Barry Boles v. WalMart Stores Inc , 650 F. App'x 125 ( 2016 )


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  •                                                             NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 15-3128
    _____________
    BARRY BOLES
    v.
    WAL-MART STORES, INC.,
    Appellant
    On Appeal from the United States District Court
    for the District of New Jersey
    (District Court No.: 2-12-cv-01762)
    District Judge: Honorable Madeline C. Arleo
    Argued on April 5, 2016
    Before: FISHER, RENDELL and BARRY, Circuit Judges
    (Opinion filed : May 24, 2016)
    Colin M. Page, Esq. (ARGUED)
    Berkowitz Lichtstein Kuritsky Giasullo & Gross
    75 Livingston Avenue
    Roseland, NJ 07068
    Counsel for Appellee
    Mark A. Aronchick, Esq.
    Matthew A. Hamermesh, Esq. (ARGUED)
    Hangley Aronchick Segal Pudlin & Schiller
    One Logan Square
    18th & Cherry Streets, 27th Floor
    Philadelphia, PA 19103
    N. Ari Weisbrot, Esq.
    Fox Rothschild
    75 Eisenhower Parkway
    Suite 200
    Roseland, NJ 07068
    Counsel for Appellant
    O P I N I O N*
    RENDELL, Circuit Judge:
    Appellant Wal-Mart Stores, Inc. (“Wal-Mart”) appeals from the District Court’s
    denial of its post-trial motion for judgment as a matter of law, and challenges the
    attorneys’ fees and costs award entered by the District Court. Boles, a former Wal-Mart
    employee, filed suit against Wal-Mart after being terminated following a medical leave of
    absence. The jury entered a verdict on Boles’s behalf on his retaliation claim and
    awarded damages, including punitive damages. Wal-Mart argues that, as a matter of law,
    Boles could not make out his retaliation claim, and that the punitive damage award was
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
    does not constitute binding precedent.
    2
    unsupported. It argues further that the District Court abused its discretion in declining to
    reduce the attorneys’ fees and costs award. We will affirm the District Court in all
    respects.
    Facts and Procedural History
    Boles worked for Wal-Mart for many years and was terminated from his position
    as an assistant store manager after taking medical leave prompted by a leg ulcer. On May
    8, 2011, he went to the emergency room after his wife noticed a large blister on his leg.
    The emergency room physician told Boles to seek further treatment from his personal
    physician and said he could return to work in two days. The next day, Boles saw Dr. Gail
    Mautner, a dermatologist. She testified at trial that, at his first visit, Boles presented a
    large blister and swelling, which progressed into a five to six inch ulcer by his second
    visit ten days later. On May 10, 2011, Boles’s wife faxed two notes to Wal-Mart—one
    from the emergency room doctor saying Boles could return to work in two days and one
    from Dr. Mautner saying he could return to work on May 21, 2011. In response, Wal-
    Mart sent Boles FMLA paperwork required for his leave of absence.
    Boles visited Dr. Mautner again on May 20, 2011, and she recommended that he
    continue to rest. After the May 20th visit, Dr. Mautner faxed a certification to Wal-Mart
    estimating that Boles would not be able to return to work until “medically discharged
    from [her] care,” which she estimated to be one month. (App. 488). After Wal-Mart had
    received Dr. Mautner’s recommendation, Mike Ciechalski, the store manager, sent an
    email to Quawad McDonald, the Market Human Resources Manager asking “why we are
    3
    not terminating [Boles] at this time?” to which McDonald replied, “[t]erminating [Boles]
    would be a violation of company policy.” (App. 718). Wal-Mart continued to pay Boles
    during his leave.
    On July 13, 2011, Wal-Mart placed Boles on unpaid leave because he had not
    returned the paperwork required to support his leave of absence. Boles submitted the
    FMLA forms on July 28, 2011. His anticipated start and end dates were June 22, 2011
    through September 10, 2011. In his request for leave, Boles included a certificate from
    Dr. Mautner indicating that he would be unable to return until October/November 2011.
