Romano v. Citizens Utilities ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30538 and No. 99-30872
Summary Calendar
JOSEPH ROMANO, JR,
Plaintiff - Appellee,
VERSUS
CITIZENS UTILITIES COMPANY,
Defendant - Appellant.
Appeals from the United States District Court
for the Eastern District of Louisiana
(87-CV-3673-L)
March 17, 2000
Before JOLLY, DAVIS, and DENNIS, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Citizens Utility Company
(Citizens) appeals a judgment entered by the district court on a
jury verdict awarding Joseph Romano, Jr., emotional distress
damages on a claim for retaliation under Louisiana employment
discrimination law, as well as the district court’s award of front
pay and attorney fees. Having carefully reviewed the record on
appeal and fully considered the briefs of counsel and the
applicable law, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Facts and Procedural History
Romano worked for Citizens in its Harvey, Louisiana, office as
Accounts Payable Manager from December 1993 until his termination
on October 10, 1997. In August 1997 Romano made two formal
complaints to Citizens regarding his immediate supervisor’s
(Richard Cohen) alleged discriminatory conduct including sexual
harassment and age discrimination. An investigation by Citizens’s
in-house counsel did not result in any adverse action against
Cohen.
On October 1, 1997, Citizens extended a written job offer to
Romano for the position of General Ledger Water Property
Specialist. While the offer was presented as a two grade promotion
with a ten per cent salary increase, it did require Romano to
travel considerably more than his position as Accounts Payable
Manager. On October 8th or 9th, Romano declined the job offer.
Romano was terminated on October 10, 1997. Citizens informed
Romano via a letter of the same date that it viewed his decision to
decline the new position as an immediate resignation.
Romano filed suit in federal court under Louisiana law
pursuant to the court’s diversity jurisdiction seeking damages for
retaliation and age discrimination.2 Following discovery, Citizens
moved for summary judgment. The district court denied the summary
judgment motion and a jury trial ensued beginning January 25, 1999.
Following the presentation of Romano’s case in chief, Citizens
2
Romano also claimed intentional infliction of emotional
distress and failure to pay overtime wages, but he voluntarily
dismissed these claims prior to trial.
2
moved for a Rule 50 judgment as a matter of law. The district
court denied the motion. After resting its case, Citizens again
moved for judgment as a matter of law, and this motion too was
denied. The parties stipulated that the jury would only consider
mental anguish damages, and that damages for front pay and back pay
would be determined by the court. The jury returned a verdict in
favor of Romano on his retaliation claim and awarded mental anguish
damages of $75,000. The jury rejected Romano’s age discrimination
claim.
The district court issued an order with reasons on April 5,
1999 awarding back pay of $37,323 and front pay of $31,950. By the
same order the district court also reduced the jury’s mental
anguish award from $75,000 to $50,000. Citizens renewed its motion
for judgment as a matter of law and alternatively moved for a new
trial. The district court denied these motions, and Citizens
appealed.
Pursuant to Romano’s post-trial motion for an award of costs
and attorney fees, the district court entered an order on July 15,
1999 denying costs but awarding $30,000 for attorney fees. The
district court then amended its previous judgment to include this
award. Citizens appealed the Amended Final Judgment. The two
appeals were consolidated.
In this appeal, Citizens raises three issues: (1) whether the
district court erred in denying its Rule 50(a) motion for judgment
as a matter of law; (2) whether the district court abused its
discretion in the award of front pay; and (3) whether the district
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court erred in awarding attorney fees to Romano. Because we find
that Romano produced sufficient evidence from which a reasonable
jury could have found for him on the employment retaliation claim,
and because the applicable facts and law disclose no abuse of
discretion in the award of front pay or error in the award of
attorney fees, we affirm.
Analysis
Citizens argues that the district court erred reversibly in
denying its Rule 50(a) motion for judgment as a matter of law
because there was no legally sufficient evidentiary basis on which
the jury could reasonably find for Romano on the retaliation claim.
