Lauer v. The Schewel Furniture Co., Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JENNIFER A. LAUER, 
Plaintiff-Appellant,
v.  No. 03-1043
THE SCHEWEL FURNITURE CO., INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CA-00-868-7)
Argued: October 29, 2003
Decided: January 5, 2004
Before WILKINS, Chief Judge, and TRAXLER and
DUNCAN, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Terry N. Grimes, FRANKLIN COMMONS, Roanoke,
Virginia, for Appellant. Alexander Wayne Bell, ALEXANDER
BELL, P.L.C., Lynchburg, Virginia, for Appellee. ON BRIEF: Wil-
liam F. Schneider, Diane C. Cady, ALEXANDER BELL, P.L.C.,
Lynchburg, Virginia, for Appellee.
2 LAUER v. THE SCHEWEL FURNITURE CO.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jennifer Lauer appeals from an order of the district court granting
judgment as a matter of law, or in the alternative a new trial, to her
former employer, Schewel Furniture Company, Inc. ("Schewel").
Because we conclude that Lauer proffered evidence sufficient to per-
mit a reasonable jury to find that she was terminated in retaliation for
filing a gender discrimination charge against Schewel, we reverse the
order granting judgment as a matter of law and remand this case to
the district court for a new trial.
I.
In reviewing the grant of a motion for judgment as a matter of law,
we must view the evidence in the light most favorable to Lauer, the
nonmovant. See Anderson v. G.D.C., Inc., 281 F.3d 452, 457 (4th Cir.
2002). Accordingly, we recite the evidence presented at trial in this
light. However, we note relevant conflicts in the evidence as neces-
sary to the analysis.
A. Lynchburg Warehouse
Lauer was employed with Schewel from May 31, 1999 until she
was discharged on July 3, 2000. Lauer began her employment with
Schewel as a "warehouse helper" at the company’s central warehouse
in Lynchburg, Virginia. Lauer worked on the loading dock loading
and unloading furniture from trucks. She was the only woman among
the 27 employees working at the warehouse.
Lauer experienced difficulties with Stephen Cox, her immediate
supervisor at the Lynchburg warehouse. She suffered abuse on a
"daily basis" from Cox, who told Lauer that he did not want a woman
working for him. Cox insulted and threatened Lauer, and sabotaged
LAUER v. THE SCHEWEL FURNITURE CO. 3
her work. Lauer reported Cox’s behavior to the assistant warehouse
manager, David Gillespie, and to Linda Metts, Gillespie’s immediate
supervisor, but her complaints to management generally went unre-
solved. Ultimately, Lauer spoke with Schewel’s human resource man-
ager, Barbara Lee, and demanded that something be done to stop the
harassment. Lauer suggested that Lee transfer either Cox or Lauer to
another facility. At this time, Lauer also informed Lee that she had
contacted the Equal Employment Opportunity Commission by tele-
phone and "was going to file" a sex discrimination charge against the
company. (J.A. at 208-210). As a result of her meeting with Lee,
Lauer was transferred to the company’s retail store in Bedford, Vir-
ginia.
B. Bedford Store
Lauer began working at the Bedford store, a small retail store with
a showroom and a warehouse, on October 11, 1999. The store
employed a total of five warehouse workers, including Lauer, and two
sales people. Lauer’s duties at the Bedford store included loading and
unloading trucks, transporting furniture to the sales floor, loading fur-
niture into customers’ vehicles, and delivering furniture to customers’
homes. Sandy McManaway managed the Bedford store, and was
Lauer’s immediate supervisor.
On November 8, 1999, Lauer completed a discrimination com-
plaint questionnaire provided her by the EEOC. In this document,
Lauer detailed the events that occurred at the Lynchburg warehouse.
On February 14, 2000, Lauer filed a formal charge of discrimination
against Schewel, and on February 28, 2000, the EEOC mailed a "No-
tice of Charge of Discrimination" to Mark Schewel, the president and
chief executive officer of the Schewel company.
C. Warning Notices
According to Lauer, her employment took a turn for the worse
almost immediately after the company received notice of her discrim-
ination charge. Lauer testified that before she filed her discrimination
complaint with the EEOC, McManaway had never criticized her job
performance or reprimanded her in any way; however, McManaway
issued four "Employee Warning Notices" to Lauer in March and May
4 LAUER v. THE SCHEWEL FURNITURE CO.
of 2000. Specifically, McManaway "wrote up" Lauer for violating
company rules on March 13, March 21, May 9, and May 22, 2000.