    McDonald acknowledged receipt of the paperwork and noted in an email that Boles “said
    that he needed to be out until November 2011.” (App. 722).
    Wal-Mart approved Boles’s leave until September 29, 2011. On October 3, after
    the alleged expiration of Boles’s leave, Boles sent a text message to McDonald about his
    father’s recent death and informed McDonald that he would return to work once his
    doctor released him. McDonald acknowledged at trial that he received a text message
    from Boles around this time. McDonald testified that Wal-Mart called Boles in
    September and October; however, Boles’s phone records revealed that he did not receive
    any phone calls from Wal-Mart during this time.
    Boles returned to the store on October 24, 2011, the date Dr. Mautner cleared him
    for work, and discovered he could not log onto his computer. Ciechalski instructed Boles
    to call McDonald to discuss the issue. McDonald ignored Boles’s numerous phone calls,
    despite claiming at trial that Boles was a valued team member and someone whom he
    4
    liked. Around October 29th, Boles received a termination letter dated October 27, 2011
    notifying him that he had been terminated as of October 25, 2011 (the day after he
    attempted to return to work) for “failure to return” to work. (App. 721).
    Boles filed a complaint against Wal-Mart in New Jersey Superior Court on
    February 3, 2012. Defendant removed his action to the District Court, where Boles filed
    an amended complaint. His amended complaint asserted four claims: (1) retaliation for
    requesting to take extended medical leave, in violation of New Jersey Law Against
    Discrimination, N.J. Stat Ann. § 10:5-1 et seq. (“NJLAD”); (2) disability discrimination
    in violation of NJLAD; (3) failure to provide a reasonable accommodation in violation of
    NJLAD; and (4) interference with his rights under the federal FMLA. The District Court
    granted summary judgment in favor of Wal-Mart as to Boles’s disability discrimination
    claim and Boles’s claim for failure to accommodate to the extent that it rested on a Wal-
    Mart’s failure to engage in an interactive process.
    Trial on the remaining claims was held March 24–31, 2015. Boles withdrew his
    FMLA claim and presented two claims to the jury: (1) retaliation and (2) failure to
    accommodate based on refusing to grant extended leave. Wal-Mart made a motion
    pursuant to Rule 50 of the Federal Rules of Civil Procedure, seeking judgment as a matter
    of law on both claims. The District Court denied Wal-Mart’s motion and allowed both
    claims to go to the jury. Boles prevailed on his retaliation claim. The jury awarded
    $130,000 in back pay, no front pay, and $10,000 in emotional distress damages. The jury
    also awarded $60,000 in punitive damages.
    5
    Following trial, Boles filed a motion for attorneys’ fees and costs. Wal-Mart
    opposed the fee motion and filed a renewed motion for judgment as a matter of law. The
    District Court granted plaintiff’s motion for attorneys’ fees and costs and denied Wal-
    Mart’s motion for judgment as a matter of law.
    Wal-Mart’s Motion for Judgment as a Matter of Law1
    The District Court properly denied Wal-Mart’s Motion for Judgment as a Matter
    of Law as to both the retaliation claim and the challenge to the punitive damages award.
    We exercise plenary review over a district court’s decision with respect to judgment as a
    matter of law. Toledo Mack Sales & Serv., Inc. v. Mack Trucks, Inc., 
    530 F.3d 204
    , 209
    (3d Cir. 2008). We apply the same standard as the District Court. Galena v. Leone, 
    638 F.3d 186
    , 196 (3d Cir. 2011). “A judgment notwithstanding the verdict may be granted
    under Fed.R.Civ.P. 50(b) only if, as a matter of law, the record is critically deficient of
    that minimum quantity of evidence from which a jury might reasonably afford relief.” In
    re Lemington Home for the Aged, 
    777 F.3d 620
    , 626 (3d Cir. 2015) (alterations omitted)
    (quoting Trabal v. Wells Fargo Armored Serv. Corp., 
    269 F.3d 243
    , 249 (3d Cir. 2001)).
