Nichols v. Lewis Grocer

• Decision Date: 03 April 1998
• Docket Number: No. 97-30001,97-30001
• Citation: 138 F.3d 563
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1555, 73 Empl. Prac. Dec. P 45,349 Vera Ann NICHOLS, Plaintiff-Appellee-Cross-Appellant, v. LEWIS GROCER, a division of Supervalu, Inc., et al., Defendants, Lewis Grocer, a division of Supervalu, Inc., Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 563

138 F.3d 563

77 Fair Empl.Prac.Cas. (BNA) 1555,

73 Empl. Prac. Dec. P 45,349

Vera Ann NICHOLS, Plaintiff-Appellee-Cross-Appellant, v. LEWIS GROCER, a division of Supervalu, Inc., et al., Defendants Lewis Grocer, a division of Supervalu, Inc. Defendant-Appellant-Cross-Appellee.

No. 97-30001.

United States Court of Appeals Fifth Circuit.

April 3, 1998.

Ronald Lawrence Wilson, New Orleans, LA, for Nichols.

Charles H. Hollis, Rebecca Gandolfi Moore, The Kullman Firm, New Orleans, LA, for Grocer.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, HIGGINBOTHAM and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Vera Ann Nichols sued her employer Lewis Grocer, a division of Supervalu, Inc. ("Supervalu"), as well as three of Supervalu's management-level employees, asserting a myriad of gender-based employment discrimination claims under federal and state law. While three of her claims proceeded to trial, only one--a discriminatory failure to promote claim under La.Rev.Stat.Ann. § 23:1006--culminated in a jury verdict and judgment in Nichols' favor.

Supervalu now challenges the district court's ensuing denial of its motion for judgment as a matter of law. In addition, Nichols challenges the district court's denial of her motion to amend the judgment to allow instatement or front pay. Finding the evidence insufficient to prove either that Supervalu's non-discriminatory explanation was pretextual, or that gender was a motivating factor in Supervalu's promotion decision, we reverse and render judgment in favor of Supervalu. ¹

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 1987, Vera Ann Nichols ("Nichols") began working at Supervalu's Hammond, Louisiana grocery warehouse as an order selector assigned to the dry-goods repack area. Over the years, she was transferred to various other positions--including checker, clerk, and dock/return-door worker--each of which was in the dry-goods section of the warehouse. Nichols concedes that she never was employed in the perishables warehouse, a separate freezer warehouse where the frozen products and perishable items are stored.

In February of 1995, a night-time supervisor position opened up in the perishables warehouse. The memorandum posting the vacancy announced an opening for a first-line "warehouse supervisor" in shipping, and set forth the qualifications that were sought:

2+ years warehouse experience[;] 2+ years supervisory experience[;] knowledge, understanding, and sensitivity to a contractual environment[;] and good time management skills.

Four employees applied for the position: Frank Sirchia, Gary Durbin, David Williams, and Nichols. All four were interviewed by John Jordan ("Jordan"), the warehouse manager, ² and each took an objective supervisor examination administered by the warehouse personnel department and scored at Supervalu's corporate office in Minnesota. ³

The examination was administered on the following dates: February 28, 1995 (Sirchia and Williams); March 13, 1995 (Nichols); and March 14, 1995 (Durbin). Sirchia scored a 94, Durbin an 83, Nichols a 79, and Williams a 76. Since the examination was introduced into the hiring process in 1988, Supervalu has routinely tested applicants for supervisory positions and has promoted only the highest scorer. Indeed, in the four previous times the examination has been used at the Hammond warehouse, the applicant with the highest score has been promoted to supervisor each time. The examination has not previously been used, however, with respect Jordan selected Sirchia, the highest scorer on the supervisor examination, for the promotion to Night Perishables Warehouse Supervisor. On September 25, 1995, Nichols brought suit in the district court, alleging discriminatory failure to promote on the basis of sex under La.Rev.Stat.Ann. § 23:1006. ⁴ Supervalu responded that it promoted Sirchia, and not Nichols, because he was better qualified for the position. Trial by jury commenced on September 30, 1996, and the jury returned a verdict in favor of Nichols on October 1, 1996. ⁵ The jury awarded Nichols damages on her promotion claim in the amount of $115,000 plus costs and attorney's fees. Judgment was entered by the court on October 4, 1996.

to the supervisory position at issue in this case.

