E.E.O.C. v. Go Daddy Software, Inc.

• Decision Date: 10 September 2009
• Docket Number: No. 07-16190.,07-16190.
• Citation: 581 F.3d 951
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. GO DADDY SOFTWARE, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

581 F.3d 951

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. GO DADDY SOFTWARE, INC., Defendant-Appellant.

No. 07-16190.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 16, 2009.

Filed September 10, 2009.

James M. Tucker, EEOC, Washington, D.C., for the appellee.

Fred W. Alvarez, Michael J. Nader, Wilson Sonsini, et al., Palo Alto, CA, Lawrence Kasten, Lewis & Roca, Phoenix, AZ, for the appellant.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. No. CV-04-02062-DGC.

Before: W. FLETCHER, JOHN T. NOONAN, and A. WALLACE TASHIMA, Circuit Judges.

Opinion by WILLIAM A. FLETCHER; Dissent by Judge NOONAN.

WILLIAM A. FLETCHER, Circuit Judge:

Youssef Bouamama was terminated from his job at Go Daddy Software, Inc. ("Go Daddy"). The Equal Employment Opportunity Commission ("EEOC") brought suit against Go Daddy on Bouamama's behalf in federal district court. A jury returned a verdict in favor of the EEOC on the claim that Bouamama had been unlawfully terminated in retaliation for engaging in protected activity.

Go Daddy moved in the district court for a judgment as a matter of law under Federal Rule of Civil Procedure 50(b), arguing that there was insufficient evidence that Bouamama engaged in protected activity; or, if he did engage in protected activity, that there was insufficient evidence that there was a causal connection between that activity and his termination. In the alternative, Go Daddy moved for a new trial under Federal Rule of Civil Procedure 59(a). The district court denied both motions. We affirm.

I. Background

Go Daddy is a for-profit corporation that assists individuals and companies in registering domain names on the Internet. Go Daddy operates a call center from which employees provide sales and technical support to customers over the telephone. Go Daddy also has a Tech Support/Web Board department that responds to customer requests over email.

In September 2001, Bouamama, a Muslim of Moroccan national origin, interviewed for a job at Go Daddy. Brett Villeneuve, a supervisor in the call center, participated in the interview. Go Daddy hired Bouamama on a temporary basis as a Technical Support Representative in the Tech Support/Web Board department. Bouamama began working on September 20, 2001, for $12 per hour.

Shortly after Bouamama was hired, Villeneuve became the operations manager of the call center, which meant that he was in charge of the employees in both the call center and in the Tech Support/Web Board department. Villeneuve testified that although Bouamama was assigned to the Web Board, he occasionally answered calls for the call center. Some customers complained about Bouamama's manner on the phone. Nevertheless, on December 13, 2001, Villeneuve converted Bouamama to a full-time, regular employee, raising his wage to $14 per hour, and providing him with medical, dental, and disability benefits, and paid vacations and holidays. At trial, Villeneuve described Bouamama as "a good rep. ... [T]echnically knowledgeable. His typing skills were good. He put out good, solid answers."

Between December 2001 and February 2002, Villeneuve overheard Bouamama speaking to a customer in French. Bouamama testified that "after I finished with the customer [Villeneuve] was asking me about ... where I'm from and what language I was speaking and what, you know, religion I was practicing." Bouamama testified that he told Villeneuve that he was a Muslim from Morocco who spoke Arabic. He also testified that he "really didn't feel that it was appropriate to ask me this kind of questions but in the meantime, you know, I want a job, we were at war, so I just let it go."

Villeneuve remembered the conversation differently. He testified that overhearing the phone call with the customer was "pretty cool. ... [W]hen the phone conversation ended, I asked him — I verified that it was French. I thanked him for ... helping out the customer. I asked him if there were any other languages that he spoke." Bouamama responded that, in addition to English and French, he spoke Arabic. Villeneuve testified that it was a "huge help" to have a representative who spoke other languages. When asked whether Bouamama seemed upset by the question about what languages he spoke, Villeneuve testified, "No, not particularly. ... [H]e was kind of smiling like he was proud of the fact [that] ... he's trilingual. That's neat."