    First, the District Court correctly concluded that there was sufficient evidence in
    the record for a reasonable jury to find in favor of Boles on his retaliation claim. The
    1
    The District Court had jurisdiction over this action pursuant to 
    28 U.S.C. § 1331
    and 1332. This Court has jurisdiction pursuant to 
    28 U.S.C. § 1291
    .
    6
    prima facie elements for a retaliation claim under the NJLAD are: “(1) plaintiff was in a
    protected class; (2) plaintiff engaged in protected activity known to the employer; (3)
    plaintiff was thereafter subjected to an adverse employment consequence; and (4) there is
    a causal link between the protected activity and the adverse employment consequence.”
    Victor v. State, 
    203 N.J. 383
    , 409 (2010). As the District Court noted, only the second
    and fourth factors are in dispute.
    Wal-Mart argues on appeal that Boles requested indefinite leave and thus had not
    engaged in a protected activity under the statute. It is unquestionable, however, that
    “taking a disability/medical leave is protected by the NJLAD.” Yobe v. Renaissance
    Elec., Inc., No. CV 15-3121(FLW), 
    2016 WL 614425
    , at *3 (D.N.J. Feb. 16, 2016); see
    also Nusbaum v. CB Richard Ellis, Inc., 
    171 F. Supp. 2d 377
    , 388 (D.N.J. 2001)
    (“[Plaintiff’s] complaint clearly alleges that she engaged in a protected activity when she
    sought a leave of absence from [her employer] for medical reasons.”). Thus, the District
    Court aptly concluded that “[t]he evidence at trial supported a finding that [Boles]
    engaged in a protected activity, i.e., taking leave, and was retaliated against, i.e.,
    terminated, for engaging in that activity.” Boles v. Wal-Mart Stores, Inc., No. CIV.A. 12-
    1762, 
    2015 WL 4653233
    , at *2 (D.N.J. Aug. 5, 2015). There is support for the
    contention that indefinite leave cannot be a reasonable accommodation, as Wal-Mart
    argues, but Wal-Mart cites no authority to support that what amounts to a “reasonable
    7
    accommodation” by an employer is controlling as to what can be considered a “protected
    activity” by the employee. Indeed, they are separate claims.2
    The District Court also properly rejected Wal-Mart’s argument that Boles could
    not show causation or pretext. Internal Wal-Mart emails discussed whether Boles could
    be terminated for taking leave, and his termination date for “job abandonment” was after
    Boles attempted to return to work. Thus, the District Court held that temporal and other
    circumstantial evidence constituted sufficient evidence for the jury to find a causal link
    between Boles’s taking leave and his termination. The District Court similarly reasoned
    that the internal Wal-Mart emails, termination letter, Boles’s attempts to communicate
    with Wal-Mart, and other evidence prevented it from concluding, as a matter of law, that
    Boles had not set forth evidence of pretext.
    Second, the District Court properly rejected Wal-Mart’s challenge to the jury’s
    punitive damages award. Two requirements must be satisfied to award punitive damages
    under the NJLAD: (1) upper management’s actual participation in, or willful indifference
    to, the wrongful conduct; and (2) evidence that the wrongful conduct is especially
    egregious. See Cavuoti v. N.J. Transit Corp., 
    161 N.J. 107
    , 113 (1999). The District
    Court concluded that Mike Ciechalski and Quawad McDonald met the definition of
    second-tier upper management because they were responsible for implementing policies
    and that there was evidence of egregious conduct to support the jury’s punitive damages
    2
    The District Court also rejected the argument, raised also before us on appeal,
    that Boles “abused” his leave, saying that a reasonable jury could have found that Boles
    did not abuse his leave.
    8
    award. McDonald and Ciechalski were responsible for administering and ensuring
    compliance with Wal-Mart’s policies and running the store, respectively. Further, as
    described by the District Court, there was evidence in the record that supported the jury’s
    finding of egregious conduct, including:
    [Boles’s] attempt to contact his supervisors and others at Wal-Mart to no
    avail; that Wal-Mart never told [Boles] that if he did not return by
    September 10, he would be fired; that [Boles] continued to be paid and
    communicate with [Wal-Mart’s] employees after September 10; that he
    actually returned to work but was sent home and fired the next day for “job
    abandonment”; and that the termination decision was made by a supervisor
    to whom [Boles] had spoken [to] just weeks earlier about his return.
