529 F.3d 617 (5th Cir. 2008), 07-20191, Hagan v. Echostar Satellite, L.L.C.

Docket Nº:07-20191.
Citation:529 F.3d 617
Party Name:Robin HAGAN, Plaintiff-Appellant, v. ECHOSTAR SATELLITE, L.L.C. & Echosphere, L.L.C., Defendants-Appellees.
Case Date:May 30, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 617

529 F.3d 617 (5th Cir. 2008)

Robin HAGAN, Plaintiff-Appellant,


ECHOSTAR SATELLITE, L.L.C. & Echosphere, L.L.C., Defendants-Appellees.

No. 07-20191.

United States Court of Appeals, Fifth Circuit.

May 30, 2008

Page 618

[Copyrighted Material Omitted]

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Hak K. Dickenson (argued), Tipton Jones, Houston, TX, for Hagan.

David M. Noll , Stephanie A. Waller (argued), Chad M. Hagan , T. Wade Welch & Associates, Houston, TX, for Defendants-Appellees.

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

Before DAVIS and SOUTHWICK , Circuit Judges, and DRELL, District Judge.[*]

DRELL, District Judge:

Plaintiff-Appellant Robin Hagan (“Hagan" ) appeals from the district court's grant of judgment as a matter of law in

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favor of the defendants-appellees, Echostar Satellite, L.L.C. and Echosphere, L.L.C. (collectively, “Echostar" ), following the district court's declaring a mistrial after the jury was unable to come to a verdict at the conclusion of a trial on the merits. For the reasons set forth below, we affirm.


This case arises from Echostar's termination of Hagan's employment on January 11, 2005. The relevant facts are not in dispute. In 2000, Hagan began his employment with Echostar, a satellite television company, as a technician responsible for installing satellite dishes for customers in Houston, Texas. Although Hagan acknowledges that he occasionally violated company policies in minor ways, e.g., by tardiness, Echostar continued to employ and promote him. After working as a technician for nearly four years, in March of 2004 Hagan was promoted to the position of field service manager, and as part of the new position, he was placed in charge of a small group of technicians. Hagan directly reported to Trina Robinson, an installation manager; Robinson reported to Patrick Morrow (“Morrow" ), the general manager; and Morrow reported to Elizabeth Miller, a regional manager located in Colorado.

In December of 2004, Hagan attended a managers' meeting at which Morrow explained to the attendees an upcoming change to the technicians' work schedule. Under the schedule as it existed to that time, each week was divided into two four-day shifts of ten-hour workdays: Sunday through Wednesday and Wednesday through Saturday. Because the two four-day shifts overlapped on Wednesdays, two technicians were assigned to a single vehicle on those days, rather than each technician having his own vehicle as on every other day. Under the old schedule, technicians' workdays often exceeded ten hours, so they earned a considerable amount of overtime pay, often up to one full day of extra pay per two-week pay period.

Under the new schedule, technicians would work a total of seven twelve-hour workdays (each with a mandatory thirty-minute lunch break) over each two-week pay period. This was accomplished with two rotating shifts: a four-day Sunday through Wednesday shift and a three-day Thursday through Saturday shift. At the managers' meeting, Morrow explained that Echostar's objective in implementing the new schedule was to remove the inefficiencies created by the Wednesday overlap and to improve customer service. When some managers, including Hagan, raised questions and concerns regarding the potential decrease in overtime pay for the technicians and the way the technicians might react, Morrow assured the managers that eight hours of overtime pay were built into the new schedule as part of the four-day shift in each two-week period. Although the managers were instructed to keep the schedule change a secret until it was officially announced, they were told by Echostar that when the time came, they were to explain Echostar's stated reasons to the technicians and to assure them that the change was not designed to reduce their overtime pay. The managers were also supposed to emphasize the positive, such as the extra day off during each two-week pay period.

