[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MAY 13, 2010
Nos. 09-11823 & 09-12286 JOHN LEY
________________________ CLERK
D. C. Docket No. 05-22931-CV-TEB
AARON L. HOWARD, JR.,
Plaintiff-Appellee,
versus
WALGREEN CO.,
d.b.a. Walgreens Pharmacy,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(May 13, 2010)
Before PRYOR and FAY, Circuit Judges, and QUIST,* District Judge.
QUIST, District Judge:
*
Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
Walgreen Co. (“Walgreens”) appeals the magistrate judge’s order denying its
motion for judgment as a matter of law, Fed. R. Civ. P. 50(b), and its motion for a
new trial, Fed. R. Civ. P. 59(a), following entry of judgment in favor of Aaron L.
Howard, Jr. on his retaliation claims under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e, et seq., and the Florida Civil Rights Act (“FCRA”),
Fla. Stat. § 760.10, et seq. Walgreens also appeals the magistrate judge’s evidentiary
rulings admitting evidence of post-termination actions by non-decision-makers. For
the following reasons, we conclude that Walgreens is entitled to judgment as a matter
of law and therefore reverse the magistrate judge’s order denying Walgreens’ Rule
50(b) motion.
I. BACKGROUND
Howard, who is black, was employed as a pharmacist at Walgreens Store No.
4004 in Ft. Myers, Florida. After Walgreens terminated his employment in December
2004, Howard filed a complaint alleging that Walgreens discriminated against him
based on his race with respect to the terms and conditions of his employment in
violation of both Title VII and the FCRA. Howard further alleged that his
termination was motivated by race discrimination and retaliation. Walgreens moved
for summary judgment on all claims. The district court’s rulings pared Howard’s
claims down to the discharge-based discrimination and retaliation claims. Thereafter,
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the parties consented to a trial before a magistrate judge pursuant to 28 U.S.C. §
636(c).
The remaining claims were tried to a jury from March 31, 2008, through April
7, 2008. The evidence at trial established the following pertinent facts.1
Walgreens hired Howard as a full-time staff pharmacist in August 2003. Mark
Collum, the District Pharmacy Supervisor for Walgreens’ District 119, hired Howard
and supervised him until September 2003, when Stephen Krzastek replaced Collum.
Howard initially worked in various stores as a floater, but Krzastek later placed him
in an overnight pharmacist position at Walgreens Store No. 4004. Overnight
pharmacists typically worked a seventy-hour week, consisting of seven 10-hour shifts
from 10:00 p.m. to 8:00 a.m., Monday through Sunday, with every other week off.
Howard’s relationship with Krzastek was less than “cordial.” On one occasion
while visiting Walgreens Store No. 3099, where Howard was working at the time,
Krzastek spoke to all the other pharmacy employees, who were white, but not to
Howard, the only black employee present. In addition, Krzastek twice used the
phrase “you people” toward Howard, once when referring to Howard’s dirty lab coat
1
Because this appeal is from an order denying a motion for judgment as a matter of law, we
view all the evidence and draw all reasonable inferences in a light most favorable to the nonmoving
party, Howard. Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1212 n.1 (11th Cir. 2008); Ledbetter
v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1177 (11th Cir. 2005), aff’d, 550 U.S. 618, 127 S.
Ct. 2162 (2007).
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and another time in connection with Howard’s inquiry about the status of a raise.
Howard found these comments offensive because a reference to “you people” is
considered racially derogatory in the black community.
Howard was scheduled to work the week of December 6, 2004, although he
was only to work for four days, through December 9, to accommodate a previously
scheduled trip to Las Vegas with his fiancée. Howard worked on the 6th, but the
following morning he felt ill with symptoms of a cold or the flu. Howard called
Daneial Greenwell, the pharmacy scheduler for the district, to let her know that he
was sick and would not be coming in to work that night, December 7. The next
morning Howard felt even worse and again called Greenwell to notify her that he
would not be at work that night nor likely the following night, December 9. In fact,
Howard did not show up for work on the 9th. When Krzastek learned that Howard
failed to report for work on the 9th and did not call in that day, he called Howard to
discuss his concerns. Krzastek could not reach Howard, so he left a message stating
that Howard’s “job was in jeopardy” because he “pulled a No call/No show.”
