Ross v. Rhodes Furniture, Inc. , 146 F.3d 1286 ( 1998 )


Menu:
  •                                  United States Court of Appeals,
    Eleventh Circuit.
    No. 97-6729.
    Arthur ROSS, Plaintiff-Appellant,
    v.
    RHODES FURNITURE, INCORPORATED, d.b.a. Marks Fitzgerald, Defendant-Appellee.
    July 20, 1998.
    Appeal from the United States District Court for the Northern District of Alabama. (No. CV-95-P-
    2380-S), Sam C. Pointer, Jr., Judge.
    Before ANDERSON and BIRCH, Circuit Judges, and PAINE*, Senior District Judge.
    PAINE, Senior District Judge:
    Arthur Ross appeals the district court's setting aside a jury verdict that awarded him more
    than thirty seven thousand dollars in back pay. We reverse and remand with instructions to the
    district court to reinstate and enter judgment on the jury's verdict. First, the record on appeal is
    insufficient to permit an evaluation of whether the trial court erred when it granted the defendant's
    renewed motion for judgment as a matter of law. Second, our de novo review of the trial testimony
    convinces us that the jury could have reasonably disbelieved the defendant's proffered reasons for
    firing Ross.
    In 1987, Ross, who is an African-American, was hired by Marks Fitzgerald to help deliver
    furniture. In 1990, Ross began working for Rhodes Furniture when that company acquired Marks
    Fitzgerald. Ross performed well and climbed the company ladder at Rhodes, ultimately rising to
    *
    Honorable James C. Paine, Senior U.S. District Judge for the Southern District of Florida,
    sitting by designation.
    the position of delivery manager. R. 2-26-27. Ross was never disciplined before he was accused
    of and fired for soliciting tips. R. 2-30.
    On December 23, 1993, Ross was supervising the loading dock at Rhodes's warehouse. He
    noticed that customers' tipping of employees for loading furniture was slowing down operations.
    Ross testified that, to remedy the situation, he made a tip box and placed it near the loading dock.
    R. 2-31-33. Ross further testified that he immediately removed the box from its perch outside the
    loading dock when the receptionist informed him that a customer had complained about the tip box.
    R. 2-35.
    Ross finished work on December 23rd and went on Christmas vacation. When he returned
    a week later to pick up his paycheck, Ross noticed that Ricky Mann (Mann), a white male, was
    serving as the delivery manager. Until that time, Mann had been a driver for Rhodes and, at times,
    under Ross's supervision. On January 5, 1994, Ross returned from vacation to find that he was fired
    and that Mann had replaced him. R.2-37, 39.
    Upon being fired, Ross filed a charge of discrimination with the Equal Employment
    Opportunity Commission (EEOC). Ross claimed that he was fired because he is black. He also
    charged that tip solicitation was Rhodes's pretext for discriminatory discharge. Pl.'s Trial Ex. 2
    (Ross's EEOC charge). The EEOC issued Ross a right to sue letter. Ross then filed suit in the
    United States District Court for the Northern District of Alabama, seeking relief under Title VII and
    Section 1981.
    Ross alleged that "[t]he defendant discriminated on the basis of race against the plaintiff with
    respect to discharge, discipline[,] and other terms of employment." Pl.'s Compl. at 2, ¶ 6. The trial
    2
    judge denied Rhodes's motion for summary judgment, and the case went to trial. Upon deliberation,
    the jury awarded Ross $37,341.85 in back pay.
    After moving for and receiving an extension of time, Rhodes filed a renewed motion for
    judgment as a matter of law under Rule 50(b). Rhodes also moved for a new trial. Apparently, Ross
    opposed neither motion. See Trial Docket. Chief Judge Pointer granted Rhodes's renewed motion
    for judgment as a matter of law, set aside the jury's verdict, and entered judgment for Rhodes. He
    denied as moot Rhodes's motion for a new trial. Trial Docket No. 54. Ross appealed.
    At oral argument to the appellate panel, counsel agreed that Rhodes moved for judgment
    as a matter of law both at the close of Ross's case and at the close of all the evidence.1 The parties
    did not, however, identify what grounds Rhodes offered in support of its pre-verdict motions under
    Rule 50(a). The record on appeal is also silent on this point.2 The abbreviated record prevents any
    1
    In the present case, the Plaintiff challenges the entry of jnov on the merits. Accordingly,
    whether the Plaintiff's failure to object to Defendant's Rule 50(b) motion on the ground that the
    basis of Defendant's Rule 50(b) motion was waived by Defendant's inadequate Rule 50(a)
    motion, constitutes waiver of Plaintiff's right to challenge the district court's entry of jnov
    pursuant to Defendant's Rule 50(b) motion, is not before this court because the Plaintiff has not
    raised the waiver issue on appeal. Cf. Williams v. Runyon, 
    130 F.3d 568
     (3d Cir.1997) (holding
    that where a party did not object to a movant's Rule 50(b)motion specifically on the grounds that
    the issue was waived by an inadequate Rule 50(a) motion, the party's right to object on that basis
    is itself waived); Whelan v. Abell, 
    48 F.3d 1247
     (D.C.Cir.1995) (holding that failure to assert an
    objection to a Rule 50(b) motion constitutes waiver of the objection).