On October 9, 1996, Supervalu filed a motion for judgment as a matter of law, or alternatively for a new trial or remittitur. ⁶ On October 11, 1997, Nichols filed a motion to amend the judgment in the hopes of securing instatement or front pay. In a judgment entered of record on December 6, 1996, the court denied both motions. Both parties now appeal the denial of their post-trial motions.

II.

MOTION FOR JUDGMENT AS A MATTER OF LAW

Standard of Review

We review de novo the district court's ruling on a motion for judgment as a matter of law. Travis v. Bd. of Regents of Univ. of Texas, 122 F.3d 259, 263 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998). A motion for judgment as a matter of law is granted only if:

the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.... On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury.

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997) (en banc). Moreover, "[e]ven if the evidence is more than a scintilla, 'Boeing assumes that some evidence may exist to support a position which is yet so overwhelmed by contrary proof as to yield a [judgment as a matter of law].' " Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc) (quoting Neely v. Delta Brick and Tile Co., Inc., 817 F.2d 1224, 1226 (5th Cir.1987)). A jury verdict thus survives a motion for judgment as a matter of law only if there exists a conflict in substantial evidence. In this case, we must determine whether the record contains a conflict in substantial evidence on the question of whether Supervalu's failure to promote Nichols was due to her sex.

The Merits

A.

As mentioned, Nichols brought her sex discrimination claim--for failure to promote- The burden-shifting framework through which a plaintiff develops evidence to prove discrimination is well-established. First, the plaintiff must establish by a preponderance of the evidence a prima facie case of discrimination, after which the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment action. Rhodes, 75 F.3d at 992-93. Once the defendant meets this burden of production, the plaintiff must demonstrate that the defendant's proffered explanation is not the actual reason for its decision, but is instead a pretext for discrimination. Id. at 993. An employer's reason cannot be shown to be a 'pretext for discrimination' unless the plaintiff introduces some evidence, whether circumstantial or direct, that permits the jury to believe that the reason was false and that illegal discrimination was the actual reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993); Swanson v. General Services Admin., 110 F.3d 1180, 1185 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 366, 139 L.Ed.2d 284 (1997).

--under La.Rev.Stat.Ann. § 23:1006. Courts have continually turned to federal employment discrimination law, including Title VII and the well-developed jurisprudence arising thereunder, for interpretation of Louisiana's anti-discrimination statute. See Deloach v. Delchamps, Inc., 897 F.2d 815, 818 (5th Cir.1990) (age discrimination claim); Plummer v. Marriott Corp., 654 So.2d 843, 848 (La.App. 4th Cir.), writ denied, 660 So.2d 460 (La.1995) ("Because the Louisiana statute is similar in scope to the federal anti-discrimination prohibition in Title VII of the Civil Rights Act of 1964, Louisiana courts have routinely looked to the federal jurisprudence for guidance....").

According to the Supreme Court, the proffer of sufficient evidence of pretext may permit the trier of fact to infer intentional discrimination:

The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity ) may, together with the elements of the prima facie case, suffice to show intentional discrimination.

Hicks, 509 U.S. at 511, 113 S.Ct. at 2749 (emphasis added). We have stated, however, that for a plaintiff to successfully bootstrap himself into a finding of intentional discrimination in this manner, the evidence offered to counter the employer's proffered reasons must be substantial. Id. at 994.

In this case, Supervalu articulates as its nondiscriminatory reason for denying Nichols the promotion to Night Perishables Warehouse Supervisor the superior qualifications of the actual selectee, Frank Sirchia. Nichols contends that Supervalu's articulated reason is false, and that a review of the entire record (including the factual allegations supporting her unsuccessful equal pay and sexual harassment claims) creates a suspicion of mendacity over Supervalu's contentions sufficient to prove intentional discrimination. In this context, our task is quite focused: we must deny Supervalu's motion for judgment as a matter of law, and affirm the judgment of the district court, if the record as a whole (1) creates a fact issue as to whether Supervalu's stated reason was what actually motivated it to deny Nichols the promotion and (2) creates a reasonable inference that sex was a determinative...