Eeoc v. Go Daddy Software

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION, No. 07-16190
Plaintiff-Appellee,
v.  D.C. No.
CV-04-02062-DGC
GO DADDY SOFTWARE, INC., OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding

Argued and Submitted
January 16, 2009—San Francisco, California

Filed September 10, 2009

Before: William A. Fletcher, John T. Noonan, and
A. Wallace Tashima, Circuit Judges.

Opinion by Judge William A. Fletcher;
Dissent by Judge Noonan

13075
13078 EEOC v. GO DADDY SOFTWARE

COUNSEL

James M. Tucker, EEOC, Washington, D.C., for the appellee.

Fred W. Alvarez, Michael J. Nader, WILSON SONSINI, et
al., Palo Alto, California, Lawrence Kasten, LEWIS &
ROCA, Phoenix, Arizona, for the appellant.

OPINION

W. FLETCHER, Circuit Judge:

Youssef Bouamama was terminated from his job at Go
Daddy Software, Inc. (“Go Daddy”). The Equal Employment
Opportunity Commission (“EEOC”) brought suit against Go
Daddy on Bouamama’s behalf in federal district court. A jury
 EEOC v. GO DADDY SOFTWARE 13079
returned a verdict in favor of the EEOC on the claim that
Bouamama had been unlawfully terminated in retaliation for
engaging in protected activity.

Go Daddy moved in the district court for a judgment as a
matter of law under Federal Rule of Civil Procedure 50(b),
arguing that there was insufficient evidence that Bouamama
engaged in protected activity; or, if he did engage in protected
activity, that there was insufficient evidence that there was a
causal connection between that activity and his termination.
In the alternative, Go Daddy moved for a new trial under Fed-
eral Rule of Civil Procedure 59(a). The district court denied
both motions. We affirm.

I. Background

Go Daddy is a for-profit corporation that assists individuals
and companies in registering domain names on the Internet.
Go Daddy operates a call center from which employees pro-
vide sales and technical support to customers over the tele-
phone. Go Daddy also has a Tech Support/Web Board
department that responds to customer requests over email.

In September 2001, Bouamama, a Muslim of Moroccan
national origin, interviewed for a job at Go Daddy. Brett
Villeneuve, a supervisor in the call center, participated in the
interview. Go Daddy hired Bouamama on a temporary basis
as a Technical Support Representative in the Tech Sup-
port/Web Board department. Bouamama began working on
September 20, 2001, for $12 per hour.

Shortly after Bouamama was hired, Villeneuve became the
operations manager of the call center, which meant that he
was in charge of the employees in both the call center and in
the Tech Support/Web Board department. Villeneuve testified
that although Bouamama was assigned to the Web Board, he
occasionally answered calls for the call center. Some custom-
ers complained about Bouamama’s manner on the phone.
13080 EEOC v. GO DADDY SOFTWARE
Nevertheless, on December 13, 2001, Villeneuve converted
Bouamama to a full-time, regular employee, raising his wage
to $14 per hour, and providing him with medical, dental, and
disability benefits, and paid vacations and holidays. At trial,
Villeneuve described Bouamama as “a good rep . . . .
[T]echnically knowledgeable. His typing skills were good. He
put out good, solid answers.”

Between December 2001 and February 2002, Villeneuve
overheard Bouamama speaking to a customer in French.
Bouamama testified that “after I finished with the customer
[Villeneuve] was asking me about . . . where I’m from and
what language I was speaking and what, you know, religion
I was practicing.” Bouamama testified that he told Villeneuve
that he was a Muslim from Morocco who spoke Arabic. He
also testified that he “really didn’t feel that it was appropriate
to ask me this kind of questions but in the meantime, you
know, I want a job, we were at war, so I just let it go.”

Villeneuve remembered the conversation differently. He
testified that overhearing the phone call with the customer
was “pretty cool . . . . [W]hen the phone conversation ended,
I asked him — I verified that it was French. I thanked him for
. . . helping out the customer. I asked him if there were any
other languages that he spoke.” Bouamama responded that, in
addition to English and French, he spoke Arabic. Villeneuve
testified that it was a “huge help” to have a representative
who spoke other languages. When asked whether Bouamama
seemed upset by the question about what languages he spoke,
Villeneuve testified, “No, not particularly . . . . [H]e was kind
of smiling like he was proud of the fact [that] . . . he’s trilin-
gual. That’s neat.”

In 2002, Villeneuve created “Team Lead” positions. In
addition to handling sales and support inquiries from custom-
ers, each Team Lead supervised a crew of sales representa-
tives. Bouamama applied to be a Team Lead, but, according
to Villeneuve’s testimony, he was initially denied the position
 EEOC v. GO DADDY SOFTWARE 13081
because of “his abruptness with people, his demeanor, his
abrasiveness.” Villeneuve testified that Bouamama com-
plained, and that Villeneuve reversed his position, promoting
Bouamama to Team Lead on February 25, 2002. Bouamama’s
wage was increased to $16 per hour.

Shortly after Bouamama was promoted to Team Lead, the
position of Inbound Sales Manager became available. Four or
five people, including Bouamama, applied for the position,
and Villeneuve gave the position to Bouamama. The promo-
tion took effect on July 11, 2002. In this new position, Boua-
mama was responsible for preparing reports and for tracking
phone calls, sales by individual employees and teams of
employees, and sales of different Go Daddy products. Boua-
mama’s compensation was increased to $46,000 per year plus
bonus. Bouamama testified that he often worked weekends,
without being asked and without being paid overtime or
requesting to be paid overtime, so that he could keep up with
the demands of the new position.

Bouamama testified that after his promotion to Inbound
Sales Manager he complained to Heather Slezak, who worked
in Go Daddy’s Human Resources Department, about his con-
versation with Villeneuve that had occurred about six months
earlier when Villeneuve overheard Bouamama speaking to a
customer in French. Bouamama testified that he could not
recall if Slezak promised to speak to Villeneuve about this, or
if she said something like Villeneuve “is the way how [he] is,
don’t worry about him, he don’t really mean stuff.” Accord-
ing to Bouamama, neither he nor Slezak followed up on this.
According to Slezak, Bouamama never complained to her
about Villeneuve.