    2
    At the close of Ross's evidence, defense counsel said, "Your Honor, I think we have a motion
    ready." R. 2-155. A discussion was then held off the record. 
    Id.
     Rule 50(a)(2) provides:
    Motions for judgment as a matter of law may be made at any time before
    submission of the case to the jury. Such a motion shall specify the judgment
    sought and the law and facts on which the moving party is entitled to the
    judgment.
    In this case, the record on appeal does not specify the judgment sought and the
    law and facts on which Rhodes should have been entitled to the judgment.
    3
    meaningful appellate review of whether Ross was afforded his Seventh Amendment right to cure
    evidentiary deficiencies before his case went to the jury. Rule 50 was designed to protect that right,
    and therefore, we adhere to its procedural mandates. See Crawford v. Andrew Sys., Inc., 
    39 F.3d 1151
    , 1154 (11th Cir.1994)(holding that a district judge has no authority to grant a Rule 50(b)
    motion when no Rule 50(a) is made) and see also Sims' Crane Serv., Inc. v. Ideal Steel Prods., 
    800 F.2d 1553
    , 1557 (11th Cir.1986) (noting our attention to both the purpose and the wording of Rule
    50(b)).
    Rule 50 motions must made on the record. That rule is not unique to this circuit. See Keith
    v. Truck Stops Corp. of Am., 
    909 F.2d 743
    , 744 (3rd Cir.1990) ("the better practice would be for
    such motions to be made on the record"). An adequate record may allow us to excuse technical
    non-compliance with Rule 50. See MacArthur v. University of Texas Health Ctr., 
    45 F.3d 890
    , 898
    (5th Cir.1995). More importantly, an adequate record on appeal reveals whether a plaintiff's
    Seventh Amendment rights have been ambushed. It also controls the evidentiary standard we apply
    when reviewing a district court's decision to set aside a jury verdict. The standard of review is de
    novo. General American Life Insurance Company v. AmSouth Bank, 
    100 F.3d 893
    , 899 (11th
    Cir.1996); Bateman v. Mnemonics, 
    79 F.3d 1532
     (11th Cir.1996)(district judge's resolution of post
    trial motions renewed de novo).
    When reviewing a trial court's resolution of a Rule 50(b) motion, we compare the grounds
    originally argued by the movant in its Rule 50(a) motion with those cited by the trial court in
    granting a renewed motion for judgment as a matter of law. See National Indus., Inc. v. Sharon Steel
    Corp., 
    781 F.2d 1545
    (11th Cir.1986); Sulmeyer v. Coca Cola Co., 
    515 F.2d 835
    , 845-46 (5th
    Cir.1975). If the grounds argued in a motion under Rule 50(a) are "closely related" to those argued
    4
    in a Rule 50(b) motion, then setting aside a jury's verdict is no surprise to the non-movant. No
    Seventh Amendment right is ambushed. National Indus., Inc. v. Sharon Steel Corp., 781 F.2d at
    1549-50. But if the new and old grounds vary greatly, then a trial judge may not rely on the new
    grounds to set aside the jury's verdict. See Sulmeyer v. Coca Cola Co., 515 F.2d at 845-46. If they
    do vary greatly and the trial court relies upon the new grounds to set aside the jury's verdict, we will
    reverse. See id.
    In National Industries, the record on appeal enabled us to conclude that the new grounds in
    the Rule 50(b) motion constituted no surprise to the non-movant because the new and old grounds
    were "closely related." See National Indus., Inc. v. Sharon Steel Corp., 781 F.2d at 1549. In this
    case, however, we are unable to evaluate whether the grounds in Rhodes's Rule 50(a) motions were
    substantially different from those asserted in its Rule 50(b) motion. Hence, we cannot ascertain if
    this appeal is more like National Industries, where "[t]he difference ... between the matters raised
    in the motion for judgment n.o.v. and the earlier motion is not so great[,]" or whether it is akin to
    Sulmeyer v. Coca Cola Company and Wilson v. Attaway, 
    757 F.2d 1227
     (11th Cir.1985), where the
    matters varied greatly and required reversal.
    We see no difference between a record that omits any mention of a Rule 50(a) motion and
    one that is mute concerning the grounds argued in support of the Rule 50(a) motion. Both
    deficiencies go to the heart of our concerns that a plaintiff's Seventh Amendment rights not be
    ambushed and that a plaintiff be allowed to cure evidentiary deficiencies before the jury retires.
