Gibson v. Old Town Trolley Tours of Washington, D.C., Inc.

• Decision Date: 12 November 1998
• Docket Number: No. 97-2044,97-2044
• Citation: 160 F.3d 177
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 832, 74 Empl. Prac. Dec. P 45,584 James M. GIBSON, Plaintiff-Appellee, v. OLD TOWN TROLLEY TOURS OF WASHINGTON, D.C., INC., Defendant-Appellant, and Historic Tours of America, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 177

160 F.3d 177

78 Fair Empl.Prac.Cas. (BNA) 832,

74 Empl. Prac. Dec. P 45,584

James M. GIBSON, Plaintiff-Appellee, v. OLD TOWN TROLLEY TOURS OF WASHINGTON, D.C., INC., Defendant-Appellant and Historic Tours of America, Defendant.

No. 97-2044.

United States Court of Appeals Fourth Circuit.

Argued Sept. 25, 1998.

Decided Nov. 12, 1998.

ARGUED: Ronald Howard Jarashow, Franch, Jarashow & Howard, P.A., Annapolis, Maryland, for Appellant. Bryan Anthony Chapman, Bryan A. Chapman & Associates, P.C., Washington, D.C., for Appellee.

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and BULLOCK, Chief United States District Judge for the Middle District of North Carolina, sitting by designation.

Reversed by published opinion, Chief Judge WILKINSON wrote the opinion, in which Judge DIANA GRIBBON MOTZ and Chief Judge BULLOCK joined.

OPINION

WILKINSON, Chief Judge:.

In this Title VII retaliation action, James M. Gibson sued his former employer, Old Town Trolley Tours of Washington, D.C., Inc., for failing to complete and return employment reference forms. Gibson charged that Old Town Trolley refused to return the forms in retaliation for his having filed an EEOC complaint after the company laid him off. A jury awarded Gibson $700 in compensatory and $10,000 in punitive damages, and the district court denied Old Town Trolley's motion for judgment as a matter of law. On review of the trial record, we find no evidence that Old Town Trolley's omission occurred because of Gibson's EEOC complaint. Because no reasonable jury could find that Old Town Trolley retaliated against Gibson, we reverse the judgment of the district court and remand the case with instructions to enter judgment for the defendant.

I.

Old Town Trolley operates guided motor tours through the streets of the national capital. Because its business is highly seasonal the company maintains only a skeleton permanent staff. With the return of the cherry blossoms each spring the company increases its complement of tour conductors, and when demand wanes in the fall it lays a number of them off.

In March 1990 Old Town Trolley hired Gibson, a fifty-eight-year-old black male, as a tour conductor. Gibson remained with the company as a full-time employee for over three years. When Old Town Trolley made its seasonal layoff in the fall of 1993, however, it let Gibson go. Gibson's supervisor informed him of the layoff on November 7, and it took effect five days later.

Gibson felt that he had been selected for layoff because of his race and his age. On November 17, 1993, Gibson filed a complaint with the EEOC. Finding no evidence of discrimination, the EEOC issued a right-to-sue letter.

In the month after his termination Gibson applied for several new jobs, including a school bus driver's position with the Fairfax County school system. During the application process for that position Gibson was asked to obtain references from his previous employers. In December 1993 Gibson mailed a county employment reference form to Old Town Trolley. He did not receive a response.

In March 1994 Gibson sent Old Town Trolley a second reference form, along with a cover letter, by certified mail and by fax. He addressed the letter to Fred Dettman, who had been the general manager of the company's Maryland office when Gibson was employed there. Dettman had since left Old Town Trolley, so the letter was forwarded to Michael Cates, a company vice-president in Key West, Florida. Cates claims that he received the cover letter but that the reference form was no longer attached. He testified at trial that he had interpreted the letter to be asking for a narrative reference, which the company as a matter of policy does not provide. Cates hand-wrote on the cover letter: "To Whom It May Concern, Please be advised that Mr. Dettman is no longer with the company nor do I know his address at this time," and returned it to Gibson.

In the meantime Gibson secured the Fairfax County job without a reference from Old Town Trolley. Gibson asserts that the County offered him a position on the condition that he obtain the reference, but that it eventually waived that condition. Gibson was still with Fairfax County when, in May 1994, Old Town Trolley sent him an offer of reemployment. Gibson turned the offer down.