This court reviews de novo the district court’s Rule 50(a) rulings,
see Travis v. Bd. of Regents of the University of Texas System, 122
F.3d 259, 263 (5th Cir. 1997), and we must consider all evidence
“in the light and with all reasonable inferences most favorable to
the party opposed to the motion.” Boeing Co. v. Shipman, 411 F.2d
365, 374 (5th Cir. 1969)(en banc). Granting the motion is only
proper “[i]f the facts and inferences point so strongly and
overwhelmingly in favor of one party that the Court believes that
reasonable men could not arrive at a contrary verdict.” Id. Where
“there is substantial evidence opposed to the motion, that is,
evidence of such quality and weight that reasonable and fair-minded
men in the exercise of impartial judgment might reach different
conclusions, the motion should be denied, and the case submitted to
the jury [because] . . . it is the function of the jury as the
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traditional finder of the facts, and not the Court, to weigh
competing evidence and inferences, and determine the credibility of
witnesses.” Id at 374-75 (citations omitted).
The retaliation claim was premised upon Louisiana Revised
Statute § 51:22563 proscribing retaliation by an employer against
an employee because he has opposed unlawful practices such as age
discrimination, see La.Rev.Stat. § 51:2231, and inappropriate
commentary to a female employee. See La.Rev.Stat. § 23:332. Even
though suit was filed under Louisiana employment law, federal
employment discrimination and retaliation statutes and cases are
persuasive authority given the substantial similarities between
Louisiana’s antidiscrimination law and Title VII. See Trahan v.
Rally’s Hamburgers, Inc., 696 So. 2d 637, 641 (La.App. 1st Cir.
1997); Plummer v. Marriott Corp., 654 So. 2d 843, 848 (La.App. 4th
Cir. 1995); Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th
Cir. 1989).
The burden shifting analysis applicable in employment
retaliation claims not founded upon violations of constitutional
rights is prescribed by McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Sherrod v. American Airlines, Inc., 132 F.3d 1112,
1121-22 (5th Cir. 1998). Under McDonnell Douglas, once Romano
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“It shall be unlawful for a person . . . to retaliate or
discriminate in any manner against a person because he has opposed
a practice declared unlawful by this Chapter, or because he has
made a charge, filed a complaint, testified, assisted, or
participated in any manner in any investigation, proceeding, or
hearing under this Chapter.” La.Rev.Stat. § 51:2256 (in pertinent
part).
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establishes a prima facie case of retaliation,4 the burden shifts
to Citizens to come forward with a legitimate, nondiscriminatory
reason for the adverse employment action. See Sherrod, 132 F.3d at
1122. If Citizens satisfies this burden by advancing a legitimate
reason for the adverse employment action, Romano must then adduce
sufficient evidence that would permit a reasonable trier of fact to
find that the proffered reason is a pretext for retaliation. See
id. Because the ultimate issue is whether Citizens unlawfully
retaliated against Romano, Romano must prove that the adverse
employment action would not have occurred “but for” the protected
activity. See id. (citing Long v. Eastfield College, 88 F.3d 300,
308 (5th Cir. 1996)).
Specifically, Citizens contends that Romano failed to produce
sufficient evidence of an adverse employment action, or to
establish that “but for” his protected conduct, he would not have
suffered the adverse employment. Preliminarily, the district court
properly concluded that Romano presented sufficient evidence from
which a reasonable jury could conclude that Citizens offered him a
position it suspected he might reject as a pretext for firing him.
4
A prima facie case of unlawful retaliation is established by
evidence (1) that the employee engaged in protected activity, (2)
that an adverse employment action occurred, and (3) that a causal
link existed between the protected activity and the adverse
employment action -- and this causal link in the prima facie case
is much less onerous to prove than the “but for” causation
requirement in the ultimate issue of retaliation. See Sherrod, 132
F.3d at 122 n.8 (citing Long, 88 F.3d at 305 n.4). The prima facie
causal link is established by evidence showing that the employer’s
decision to take the adverse action was based in part on knowledge
of the employee’s protected activity. See Sherrod, 132 F.3d at
122.
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This termination constitutes an adverse employment action.
Romano established a prima facie case of retaliation by
demonstrating that he engaged in protected activity by complaining
of alleged sexual harassment of a female co-employee, age
discrimination, and the creation of a hostile work environment by
Cohen; that he was terminated; and that a causal link existed
between the protected activity and the termination. Citizens
satisfied its burden under McDonnell Douglas by advancing a
legitimate, nondiscriminatory reason for the termination: that
Romano’s actions in rejecting the job offer constituted a
resignation. Romano produced substantial evidence that the
proffered legitimate reason was pretext. Specifically, Romano
demonstrated that he had never expressed an intention to resign,
that company policy did not construe his refusal as a resignation,
that the written job offer did not indicate that declining the
offer would constitute a resignation, that the written offer did
not indicate that Romano’s Accounts Receivable position was being
terminated, that the person making the offer never indicated that
refusal would constitute a resignation, and that he was terminated
the day after he declined the promotion.