    The record before us makes it impossible to determine whether the trial court should be
    affirmed under the "flexible approach" we took in National Industries or whether we should follow
    a stricter approach as we did in Sulmeyer and Wilson. Accordingly, we must act in an abundance
    5
    of caution towards preserving the sanctity of a jury's verdict and vacate the trial judge's decision.
    Cf. Dunn v. H.K. Porter Co., Inc., 
    602 F.2d 1105
    , 1113 (3rd Cir.1979) (vacating judgment of district
    court because "[t]he record before us is not sufficiently complete to permit adequate appellate review
    of the district court's action."). Instead of culling the record for substantial evidence to support the
    verdict (as we would normally do), we will look for any evidence that would sustain the jury's
    decision. We employ the "any evidence" standard because we are unable to ascertain whether Ross
    was sandbagged by new arguments in Rhodes's motion under Rule 50(b). Cf. Wilson v. Attaway,
    757 F.2d at 1237 (applying the "any evidence" standard when no Rule 50(a) motion was made).
    Applying this "any evidence" standard, we conclude that the jury verdict was supported by
    the evidence, and therefore, it must be reinstated. We review de novo a district court's determination
    of a Rule 50(b) motion. See, e.g., Combs v. Plantation Patterns, 
    106 F.3d 1519
    , 1526 (11th
    Cir.1997). In doing so, "we must consider all the evidence in the light most favorable to [the
    nonmovant] and determine "whether or not reasonable jurors could have concluded as this jury did
    based on the evidence presented.' " 
    Id.
     (quoting Quick v. Peoples Bank, 
    993 F.2d 793
    , 797 (11th
    Cir.1993)).
    In his quest for relief, Ross must clear several evidentiary hurdles. He must make a prima
    facie case. Id. at 1528. Ross made a prima facie case for discriminatory discharge. As an African-
    American, he is a member of a protected class. Given the glowing evaluations Ross received prior
    to being discharged, he was certainly qualified to serve as Rhodes's delivery manager. Rhodes fired
    Ross and replaced him with a non-minority, Ricky Mann. That is a prima facie case. See Jones v.
    Lumberjack Meats, Inc., 
    680 F.2d 98
    , 101 (11th Cir.1982)(iterating the elements of discriminatory
    discharge).
    6
    Second, once Rhodes produced legitimate non-discriminatory reasons for its adverse
    employment action, Ross must prove his case. Combs v. Plantation Patterns, 
    106 F.3d at 1528
    .
    Rhodes satisfied its intermediate burden of production when it claimed that Ross was fired for
    soliciting tips. Ross then had to produce evidence from which the jury could have reasonably
    inferred that Ross was fired because he is black. See 
    id.
    Ross could employ either of two methods to carry his ultimate burden of proof. He could
    adduce evidence that might directly establish discrimination. Alternatively, he could point to
    enough evidence to permit the jury to reasonably disbelieve Rhodes's proffered reason that it fired
    Ross for soliciting tips. See Texas Dep't of Community Affairs v. Burdine, 
    450 U.S. 248
    , 256 
    101 S.Ct. 1089
    , 1095, 
    67 L.Ed.2d 207
     (1981). We must determine if Ross succeeded under either
    method.
    Reviewing the first "direct" method—whether Ross's evidence could have persuaded the
    jury that discrimination motivated his firing—the court examines whether Ross produced any
    evidence beyond his prima facie case. Ross's prima facie case may certainly be considered in
    determining whether he carried his ultimate burden, see Combs v. Plantation Patterns, 
    106 F.3d at
    1528 (citing Burdine). Although a plaintiff must both present a prima facie case and show pretext,
    the showing of pretext need not necessarily involve further evidence; the evidence in a prima facie
    case might be strong enough to also show pretext. See 
    id. at 1530
    . In this case, however, Ross
    needed additional evidence beyond that which established his prima facie case. He needed trial
    testimony if he was to carry his burden and survive Rhodes's Rule 50 motions.
    Ross could carry his burden via the second method by producing "any evidence that, if
    believed, sustains his burden of proof[,]" Swanson v. General Servs. Admin., 
    110 F.3d 1180
    , 1185
    7
    (5th Cir.1997), "to demonstrate the existence of a genuine issue of fact as to the truth of" Rhodes's
    explanation that it fired him for soliciting tips. Combs v. Plantation Patterns, 
    106 F.3d at 1529
    . If
    Ross succeeded, he was entitled to survive Rhodes's Rule 50 motions. See Carter v. City of Miami,
    
    870 F.2d 578
    , 581 (11th Cir.1989). Applying the "any evidence" standard required by Wilson v.
    Attaway, we conclude that Ross succeeded via the second method: he presented evidence which
    permitted the jury to reasonably disbelieve Rhodes's proffered reason.