All but one of these notices reprimanded Lauer for spending too much
time on the sales floor talking to customers and "interfering with the
sales process." The March 13, 2000 warning, for example, stated as
follows:
Continues to hang around sales floor talking with the cus-
tomers and interrupting sale [sic] process. Have had several
complaints from sales people. Also handling too much per-
sonal business during store hours. It is against company pol-
icy for anyone to interrupt the sales process. When you start
talking to customers the salesperson loses their attention and
has to start over which makes it very difficult to close a sale.
STAY off sales floor except to place mdse [sic] or load cus-
tomers. Conduct personal business outside store hours. This
must be adheared [sic] to immediately. We have discussed
this before and this is the last time it is to happen. Also
watch language used in and around the store. Had complaint
about this also.
(J.A. at 568). At trial, Lauer contended that her signature, which
appeared in the space provided for her signature on this employee
warning notice, had been forged.
In the May 9, 2000, warning notice, McManaway again repri-
manded Lauer for spending too much time on the showroom floor:
Was on the sales floor again Friday 5-5-00 interfering with
customer & salespersons. You have been warned about this
several times before & written up on 3/13/00. It is against
company policy to interfere with the sales process. It affects
the sales of the company. Any infraction of any company
policy or rules will result in immediate termination.
(J.A. at 570). Lauer herself signed this warning, but did not agree that
she had been "interfering" with customers. In the space provided for
her comment in the warning notice, Lauer wrote:
LAUER v. THE SCHEWEL FURNITURE CO. 5
I do not feel that I am interfering with the customers. If the
sales people cannot do their own job then they need to find
another job & leave me out of it! Don’t ask my advise [sic]
& then turn me in for interfering.
(Id.)
McManaway issued a final written warning to Lauer for interfering
with customers on May 22, 2000.
Insubordination. Hanging out on sales floor talking to cus-
tomers. You have been advised to stay off sales floor except
to sample mdse [sic] — Was talking to customer in main
ilse [sic] of store on Friday 5-19. When I paged you to the
whse [sic] you ignored me & continued to visit with cus-
tomer. If you are to continue working here you will have to
do as I say. No more talking about it. Stay in the whse [sic]
and out of the store except to sample. You can do your job
without comments or griping. If you cannot do this you will
be terminated. This is your last warning. Failure to comply
will result in immediate termination.
(J.A. at 571). Lauer refused to sign this warning notice on the grounds
that the accusations against her were false.
D. Termination
The incident that ultimately led to Lauer’s termination occurred on
Friday, June 30, 2000 when Lynne Barrett, the credit manager of the
Bedford store, reported to McManaway that Lauer was rude to cus-
tomers Jon Willdigg and Kathy McElroy (the "Willdiggs") during the
close of a furniture sale. Barrett prepared the following incident
report:
Lynne Barrett was working on a "new" customers con-
tract Jon Willdigg (excellant) [sic]. Last customer of the
day. Jennie enter [sic] credit office & said she wanted the
delivery ticket to fabricate the furniture the customer asked
her how soon are you going to deliver & Jenni [sic] said in
6 LAUER v. THE SCHEWEL FURNITURE CO.
about 10 min as soon as we spray it & throw it on the truck!
The customer asked if he had time to pick up Chinese take-
out and Jennie replied (No!, The men are going to be mad
as it is because they were suppose [sic] to get off at 7:00
o’clock — we close at 7:00. We’ll be straight to your house.
Very awkward. I apologized to the customer for the rude-
ness & assured them we were very pleased to have their
business.
(J.A. at 644) (emphasis in original).
Lauer delivered the furniture to the Willdiggs’ home later that eve-
ning. At some point over the weekend, Lauer happened to see the
couple dining at a local restaurant. Lauer testified that she greeted the
couple and apologized to them "if there was any inconvenience when
we came to the house or at the store[.]"
On the following Monday, July 3, 2003, McManaway and her
immediate supervisor, David Lynch, decided to terminate Lauer’s
employment. McManaway prepared an "Employee Separation
Record," and in this document explained the basis for Lauer’s termi-
nation:
Continuous Rules Infraction. Was repeatedly asked to stay
in the warehouse unless called to load a customer or sample
[merchandise]. Jenni was asked not to interfere in the pro-
cessing of customers. She came into the credit office and
asked for a delivery copy & engaged in conversation with
the customer after being told not to.
(J.A. at 643).
