed a charge of workplace discrimination with the
Rhode Island Commission For Human Rights and the Equal Employment
Opportunity Commission on February 8, 2006, and received notice of
his right to sue from both entities in February 2008.
-5-
Cham's first jury trial, which lasted four days, began on
January 24, 2011, on his disparate treatment and hostile work
environment claims under Title VII, the FMLA retaliation claim, and
certain pendent state-law claims. At the close of plaintiff's
evidence, Station Operators moved for judgment on all claims under
Federal Rule of Civil Procedure 50(a). Cham's counsel agreed to
dismiss the hostile work environment claim. The remainder of the
motion was disputed. The court dismissed the hostile work
environment claim as agreed, and took the motion under advisement
as to the FMLA retaliation claim and the Title VII disparate
treatment claim.
At the close of all the evidence, Station Operators
renewed its Rule 50(a) motion as to all claims, which the court
took under advisement. At the start of the final day of trial,
Cham moved for judgment as a matter of law under Rule 50(a) on his
two remaining claims. Cham clarified that he was no longer
advancing a Title VII claim of on the basis of religion or sex,
leaving national origin and race as the bases of his disparate
treatment claim. The district court denied Cham's motion and
granted Station Operators's motion for judgment as a matter of law
as to the Title VII disparate treatment claim. Only the FMLA
retaliation claim went to the jury, and it returned a verdict in
favor of Cham and awarded $20,000 in damages. No final judgment
was entered.
-6-
On February 25, 2011, Station Operators filed a motion
for judgment as a matter of law under Rule 50(b) or, in the
alternative, a new trial under Rule 59, as to the FMLA retaliation
claim, which Cham opposed.
On June 3, 2011, the district court denied the
defendant's request for judgment as a matter of law on the FMLA
retaliation claim but granted the request for a new trial on that
claim. Cham v. Station Operators Inc., 832 F. Supp. 2d 131 (D.R.I.
2011). The court explained that a great deal of prejudicial
evidence had been introduced which was relevant to the hostile work
environment claim but was irrelevant to the FMLA retaliation claim.
Id. at 139. The court noted that the hostile work environment
claim was voluntarily dismissed by plaintiff after the evidence was
introduced. Id. The court concluded this evidence "had great
potential to confuse the jury and to unfairly prejudice Station
Operators," and so granted the motion.3 Id.Station Operators filed two motions in limine before the
second trial, the allowance of which are claimed to be error.
First, the court excluded evidence of Cham's work hours and
schedules for all time periods before September 2004. Second, the
3
On June 13, 2011, Cham moved for reconsideration of both
the district court's grant of the motion for a new trial as well as
the Rule 50 dismissal of his disparate treatment claim during the
first trial. The court denied both motions at the start of the
second trial.
-7-
court excluded the testimony of two health care providers who had
treated Cham for a panic attack on May 18, 2005.
The second trial, restricted to the FMLA retaliation
claim, lasted three days, and the jury returned a verdict in favor
of Station Operators. The district court entered judgment in favor
of Station Operators and Cham timely appealed.
II.
Cham argues that the district court erred (1) in granting
Station Operators's Rule 50 motion to dismiss his disparate
treatment claims, (2) in granting Station Operators's Rule 59
motion for a new trial, and (3) in granting the motions in limine
excluding evidence of his work hours before September 2004 and his
panic attack. We reject each challenge.
A. Rule 50 Dismissal of the Title VII Disparate Treatment
Claim
We review de novo a grant of judgment under Rule 50(a).
J.R. v. Gloria, 593 F.3d 73, 78 (1st Cir. 2010). A district court
may grant a Rule 50 motion before the case is submitted to the jury
if, after the party "has been fully heard on an issue," the court
"finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue." Fed. R.