Because Howard was on vacation, he did not call Krzastek back until
December 13. In the December 13 conversation, Howard told Krzastek that when he
called Greenwell on the 8th, he told her not to count on him to work on the 9th. He
asked Krzastek whether it made any sense that he would call in sick on the 7th and
4
8th but not the 9th. After Krzastek responded “no,” Howard told Krzastek that he did
not like the way Krzastek was threatening his job and discriminating against him and
would let Krzastek’s supervisors know about this conduct.2 Krzastek replied, “who
the hell do you think you are,” and hung up.
Howard concluded his vacation and prepared to return for work on his next
scheduled day, December 20, 2004. Before reporting to work, Howard delivered to
Walgreens’ management office a letter addressed to Walgreens’ District Manager,
Regional Manager, and Krzastek complaining of the way Krzastek had treated him.
Howard’s letter stated, in part:
On Monday, December 13, 2004, a very disturbing and unprofessional
message was left on my cell phone from the pharmacy supervisor,
Steven [sic] Krzastek. The message that I received stated that my
Walgreens pharmacy career was jeopardized due to the No Call/No
Show.
....
I do not fault Daniel [sic] Green for this misunderstanding. Because of
her performance history with misscheduling I can understand her
miscommunication of the message. What I can not [sic] understand is
based on my work performance and attendance record why Steven [sic]
Krzastek would leave such a threatening message pertaining to my job.
Which leads [sic] me the only option to feel it was based on
discrimination and I will not tolerate discrimination.
When Howard arrived at work that evening, he learned that Krzastek had terminated
2
Walgreens defended on the theory that Howard quit his employment during the December
13 telephone call with Krzastek. Krzastek testified that during the conversation, Howard said that
he was giving his two-week notice, to which Krzastek responded that notice was unnecessary.
5
him.
Walgreens moved for judgment as a matter of law both at the conclusion of
Howard’s case-in-chief and at the close of all the evidence, and the magistrate judge
denied both motions. The jury returned a verdict against Howard on his race
discrimination claim but found in his favor on the retaliation claim and awarded him
$300,000 in damages. Following entry of the judgment, Walgreens filed a post-trial
motion for judgment as a matter of law as well as a motion for new trial. The
magistrate judge denied both motions.
Thereafter, Walgreens filed this timely appeal.
II. STANDARD OF REVIEW
This court reviews a district court’s denial of a motion for judgment as a matter
of law de novo, viewing the evidence in the light most favorable to the non-moving
party. D’Angelo v. Sch. Bd., 497 F.3d 1203, 1208 (11th Cir. 2007). The motion
should be granted only “when the plaintiff presents no legally sufficient evidentiary
basis for a reasonable jury to find for him on a material element of his cause of
action.” Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1278 (11th Cir. 2005)
(citing Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir.
2004)).
III. DISCUSSION
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A.
Initially, we address Howard’s argument that Walgreens is procedurally barred
from asserting the three issues it raises on appeal in support of its motion for
judgment as a matter of law. The first two focus on the protected conduct element of
a retaliation claim, specifically, that: (1) Howard’s bare allegation of
“discrimination” without mention of race is too vague to be protected; and (2)
Howard lacked an objectively reasonable belief that he was a victim of unlawful
discrimination because Krzastek’s threat in his message did not constitute adverse
action. The third issue concerns the lack of a causal connection.
Although Walgreens raised all three issues in its Rule 50(b) motion, its Rule
50(a) motion attacked only the protected conduct element and did so on a different
basis than those asserted here – that Howard’s belief that the disagreement over the
no call-no show was evidence of race discrimination was not objectively reasonable.
Howard contends that Walgreens’ failure to raise these issues in its Rule 50(a) motion
precludes it from raising them on appeal. We disagree.