Bouamama testified that, in addition to his comments made
following Bouamama’s conversation in French, Villeneuve
made at least one other discriminatory comment in his pres-
ence, saying, “The Muslims need to die. The bastard Muslims
need to die.” Villeneuve was talking to other employees in the
13082 EEOC v. GO DADDY SOFTWARE
hallway near Bouamama’s cubicle when he made this com-
ment. Bouamama testified that he did not respond to Ville-
neuve or complain about him because “[w]e were at war . . . .
After September 11 things changed, people are hurt, you
know, I was hurt . . . and, you know, you try to be compas-
sionate. I understand maybe the anger that some people are
expressing . . . .” Bouamama testified further that he did not
complain because “[t]here’s a culture in Go Daddy. You com-
plain you get fired.”

On April 1, 2003, Go Daddy hired Craig Franklin from an
outside company to be Director of Call Center Operations.
Franklin had 20 years of experience in call centers and had
supervised 1,500 employees in his prior job. Villeneuve, who
had previously managed the call center, was demoted. He was
no longer a member of Go Daddy’s Executive Staff, and he
lost the authority to hire and fire workers without approval.
Villeneuve reported to Franklin.

On his second day on the job, Franklin reorganized Go
Daddy’s call center. He testified that in planning the reorgani-
zation, he did not solicit advice from Villeneuve or Slezak.
Franklin decided to eliminate thirteen Team Lead positions,
the Weekend Sales Manager position, and the Inbound Sales
Manager position held by Bouamama. Franklin testified that
he did not examine the competencies of any of the individuals
holding the positions before he decided to eliminate them.
Franklin created four new Sales Supervisor positions that
employees, including those whose positions had been elimi-
nated, could apply for.

On April 4, 2003, Franklin, Villeneuve, and Slezak met
with Bouamama and informed him that his position was being
eliminated. According to Bouamama, he was told that he
could apply for one of the new Sales Supervisor positions or
“walk away.” When asked what he understood the phrase
“walk away” to mean, Bouamama testified, “Well, somebody
repeat that five times to you it means quit on your own. That’s
 EEOC v. GO DADDY SOFTWARE 13083
what it means.” During cross-examination, Bouamama was
asked again if he had been told what would happen if he
“didn’t apply for the [new] position or if [he] didn’t get the
position.” Bouamama responded:

A: Yes, sir.

Q: You were told you could take a position back on
the floor, answering the phones, or you could accept
a severance package.

A: Accept a severance package?

Q: Isn’t that what they told you?

A.: No. They told me that, you know, you can apply
for this position and — you know, or you can walk
away.

This testimony by Bouamama about his options conflicts
with the testimony of others. Villeneuve testified that employ-
ees who applied unsuccessfully for the Sales Supervisor posi-
tions “had two options. If you didn’t get the position, you
could go back to the phones, with a — we changed your pay
rate so they weren’t starting out at base all over again. We
increased their pay based on tenure . . . . If you chose not to
go back to the phones, you could leave the company, and we
had a severance package for everybody.” Franklin testified
similarly, stating that “we encouraged” applicants who did not
get the Sales Supervisor position “to go back to the phones.”

During the morning of April 7, 2003, Franklin stopped by
Bouamama’s cubicle. Bouamama testified as follows:

A . . . . I was working on my cubicle, Mr. Craig
Franklin show up around like 8:30, nine o’clock in
the morning and he came around me and he saw
some pictures in my cubicle and trouble with the
13084 EEOC v. GO DADDY SOFTWARE
conversation started with where are these pictures
from, and I said Morocco, and he said, “Are you
from Morocco?” I said, “Yes.” He said, “Are you
Muslim?” I said, “Yes.”

And by the time I was going to engage the conver-
sation with him I kind of like look at him in the face
why he’s asking me these questions and he looked at
me and he said, “You know, you’re lucky that I like
you,” and he walked away to his desk.

Q. So you didn’t say anything in response?

A. I didn’t get a chance to talk to him.

Q. Did you have any statistical information in your
cubicle that Mr. Franklin was there to obtain?

A. Mr. Franklin, you know, he’s the new director of
the Call Center. He has access [t]o any information
he wants to without really asking me. As a matter of
fact, I volunteered to give him an update about the
department. He cancelled three times the meeting.

Q. So he could have obtained statistical information
from other locations, is that right?

A. That’s correct.

Franklin recalled the conversation differently. He testified
that he saw the pictures and remarked that they were beautiful
and asked where they were from. Bouamama told him that
they were from Morocco. Franklin testified that he did not ask
Bouamama where he was from or what religion he practiced.
He further testified that Bouamama did not volunteer that he
was a Muslim and that he, Franklin, had not said, “You know,
you’re lucky that I like you.”
 EEOC v. GO DADDY SOFTWARE 13085
Bouamama testified that during the afternoon of April 7,
after the exchange with Franklin, he complained to Slezak in
the Human Resources department of Go Daddy:

Q. What did you tell her?

A. I told her that this is the second time that people
are concerned and taking interest about, you know,
where I’m from, my religion. You know, I can
understand that it was happening with [Villeneuve]
but this guy here [Franklin], I don’t know him and
two days ago he came and telling me that he doesn’t
care about my history and he wanted to eliminate my
position. The next day he’s taking interest for who
I am and where I’m from. So I wanted her to look
into it. She said that she will look into it.

Q. So you told — you told her this was the second
time that somebody had complained — had made
comments about you?

A. That was, I would say, the second or third time
that I spoke to her about some matters like that.

Q. So you had gone to Miss Slezak to complain
about comments about your national origin and reli-
gion before?

A. That’s correct.

Slezak denied that Bouamama ever complained to her.

On April 9, 2003, Franklin, Villeneuve, and Slezak inter-
viewed Bouamama for one of the Sales Supervisor positions.
The panel interviewed thirteen other candidates during that
day and the next. The panelists unanimously agreed to hire six
of the candidates, two more than Franklin originally planned.
Bouamama was not among those hired. According to Ville-
13086 EEOC v. GO DADDY SOFTWARE
neuve’s testimony, Bouamama ranked “[l]ower, towards the
bottom of the frame” compared to other candidates. Ville-
neuve also testified that neither religion nor national origin
played any role in the panel’s decisions.

Slezak testified that the panel met with Bouamama on April
14 and told him that he did not get a Sales Supervisor posi-
tion. According to Slezak, “We thanked him for his time,
encouraged him to stay with the organization because there
would be opportunity in the future, and presented him the
same options to retain a position . . . or take a severance pack-
age and leave the company.” This is consistent with the testi-
mony of Villeneuve and Franklin that Bouamama, like other
unsuccessful candidates, had the option to “go back to the
phones.” According to Slezak, “all of the unsuccessful candi-
dates, aside from Mr. Bouamama, selected right then and
there to retain a position with the company as an inbound
Sales Representative.” According to Franklin, Bouamama
said “I’m not going back to the phones.” Slezak testified that
the panel gave Bouamama two days to make a final decision.