Civ. P. 50(a)(1). The court considers "[a]ll of the evidence and
reasonable inferences drawn from the evidence . . . in the light
most favorable to the non-moving party," and may not evaluate the
credibility of the witnesses or the weight of the evidence. Malone
-8-
v. Lockheed Martin Corp., 610 F.3d 16, 20 (1st Cir. 2010)
(alteration in original) (quoting Espada v. Lugo, 312 F.3d 1, 2
(1st Cir. 2002)) (internal quotation marks omitted). However, "the
plaintiff is not entitled to inferences based on speculation and
conjecture." Id. (quoting Vázquez-Valentín v. Santiago Diaz, 385
F.3d 23, 30 (1st Cir. 2004), rev'd on other grounds, 546 U.S. 1163(2006)) (internal quotation marks omitted).
The McDonnell Douglas burden-shifting framework, see
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs the
"allocation of the burden of production and an order for the
presentation of proof in Title VII discriminatory-treatment cases,"
as here, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
"First, the plaintiff must establish a prima facie case
of discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000). "Generally, a plaintiff establishes a prima
facie case by showing that (1) he is a member of a protected class;
(2) he was qualified for the job; (3) the employer took an adverse
employment action against him; and (4) the position remained open
or was filled by a person with similar qualifications." Kosereis
v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir. 2003). The last
two elements may "var[y] according to the nature of the plaintiff's
claim," but "require[], among other things, a showing of an adverse
employment action." Alvarado-Santos v. Dep't of Health, 619 F.3d
126, 132 (1st Cir. 2010), cert. denied, 132 S. Ct. 121 (2011).
-9-
Once the plaintiff makes out a prima facie case, the
burden of production shifts to the defendant to produce evidence
"that the adverse employment actions were taken 'for a legitimate,
nondiscriminatory reason.'" St. Mary's, 509 U.S. at 507 (quoting
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)).
If the defendant produces such evidence, the McDonnell Douglas
framework "disappear[s]" and the sole remaining issue is
"discrimination vel non." Reeves, 530 U.S. at 142-43 (quoting U.S.
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983))
(internal quotation marks omitted). The ultimate burden of
persuasion always remains on the plaintiff, who must be afforded an
opportunity to show that the reasons offered by the defendant were
a pretext for discrimination. Id. at 143; see also Vélez v. Thermo
King de P.R., Inc., 585 F.3d 441, 447-48 (1st Cir. 2009).
Cham's theory of discrimination is that Pelletier
permanently reduced his scheduled weekly hours on account of race
or national origin several times after Pelletier assumed
responsibility over work schedules in September 2004: (1) from
forty hours to thirty-two hours during holiday weeks, as soon as
Pelletier took charge, (2) from forty to thirty-two hours following
Cham's return from FMLA leave on March 14, 2005, and (3) from
thirty-two hours to twenty-four hours in mid-May 2005.
That Cham established the first two elements of a prima
facie case is not disputed. The parties do dispute whether Cham's
-10-
hours were reduced and, if so, whether the reduction amounted to an
adverse employment action; whether Cham was treated less favorably
than employees outside of his protected class;4 and whether there
is sufficient evidence from Cham that Station Operators's proffered
non-discriminatory justification was pretextual.
We affirm the district court's rejection of Cham's
claims. The loss of a shift on holiday weeks fails because any
such loss does not rise to the level of an adverse employment
action. An adverse employment action "typically involves discrete
changes in the terms of employment, such as 'hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in
benefits.'" Morales-Vallellanes v. Potter, 605 F.3d 27, 35 (1st
Cir. 2010) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 761 (1998)), cert. denied, 131 S. Ct. 978 (2011). To be
adverse, an employment action "must materially change the
conditions of plaintiffs' employ." Id. (quoting Gu v. Bos. Police
Dep't, 312 F.3d 6, 14 (1st Cir. 2002)) (internal quotation marks
omitted).