At trial, McManaway testified that she attached Barrett’s June 30
incident report to the employee termination record and presented the
entire document to Lauer when McManaway, Lauer, and Lynch met
to discuss the incident. According to McManaway, she informed
Lauer that her employment had been terminated "because she contin-
ued to interfere in the sales." Lauer disputes this. According to Lauer,
LAUER v. THE SCHEWEL FURNITURE CO. 7
on July 3 she was given only a copy of Barrett’s incident report docu-
menting her "rudeness" to the Willdiggs. Lauer testified that Barrett’s
report "stated that I was rude to a customer, and it was Mr. Willdigg
and Ms. McElroy, and the reason they were firing me was for being
rude to a customer. They didn’t say anything about any warnings,
nothing. It was because I was rude." (J.A. at 154).
After her meeting with McManaway and Lynch, Lauer left the
store and went to the Willdiggs’ home. Lauer told the Willdiggs that
she had lost her job at Schewel because the company believed that
Lauer had been rude to them. The Willdiggs recounted the details of
this encounter in a letter to Lauer’s trial counsel.
[T]he woman who delivered our furniture (she introduced
herself as Jenny) came to our house and stated that she had
been fired because of us. We had no idea what she was talk-
ing about. She explained that she had been "fired for being
rude to us." We told her that we didn’t know what she was
talking about. We were concerned, not knowing what was
going on, so my husband left to go to Schewel’s to see what
he could find out while I stayed home to talk to Jenny.
At the store, my husband talked to the manager. He told her
that he understood that there was some problem with Jenny
that involved us. He stated that we didn’t appreciate being
used as an excuse to fire someone when we didn’t have any
complaints about them.
The manager stated that she had been told by another
worker in the store that Jenny had been rude to us. When my
husband denied this, the manager continued that this wasn’t
the first time something like this had happened with Jenny
and that she had been reprimanded before for having unnec-
essary contact with the customers.
...
My husband stated again that we had not perceived Jenny
as rude and that it was his opinion that if the store wanted
8 LAUER v. THE SCHEWEL FURNITURE CO.
to fire someone, the company needed to come up with it’s
own reasons instead of putting the blame on us.
(J.A. at 603). McManaway documented her confrontation with Mr.
Willdigg and added her notes to the employment termination record.
E. Trial Court Proceedings
Lauer received a right-to-sue notice from the EEOC on August 25,
2000, and subsequently filed a complaint in the district court against
Schewel on November 8, 2000. Lauer’s complaint asserted claims
against Schewel for sexual harassment and discriminatory retaliation
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. Specifically, Lauer alleged that Schewel unlawfully
permitted a hostile work environment to exist at the Lynchburg ware-
house, and that Schewel retaliated against her after she filed a sex dis-
crimination complaint with the EEOC by disciplining her and
ultimately terminating her.
At the close of discovery, Schewel moved for summary judgment,
which the trial court denied on the grounds that a genuine factual dis-
pute regarding Lauer’s claims of harassment and retaliation precluded
summary judgment. The case was tried to a jury, and at the close of
Lauer’s evidence, Schewel moved for judgment as a matter of law
under Rule 50 of the Federal Rules of Civil Procedure. The trial court
took this motion under advisement.
Subsequently, the jury returned a special verdict, finding that Lauer
was subjected to unwelcome conduct at Schewel, but concluded that
this conduct was not based on her gender. The jury, however, found
in Lauer’s favor on her claim of retaliatory discharge, and awarded
her $20,000.00 in compensatory damages. After trial, Schewel
renewed its motion for judgment as a matter of law. In the alternative,
Schewel’s motion urged the court to grant a new trial. The district
court first granted the motion for judgment as a matter of law, holding
that even if Lauer successfully established a prima facie case of dis-
criminatory retaliation, Lauer failed to adduce any evidence to prove
that Schewel’s articulated reason for Lauer’s firing was pretextual.
Second, the trial judge ruled that a new trial would be appropriate if
LAUER v. THE SCHEWEL FURNITURE CO. 9
its order granting judgment as a matter of law to Schewel was
reversed on appeal. This appeal followed.
II.
Preliminarily, we address one issue before turning to the merits of
Lauer’s appeal. Schewel asserts that notwithstanding the sufficiency
of the evidence presented at trial, it is entitled to judgment as a matter
of law because Lauer failed to obtain a right-to-sue letter from the
EEOC on her retaliatory discharge claim. As a result, Schewel argues
that Lauer has failed to exhaust her administrative remedies. This
argument is without merit. We have previously held that a retaliation
claim relates back to the original charge of discrimination, such that
"a plaintiff may raise the retaliation claim for the first time in federal
court." Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992). Under
these circumstances, Lauer was not required to file a retaliation
charge with the EEOC.