On January 5, 2005, Morrow officially announced the new schedule during an all-team meeting attended by both managers and technicians. Morrow fielded a limited number of questions from the technicians and instructed them to speak to their designated field service manager if they had further questions. Later that day, a few of Hagan's technicians asked him whether

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their overtime pay would be decreased under the new schedule, and Hagan told them that it would. At least one of the technicians asked if the change was legal, though Hagan could not remember the exact content or wording of the question. Hagan admits that the calculation of his technicians' overtime hours was part of his job as field service manager; that he knew that his technicians were not legally entitled to overtime hours; that he had told his technicians they could not depend on overtime pay; that he did not think Echostar had done anything illegal; and that he had not personally questioned the legality of the schedule change. Nevertheless, he asked the Human Resources Manager, Eric Love (“Love" ), to speak with the technicians who had asked the legal question. Rather than stay around to listen to Love's conversation with those technicians, Hagan moved on to field another technician's questions. Although he did not hear Love's answer, he believed that it was satisfactory based on the technicians' reaction. That was the only relevant question regarding the legality of the schedule change.

On January 9, 2005, at a meeting with his technicians, Hagan was again asked by his technicians whether the schedule change would reduce their overtime hours. He again told them that it would, but he did emphasize that Echostar was making the change to eliminate the inefficiencies caused by the old schedule's overlapping Wednesday schedule. On January 10, 2005, Morrow and Hagan had an unscheduled meeting at which Morrow primarily discussed Hagan's poor work performance. Morrow also criticized the way Hagan had presented the schedule change to his technicians.

On January 11, 2005, Morrow called Hagan into his office and, in Love's presence, informed him that he was being terminated, effective immediately, for lack of performance. Love added that Hagan should have addressed his technicians' questions personally rather than getting Love to do so, even if Hagan had to wait until he could speak to Love. Hagan was also told that he should have better presented the schedule change to his technicians.

Although the only reason for termination stated on January 11, 2005 was lack of work performance, Echostar later listed insubordination as an additional reason. Hagan points to a series of documents and e-mails, not discussed by the district court, concerning morale problems caused by Hagan's conduct and apparently related to the insubordination charge. An e-mail by Morrow on the day of Hagan's termination stated, “[Hagan] stated to [the technicians] that the reason for the new shifts was to eliminate overtime, so they are in an uproar." There is also an undated file memo by Morrow, probably authored on the date of Hagan's termination or soon afterward, that speaks of the possibility of Hagan's technicians seeking “outside representation" as a result of the way Hagan presented the schedule change's impact on their overtime pay.

On February 15, 2005, Hagan filed suit against Echostar in the United States District Court for the Southern District of Texas, stating as his only claim a violation of the Fair Labor Standards Act (“FLSA" ), 29 U.S.C. § 201 et seq. Specifically, Hagan claimed that he was engaged in protected activity under 29 U.S.C. § 215(a)(3) and that Echostar's terminating him constituted unlawful retaliation. A four-day jury trial was held on February 5 through 8, 2007. At the close of Hagan's case, Echostar moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50 , but the district court reserved ruling. At the close of all the evidence, but before the case was submitted to the jury, Echostar

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renewed its Rule 50 motion. The district court again reserved ruling and submitted the case to the jury.

During deliberations, the jury submitted several questions to the district court concerning the jury instructions, particularly the scope of protected activity under Section 215(a)(3) , but the jury was ultimately unable to come to a verdict, describing the proceeding as “hopelessly deadlocked" in its final note to the court. The district court then declared a mistrial and informed the parties that it would rule on Echostar's pending Rule 50 motion. On February 16, 2007, in an unpublished memorandum and order, the district court granted judgment as a matter of law in favor of Echostar. Hagan v. Echostar Satellite L.L.C., No. H-05-1365, 2007 WL 543441 (S.D.Tex. Feb. 16, 2007) . Hagan now appeals from that judgment.


The primary inquiry in this appeal is whether the district court appropriately granted judgment as a matter of law in favor of Echostar pursuant to Fed.R.Civ.P. 50 .1 We have previously explained the standard of review for the grant or denial of a motion for judgment as a matter of law as follows:

We review a district court's ruling on a Rule 50(a) motion for judgment as a matter of law de novo . Resolution Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th Cir.1993) . Under this standard, we view all of the evidence “in the light and with all reasonable inferences most favorable to the party opposed to the motion." Id. (citation omitted). A district court may not grant a Rule 50(a) motion “unless a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fitzgerald v. Weasler Engineering, Inc., 258 F.3d 326, 337 (5th Cir.2001) . This court reviews a jury's verdict for sufficiency of the evidence by determining whether

reasonable and fair-minded [jurors] in the exercise of impartial judgment...

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