4
"The time to consider comparative evidence in a disparate
treatment case is at the third step of the burden-shifting ritual,
when the need arises to test the pretextuality vel non of the
employer's articulated reason for having acted adversely to the
plaintiff's interests," as opposed to as part of a plaintiff's
prima facie case. Kosereis v. Rhode Island, 331 F.3d 208, 213 (1st
Cir. 2003) (quoting Conward v. Cambridge Sch. Comm., 171 F.3d 12,
19 (1st Cir. 1999)).
-11-
Cham's claim is based on the purported loss of three
shifts during the weeks encompassing Labor Day, Thanksgiving, and
Christmas. Such a reduction simply does not rise to the level of
an adverse employment action in the context of a workplace where
schedules fluctuate and no employee is entitled to any given shift.
Further, the decision did not cause a "significant change in
benefits." Id. (quoting Burlington Indus., 524 U.S. at 761)
(internal quotation mark omitted). It is clear from the record
that the fluctuation in hours above thirty-two hours did not affect
Cham's benefits.
As to Cham being scheduled for a twenty-four hour shift
for one week in May 2005, that likewise does not amount to an
adverse employment action. Such a reduction for a single week is
not an adverse employment action. There is no evidence that such
a reduction was to last for longer than a week, nor that a one-week
reduction would lead to a loss of benefits provided to full-time
employees, such as health insurance. We also reject out of hand
Cham's extreme argument that a one-week reduction amounts to a
constructive discharge, as Cham's working conditions were not
rendered "so difficult or unpleasant that a reasonable person in
[his] shoes would have felt compelled to resign." Ahern v.
Shinseki, 629 F.3d 49, 59 (1st Cir. 2010) (quoting Marrero v. Goya
of P.R., Inc., 304 F.3d 7, 28 (1st Cir. 2002)) (internal quotation
mark omitted).
-12-
Cham's final variant of his disparate treatment claim is
that his work schedule was reduced from forty to thirty-two hours
a week upon his return from FMLA leave. Cham's theory is that he
normally was scheduled to work, and did in fact work, five eight-
hour shifts per week, but that upon returning from FMLA leave his
Friday-night shift was taken away, reducing his scheduled hours to
thirty-two per week. Station Operators argues that Cham's work
hours fluctuated and his scheduling upon his return was within the
scope of this normal variation.
Whether Cham's evidence that there was a drop in
scheduled hours after his FMLA leave is sufficient to make a prima
facie case is questionable. Station Operators's records of
employees' scheduled hours for all of 2004, except for the last
week, were lost and so not in evidence. As a result, while the
evidence is undisputed that Cham was scheduled for thirty-two hours
a week from March 23, 2005 to May 25, 2005, and that he was
scheduled for forty hours from January 5, 2005, to February 2,
2005, there is no evidence as to Cham's scheduled hours during
2004. Given the lack of schedules, it is impossible to compare
Cham's scheduled hours from before the last week of December 2004
to the hours for which he was scheduled after his return from FMLA
leave. The undisputed testimony at trial was that no employee was
entitled to any particular shift and that Cham did not have a
contract with Station Operators guaranteeing him any shifts. In
-13-
terms of Cham's hours actually worked, there was substantial
fluctuation in Cham's weekly hours before he took FMLA leave.
Nevertheless, there was a drop in the hours that Cham
actually worked from the data available -- Cham worked an average
of approximately 40.83 hours per week before the FMLA leave
(averaged over the course of his employment), and an average of
approximately 30.38 after leave.
Even assuming that this reduction for a non-regularly
scheduled employee amounted to an adverse employment action for
Title VII disparate treatment purposes, Cham failed to provide
sufficient evidence that Station Operators's proffered explanation
was pretextual. The court did not err in granting Station
Operators's Rule 50 motion. We may "bypass the prima facie case
issue because it is clear that plaintiff has not mustered enough
evidence for a reasonable jury to conclude that [the defendant's]
stated reason" for the employment action was pretextual. Freadman
v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 100 (1st Cir. 2007);
see also Reeves, 530 U.S. at 148 ("[A] plaintiff's prima facie
case, combined with sufficient evidence to find that the employer's
asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated." (emphasis
added)); Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 471 (1st
Cir. 2010); Rathbun v. Autozone, Inc., 361 F.3d 62, 72 (1st Cir.
