Yount v. S & A Restaurant

Fifth Circuit

Yount v. S & A Restaurant

Court of Appeals for the Fifth Circuit·Decided July 12, 2000·No. 99-10330·Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10330

LLOLA TOTTY YOUNT,

Plaintiff-Appellant,

versus

S & A RESTAURANT CORP.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas (3:96-CV-1400-D)

July 7, 2000

Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges. PER CURIAM:* The district court having granted Llola Totty Yount’s former employer, S & A Restaurant Corp. (S & A), a FED. R. CIV. P. 50 judgment as a matter of law, following a jury verdict in Yount’s favor, the linchpin of this appeal is whether she engaged in activity protected by the Americans with Disabilities Act (ADA), 42 U.S.C. § 12203(a). 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

I.

S & A owns and operates several restaurant chains. Yount began her employment with S & A in 1987 as a waitress, and advanced in S & A’s home office, receiving commendations and salary increases. In July 1994, Yount was recruited into S & A’s Furniture, Fixtures and Equipment Department (FF&E) by its manager, Deanna Alder. When FF&E was reorganized shortly thereafter, Yount’s duties as a “buyer” were altered; and Alder began reporting to John McLeod, Vice President of Field Support.

On 20 September 1994, Yount was diagnosed with recurrent major depressive disorder. The next day, she informed Alder of her condition and ongoing treatment.

In mid-October, feeling she was “just spinning [her] wheels”

and “constantly behind” in her duties, Yount sought direction from Alder. Alder reviewed Yount’s “Daytimer” (daily schedule), and told Yount it appeared she spent too much time in meetings. To assist Yount in prioritizing her projects, Alder suggested they have weekly “one-on-one” meetings.

It was not until 6 December that Alder criticized Yount’s attendance or performance. Alder presented her then with a list of her absences and tardies for that year, indicating that Yount would be terminated if there was no improvement; and that McLeod agreed. Alder also mentioned other “areas of concern”, including Yount’s errors on business card orders, overscheduling meetings, and inability to prioritize.

Concerned about Alder’s termination threat, Yount met with McLeod a week later, on 13 December. Yount informed him: Alder threatened her job because of various absences and tardies; she suffered from severe depression and was under psychiatric care, taking medicine and attending therapy; and she was doing all she could to get better. She also expressed her disagreement and confusion regarding Alder’s methods of calculating her absences and tardies.

Within an hour of the Mcleod-meeting, an angry Alder approached Yount at her desk, and told her: not to go over her head again; “to be careful what [she] did”; and, later that day, she would meet with Yount to discuss what Young and McLeod had discussed.

At that later meeting, a still angry Alder stated: she planned to document, for Yount’s personnel file, their previous conversations; and if Yount failed to improve her performance and eliminate her tardies and absences, she would be fired. Alder also asked about rumors Yount was interested in a job in another department, and stated no transfer would be allowed. The next day, Alder gave Yount a memorandum summarizing their meetings and conversations.

On 4 January 1995, Yount had an emotional breakdown. At Alder’s suggestion, she went on short-term disability leave, during which her diagnosis was changed from depression to bi-polar disorder.

Yount returned to work on 23 January. The next day, Alder informed Yount that her employment was being terminated due to numerous projects she mishandled or left incomplete, discovered by Alder during Yount’s leave.

In April 1996, Yount filed this action under, inter alia, § 503(a) of the ADA, 42 U.S.C. § 12203(a) (employer may not discriminate against employee for opposing act or practice made unlawful by ADA), claiming S & A terminated her employment in retaliation for her opposing Alder’s job threat by meeting with McLeod on 13 December 1994. (The district court dismissed Yount’s discrimination and accommodation claims in September 1997.)

In February 1999, a jury found that S & A had intentionally retaliated against Yount in terminating her employment. It awarded approximately $1.1 million in damages, including $750,000 in punitive damages. (Yount notes that, under applicable damage caps, the verdict would have been reduced to approximately $350,000, plus attorney’s fees and costs.)

Concluding, as a matter of law, that Yount “did not prove she engaged in a protected activity and did not prove but-for causation”, the district court granted S & A’s Rule 50 post-verdict motion for judgment as a matter of law. It alternatively granted it a new trial.

II.

Yount maintains she produced sufficient evidence that her meeting with McLeod was both a protected activity and the cause of her termination. She also contests the court granting a new trial. Because Yount did not engage in protected activity, we do not reach the other issues.

For our de novo review of a judgment as a matter of law (JMOL), e.g., King v. Ames, 179 F.3d 370, 373 (5th Cir. 1999),

all of the evidence [is considered] ... in the light and with all reasonable inferences most favorable to the party opposed to the motion.

If 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, granting ...

the motion[] is proper. On the other hand, if 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 ....

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). See FED. R. CIV. P. 50; Reeves v. Sanderson Plumbing Prods., Inc., __ U.S. __, 120 S. Ct. 2097, 2110 (2000) (court reviewing JMOL “should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses’”) (quoting 9A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2529 (2d ed. 1995))).

Of course, in applying this standard, we examine the elements of a retaliation claim. When, as here, “a case has been fully tried on the merits, we no longer focus on the McDonnell Douglas burden-shifting rubric”; rather, our factual review is limited to whether “sufficient evidence ... support[s] the jury’s ultimate finding of” retaliation. Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 588 (5th Cir. 1998), reh’g en banc granted and opinion vacated, 169 F.3d 215, opinion reinstated, 182 F.3d 333 (5th Cir. 1999). See also Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997) (“The ADA incorporates the procedures and enforcement mechanisms of Title VII.”); Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997) (“Retaliation claims are treated the same whether brought under the ADA or Title VII.”).

For unlawful retaliation, a plaintiff must show: “(1)

engagement in an activity protected by the ADA, (2) an adverse employment action, and (3) a causal connection between the protected act and the adverse action”. Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999); e.g., Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).

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