104 F.3d 702 (5th Cir. 1997), 95-40836, Mattern v. Eastman Kodak Co.

Docket Nº:95-40836.
Citation:104 F.3d 702
Party Name:Jean G. MATTERN, Plaintiff-Appellee, v. EASTMAN KODAK COMPANY and Eastman Chemical Company, d/b/a Texas Eastman Company, Defendants-Appellants.
Case Date:January 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 702

104 F.3d 702 (5th Cir. 1997)

Jean G. MATTERN, Plaintiff-Appellee,


EASTMAN KODAK COMPANY and Eastman Chemical Company, d/b/a

Texas Eastman Company, Defendants-Appellants.

No. 95-40836.

United States Court of Appeals, Fifth Circuit

January 16, 1997

Page 703

Russell Clay Brown, Wellborn, Houston, Adkinson, Mann, Sadler & Hill, Henderson, TX, for plaintiff-appellee.

Stephen F. Fink, Bryan Patrick Neal, Thompson & Knight, Dallas, TX, for defendants-appellants.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, BARKSDALE and DENNIS, Circuit Judges.


The linchpin for this appeal is what constitutes an "ultimate employment decision" as required for a retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Eastman Kodak Company and Eastman Chemical Company (collectively "Eastman") contest the denial of a FED.R.CIV.P. 50 motion for judgment as a matter of law, a jury having found that Eastman had retaliated against Jean Mattern, its employee, but also having made two findings adverse to Mattern that limit her retaliation claim: first, that, although Mattern had been sexually harassed by her coworkers, Eastman did not fail to take prompt remedial action after it knew or should have known of the harassment; and second, that Mattern was not constructively discharged from her employment with Eastman. Mattern does not cross-appeal these adverse findings. We REVERSE and RENDER.


Mattern, an Eastman employee from late 1989 to mid-1993, was enrolled in Eastman's lengthy mechanic's apprenticeship program, which has two components: on-the-job training and related instruction (classroom). The program requires successful completion of 14 "review cycles" which evaluate both components. Satisfactory performance during the review cycles results in regular pay increases. In addition, the program includes periodic "Major Skills Tests". An apprentice who receives either three unsatisfactory "review cycle" assessments or fails a skills test

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three times is subject to removal from the program.

Mattern filed a Title VII charge with the EEOC on March 11, 1993, claiming sexual harassment by members of her on-the-job training crew. She alleged that two senior mechanics, Godwin and Roberts, had sexually harassed her and created a hostile work environment. She further alleged that her supervisors knew of, and condoned, the harassment.

Earlier that month, Eastman had learned of, and began investigating, this charge. As a result, on March 11, it allowed Godwin to retire early; no action was taken against Roberts. Eastman then transferred Mattern to another crew in the department. Because of the transfer, Mattern was working under a different immediate supervisor, but her departmental supervisors remained the same. Mattern encountered difficulties which she equated, among other things, with Title VII proscribed retaliation. She resigned that July.

That November, Mattern filed this action against Eastman, alleging, inter alia, that it had a policy and practice of approving and condoning a hostile work environment; had constructively discharged her; and had retaliated, and allowed its employees to retaliate, against her for reporting the harassment to the EEOC and for filing this action. The parties consented to trial before a magistrate judge.

A jury found that, although Mattern had been harassed by coworkers, Eastman had taken prompt remedial action; therefore, the hostile work environment sexual harassment claim failed. Likewise, it did not find constructive discharge or intentional infliction of emotional distress. (Mattern does not cross-appeal.) On the other hand, it found retaliation and awarded $50,000 in damages.


Eastman raises several issues. But first, we re-examine Mattern's jurisdictional challenge, premised on the timeliness vel non of Eastman's notice of appeal. See, e.g., Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). This challenge has already been rejected by a motions panel.


The verdict was returned on March 24, 1995. A week later, the magistrate judge entered a "Judgment" against Eastman on the retaliation claim, and, a week after that, April 7, Eastman moved under Rule 50 for judgment or for new trial, contending that the retaliation evidence was legally insufficient. Five days later, the magistrate judge entered a second "Judgment", dismissing Mattern's harassment and emotional distress claims; a week later, Mattern moved for judgment or for new trial. Two weeks later, she moved for attorney's fees as the prevailing party.