2004). This reasoning applies to Rule 50 motions to dismiss at
-14-
trial. See Reeves, 530 U.S. at 150 ("[T]he standard for granting
summary judgment 'mirrors' the standard for judgment as a matter of
law, such that 'the inquiry under each is the same.'" (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986))); see
also Dance v. Ripley, 776 F.2d 370, 373-74 (1st Cir. 1985)
(affirming dismissal of plaintiff's claim at the close of
plaintiff's evidence because the defendant put forth a legitimate,
nondiscriminatory reason during plaintiff's case and the plaintiff
presented no evidence demonstrating pretext).
The legitimate explanation, through Pelletier's
testimony, was that he had to hire two extra employees and needed
to give them hours. One was hired to cover Cham's shifts when Cham
was on FMLA leave.5 Further, Cham had, before the leave, received
overtime hours and Station Operators's policy was to avoid
employees working overtime. When Cham returned to work, Pelletier
kept the new hire to cover some shifts, including the hours Cham
complains about, and Pelletier testified that this hiring, rather
than any racial animus, motivated the scheduling decisions. One of
the reasons the court gave for granting the motion was that "while
Mr. Cham was on leave, someone was hired to cover his shifts," and
5
Pelletier admitted on cross-examination that one of the
employees was not hired until after Cham returned from medical
leave. It is undisputed that the second employee was hired while
Cham was on FMLA leave to cover Cham's shifts.
-15-
that this was a legitimate reason for Cham's scheduling when he
returned from leave.
There is no evidence of pretext. Pelletier, the
supervisor Cham claims was racially motivated to reduce his hours
after the FMLA leave, did not materially reduce Cham's hours from
September 2004, when Pelletier took charge of scheduling, to
January 2005, just before Cham's FMLA leave. Cham's own testimony
was that his particular forty hour schedule began in November 2004,
under Pelletier. Under Pelletier, Cham was the highest paid sales
associate during the relevant time period. Moreover, upon his
returning from FMLA leave, Cham's scheduled hours were equal to or
greater than most of the other employees at the Station Operators
location. This included the employee who was hired to cover some
of Cham's shifts while he was on leave as well as the employee who
was hired shortly after his return from leave.
Further, there is little evidence of racial animus.
While Cham testified that Pelletier made certain remarks, Cham's
voluntary dismissal of his hostile work environment claim is
indicative of the fleeting nature of any such comments. Moreover,
such "'stray workplace remarks' . . . normally are insufficient,
standing alone, to establish either pretext or the requisite
discriminatory animus." Gonzalez v. El Dia, Inc., 304 F.3d 63, 69
(1st Cir. 2002).
-16-
Cham offers two arguments as to why Station Operators's
explanation was pretextual. First, Cham claims that a Caucasian
employee, Joe Parker, was similarly situated and did not have his
scheduled hours reduced from forty to thirty-two. However, Cham
introduced no evidence as to Parker's schedule before January 2005,
and instead compares his schedule to Parker's only over the course
of a few months in 2005. Further, Cham introduced no evidence as
to any hours Parker actually worked at any point in time. Finally,
Cham and Parker worked different shifts (Parker worked the night
shift), reducing any similarity between the two. These
considerations undermine Cham's comparison to Parker. See García
v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 (1st Cir. 2008) (to
demonstrate pretext by "producing evidence that plaintiff was
treated differently from similarly situated employees," a plaintiff
"must show that others similarly situated to [him] in all relevant
respects were treated differently by the employer" (emphasis added)
(quoting Kosereis, 331 F.3d at 214) (internal quotation marks
omitted)).