Bouamama testified that the purported meeting with the
panel on April 14 never took place. He testified that he
learned that he did not get the Sales Supervisor position
directly from Bob Parsons, Go Daddy’s CEO, on April 14.
According to Bouamama, Parsons called him into his office,
told him that he did not get the Sales Supervisor position, and
told him that he would be doing “sales statistics” for the com-
pany. Bouamama testified that Parsons said, “I don’t want
you [to] worry about what’s going on in the sales depart-
ment[,] and I want you to be my ears and my eyes for the
company.” According to Bouamama, “[m]y understanding
was that [I would] wait two weeks for the transitions and help
[Franklin] and all the others as to . . . what they need[ed] to
do on the department and then I will be moving to another
department doing statistics, sales or statistics analysis.”

Parsons’ testimony was inconsistent with Bouamama’s.
Parsons testified that Bouamama called him to express his
 EEOC v. GO DADDY SOFTWARE 13087
disappointment at not getting the Sales Supervisor position.
Parsons testified that he promised Bouamama that he “would
see what I could do.” He further testified that he explained to
other executives that he thought Bouamama “was a good
employee” and that “because of — of his personality issues,
with his abrasiveness, particularly with female employees,
that maybe a supervisor position for now was not a good idea
for him, but maybe there was something else in the compa-
ny.” He testified that another executive, Barbara Rechterman,
mentioned that she was planning to create a marketing analyst
position, and she and Parsons agreed that Bouamama, who
had a background in mathematics, might be a good fit for it.

Bouamama testified that at the end of the day on April 14,
he passed Franklin’s office on the way to the parking lot, and
“the first thing that [Franklin] said is come here, the F word.
You know, I look at him like, ‘What?’ And he said, ‘Come
here.’ ” According to Bouamama, Villeneuve and Slezak were
in the room. Bouamama testified that he responded, “Hey,
you know, I just spoke to Mr. Bob Parsons” and that he then
went home.

Bouamama testified that on the morning of April 15, 2003,
he met with Rechterman to discuss the marketing analyst
position, and that she asked him to write a report “related to
sales product and cost” and to deliver it to her by noon. He
further testified that he emailed her a “preliminary report”
around 11:30 and asked if it was satisfactory. Rechterman did
not respond. Bouamama sent her a final report around 2:30,
and again she did not respond. Bouamama testified that he
went to Rechterman’s office at about 3:00 to inquire about the
report, and that the first thing she said was “I don’t know
[why] they send you to my department. You need to go ask
Mr. Craig Franklin why you didn’t get the Sales Supervisor
position.” Bouamama testified that he went to speak to Frank-
lin, whose first words were, “Oh, I thought I took care of
you.” He testified that Franklin said he had to talk to Rechter-
man. Bouamama testified that he had been at work for ten
13088 EEOC v. GO DADDY SOFTWARE
hours at that point, and that he responded, “I’m tired of all
this, I’m going home.”

Rechterman recalled her interaction with Bouamama differ-
ently. She testified that she gave Bouamama a project involv-
ing “conversion rates,” which were the “basis of the analysis
in [her] department,” and that she explained the project to him
twice, initially and when Bouamama came back to her with
questions. She testified that she did not give him a deadline
and that it was “not a difficult project at all.” She further testi-
fied that Bouamama’s final product was “inaccurate” and
“wrong” and that she told him that she “didn’t think it was
going to work out for him in an analytical role.”

On the morning of April 17, 2003, Bouamama called in
sick and went to the EEOC. Bouamama testified that he “was
there to find out what are my rights . . . . I went to EEOC to
find out there is something that is going on to me, do you
think that this company is doing something wrong or not?”
On a questionnaire asking him to describe the harm for which
he was filing a complaint, Bouamama wrote, “in process of
being demoted or choice to walk away. [B]een asked so many
time[s] [w]here I am from and [w]hat religion I practice.”
After completing the questionnaire, Bouamama had a two-
hour interview with an EEOC investigator.

Bouamama testified that he went to work on the afternoon
on April 17, 2003, in response to a telephone call from
Slezak, who said “there is something urgent that we need to
talk about.” He met with Slezak and Franklin. According to
Bouamama, Slezak said, “You did not get the Sales Supervi-
sor position and you’re not going to go back to the floor.” He
testified that she continued, “This is how it is . . . effective
today immediately. You are no longer with the company.” He
testified that Slezak offered him the severance package. When
asked whether Slezak or Franklin offered him the sales repre-
sentative position — i.e., a return to the phones — Bouamama
testified, “No. They never did.” When asked if he would have
 EEOC v. GO DADDY SOFTWARE 13089
taken such a position if it had been offered to him, Bouamama
testified, “I will. I’m not a quitter. I will go back to the floor
and I will prove myself again and I will pro[ve] them wrong.”
When asked if he left his job voluntarily, he testified, “No, I
did not.”

On or before April 29, 2003, Bouamama signed an EEOC
“Charge of Discrimination” form. He stated on the form, inter
alia, that “[o]n April 7, 2003, I was again asked where I was
from, my religion and what languages I spoke. I was told that
if I was not selected for a supervisory position I could ‘go
back to the beginning’ (meaning I could demote to my origi-
nal sales position), or I had a choice to ‘walk away.’ ” When
asked at trial about the EEOC questionnaire he filled out on
April 17 and the Charge of Discrimination form he filled out
on April 29, Bouamama stated, “I told [the EEOC investiga-
tor] that on my initial . . . first meeting with [Slezak], [Ville-
neuve] as when they called me they going to eliminate my
position I have a choice to apply for it . . . or walk away or
go back to the floor.” Both the questionnaire and Charge of
Discrimination form were introduced into evidence.

The EEOC brought suit against Go Daddy in federal dis-
trict court on Bouamama’s behalf, making essentially two
claims — a discrimination claim and a retaliation claim. First,
it claimed that religion and/or national origin was a motivat-
ing factor in Go Daddy’s decision not to promote Bouamama
to Sales Supervisor and in its later decision to terminate him.
Second, it claimed that Go Daddy failed to promote Boua-
mama to the position of Sales Supervisor and later terminated
his employment in retaliation for engaging in protected activi-
ties.

After closing arguments, outside the presence of the jury,
Go Daddy made an oral motion under Rule 50(a) for judg-
ment as a matter of law. In its entirety, the motion was:

With regard to the Commission’s discrimination
claims, Go Daddy believes there’s no legally suffi-
13090 EEOC v. GO DADDY SOFTWARE
cient evidence for a reasonable jury to find for the
Commission. There’s insufficient evidence that any
of the panelists commented on or considered Mr.
Bouamama’s religion or national origin during the
selection process for the Sales Supervisor position.