III.
A. Judgment as a Matter of Law
Lauer contends that the district court erred in granting Schewel’s
motion for judgment as a matter of law on her Title VII retaliation
claim.* We review the district court’s order granting judgment as a
matter of law to Schewel de novo. Corti v. Storage Tech. Corp., 304
F.3d 336, 341 (4th Cir. 2002). Under Rule 50, judgment as a matter
of law is appropriate only where "there is no legally sufficient eviden-
tiary basis for a reasonable jury to find for that party on that issue[.]"
Fed. R. Civ. P. 50(a)(1).
*Lauer also appeals the trial court’s refusal to submit an instruction to
the jury on the issue of punitive damages. Lauer points to no evidence,
however, that would allow a jury to reasonably conclude that Schewel
discriminated against her "with malice or with reckless indifference to
[her] federally protected rights[.]" Anderson, 281 F.3d at 459 (citation
omitted). Accordingly, the refusal to submit a punitive damages instruc-
tion to the jury was not an abuse of discretion.
10 LAUER v. THE SCHEWEL FURNITURE CO.
In determining whether the evidence in this case is sufficient to
support the jury’s verdict, we view the evidence in the light most
favorable to Lauer, giving her the benefit of all reasonable inferences.
"If, with that evidence, a reasonable jury could return a verdict in
favor of [Lauer], the court must defer to the judgment of the jury,
even if the court’s judgment on the evidence differs." Duke v.
Uniroyal Inc., 928 F.2d 1413, 1417 (4th Cir. 1991). A "reasonable"
jury finding is one that rests on proffered evidence, rather than "sheer
speculation." Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 242
(4th Cir. 1982).
In order to prevail in her action under Title VII, Lauer had to meet
her burden of proof under the three-stage proof scheme established by
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We have
previously held that the McDonnell Douglas burden-shifting frame-
work is applicable to retaliation claims. See Karpel v. Inova Health
Sys. Servs., 134 F.3d 1222, 1228 (4th Cir. 1998). Under McDonnell
Douglas, Lauer first had to prove, by a preponderance of the evi-
dence, a prima facie case of discriminatory retaliation. This required
her to show (1) that she engaged in a protected activity under Title
VII, (2) that Schewel took an adverse employment action against her,
and (3) that there was a causal connection between the protected
activity and the adverse action taken against her. See Anderson, 281
F.3d at 458.
We believe that Lauer successfully established a prima facie case
of discriminatory retaliation. It is undisputed that Lauer’s filing of a
complaint with the EEOC was protected activity under Title VII, and
that her termination was an adverse employment action. With regard
to the causation requirement, the evidence, when viewed in the light
most favorable to Lauer, showed that after the EEOC sent notice of
Lauer’s discrimination complaint to Schewel on February 28, 2000,
the company issued a string of written reprimands to Lauer on March
13, March 21, May 9, and May 22, 2000, and ultimately terminated
her employment on July 3, 2000. We conclude that the evidence of
a temporal sequence leading to her discharge was sufficient to estab-
lish that Lauer was terminated in retaliation for filing a charge of gen-
der discrimination against Schewel.
Schewel, however, articulated a legitimate, non-retaliatory reason
for terminating Lauer’s employment: Lauer spent too much time on
LAUER v. THE SCHEWEL FURNITURE CO. 11
the sales floor interacting with customers and "interfering" with the
sales process. Consequently, Lauer must demonstrate that Schewel’s
explanation was merely a "pretext" for a retaliatory action. To estab-
lish pretext, a plaintiff must show that the employer’s otherwise legit-
imate explanation for the adverse employment action was "unworthy
of credence," and therefore a "coverup" for unlawful discrimination.
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256
(1981); McDonnell Douglas, 411 U.S. at 805.
There was evidence at trial that permitted the jury to reasonably
reject Schewel’s explanation for Lauer’s termination as pretext. First,
we have previously observed that contradictions between an employ-
er’s proffered explanation for the adverse employment action and the
employer’s contemporaneous statements to the employee are convinc-
ing evidence of pretext. See Alvarado v. Bd. of Trs. of Montgomery
Comm. Coll., 928 F.2d 118, 122-23 (4th Cir. 1991). In Alvarado, the
plaintiff established pretext by showing that the employer’s explana-
tion at trial for the termination (poor work performance) contradicted
the explanation the plaintiff was given at the time he was fired (lack
of available work). (Id. at 123).