Gibson filed this suit in January 1996. He alleged that the company had discriminated against him on the basis of his race and his age and that it had retaliated for his EEOC complaint by refusing to provide an employment reference. After a trial, a jury found that Old Town Trolley did not discriminate against Gibson when it selected him for layoff. That verdict is not at issue in this appeal. The same jury, however, found for Gibson on the retaliation claim and awarded $700 in compensatory and $10,000 in punitive damages.

The district court denied Old Town Trolley's motions for judgment as a matter of law and for a new trial. Old Town Trolley appeals.

II.

Section 704(a) of Title VII forbids employers from retaliating against their employees for making use of the procedures offered by the EEOC. See 42 U.S.C. § 2000e-3(a). The statute's protections extend to former employees such as Gibson. Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 849, 136 L.Ed.2d 808 (1997).

In order to prove retaliation a plaintiff must show that he engaged in protected activity, that his employer took adverse employment action against him, and that the employer did so because of the protected activity. See Ross v. Communications Satellite Corp., 759 F.2d355, 365 (4th Cir.1985). Although both appellant and appellee couch their arguments in terms of the reciprocating burdens of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), that approach is inapposite when a trial has proceeded to completion. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). The inquiry in this case long ago turned "from the few generalized factors that establish a prima facie case to the specific proofs and rebuttals of discriminatory motivation the parties have introduced." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 516, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); see also Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th Cir.1995). At trial, the plaintiff shed the shifting burdens of the McDonnell Douglas scheme and faced, as all plaintiffs do, the ultimate burden of proving his case--" 'that [he] has been the victim of intentional discrimination.' " Jiminez, 57 F.3d at 377 (alteration in original) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089).

In denying Old Town Trolley's motion for judgment as a matter of law, the district court reasoned that Gibson's presentation of a prima facie case, along with the assumption that the jury rejected the company's testimony, compelled affirmance of the jury's verdict. This was error. A motion for judgment under Rule 50(b) cannot adequately be addressed by a "rigid, mechanized, or ritualistic" application of the McDonnell Douglas framework. St. Mary's Honor Ctr. 509 U.S. at 519, 113 S.Ct. 2742 (internal quotation marks omitted). Moreover, we cannot presume that the evidence underlying a prima facie case automatically insulates a plaintiff from judgment as a matter of law, even if we assume the jury disregarded the defendant's trial testimony. As the first step in a multi-stage proof scheme, the prima facie case is not a difficult requirement to satisfy. See Burns v. AAF-McQuay, Inc., 96 F.3d 728, 732 (4th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1247, 137 L.Ed.2d 329 (1997); Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1229 (4th Cir.1998). Once a case has proceeded through trial, however, whether the plaintiff"properly made out a prima facie case" in the first place "is no longer relevant." Aikens, 460 U.S. at 715, 103 S.Ct. 1478. A per se rule that the prima facie case as a matter of law satisfies the plaintiff's ultimate burden would exempt even the weakest cases from judicial review. This would transform the prima facie case requirement from a channeling device into a free pass.

The question on a motion for judgment as a matter of law is thus not whether the plaintiff previously satisfied some loose proxy, but rather whether the trial record evinces a "legally sufficient evidentiary basis for a reasonable jury" to have reached its verdict. Fed. R. Civ.P. 50(a)(1); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4thCir.1998). The court should draw reasonable inferences on behalf of the non-moving party, but it must not slip into "sheer speculation." Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 242 (4th Cir.1982). " '[T]he question facing triers of fact in discrimination cases is both sensitive and difficult.... But none of this means that trial courts or reviewing courts should treat discrimination differently from other ultimate questions of fact.' " St. Mary's Honor Ctr., 509 U.S. at 524, 113 S.Ct. 2742(alteration in original) (quoting Aikens, 460 U.S. at 716, 103 S.Ct. 1478). In this case, as in any civil case, the district court should have examined the full trial record to determine whether sufficient evidence supported the jury's verdict.

III.

Gibson contends that evidence of several events supports a finding of retaliation. First, Gibson points to a telephone call he made to his old office in the days immediately after he was laid off. The person on the other end of the line told Gibson that she had been instructed not to speak to him. Gibson argues that...