With regard to a separation, there’s insufficient
evidence that any of the panelists commented on or
considered Mr. Bouamama’s national origin when
they offered him a choice between Sales Representa-
tive — going back to the Sales Representative posi-
tion or offering him a severance agreement.

There’s also insufficient evidence that the panel
considered his religion, Muslim.

With regard to the comparators [sic], there’s insuf-
ficient evidence that Go Daddy treated Mr. Boua-
mama differently than the employees outside his
protected class. There’s been no evidence at trial
regarding the national origin or religion of the suc-
cessful candidates, the unsuccessful candidates, or
the decision-makers in this case.

With regard to the Commission’s retaliation
claim, there hasn’t been any evidence that Miss
Slezak told any other panel members regarding the
alleged reports made to her by Mr. Bouamama. Mr.
Franklin and Mr. Villeneuve both testified that, in
fact, Miss Slezak had not reported any protected
activity to them, and without this knowledge, knowl-
edge by one of the three panel members is insuffi-
cient for the jury to return a verdict on retaliation.

(emphasis added). The only part of the Rule 50(a) motion
relating to the EEOC’s retaliation claim was the italicized
paragraph. The trial court took Go Daddy’s motion “under
advisement” and submitted the case to the jury.
 EEOC v. GO DADDY SOFTWARE 13091
The jury returned a verdict in favor of the EEOC on the
retaliation claim. The jury otherwise returned a verdict in
favor of Go Daddy. The jury awarded Bouamama $5,000 for
mental and emotional pain and suffering and $135,000 for lost
earnings. The jury also awarded $250,000 in punitive dam-
ages.

Following the verdict, Go Daddy filed a renewed motion
for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b). In its renewed motion, Go Daddy argued,
“Plaintiff failed to present sufficient evidence for a reasonable
trier of fact (1) to determine that Bouamama engaged in pro-
tected activity under Title VII to support a retaliation claim,
or (2) to determine that a causal connection existed between
Bouamama’s alleged complaint to Heather Slezak (“Slezak”)
and his alleged termination.” In the alternative, Go Daddy
moved for a new trial under Rule 59(a). Go Daddy also
moved to reduce the total jury award to $200,000 under 42
U.S.C. § 1981a. The EEOC moved for equitable relief,
including “back pay with prejudgment interest” and “rein-
statement and/or front pay.”

The district court denied Go Daddy’s Rule 50(b) and Rule
59(a) motions. The court granted Go Daddy’s motion to
reduce the jury’s total damage award to $200,000. The court
granted the EEOC’s motion in part, awarding Bouamama
$36,552 in back pay and $5,156 in prejudgment interest, but
declining to order that he be reinstated.

Go Daddy appeals the district court’s denial of its Rule
50(b) motion for judgment as a matter of law and its Rule
59(a) motion for a new trial. For the reasons that follow, we
affirm the district court.

II. Standard of Review

“We review de novo the district court’s denial of a renewed
motion for judgment as a matter of law” under Rule 50(b).
13092 EEOC v. GO DADDY SOFTWARE
Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006).
“[I]n entertaining a motion for judgment as a matter of law,
the court . . . may not make credibility determinations or
weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). Rather, “[w]e must view the
evidence in the light most favorable to the nonmoving party
. . . and draw all reasonable inferences in that party’s favor.”
Josephs, 443 F.3d at 1062. “The test applied is whether the
evidence permits only one reasonable conclusion, and that
conclusion is contrary to the jury’s verdict.” Id.

A Rule 50(b) motion for judgment as a matter of law is not
a freestanding motion. Rather, it is a renewed Rule 50(a)
motion. Under Rule 50, a party must make a Rule 50(a)
motion for judgment as a matter of law before a case is sub-
mitted to the jury. If the judge denies or defers ruling on the
motion, and if the jury then returns a verdict against the mov-
ing party, the party may renew its motion under Rule 50(b).
Because it is a renewed motion, a proper post-verdict Rule
50(b) motion is limited to the grounds asserted in the pre-
deliberation Rule 50(a) motion. Thus, a party cannot properly
“raise arguments in its post-trial motion for judgment as a
matter of law under Rule 50(b) that it did not raise in its pre-
verdict Rule 50(a) motion.” Freund v. Nycomed Amersham,
347 F.3d 752, 761 (9th Cir. 2003) (citing Fed. R. Civ. P. 50
advisory committee’s notes to the 1991 amendments (“A post
trial motion for judgment can be granted only on grounds
advanced in the pre-verdict motion.”)); Murphy v. City of
Long Beach, 914 F.2d 183, 186 (9th Cir.1990) (“[Judgment
notwithstanding the verdict] is improper if based upon
grounds not alleged in a directed verdict [motion].” (brackets
in original)); see also Fed. R. Civ. P. 50 advisory committee’s
notes to the 2006 amendments (“Because the Rule 50(b)
motion is only a renewal of the preverdict motion, it can be
granted only on grounds advanced in the preverdict motion.”).
However, Rule 50(b) “may be satisfied by an ambiguous or
inartfully made motion” under Rule 50(a). Reeves v. Teus-
cher, 881 F.2d 1495, 1498 (9th Cir. 1989). Absent such a lib-
 EEOC v. GO DADDY SOFTWARE 13093
eral interpretation, “the rule is a harsh one.” Nat’l Indus., Inc.
v. Sharon Steel Corp., 781 F.2d 1545, 1549 (11th Cir. 1986).

We review a jury’s verdict for substantial evidence in rul-
ing on a properly made motion under Rule 50(b). Janes v.
Wal-Mart Stores, Inc., 279 F.3d 883, 888 (9th Cir. 2002).
However, in ruling on a Rule 50(b) motion based on grounds
not previously asserted in a Rule 50(a) motion, “we are lim-
ited to reviewing the jury’s verdict for plain error, and should
reverse only if such plain error would result in a manifest mis-
carriage of justice.” Id. (internal quotation marks and citation
omitted); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259
F.3d 1101, 1109 (9th Cir. 2001). “This exception . . . permits
only extraordinarily deferential review that is limited to
whether there was any evidence to support the jury’s verdict.”
Id.

We review the district court’s ruling on a motion for a new
trial under Rule 59(a) for an abuse of discretion. McEuin v.
Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003).
The district court’s denial of a motion for a new trial is revers-
ible “only if the record contains no evidence in support of the
verdict” or if the district court “made a mistake of law.” Mol-
ski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)
(internal quotation marks and citations omitted).