In 2002, Villeneuve created "Team Lead" positions. In addition to handling sales and support inquiries from customers, each Team Lead supervised a crew of sales representatives. Bouamama applied to be a Team Lead, but, according to Villeneuve's testimony, he was initially denied the position because of "his abruptness with people, his demeanor, his abrasiveness." Villeneuve testified that Bouamama complained, and that Villeneuve reversed his position, promoting Bouamama to Team Lead on February 25, 2002. Bouamama's wage was increased to $16 per hour.

Shortly after Bouamama was promoted to Team Lead, the position of Inbound Sales Manager became available. Four or five people, including Bouamama, applied for the position, and Villeneuve gave the position to Bouamama. The promotion took effect on July 11, 2002. In this new position, Bouamama was responsible for preparing reports and for tracking phone calls, sales by individual employees and teams of employees, and sales of different Go Daddy products. Bouamama's compensation was increased to $46,000 per year plus bonus. Bouamama testified that he often worked weekends, without being asked and without being paid overtime or requesting to be paid overtime, so that he could keep up with the demands of the new position.

Bouamama testified that after his promotion to Inbound Sales Manager he complained to Heather Slezak, who worked in Go Daddy's Human Resources Department, about his conversation with Villeneuve that had occurred about six months earlier when Villeneuve overheard Bouamama speaking to a customer in French. Bouamama testified that he could not recall if Slezak promised to speak to Villeneuve about this, or if she said something like Villeneuve "is the way how [he] is, don't worry about him, he don't really mean stuff." According to Bouamama, neither he nor Slezak followed up on this. According to Slezak, Bouamama never complained to her about Villeneuve.

Bouamama testified that, in addition to his comments made following Bouamama's conversation in French, Villeneuve made at least one other discriminatory comment in his presence, saying, "The Muslims need to die. The bastard Muslims need to die." Villeneuve was talking to other employees in the hallway near Bouamama's cubicle when he made this comment. Bouamama testified that he did not respond to Villeneuve or complain about him because "[w]e were at war. ... After September 11 things changed, people are hurt, you know, I was hurt ... and, you know, you try to be compassionate. I understand maybe the anger that some people are expressing. ..." Bouamama testified further that he did not complain because "[t]here's a culture in Go Daddy. You complain you get fired."

On April 1, 2003, Go Daddy hired Craig Franklin from an outside company to be Director of Call Center Operations. Franklin had 20 years of experience in call centers and had supervised 1,500 employees in his prior job. Villeneuve, who had previously managed the call center, was demoted. He was no longer a member of Go Daddy's Executive Staff, and he lost the authority to hire and fire workers without approval. Villeneuve reported to Franklin.

On his second day on the job, Franklin reorganized Go Daddy's call center. He testified that in planning the reorganization, he did not solicit advice from Villeneuve or Slezak. Franklin decided to eliminate thirteen Team Lead positions, the Weekend Sales Manager position, and the Inbound Sales Manager position held by Bouamama. Franklin testified that he did not examine the competencies of any of the individuals holding the positions before he decided to eliminate them. Franklin created four new Sales Supervisor positions that employees, including those whose positions had been eliminated, could apply for.

On April 4, 2003, Franklin, Villeneuve, and Slezak met with Bouamama and informed him that his position was being eliminated. According to Bouamama, he was told that he could apply for one of the new Sales Supervisor positions or "walk away." When asked what he understood the phrase "walk away" to mean, Bouamama testified, "Well, somebody repeat that five times to you it means quit on your own. That's what it means." During cross-examination, Bouamama was asked again if he had been told what would happen if he "didn't apply for the [new] position or if[he] didn't get the position." Bouamama responded:

A: Yes, sir.

Q: You were told you could take a position back on the floor, answering the phones, or you could accept a severance package.

A: Accept a severance package?

Q: Isn't that what they told you?

A: No. They told me that, you know, you can apply for this position and — you know, or you can walk away.

This testimony by Bouamama about his options conflicts with the testimony of others. Villeneuve testified that employees who applied unsuccessfully for the Sales Supervisor positions "had two options. If you didn't get the position, you could go back to the phones, with a — we changed your pay rate so they weren't starting out at base all over again. We increased their pay based on tenure. ... If you chose not to go back to the phones, you could leave the company, and we had a severance package for everybody." Franklin testified similarly, stating that "we encouraged" applicants who did not get the Sales Supervisor position "to go back to the phones."

During the morning of April 7, 2003, Franklin stopped by Bouamama's cubicle. Bouamama testified as follows A: .... I was...