United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 9, 2007
_______________________ Charles R. Fulbruge III
Clerk
No. 05-50362
_______________________
MIKE ADAMS,
Plaintiff - Appellee Cross Appellant,
versus
GROESBECK INDEPENDENT SCHOOL DISTRICT; ET AL.,
Defendants,
GROESBECK INDEPENDENT SCHOOL DISTRICT,
Defendant - Appellant Cross Appellee
Appeals from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and SMITH and STEWART,* Circuit
Judges.
EDITH H. JONES, Chief Judge:
Groesbeck Independent School District (“Groesbeck”)
appeals the district court’s denial of its motion for judgment as
a matter of law after a jury verdict in favor of Mike Adams, a
former girls’ athletic coach, on his Title VII retaliation claim.
Groesbeck argues that Adams failed to establish retaliation as a
matter of law because there was no “available” position for which
he applied. Because no reasonable jury could have found that there
*
Judge Stewart concurs in the judgment only.
was an available position, we REVERSE and RENDER judgment in favor
of Groesbeck.
I. BACKGROUND
Mike Adams began working for Groesbeck Independent School
District in 1971 as a teacher and coach. In 1998, he and his wife
Allison Adams, also a teacher and coach, worked at the Groesbeck
middle school. Groesbeck requires that its coaches also teach.
Groesbeck did not renew Adams’s contract for the 2000-01
school year because of complaints regarding his coaching abilities.
Adams’s position at the middle school was not filled, and the
nonrenewal of his contract reduced the girls sports coaching staff
from three to two. The remaining coaches for the 2000-01 school
year were Allison Adams and Allen Grimes.
Before the start of the 2000-01 school year, Adams filed
his first suit against Groesbeck in June 1999, alleging violations
of Title VII. The parties settled this suit in January 2001. The
terms of the settlement did not prohibit Adams from reapplying for
employment with Groesbeck.
The 1999-2000 school year began with the same two coaches
for girls sports as the previous year, Allison Adams and Grimes.
This continued until Groesbeck placed Grimes on administrative
leave in October 2001. Groesbeck determined that a long-term
substitute teacher would be needed and selected Michael Milnes, who
had previously applied to work as a substitute teacher, to cover
2
Grimes’s teaching responsibilities. After Adams learned of
Grimes’s status in October 2001, he submitted an application for
the position of girls middle school coach, even though no coaching
position had been advertised. Adams did not apply for a substitute
teaching position. While Milnes had been covering Grimes’s
teaching duties, Milnes had no coaching responsibilities. Allison
Adams became the only girls coach. Groesbeck convinced several
high school girls coaches to help Allison Adams with the middle
school girls coaching responsibilities.
In December 2001, Grimes had resigned and Groesbeck
officials met to decide how to address Grimes’s teaching and
coaching responsibilities for the Spring 2002 semester. The middle
school principal, Karon Golden, decided that she would delay hiring
a new teacher/coach to replace Grimes until the 2002-03 school year
because she wanted extra time to analyze the middle school’s needs
for the next year. Principal Golden believed that a new teacher
was not needed because several of Grimes’s classes either had no or
very few students assigned. Instead of hiring a new teacher,
Principal Golden reassigned the students in Grimes’s classes to
other teachers. Milnes became an instructional aide to the
teachers who took on the additional students. The high school
coaches continued assisting Allison Adams with her coaching
responsibilities. Principal Golden testified that she made these
decisions without knowing that Adams had submitted an application.
Groesbeck’s superintendent approved Golden’s suggestion. Groesbeck
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did not post a job announcement, review submitted applications, or
interview anyone for a teacher/coach position in the Spring 2002
semester.
Allison Adams complained to Athletic Director Richie
Coutrer in February 2002 about Groesbeck’s handling of Grimes’s
coaching responsibilities. She believed Groesbeck should have
hired another coach and stated that her husband, Mike Adams, had
applied. Allison Adams testified that Coutrer told her that no
qualified applicants had applied and that he could not hire Mike
Adams because of his previous lawsuit. Coutrer disputed this
testimony, however; he recalled telling Allison Adams that the
school could not hire Mike Adams because there was no job opening,
and he denied stating that Adams could not be hired because of his
previous lawsuit.
In April 2003, Adams sued Groesbeck under Title VII for
not rehiring him, alleging that the school district had retaliated
against him for filing his previous suit. The jury returned a
verdict in his favor, and the court entered judgment. Because the
district court denied Groesbeck’s and Adams’s post-judgment
motions, both parties have appealed.1
II. DISCUSSION
1
Groesbeck sought judgment as a matter of law or a new trial on a
number of grounds, while Adams moved for an additur and injunctive relief. We
need only address the issue that is dispositive for Groesbeck.
4
Groesbeck argues that Adams did not apply for an
available position, because the middle school had decided not to
fill Grimes’s spot in the spring semester. Consequently, Adams
could not prove that he endured an adverse employment action by
Groesbeck.