III. Discussion

We divide our discussion into two parts. First, we address
Go Daddy’s appeal of the district court’s denial of its motion
under Rule 50(b) for judgment as a matter of law. Second, we
address Go Daddy’s appeal of the district court’s denial of its
motion under Rule 59(a) for a new trial.

A. Rule 50(b) Motion for Judgment as a Matter of Law

The entirety of Go Daddy’s Rule 50(a) argument in the dis-
trict court on the EEOC’s retaliation claim was as follows:
13094 EEOC v. GO DADDY SOFTWARE
With regard to the Commission’s retaliation claim,
there hasn’t been any evidence that Miss Slezak told
any other panel members regarding the alleged
reports made to her by Mr. Bouamama. Mr. Franklin
and Mr. Villeneuve both testified that, in fact, Miss
Slezak had not reported any protected activity to
them, and without this knowledge, knowledge by
one of the three panel members is insufficient for the
jury to return a verdict on retaliation.

Go Daddy made two arguments in the district court in support
of its Rule 50(b) motion on the EEOC’s retaliation claim. It
repeats those same two arguments to us on appeal.

Go Daddy’s first argument in its Rule 50(b) motion is that
there was insufficient evidence at trial to show Bouamama
engaged in protected activity. Depending on the circum-
stances, reports of improper workplace behavior can be pro-
tected activity under Title VII. Go Daddy contends that it
argued in its Rule 50(a) motion that there was insufficient evi-
dence of protected activity by referring to Bouamama’s “re-
ports” to Slezak as “alleged.” The use of the word “alleged”
can be read as an attempt to maintain Go Daddy’s position,
presented through Slezak’s testimony, that Bouamama never
registered any complaints about his treatment at Go Daddy.
The word “alleged,” however, does not advance the argument
that any reports Bouamama actually made were not protected
activity.

Go Daddy’s second argument in its Rule 50(b) motion is
that even if there were sufficient evidence that Bouamama
engaged in protected activity, there was insufficient evidence
that Go Daddy terminated him because of this activity. There
are two parts to this argument. First, Go Daddy argues that
there was insufficient evidence that Slezak told Franklin and
Villeneuve about Bouamama’s reports to her. The logical
extension of this argument is that if Slezak did not tell them
of Bouamama’s reports to her, those reports could not have
 EEOC v. GO DADDY SOFTWARE 13095
motivated Franklin to terminate Bouamama. Read fairly, Go
Daddy made this argument, and its logical extension, in its
Rule 50(a) motion. Second, Go Daddy argues that Franklin
had decided to terminate Bouamama on April 4, three days
before Bouamama spoke to Slezak. Therefore, Go Daddy
argues, Bouamama’s protected activity could not have moti-
vated his termination. To the extent that this argument relies
on anything other than Go Daddy’s argument that there was
insufficient evidence that Slezak told Franklin and Villeneuve
about Bouamama’s reports, it was not made in Go Daddy’s
Rule 50(a) motion.

We evaluate Go Daddy’s argument that any reports Boua-
mama made were not protected activity under the deferential
plain error standard applicable to arguments not made in a
Rule 50(a) motion. We also evaluate Go Daddy’s argument
that there was insufficient evidence that Franklin made the
decision to terminate Bouamama after Bouamama engaged in
protected activity under the plain error standard. Under that
standard, if there is “any evidence” to support the jury’s ver-
dict, it must be upheld. Yeti by Molly, 259 F.3d at 1109.

We evaluate Go Daddy’s arguments that there was insuffi-
cient evidence both that Bouamama complained to Slezak and
that Slezak told Franklin and Villeneuve about Bouamama’s
reports under the substantial evidence standard applicable to
arguments made in a Rule 50(a) motion. Under that standard,
the jury’s verdict must be upheld if there is “evidence ade-
quate to support the jury’s conclusion, even if it is also possi-
ble to draw a contrary conclusion.” Pavao v. Pagay, 307 F.3d
915, 918 (9th Cir. 2002).

1. Protected Activity

[1] Under Title VII of the Civil Rights Act, an employer
cannot “discharge any individual, or otherwise . . . discrimi-
nate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
13096 EEOC v. GO DADDY SOFTWARE
such individual’s . . . religion . . . or national origin.” 42
U.S.C. § 2000e-2(a)(1). An employer cannot retaliate against
an employee for “oppos[ing] any practice made an unlawful
employment practice by this subchapter.” Id. § 2000e-3(a).
Under the latter provision, a complaint by an employee that
a supervisor has violated Title VII may constitute protected
activity for which the employer cannot lawfully retaliate. See
Trent v. Valley Elec. Ass’n, Inc., 41 F.3d 524, 526 (9th Cir.
1994).

In its brief to us, Go Daddy makes two specific arguments
in support of its argument that there is insufficient evidence
that Bouamama engaged in protected activity.

[2] First, Go Daddy argues that the jury should not have
believed that Bouamama complained to Slezak about what he
claimed to perceive as discrimination. In his testimony,
quoted above, Bouamama stated that he complained to Slezak
either two or three times about what he perceived as discrimi-
natory comments. Slezak testified that he never complained to
her. Under the substantial evidence standard, we hold that
Bouamama’s testimony is adequate to support the jury’s con-
clusion that Bouamama was more credible on this point, even
though it might have been “possible to draw a contrary con-
clusion.” Pavao, 307 F.3d at 918.

[3] Second, Go Daddy argues that even if Bouamama did
complain to Slezak, this was not protected activity under the
Supreme Court’s decision in Clark County School District v.
Breeden, 532 U.S. 268 (2001). In Breeden, the Court held that
“offhand comments, and isolated incidents (unless extremely
serious)” do not amount to discrimination. Id. at 271 (internal
quotation marks omitted). If a person has been subjected to
only an isolated incident, a complaint about that incident does
not constitute protected activity unless a reasonable person
would believe that the isolated incident violated Title VII.
This reasonable person determination requires “[l]ooking at
all the circumstances, including the frequency of the discrimi-
 EEOC v. GO DADDY SOFTWARE 13097
natory conduct[ ] [and] its severity,” Breeden, 532 U.S. at
270-71 (internal quotation marks omitted).