In this case, Lauer put on evidence that in her meeting with
McManaway and Lynch on July 3, 2003, Lauer was told that "the rea-
son they were firing [her] was for being rude to a customer." (J.A. at
154). According to Lauer, "[t]hey didn’t say anything about warnings,
nothing. It was because [she] was rude." (Id.) Similarly, Mr. Willdigg
testified at trial that "I asked [McManaway] why Jennifer had been
fired. I said we filed no complaint. And she told us that [Lauer] had
been rude to us." (J.A. at 238). The contradiction between this expla-
nation and the explanation offered at trial — that is, that Lauer had
once again "interfered" with the sales process — is evidence on which
a jury could reasonably infer that Schewel’s articulated reason for ter-
minating Lauer was not worthy of credence.
Second, McManaway claimed that her concerns regarding Lauer’s
habit of "interfering" with customers on the showroom floor were
founded on complaints from her salespeople. Specifically,
McManaway testified that Teresa Tolliver and Frenchie Hudson com-
plained to her about Lauer interfering with their sales. At trial, how-
ever, Hudson denied this.
12 LAUER v. THE SCHEWEL FURNITURE CO.
Q: Did [Lauer] ever interfere with your sales in any way?
A: No, sir, not with mine, huh-uh.
(J.A. at 469). Hudson further testified that she had never seen Lauer
interrupt or interfere with any salesperson while dealing with a cus-
tomer.
Q: Were you a salesperson there?
A: Yes, sir.
Q: Did you ever observe Ms. Lauer interfere with any
sales of anybody else in the store?
A: No, sir.
(Id.)
Third, Lauer put on evidence from which the jury could have rea-
sonably concluded that McManaway was forced by her superiors to
"write up" Lauer in retaliation for the complaint she filed with the
EEOC. At trial she testified:
Q: All right. Ms. Lauer, did Ms. McManaway tell you
anything about why she had to generate these documents?
A: She told me that if she did not that she would lose her
job. She kept apologizing. She would talk to me off the
premises and cry about it or back in the warehouse, and she
would cry. And she used to tell me all the time, I apologize,
but if I don’t do it, I’m going to lose my job.
(J.A. at 149). The trial court declined to view Lauer’s testimony as
evidence that the company demonstrated a retaliatory animus against
her on the reasoning that the apologies to Lauer were probably noth-
ing more than a "just-doing-my-job" disclaimer. (J.A. at 661). How-
ever, the resolution of a factual issue such as the actual motivation
behind McManaway’s apologies was a jury function, and the jury
LAUER v. THE SCHEWEL FURNITURE CO. 13
could have reasonably inferred from this evidence that any concern
about "interfering" with customers was a pretext for the company’s
decision to fire Lauer in retaliation for filing a discrimination com-
plaint with the EEOC.
Finally, despite McManaway’s repeated references in the employee
warning notices to a "company policy" against interfering with cus-
tomers on the showroom floor, both McManaway and Barbara Lee
admitted that there was, in fact, no written policy at Schewel against
"interfering" with customers. (J.A. at 351, 458). On the basis of this
evidence, the jury could have reasonably concluded that Schewel had
not really terminated Lauer for "interfering" with customers and the
sales process. As a result, Lauer proffered sufficient evidence of pre-
text to support the jury’s verdict in her favor on the retaliation claim,
and the district court’s order setting aside the jury verdict and grant-
ing judgment as a matter of law to Schewel was erroneous.
B. New Trial
In contrast to our review of the trial court’s motion granting judg-
ment as a matter of law, "[t]he grant or denial of a motion for new
trial is entrusted to the sound discretion of the district court and will
be reversed on appeal only upon a showing of abuse of discretion."
Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305 (4th Cir. 1998).
This deferential standard of review requires us to "give the benefit of
every doubt to the judgment of the trial judge[.]" (Id.) (internal quotes
omitted).
The district court, when considering a motion for new trial, "may
weigh the evidence and consider the credibility of the witnesses."
Wyatt v. Interstate & Ocean Transp. Co., 623 F.2d 888, 891 (4th Cir.
1980). In addition,
a trial judge has a duty to set aside a verdict and grant a new
trial even though it is supported by substantial evidence, if
he is of the opinion that the verdict is against the clear
weight of the evidence, or is based upon evidence which is
false or will result in a miscarriage of justice[.]
14 LAUER v. THE SCHEWEL FURNITURE CO.
(Id. at 891-92) (internal quotes and citation omitted). Having
reviewed the record and the parties’ appellate briefs, we find no abuse
of discretion in the trial judge’s alternative order granting a new trial
to Schewel. Accordingly, we remand this case to the district court for
a new trial.
REVERSED AND REMANDED