Pursuant to Rule 50(a)(2), a party moving for judgment as a matter law before
the case is submitted to the jury must “specify . . . the law and facts that entitle the
movant to judgment.” Rule 50(b) permits the moving party to renew the motion post-
judgment. Fed. R. Civ. P. 50(b). “This Court repeatedly has made clear that any
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renewal of a motion for judgment as a matter of law under Rule 50(b) must be based
upon the same grounds as the original request for judgment as a matter of law made
under Rule 50(a) at the close of the evidence and prior to the case being submitted to
the jury.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 903 (11th Cir. 2004) (citation
omitted). The rule serves to protect a party’s Seventh Amendment rights. Ross v.
Rhodes Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998). As explained in
National Industries, Inc. v. Sharon Steel Corp., 781 F.2d 1545 (11th Cir. 1986), the
purpose of requiring the grounds asserted in a Rule 50(b) motion to align with those
asserted in a Rule 50(a) motion
is to avoid making a trap of the motion for judgment notwithstanding the
verdict, either at the trial stage or on appeal. When a claimed deficiency
in the evidence is called to the attention of the trial judge and of counsel
before the jury has commenced deliberations, counsel still may do
whatever can be done to mend the case. But if the court and counsel
learn of such a claim for the first time after verdict, both are ambushed
and nothing can be done except by way of a complete new trial. It is
contrary to the spirit of our procedures to permit counsel to be
sandbagged by such tactics or the trial court to be so put in error.
Id. at 1549 (quoting Quinn v. SW. Wood Prods., Inc., 597 F.2d 1018, 1025 (5th Cir.
1979)). Strict identity of issues, however, is not required. So long as they are
“closely related,” such that opposing counsel and the trial court may be deemed to
have notice of the deficiencies asserted by the moving party, the purposes of the rule
will be satisfied. Id. If “the new and old grounds vary greatly,” we may not rely
8
upon the new grounds to reverse a district court’s denial of a Rule 50(b) motion.
Ross, 146 F.3d at 289. In that situation, the scope of review is limited to plain error.
See Sims’ Crane Serv., Inc. v. Ideal Steel Prods., Inc., 800 F.2d 1553, 1557 (11th Cir.
1986) (holding that when no motion for directed verdict is made, a Rule 50(b) motion
can be granted only if plain error is shown).
While two of the grounds in Walgreens’ later motion arguably are closely
related to the grounds raised in the first, we need not decide the issue because we
conclude that Howard forfeited his right to raise waiver on appeal by failing to raise
it before the magistrate judge. All of our sister circuits confronted with the issue have
held that when, as here, a party fails to raise the inadequacy of a Rule 50(a) motion
in response to a Rule 50(b) motion, that party is precluded from raising the issue on
appeal. See Graves v. City of Coeur D’Alene, 339 F.3d 828, 838-39 (9th Cir. 2003);
Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1076 n.3 (10th
Cir. 2002); Williams v. Runyon, 130 F.3d 568, 572 (3d Cir. 1997); Thompson &
Wallace of Memphis, Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996);
Whelan v. Abell, 48 F.3d 1247, 1253 (D.C. Cir. 1995); Gibeau v. Nellis, 18 F.3d 107,
109 (2d Cir. 1994); Collins v. Illinois, 830 F.2d 692, 698 (7th Cir. 1987); Beauford
v. Sisters of Mercy-Providence of Detroit, Inc., 816 F.2d 1104, 1108 n.3 (6th Cir.
1987); Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 293-95 (8th Cir. 1982). This
9
is a sensible rule.3 A party claiming an improper Rule 50(b) motion should afford the
district court the opportunity in the first instance to consider whether the grounds in
the Rule 50(b) motion actually vary from those asserted in the Rule 50(a) motion and,
if so, whether the moving party should be excused from strict enforcement of Rule
50(a)’s specificity requirement under the particular circumstances of the case. See
Thompson & Wallace, 100 F.3d at 435 (requiring assertion of waiver before the
district court allows that court to determine whether the offending party is excused
from noncompliance and promotes judicial efficiency). Accordingly, we join these
circuits and conclude that Howard waived his procedural challenge to Walgreens’
motion.