Go Daddy insists in its brief that Bouamama’s complaint to
Slezak on April 7 about his exchange with Franklin earlier in
the day was, at most, a complaint about an “offhand com-
ment” or an “isolated incident.” It writes, “Even assuming the
jury completely bought Bouamama’s testimony about his
alleged single complaint to Slezak on April 7, 2003[,] about
an incident that occurred earlier that same day, that conduct
fails to reach the bar set [by] the United States Supreme Court
in [Breeden].” (emphasis in original).

Go Daddy’s argument ignores Bouamama’s actual testi-
mony. As recounted above, Bouamama testified that he com-
plained to Slezak two or three times about comments that had
been made about his national origin and religion. His com-
plaint on April 7 about Franklin’s comments was only the lat-
est of these. In his testimony, he specifically recounted that he
had previously complained to Slezak about a conversation in
which Villeneuve, his supervisor, asked about the languages
he spoke (French and Arabic) and about his religion (Mus-
lim).

[4] Bouamama also testified that Villeneuve later made a
comment near his cubicle, “The Muslims need to die. The
bastard Muslims need to die.” However, he testified that he
did not complain on that occasion because “[t]here’s a culture
in Go Daddy. You complain you get fired.” The fact that
Bouamama did not report these comments does not make
them irrelevant to the inquiry concerning the reasonableness
of his belief that a violation of Title VII had occurred.

“Looking at all the circumstances” requires us to take note
not only of all comments of which Bouamama complained
but also of the context in which they were made. Franklin’s
comments on April 7 were not “isolated” from the terms and
conditions of Bouamama’s employment. At the time of those
13098 EEOC v. GO DADDY SOFTWARE
comments, Bouamama had just received word that his posi-
tion had been eliminated and that his only option to avoid
demotion involved an application process to be headed by
Franklin. There is, thus, a strong nexus between Franklin’s
comments and the terms of Bouamama’s continued employ-
ment, as noted by Bouamama himself in his final report to
Slezak.

[5] Further, if a person has been subjected to more than one
comment, and if those comments, taken together, would be
considered by a reasonable person to violate Title VII, that
person need not complain specifically about all of the com-
ments to which he or she has been subjected. Unreported
comments, in other words, are relevant to the inquiry concern-
ing the reasonableness of the belief that a violation has
occurred. In such circumstances, a complaint about one or
more of these comments is protected behavior. We do not
read Breeden to require more.

[6] There is, therefore, evidence to support a reasonable
person’s conclusion that the conduct to which Bouamama had
been subjected at Go Daddy went beyond mere “offhand
comments” and “isolated incidents,” id. at 271, and that Boua-
mama’s two, and possibly three, complaints to Slezak were
therefore protected activity. We hold that this testimony satis-
fies the “any evidence” standard applicable to a faulty Rule
50(b) motion. Yeti by Molly, 259 F.3d at 1109.

2. Causation

We evaluate separately each of Go Daddy’s two specific
arguments in support of its argument that there was insuffi-
cient evidence to support a conclusion that Bouamama’s com-
plaints to Slezak motivated Go Daddy’s decision to terminate
him.
 EEOC v. GO DADDY SOFTWARE 13099
a. Evidence that Slezak Told Franklin about
Bouamama’s Complaints

Bouamama testified that he complained about Franklin to
Slezak on April 7, 2003. Slezak testified that on April 9 and
10, 2003, she and Franklin, along with Villeneuve, inter-
viewed 14 candidates for the Sales Supervisor positions. After
the interviews were complete, she testified that “the three of
us, [Franklin], [Villeneuve], and myself . . . started to talk
about the candidates.” She further testified that on April 11
and 14, 2003, she, Franklin, and Villeneuve met with all 14
of the candidates individually to tell them whether they were
selected. Franklin corroborated this testimony. Bouamama
testified that on April 14, 2003, when he passed Franklin’s
office and Franklin said “come here, the F word,” Slezak was
in Franklin’s office.

The district court found, “Mr. Bouamama testified that he
was terminated by Mr. Franklin and Ms. Slezak. He also testi-
fied that he complained to Ms. Slezak about discriminatory
conduct by Mr. Franklin only days before his termination . . . .
[T]he Court concludes that the jury reasonably could have
found that both Mr. Franklin and Ms. Slezak were aware of
the protected activity and that their termination of Mr. Boua-
mama was in response to that activity.”

[7] We agree with the district court. A reasonable jury hear-
ing the testimony just recounted could have concluded that
Slezak had ample opportunities to inform Franklin of Boua-
mama’s complaint and had, in fact, done so. We therefore
hold, under the substantial evidence standard, applicable to a
properly made Rule 50(b) motion, that there was sufficient
evidence to support the jury’s conclusion.

b. Evidence that Go Daddy Decided on April 4 to
Terminate Bouamama

Nothing in the record supports a conclusion that Go Daddy
decided on April 4 to terminate Bouamama. Bouamama testi-
13100 EEOC v. GO DADDY SOFTWARE
fied specifically to the contrary, as did Villeneuve, Franklin,
and Slezak.

Bouamama testified that he was told during his meeting
with Slezak, Franklin, and Villeneuve on April 4 that his posi-
tion was being eliminated and that he could apply for one of
the new Sales Supervisor positions, or that he could “walk
away.” Later, in response to a separate question about the
April 4 meeting, Bouamama testified, “They told me that, you
know, you can apply for this position and — you know, or
you can walk away.” As Bouamama understood the phrase,
being told that he could “walk away” did not mean that he
was fired. Rather, as recounted above, Bouamama specifically
testified that “walk away” meant that he could “quit on his
own.”

Bouamama also testified that he had been given the option
to apply for one of the new Sales Supervisor positions “or
walk away or go back to the floor“ (emphasis added). This
statement is consistent with what Bouamama wrote on the
EEOC questionnaire that he filled out on the morning of April
17, before he was terminated. He wrote that he was “in pro-
cess of being demoted or choice to walk away.” It is also con-
sistent with his statement on the EEOC Charge of
Discrimination form: “I was told that if I was not selected for
a supervisory position I could ‘go back to the beginning’
(meaning I could demote to my original sales position), or I
had a choice to ‘walk away.’ ”

Villeneuve testified that unsuccessful applicants for the
Sales Supervisor positions “could go back to the phones.”
Franklin testified that “we encouraged” applicants who did
not get the Sales Supervisor position “to go back to the
phones.” Slezak testified that on April 14, 2003, after telling
Bouamama that he did not get the Sales Supervisor position,
“We thanked him for his time, encouraged him to stay with
the organization because there would be opportunity in the
 EEOC v. GO DADDY SOFTWARE 13101
future, and presented him the same options to retain a position
. . . or take a severance package and leave the company.”