    One segment of Ross's testimony is especially compelling. Ross testified that Ron
    Kirkpatrick—the supervisor who was instrumental in Rhodes's decision to fire Ross for soliciting
    tips—had himself received tips. R. 2-48 at WW 15-17. Yet Kirkland decided to fire Ross, an
    African-American, and replace him with a non-minority. The jury could have chosen to reject
    Kirkland and Sweeney's testimony, i.e., that they decided to fire Ross for soliciting tips, as untrue.
    Although we hold that this testimony satisfies Wilson v. Attaway's "any evidence" standard, Ross
    presented additional evidence, which satisfies the more demanding "substantial evidence" standard.
    Ross further testified that sometime prior to his being fired, Kirkland pointed to Ross and said "You
    see that one over there, I am going to get rid of him." R. 2-55 at WW 21-23. Kirkland made that
    statement to a white man. 
    Id.
     at WW 24, 25. Ross contends that Kirkland's reference to "that one
    over there" evinced racial animus by a decision maker who would ultimately fire him.
    Ross also testified that sometime in 1990, Kevin Sweeney said "I never seen as many blacks
    in this building except in a Tarzan movie." R. 2-117, at WW 4-7. Even though Kirkland and
    Sweeney made their comments long before they fired Ross, that did not prevent Ross from using
    these statements as evidence to persuade the jury that it should disbelieve Rhodes's proffered reason.
    8
    See Turlington v. Atlanta Gas Light Co., 
    135 F.3d 1428
    , 1436 (11th Cir.1998) (citing Allen v.
    County of Montgomery, 
    788 F.2d 1485
    , 1488 (11th Cir.1986)).
    The district judge rejected the Tarzan remark as an "isolated general racial remark," unable
    to aid Ross in proving his case. The trial judge erred. Although we have repeatedly held that such
    comments are not direct evidence of discrimination because they are either too remote in time or too
    attenuated because they were not directed at the plaintiff, see, e.g., Evans v. McClain of Ga., Inc.,
    
    131 F.3d 957
     (11th Cir.1997), we have not held that such comments can never constitute
    circumstantial evidence of discrimination. Other Courts of Appeals have indicated that such
    comments may provide circumstantial evidence to support an inference of discrimination. E.g.,
    Walden v. Georgia-Pacific Corp., 
    126 F.3d 506
    , 521 (3rd Cir.1997) ("Although stray remarks by
    non-decisionmakers alone are insufficient to establish discriminatory intent, we have held that such
    remarks can still constitute evidence of the atmosphere in which the employment decision was
    carried out.").
    Ross's case relied on circumstantial evidence. Even the district judge so concluded. That
    is clear from the trial court's use of McDonnell Douglas's burden-shifting analysis, which does not
    apply in direct evidence cases. See Massaro v. Mainlands Sections 1 & 2 Civic Ass'n, Inc., 
    3 F.3d 1472
    , 1476 n. 6 (11th Cir.1993). Because Ross's case turned on circumstantial evidence, the proper
    inquiry is whether Sweeney's "Tarzan" remark and Kirkland's remark, when read in conjunction with
    the entire record, are circumstantial evidence of those decisionmakers' discriminatory attitude. If
    so, the court must then determine whether such circumstantial evidence, along with other evidence
    (including Ross's prima facie case), might lead a reasonable jury to disbelieve Rhodes's proffered
    reason for firing Ross. We conclude that these comments, considered together with the fact that
    9
    Kirkland had received tips, support the jury's rejecting Rhodes's proffered explanation for firing
    Ross.
    In our view, Ross's evidence created a genuine issue of fact concerning the truth of Rhodes's
    proffered reason. The jury could have found that the tipping episode was a pretext for firing Ross.
    That is enough because, consistent with Combs, once Ross was able to present evidence from which
    a jury reasonably could have disbelieved Rhodes' proffered explanation for its action, it is the jury's
    job (not ours) to decide whether Rhodes acted with discriminatory intent. See Combs v. Plantation
    Patterns, 
    106 F.3d at 153
     ("[O]ne way a plaintiff may succeed in establishing discrimination is by
    showing that the employer's proffered explanations are not credible. When that happens, the
    plaintiff may or may not ultimately prevail in the litigation, because the factfinder may or may not
    choose to make the permissible inference of discrimination."). Here, the jury made that inference,
    and it was a permissivle one. Because Ross presented enough evidence fron which the jury could
    find pretext, the jury's final, permissible inference as to the question of Rhodes's intent should be
    left undisturbed. Therefore, the judgment of the district court is REVERSED and the case is
    REMANDED to the district court with instructions to reinstate the jury verdict and to enter
    judgment in accordance therewith, with allowance of interest from the date the jury rendered its
    verdict.
    10