The district court’s denial of Groesbeck’s motion for
judgment as a matter of law is reviewed de novo, applying the same
standards as the district court. Int’l Ins. Co. v. RSR Corp.,
426 F.3d 281, 296 (5th Cir. 2005). The court must “draw all
reasonable inferences and resolve all credibility determinations in
the light most favorable to the nonmoving party,” id., and the jury
verdict must be upheld unless “there is no legally sufficient
evidentiary basis for a reasonable jury” to have found for the
nonmovant. FED. R. CIV. P. 50(a)(1); RSR Corp., 426 F.3d at 296-97.
To establish a Title VII retaliation case, Adams was
required to prove that he engaged in protected activity; he
suffered from an adverse employment action; and there was a causal
connection between the activity and the adverse employment
decision. Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir.
2000). Post-trial, the McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817 (1973), framework becomes moot, and the
question is whether legally sufficient evidence supported the
jury’s finding in Adams’s favor. Bryant v. Compass Group USA Inc.,
413 F.3d 471, 476 (5th Cir. 2005), cert. denied, 126 S. Ct. 1027
(2006).
5
Adams’s case was built on the contention that Groesbeck
failed to hire him as a coach in the Spring 2002 Semester in
retaliation for his previous successful Title VII suit against the
district. His case breaks down if Groesbeck did not have an
opening for a full-time middle school coach at that time. An
employer does not discriminate or retaliate illegally if it has no
job opening. See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d
318, 325 (5th Cir. 2002) (“The nonexistence of an available
position is a legitimate reason not to promote.”) (citing Int’l Bd.
of Teamsters v. United States, 431 U.S. 324, 358 n.44, 97 S. Ct
1843, 1866 n.44 (1977)); Haynes, 207 F.3d at 300-01 (plaintiff
failed to establish a prima facie case of discrimination because
the position he was qualified for was unavailable).
Adams asserts that the jury resolved disputed evidence
and found that Groesbeck had an available position for a middle
school teacher/coach commencing in October 2001 for which he
applied. A careful review of the record shows differently. After
Grimes was placed on administrative leave, the district did not
post a job announcement, nor did its employees review resumes or
interview any candidates to fill his position. Instead, as has
been detailed above, Principal Golden and Superintendent Rosas
determined that Grimes’s teaching duties could be covered by a
long-term substitute and selected an appropriate candidate from the
substitute list. Adams did not apply to be a substitute teacher.
6
Instead, he submitted an unsolicited application for the full-time
position of girls middle school coach.2
Adams relies upon his wife’s testimony to establish that
there was an available position. When Allison complained to
Athletic Director Coutrer about the need for another coach,
Coutrer allegedly responded that there were no qualified applicants
to help her coach the girls teams and that he could not hire her
husband because of the previous lawsuit. While Coutrer’s statement
is the linchpin of the retaliatory motive evidence, the evidence
also demonstrated beyond question that Coutrer was not responsible
within the district for deciding whether there was an available
position at the middle school in the spring semester. See, e.g.,
Keelan v. Majesco Software, Inc., 407 F.3d 332, 346 (5th Cir. 2005)
(“Keelan does not allege and presents no evidence here that the
Majesco personnel who made the remarks were involved in or
influenced the decision to fire him or that those remarks were made
in connection with his discharge.”); see also Scales v. Slater, 181
F.3d 703, 712 (5th Cir. 1999). Moreover, Allison Adams’s desire
that her husband be hired to assist with her coaching duties does
not establish the existence of an available position.
2
The jury’s damage award strongly suggests that the jury was
erroneously instructed on this point, leading to its confused conclusion that
Adams applied for an available position. The jury awarded Adams $5,400 in lost
wages, roughly the amount he would have earned as a long-term substitute teacher.
The jury apparently believed that the wages paid to Milnes, the long-term
substitute teacher, should have been paid to Adams, even though Adams did not
apply for this position.
7
Adams points to the testimony of Superintendent Glynis
Rosas, who admitted that Grimes’s position became vacant, and he
contends that the reduction of the middle school girls coaching
staff from two to one created a vacant position. This misses the
distinction between a “vacant” position and an “available”
position. Although it was vacant, Grimes’s position was not
available because Groesbeck officials, for logical reasons having
nothing to do with Adams, chose not to hire a new teacher/coach to
fill the vacant position during the remainder of the 2001-02 school
year. See Weber v. Am. Express Co., 994 F.2d 513, 516 (8th Cir.
1993) (plaintiff failed to establish a prima facie case of
discrimination where the employer did not fill the position or seek
applicants); see also Peltier v. United States, 388 F.3d 984, 989-
90 (6th Cir. 2004). Consequently, the jury’s finding that there
was an available position is not supported by the evidence. See
Perez, 307 F.3d at 324-25 (position not available when employer
chose not to fund it).
III. CONCLUSION
The district court erred in not granting Groesbeck’s
motion for judgment as a matter of law because Adams failed to
establish a prima facie case of retaliation. Adams cannot show
that he suffered an adverse employment action because a reasonable
jury could not conclude there was an available position. We need
not consider Groesbeck’s appeal of the district court’s denial of
8
its motion for a new trial or the issues raised in Adams’s cross
appeal. Accordingly, we REVERSE and RENDER judgment in favor of
Groesbeck.
REVERSED.
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