Based on this testimony, the jury could reasonably con-
clude that at the time of his meeting with the panel on April
14, 2003, Bouamama had the option of returning to his origi-
nal sales position at Go Daddy.

Bouamama’s and Rechterman’s testimony about the addi-
tional project assigned to Bouamama are also inconsistent
with an April 4 decision to terminate. A jury could very rea-
sonably conclude that the assignment of a new project on
April 15 contradicts the assertion Go Daddy now makes.
Indeed, the very fact that Bouamama was still at work at Go
Daddy on April 15 (and apparently still employed on April 17
when he called in sick) belies a decision to terminate on April
4. By April 14, Go Daddy had eliminated Bouamama’s posi-
tion and determined that he would not receive one of the Sales
Supervisor assignments. Yet he continued to show up at work
and to complete assignments, even new ones.

[8] To understate the matter, there is evidence that Go
Daddy’s decision to terminate Bouamama was not made on
April 4, but rather was made sometime between April 14,
when he was told he could return to his original sales position,
and April 17, when he was told that he was terminated. We
hold that this evidence satisfies the “any evidence” standard
applicable to a faulty Rule 50(b) motion. Yeti by Molly, 259
F.3d at 1109.

B. Motion for New Trial

[9] In support of its Rule 59(a) motion for a new trial, Go
Daddy essentially repeats the same arguments that we have
examined and rejected above. Because the record contains
“evidence in support of the verdict,” and because Go Daddy
has failed to show that the district court “made a mistake of
law,” the district court did not abuse its discretion in denying
13102 EEOC v. GO DADDY SOFTWARE
Go Daddy’s motion for a new trial. Molski, 481 F.3d at 729
(internal quotation marks omitted).

Conclusion

For the foregoing reasons, we affirm the district court’s
denial of Go Daddy’s motion for judgment as a matter of law
under Rule 50(a), and we affirm the district court’s denial of
Go Daddy’s motion for a new trial under Rule 59(a).

NOONAN, Circuit Judge, dissenting:

Summary. Summing up the evidence supporting the jury
verdict of retaliation by Go Daddy, the majority concludes:

There is, therefore, evidence to support a reason-
able person’s conclusion that the conduct to which
Bouamama had been subjected at Go Daddy went
beyond mere “offhand comments” and “isolated
incidents,” Breeden at 271, and that Bouamama’s
two, and possibly three, complaints to Slezak were
therefore protected activity. We hold that this testi-
mony satisfies the “any evidence” standard.

Two conversations were reported to Slezak. No evidence
was offered of a “possible” third. No rational person could
have thought that the two conversations with two different
men in different contexts and at widely separated times con-
stituted a pattern of discriminatory conduct by Go Daddy.
Even the jury did not think they did, returning an answer of
“No” to the question asking if Go Daddy had discriminated.
If a reasonable person could believe, albeit mistakenly, that he
was reporting and opposing a pattern of discrimination, his
opposition would be protected. But Bouamama did not report
a pattern. At most he reported a single sentence that he
deemed discriminatory. So, the evidence that the majority
 EEOC v. GO DADDY SOFTWARE 13103
finds supports the jury’s findings of liability and imposition
of punitive damages is what? If Bouamama did not report dis-
crimination, what did Go Daddy retaliate against? The major-
ity, combing for straws, has not provided any pattern of
protected activity on which the retaliation claim could stand.

The majority opinion. The majority opinion sets out care-
fully and conscientiously the evidence it finds relevant. Faith-
ful to stating the facts, the majority characterizes them in a
way that they appear to affirmatively answer the three ques-
tions that the jury had to answer affirmatively in order to find
in favor of Bouamama, so that the conclusion is:

(1) Bouamama engaged in protected activity, that is, oppos-
ing discrimination under Title VII.

(2) The company . . . terminated him.

(3) The protected activity was a substantial or motivating
factor in the company’s action. See EEOC v. Crown Zeller-
bach Corp., 720 F.2d 1008, 1012 (9th Cir. 1983).

The jury found that neither Bouamama’s Moroccan origin
nor his Moslem religion motivated Go-Daddy’s decision not
to promote him to Sales Supervisor. The jury also found that
Go-Daddy terminated Bouamama “in retaliation for his
engaging in a protected activity” and that Go-Daddy acted
with malice or reckless indifference to his protected activity.
The jury awarded $5,000 for mental and emotional distress,
$135,000 for lost earnings, and $250,000 in punitive damages.

Was there any evidence that Go-Daddy retaliated for Boua-
mama’s performance of protected acts opposing a discrimina-
tion employment practice?

Not every report of an event that an employee perceives as
discriminatory activity is protected. In order to constitute pro-
tected activity, a complaint must be based on an employee’s
13104 EEOC v. GO DADDY SOFTWARE
“reasonable belief” that he is reporting conduct that violates
Title VII. See Learned v. City of Bellevue, 860 F.2d 928, 932
(9th Cir. 1988). What the employee opposes must be “a prac-
tice.” Trent v. Valley Elec. Ass’n, 41 F.3d 524, 526 (9th Cir.
1994).

Bouamama’s alleged protected activity. Let’s look at what
the majority characterizes as Bouamama’s protected activity:

(1) In December 2001 or January 2002, Villeneuve, hearing
Bouamama dealing with a caller in French, asked Bouamama
what languages he spoke. He answered, “French and Arabic.”
In Villeneuve’s view Bouamama’s fluency was an asset.
Bouamama produced no evidence of a contrary evaluation.
Villeneuve added to his question about language by asking
Bouamama’s country of origin and religion. Villeneuve
offered no comment on them.

Six months after the questions had been asked, Bouamama
told Heather Slezak in Human Resources of the questions. In
the meantime, Villeneuve had given Bouamama a promotion
and a big increase in salary. It is difficult to understand why,
six months after the conversation, Bouamama would com-
plain about it. It is even more difficult to construe two ques-
tions following up Bouamama’s knowledge of foreign
languages as “discriminatory behavior.” It is impossible to see
Bouamama’s conversation with Slezak as an employee oppos-
ing unlawful discrimination.