Second, Cham claims that he was disciplined more harshly
in December 2004 than a Caucasian employee for similar violations
of company policy. First, the form of discipline Cham received
(being placed on probation) imposed no additional tangible
consequences over the form of discipline the other employee
received (a written warning). Second, the two situations are not
-17-
comparable: while both Cham and the Caucasian employee were
disciplined for failure to appear for their scheduled shifts, Cham
had failed to provide any notice to Station Operators that he would
not be able to work, whereas the other employee informed Station
Operators that he would not be able to work thirty minutes after
his shift was supposed to begin.
The district court did not err in granting the Rule 50
motion.
B. Rule 59 Grant of a New Trial
We review the district court's grant of a new trial for
abuse of discretion. Jennings v. Jones, 587 F.3d 430, 435 (1st
Cir. 2009). A trial court may grant a new trial "on the basis that
the verdict is against the weight of the evidence." Id. at 436.
Moreover, "the district court has the power and duty to order a new
trial whenever, in its judgment, the action is required in order to
prevent injustice." Id. (quoting Kearns v. Keystone Shipping Co.,
863 F.2d 177, 181 (1st Cir. 1988)) (internal quotation marks
omitted). The district court may "independently weigh the
evidence" in deciding whether to grant a new trial. Id.The district court's reason for granting a new trial here
was that because Cham's hostile work environment and disparate
treatment claims had been dismissed, the jury had been exposed to
much evidence that was irrelevant, and could be both prejudicial
and confusing, to Cham's FMLA retaliation claims. Cham, 832 F.
-18-
Supp. 2d at 139-40. The district court found that such "irrelevant
evidence had great potential to confuse the jury and to unfairly
prejudice Station Operators," particularly given that the
timeliness of Cham's FMLA retaliation claim depended on whether
Station Operators's violation was "willful" in nature. Id. at 139.
The district court did not abuse its discretion. The
admission of evidence that later becomes irrelevant when one or
more claims is rejected as a matter of law prior to submission to
the jury may be grounds for granting a new trial, if deemed unduly
prejudicial. See MacPherson v. Univ. of Montevallo, 922 F.2d 766,
777 (11th Cir. 1991); cf. SEC v. Happ, 392 F.3d 12, 28 (1st Cir.
2004) (an erroneous admission of evidence may be grounds for
granting a new trial, if refusing to grant a new trial "appears to
the court inconsistent with substantial justice" (quoting Fed. R.
Civ. P. 61) (internal quotation marks omitted)).
Here, it is beyond question that most of the prejudicial
evidence was introduced in support of Cham's hostile work
environment claim and was rendered irrelevant when Cham voluntarily
agreed to dismissal of the claim. To the extent any of it was
introduced solely as to the disparate treatment claim, it became
irrelevant when the court dismissed that claim under Rule 50.
Cham argues that the evidence was not sufficiently
prejudicial to warrant a new trial. Often, where evidence is
rendered irrelevant because certain claims are dismissed before the
-19-
case goes to the jury, the appropriate response is to instruct the
jury to disregard the evidence.6 See Guthrie v J.C. Penny Co., 803
F.2d 202, 208 (5th Cir. 1986) (declining to reverse district court
denial of a motion for a new trial where evidence as to pain and
suffering became irrelevant when certain claims were dismissed
before trial, and noting that there was a "less drastic remedy of
an explicit instruction to the jury" on the matter); see also Fed.
R. Evid. 105 ("If the court admits evidence that is admissible
against a party or for a purpose -- but not against another party
or for another purpose -- the court, on timely request, must
restrict the evidence to its proper scope and instruct the jury
accordingly."). Despite Station Operators's failure to request
such an instruction, it was within the court's discretion to grant
the more drastic remedy of a new trial.
There are times where such irrelevant evidence is
sufficiently prejudicial that a limiting instruction will not be
sufficient and a new trial is proper. See MacPherson, 922 F.2d at
777 (affirming district court's grant of a new trial in part
because evidence admitted in support of a disparate impact theory,
which was dismissed at the close of plaintiff's case, was no longer
relevant).