The court denied Eastman's Rule 50 motion on September 12. Three days later, it granted attorney's fees to Mattern, but denied her Rule 50 motion. That October 10, Eastman appealed the March 30 and April 12 "Judgments" and the September 12 and 15 orders. A "Final Judgment" was entered on October 27; an "Amended Final Judgment", on November 2.

Mattern's early April 1996 motion to dismiss this appeal for lack of appellate jurisdiction, asserting that Eastman's notice was untimely, was repeated almost verbatim in her brief filed later in April while the motion was pending and approximately two weeks after Eastman's response to the motion. The motion was denied in early May, a week in advance of Eastman's reply brief, which, understandably, did not respond again to Mattern's jurisdictional challenge.

Of course, a panel hearing the merits of an appeal may review a motions panel ruling, and overturn it where necessary. United States v. Bear Marine Services, 696 F.2d 1117, 1119 (5th Cir.1983). And, the merits panel must be especially vigilant where, as here, the issue is one of jurisdiction. Id. at 1120; see also Commodity Futures Trading Comm'n v. Preferred Capital Inv. Co., 664 F.2d 1316, 1320-21 (5th Cir.1982). On a parallel track, Mattern's motion appears to be driven, in part, by the dispute over the timeliness of her attorney's fees

Page 705

motion, an aspect of which might require deciding which of the several "Judgments" was the "judgment" for purposes of FED.R.APP.P. 54(d)(2)(B) (unless otherwise provided by statute, motion for award of attorney's fees must be filed within 14 days of entry of judgment).

As noted infra, we do not reach this fees-timeliness issue. Furthermore, we agree with the motions panel that the notice of appeal was timely. See, e.g., FED.R.APP.P. 4(a)(2) (notice of appeal filed after announcement of decision or order but before entry of judgment treated as filed on date of and after entry of judgment) and FED.R.APP.P. 4(a)(4) (timely motion under Rule 50(b), among others, tolls time for appeal until entry of order disposing of last such motion outstanding); FED.R.CIV.P. 50(b).


At issue are the legal sufficiency of the retaliation evidence; evidence of pre-EEOC charge conduct by Mattern ruled inadmissible under FED.R.EVID. 412; and the attorney's fees award. Because the retaliation evidence was insufficient, we need not reach the other issues.

It goes without saying that the standard of review for Rule 50 motions for judgment is found in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc):

[T]he Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but 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 in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting [judgment as a matter of law] is proper.

Boeing, 411 F.2d at 374. To apply this standard, we look, of course, to the prerequisites for proving retaliation.

Title VII provides in relevant part that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has made a charge ... under this subchapter." 42 U.S.C. § 2000e-3(a). A retaliation claim has three elements: (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action. E.g., Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992). Eastman disputes the last two elements. We turn first to whether there was an "adverse employment action".

Basically, Mattern's retaliation proof is of five types. (In addition, Mattern testified that she was required to climb scaffolding in a fire protection suit that was too large, which she thought was unsafe; and that a telephone message was not given to her.) The special interrogatories did not require the jury to identify a basis, or bases, relied on in finding retaliation.

First, on the day Eastman brought disciplinary proceedings against Godwin, Mattern told her supervisor, Drennan, that she was ill, and that it was work-related. Because it was work-related, Drennan instructed her to report the illness to Eastman's medical department. Instead, Mattern went home, opting to take a day of vacation. Eastman then sent two of her supervisors, Drennan and Holstead (one of the supervisors named in Mattern's EEOC charge), to Mattern's house to instruct her to return to Eastman medical if her illness was work-related. Sending supervisors to an employee's home under such circumstances was highly unusual, if not unprecedented.

Second, Mattern was reprimanded for not being at her work station approximately three weeks later, March 29, when her supervisors were looking for her. At the time, she was at Eastman's Human Resources Department discussing the hostility she was perceiving at Eastman.


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