    Boles, 
    2015 WL 4653233
    , at *4. Further, McDonald testified that Wal-Mart called Boles
    in September and October; however, Boles’s phone records do not show any calls from
    Wal-Mart. McDonald, who claimed to have wanted to “help [Boles] out,” also ignored
    Boles’s numerous phone calls. (App. 517, 531-32, 566-67). Thus, we cannot conclude,
    as a matter of law, that the jury could not have awarded punitive damages.
    Boles’s Motion for Attorneys’ Fees and Costs
    The District Court awarded reasonable attorneys’ and costs fees, given Boles’s
    success at trial. We “review the reasonableness of an award of attorney’s fees for an
    abuse of discretion.” Rode v. Dellarciprete, 
    892 F.2d 1177
    , 1182 (3d Cir. 1990). Under
    the NJLAD, “the prevailing party may be awarded a reasonable attorney’s fee as part of
    the cost.” N.J.S.A § 10:5-27.1. A party “prevailed” if he “succeed[ed] on any significant
    issue in litigation which achieves some of the benefit the parties sought in bringing suit.”
    9
    Hensley v. Eckerhart, 
    461 U.S. 424
    , 433 (1983) (interpreting 
    42 U.S.C. § 1988
    , which
    uses the same wording as the NJLAD’s fee-shifting provision). Attorneys’ fees and costs
    awards begin with a calculation of the “lodestar” amount, which is determined by
    multiplying a reasonable rate by the number of hours reasonably expended on the
    litigation. 
    Id.
     New Jersey law also requires the lodestar amount to “reflect the risk of
    nonpayment” in contingency fee cases. Rendine v. Pantzer, 
    141 N.J. 292
    , 327 (1995).
    The District Court concluded that Boles was a prevailing party entitled to attorneys’ fees
    because he was awarded $200,000 as a result of a successful retaliation claim under the
    NJLAD. We agree.
    Wal-Mart argues on appeal that the District Court should have reduced the
    lodestar amount by 80% since Boles prevailed on only one of his claims. We cannot
    agree. The District Court properly stated, when a plaintiff achieves “excellent results”
    his attorney should recover “a fully compensatory fee,” but if he obtains “only partial or
    limited success,” a lodestar amount based on the entire litigation may be excessive.
    Hensley, 
    461 U.S. at
    435–36. Thus, the District Court asked whether (1) “the
    unsuccessful claims were unrelated to the successful claims,” and (2) if the plaintiff
    “achieved a level of success that makes the hours reasonably expended a satisfactory
    basis for making a fee award.” Blakey v. Cont’l Airlines, Inc., 
    2 F. Supp. 2d 598
    , 605
    (D.N.J. 1998) (citing Hensley, 
    461 U.S. at 434
    ). It properly concluded that Boles’s
    claims revolved around the same events, witnesses, and facts, and this work cannot be
    10
    separated out by claim. It also concluded that Boles achieved overall success because he
    was awarded back pay, emotional distress damages, and punitive damages.
    That the award Boles received was less than desired is not determinative. See
    Washington v. Phila. Cty. Court of Common Pleas, 
    89 F.3d 1031
    , 1042–43 (3d Cir. 1996)
    (“the district court cannot adjust counsel fees to maintain a certain ratio between the fees
    and damages[;]” rather “the amount awarded in counsel fees should reflect the extent to
    which the litigant was successful”). Ultimately, district courts have discretion in
    evaluating attorneys’ fees award. Hensley, 
    461 U.S. at
    436–37 (“The district court may
    attempt to identify specific hours that should be eliminated [because of limited success],
    or it may simply reduce the award to account for the limited success. The court
    necessarily has discretion in making this equitable judgment.”). Here, the District Court
    did not abuse that discretion.
    Conclusion
    For the foregoing reasons, we affirm the order of the District Court.
    11