6
The district court did inform the jury, prior to closing
argument, that the only claim they would hear argument on was the
FMLA retaliation claim, and that the jury "should not concern
yourselves with the reasons why you're not going to be hearing
about the other claims."
-20-
This was a judgment call for the experienced trial judge
who sat through the first trial and was able to gauge the effect of
the evidence on the jury. See Correia v. Feeney, 620 F.3d 9, 11
(1st Cir. 2010) (noting that "we owe much deference to the trial
court's [new trial] determination"). The district court provided
a cogent explanation for its result, particularly given that Cham
had to prove that the FMLA violation was "willful" for his claim to
be timely,7 and the irrelevant evidence could have affected the
willfulness finding.
The district court concluded there would be a miscarriage
of justice if the verdict were to stand. Cham, 832 F. Supp. 2d at
139-40. In reaching that conclusion the court commented on the
vagueness of the hostile environment evidence as well as that
evidence's lack of connection to race. Id. at 139. The court
stated "[n]one of this evidence has any bearing on the FMLA
retaliation claim that ultimately went to the jury, and Cham's
counsel, recognizing the claim's lack of merit, voluntarily
withdrew the hostile environment claim but only after putting the
extraneous evidence before the jury." Id. (emphasis added).
7
See 29 U.S.C. § 2617(c) (providing a two-year statute of
limitations for FMLA violations and a three-year statute of
limitations for willful FMLA violations).
-21-
C. Evidentiary Rulings During the Second Trial
Cham appeals rulings on two motions in limine excluding
evidence before the second trial, where only the FMLA retaliation
claim was at issue.
"We review a district court's decision to admit or
exclude evidence for abuse of discretion." Portugues-Santana v.
Rekomdiv Int'l, 657 F.3d 56, 62-63 (1st Cir. 2011). Further, only
those evidentiary rulings that affect a party's "substantial
rights" might warrant overturning a verdict. Torres-Arroyo v.
Rullán, 436 F.3d 1, 8 (1st Cir. 2006); see also Fed. R. Civ. P. 61;
Fed. R. Evid. 103(a).
Cham's first argument is that it was error to grant
Station Operators's motion in limine to exclude evidence of Cham's
work hours and schedules prior to September 2004. The district
court excluded the evidence on the basis that "anything prior to
that time would be too attenuated from" the FMLA retaliation claim,
which "begins in May 2005."
We reject Cham's argument. The district court reasonably
determined that an appropriate cut-off date for evidence as to
Cham's weekly hours was September 2004, because that was when the
allegedly retaliatory supervisor, Pelletier, became responsible for
employee scheduling. While evidence of hours before September 2004
may have been marginally relevant under Rule 401, the district
court did not abuse its discretion in excluding the evidence under
-22-
Rule 403. See Fed. R. Evid. 403. Further, there was no prejudice
since the proffered evidence showed that Pelletier as of September
2004 continued to assign essentially the same hours. The point of
Cham's claim had to do not with September 2004 but with the claimed
reduction in hours beginning in March 2005, after his FMLA leave.
Cham also argues error in the exclusion of evidence of
his panic attack and trip to the hospital emergency room on his
final day of work at Station Operators, along with the
corresponding testimony of two medical providers. The district
court reasoned that compensatory damages were not available for
FMLA retaliation claims, as opposed to the first trial where the
hostile work environment claim was still pending, and so the
testimony of the medical providers was not relevant.
Cham argues that the evidence was relevant to prove that
the alleged FMLA retaliation he suffered amounted to a constructive
discharge, and the harm to Cham's health was relevant to whether
the working conditions amounted to a constructive discharge.
The district court did not abuse its discretion in
excluding the evidence as prejudicial or confusing under Rule 403.
The court had heard testimony during the first trial of the mental
health provider who treated Cham that the onset of depression and
anxiety was four or five months before the May 2005 panic attack --
before Cham returned from FMLA leave, and so necessarily before any
purported retaliation took place.
-23-
III.
The judgment of the district court is affirmed.
-24-