The majority, however, colors Bouamama’s conversation
with Slezak by what Bouamama did not say to her. At some
undetermined time but after 9/11/01, Bouamama heard Ville-
neuve talking to other employees in a hallway near Bouama-
ma’s cubicle. Villeneuve said, “The Muslims need to die. The
bastard Muslims need to die.” Bouamama was not the
addressee of this comment. He did not report it to anyone. His
memory of it was disclosed at trial. It is difficult to understand
the remark as other than random, not aimed at Bouamama,
 EEOC v. GO DADDY SOFTWARE 13105
and expressing what many Americans may have thought
about “the bastard Muslims,” i.e., the terrorists who had
rained terror on New York on 9/11. As Bouamama himself
testified, “I understand maybe the anger that some people are
expressing.” Bouamama did not complain about what he
overheard. It is not even clear that he heard the remarks
before he told Slezak about the December 2001 conversation.
By no stretch were the remarks indicative of any employment
practice. Therefore, the chance and unreported remarks gener-
ated no protected activity and are irrelevant to Bouamama’s
claim of retaliation.

(2) On April 1, 2003, Craig Franklin replaced Villeneuve
as Bouamama’s immediate supervisor. On April 7, Franklin
entered Bouamama’s cubicle and began to converse with him.
In Bouamama’s mind “trouble started” when Franklin asked
where the pictures decorating the cubicle came from. Boua-
mama answered, “Morocco.” Franklin asked him if he were
from Morocco and if he were Moslem. Bouamama answered,
“Yes.” Franklin said, “You know you’re lucky that I like
you.” That afternoon, Bouamama told Slezak of the conversa-
tion.

It is possible to interpret Franklin’s ambiguous “You’re
lucky . . .” as an implicitly negative comment on Bouamama’s
origin and religion. However, even if this interpretation is
made, Bouamama’s report to Slezak could not be classified as
an instance of protected activity. Franklin’s comment is sim-
ply one remark made by a new man on the job. A “recurring
point in [our] opinions is that simple teasing, offhand com-
ments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the ‘terms and condi-
tions of employment.’ ” Faragher v. City of Boca Raton, 524
U.S. 775, 778 (1998) (citation omitted).

The majority cites Bouamama’s testimony that he com-
plained to Slezak “two or three times.” Bouamama identifies
his report on the conversation with Franklin as “the second
13106 EEOC v. GO DADDY SOFTWARE
time” he complained. The record is bare of any other com-
plaint.

Franklin’s conversation cannot be read together with Ville-
neuve’s earlier remarks to form a pattern that any reasonable
person could interpret as discriminatory. No evidence exists
of any relation whatsoever between Franklin’s words and
Villeneuve’s. There is no pattern of an employment practice
created by the two conversations. No reasonable person could
use Villeneuve’s earlier conversation, which, as already
noted, was entirely unremarkable and led on to no negative
effects for Bouamama, to interpret Franklin’s remarks of over
one year later to be more than an “isolated incident.”

The termination. As the majority relates, upon taking over
on April 1, 2003, Franklin immediately reorganized the call
center where Bouamama worked, eliminating 13 positions
including Bouamama’s. There is no suggestion that the reor-
ganization had any discriminatory motive. On April 4, Frank-
lin, Villeneuve, and Slezak told Bouamama that his job was
being eliminated. He was told he could apply for a new Sales
Supervisor position or “walk away.”

On April 7-9, 2003, Franklin, Villeneuve, and Slezak inter-
viewed 13 candidates for the Sales Supervisor position and
hired 6, not including Bouamama, who was rated “near the
bottom.” Bouamama learned that he had not been promoted
on April 14. After unsuccessfully doing a marketing report on
April 15 for another department of the company, he ended his
employment on April 17.

Bouamama’s own testimony demonstrates that he believed
that Go Daddy terminated him on April 4 unless he won a
promotion to the Sales Supervisor position. But the date of
April 4 is not critical to this case. Accepting the majority’s
view that he was terminated April 17, there is no evidence in
the record that Bouamama engaged in any protected activity
or that any such activity was the cause of an employment
 EEOC v. GO DADDY SOFTWARE 13107
action. Bouamama never reported Villeneuve’s undated com-
ment about “bastard Muslims” and so it is irrelevant to Boua-
mama’s claim of retaliation: Go Daddy cannot have retaliated
for a report that was never made. As for what Bouamama did
report, neither Villeneuve’s questions nor Franklin’s April 7
comment to Bouamama could have been taken by any reason-
able person to be a practice affecting the terms and conditions
of employment in violation of Title VII. Bouamama’s reports
of those incidents were not protected activity opposing dis-
crimination by the employer.

Conclusion. The majority cites the controlling law, Clark
County Sch. Dist. v. Breeden, 532 U.S. 268 (2001). Unani-
mously reversing our court in a per curiam opinion, the
Supreme Court corrected a memorandum disposition of this
circuit in favor of Shirley Breeden, an employee who reported
an employer’s crude sexual comment. The circuit had held
that the report was protected activity if Breeden had a good
faith belief that the remark was unlawful sexual harassment.
The Supreme Court pointed out that Title VII forbids actions
that discriminate “with respect to [an individual’s] compensa-
tion, terms, conditions, or privileges of employment,” Id. at
270, citing 42 U.S.C. § 2000e-2(a)(1). Workplace behavior,
the Supreme Court explained, must be measured “by ‘looking
at all the circumstances,’ including the frequency of the dis-
criminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee’s work
performance.” Id. at 270-271, quoting Farragher, quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). If the
employee here experienced more than Shirley Breeden did, it
does not appear on this record.

In the present case, the EEOC has produced zero evidence
of protected activity affecting Bouamama’s conditions of
employment. The six months late report of Villeneuve’s ques-
tions was not protected activity. The overhearing of Ville-
neuve’s reaction to 9/11 did not give rise to a reasonable
13108 EEOC v. GO DADDY SOFTWARE
belief that Bouamama’s patron and promoter was engaged in
unlawful discrimination affecting his employment, nor did
this belief lead Bouamama to oppose any employment prac-
tice.

The April 7 report of Franklin’s single sentence was, at
most, the report of an offhand, isolated comment. Was Frank-
lin’s ambiguous comment repeated? No. Was it physically
threatening or humiliating? No. Did it interfere with Bouama-
ma’s work performance? No. Did it affect his compensation?
No. Did it affect his promotion to Sales Supervisor? No. Can
this second report to Slezak show a pattern or practice of dis-
criminatory conduct? No. No evidence, under the standard set
by the Supreme Court, supported the jury’s verdict.

I accept the majority’s view that we review the jury’s ver-
dict under the plain error standard. Jury verdicts deserve all
the deference that the law wisely accords them. But appellate
courts, too, have a function in reviewing what the jury did. If
there is any evidence that Bouamama opposed an unlawful
employment practice, the verdict should stand. There is none.
The result of the trial was a miscarriage of justice. The affir-
mation of that result is made quoting the United States
Supreme Court and flouting its holdings in Harris, Farragher
and Breeden.

I dissent.