B.
A plaintiff asserting a retaliation claim under Title VII must show that: (1) he
engaged in statutorily protected activity; (2) he suffered a materially adverse action;
and (3) there was a causal connection between the protected activity and the adverse
action.4 Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008). It
3
Contrary to Howard’s argument, Collado v. United Parcel Service, Co., 419 F.3d 1143 (11th
Cir. 2005), does not preclude Walgreens from raising its Rule 50(b) issues on appeal because
Collado did not address a party’s waiver of the inadequacy of a Rule 50(a) motion by failing to raise
the issue before the trial court in response to a Rule 50(b) motion.
4
Because retaliation claims under the FCRA are substantively similar to Title VII retaliation
claims, we use the same analysis for both claims. See Harper v. Blockbuster Entm’t Corp., 139 F.3d
1385, 1387 (11th Cir. 1998).
10
is undisputed that Howard’s termination constitutes an adverse action. Howard’s
claim fails as a matter of law, however, because he did not engage in protected
conduct.
Title VII’s anti-retaliation provision prohibits retaliation when an employee
“oppos[es] any practice made an unlawful employment practice by [Title VII]” or
“has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). Howard’s claim is
premised on the “opposition clause.” Specifically, he contends that he was
terminated after he complained of racial discrimination in his December 13, 2004,
conversation with Krzastek and in his December 20, 2004, letter.
To establish statutorily protected conduct under Title VII’s opposition clause,
Howard must “show[] that he had a good faith, reasonable belief that the employer
was engaged in unlawful employment practices.” Little v. United Tech., Carrier
Transicold Div., 103 F.3d 961, 960 (11th Cir. 1997). He must show both that he
subjectively believed that Walgreens engaged in unlawful discrimination and that “his
belief was objectively reasonable in light of the facts and record present.” Id.
(emphasis in original). Howard need not prove that the conduct he opposed was
actually unlawful, id., but the reasonableness of his belief that Walgreens “engaged
in an unlawful employment practice must be measured against existing substantive
11
law.” Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999).
Even if Howard subjectively believed that Krzastek unlawfully discriminated
against him when he left a message stating that Howard’s job was in jeopardy, his
belief could not have been objectively reasonable. A discrimination claim under Title
VII requires an adverse employment action. Maynard v. Bd. of Regents of Div. of
Univ. of Fla. Dep’t of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir.
2003). Not all employer actions that negatively impact an employee qualify as
“adverse employment actions.” Davis v. Town of Lake Park, 245 F.3d 1232, 1238
(11th Cir. 2001). Rather, only those employment actions that result in “a serious and
material change in the terms, conditions, or privileges of employment” will suffice.
Id. at 1239 (emphasis in original). “Moreover, the employee’s subjective view of the
significance and adversity of the employer’s action is not controlling; the employment
action must be materially adverse as viewed by a reasonable person in the
circumstances.” Id.
The only alleged discrimination about which Howard complained was
Krzastek’s message threatening that Howard’s job was in jeopardy. An allegation
such as this falls well short of an adverse action. Nowhere in the record is there any
indication that the message resulted in a “serious and material change in the terms,
conditions, or privileges of employment.” Id. at 1239. In fact, nothing suggests, nor
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does Howard argue, that at the time Krzastek left his message, he had taken any
action – including termination, demotion, or even a reprimand – that could have
seriously affected Howard’s employment. Howard’s belief thus was not objectively
reasonable. Cf. Akins v. Fulton County, 420 F.3d 1293, 1301-02 (11th Cir. 2005)
(holding in First Amendment retaliation case that unwarranted reprimands, a negative
work evaluation, threat of job loss through dissolution of the plaintiffs’ division,
threat of suspension without pay, removal of job duties, and exclusion from meetings
did not constitute adverse employment action, either singly or when considered in the
aggregate). Consequently, his retaliation claim fails as a matter of law.
IV. CONCLUSION
For the foregoing reasons, we REVERSE magistrate judge’s order and remand
for entry of judgment in favor of Walgreens.
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