Citizens asserts that as to the ultimate issue of retaliation
the jury could not have reasonably found that he would not have
been terminated “but for” his protected activity as required in
Sherrod. The district court addressed this contention by stating:
A reasonable jury could, and apparently did, conclude
from [the contents of the written job offer] and other
evidence presented at trial that Citizens retaliated
7
against Romano by offering him a position it suspected
that he might reject, as a pretext for firing him. It is
permissible for a jury to draw such inferences in an
employment discrimination or retaliation case, since
direct evidence of such conduct is rarely available.
This was a reasonable and legally sufficient inference
from the trial record as a whole, so that grounds for
judgment as a matter of law do not exist.
Minute Entry, May 12, 1999 p.3 (addressing Citizens’s renewed
motion for judgment as a matter of law). Citizens argues that
Romano failed to meet the “but for” test of causation because even
if the jury could have reasonably disagreed with Citizens’s view
that Romano had resigned, there was no evidence that Romano’s job
as Accounts Receivable Manager was not being eliminated as a result
of the company’s implementation of a new corporate structure and
accounting system to facilitate its expansion. In short, Citizens
cites Long v. Eastfield College, 88 F.3d at 305 n.4, for the
proposition that no liability for unlawful retaliation arose since
Romano would have been terminated even in the absence of the
protected conduct.
Our review of the record on appeal does not indicate that the
trial court’s assessment of the sufficiency of the evidence was
erroneous. The evidence showed that Don Hare, the Vice President
of Human Resources for Citizens’s Public Services Sector, the
person who made the decision to terminate Romano, was aware of
Romano’s protected activity and inquired of Romano’s former boss
whether Romano had a history of pursuing such claims. Hare
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testified that he regarded Romano as “flippant,” a “troublemaker,”
and having a “chip on his shoulder.” Cohen testified that solely
as a result of Romano’s discrimination complaints against Cohen in
August 1997, he was personally offended, he regarded the
allegations as unfounded, he deemed Romano less trustworthy, and he
became concerned about Romano’s sense of judgment. The jury also
heard testimony from a former manager of accounting at Citizens who
voluntarily resigned after Cohen attempted to convince him to stay
on at Citizens and who was given an exit interview with Human
Resources and was not escorted out of the building and to his car
- all of which differed markedly from the treatment given to Romano
upon his termination. Finally, Romano presented evidence that the
Harvey office of Citizens was actually increasing the number of
employees during the time period at issue.
The jury was presented with conflicting evidence and was
required to assess the credibility of the witnesses, and this court
is ill-positioned to disturb this assessment and may not properly
weigh the evidence. See Ray v. Iuka Special Municipal Separate
Sch. Dist., 51 F.3d 1246, 1251 (5th Cir. 1995)(citing and quoting
Johnson v. Chapel Hill Ind. Sch. Dist., 853 F.2d 375, 381 (5th Cir.
1988)). Romano produced substantial evidence on the ultimate
issue of retaliation such that reasonable and fair minded persons
might reach different conclusions, and judgment as a matter of law
was properly denied. See Boeing Co. v. Shipman, 411 F.2d at 374-
75. Accordingly, we affirm the district court’s denial of
judgment as a matter of law for Citizens.
9
Citizens argues that the evidence established that Romano
would have left the employ of Citizens on December 31, 1998. Thus,
Citizens contends that the award of front pay by the district court
for an 18 month period extending beyond the end of 1998 by
approximately four months was an abuse of discretion. The evidence
relied upon by Citizens is a memorandum written by Romano that
indicated a desire to retire at the end of 1998 if Citizens would
then treat him as if he was 55 years old with ten years of service
for purposes of its retirement plan. Because on December 31, 1998
Romano would have been only 49 years old, whether Citizens would
have credited him with six years of service to satisfy the
conditional offer of retirement calls for undue speculation since
Citizens terminated Romano’s employment on October 10, 1997 having
never responded to the memorandum. Therefore, we conclude that the
district court’s award of front pay was not an abuse of discretion.
Finally, as the only argument against the award of attorney
fees is that a reversal of the retaliation judgment would undermine
the sole legal basis of the fee award, see La. Rev. Stat. §
51:2264, because we affirm the judgment awarding damages on the
retaliation claim, the award of attorney fees is likewise affirmed.
Conclusion
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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