Bryant v. Dollar General Corp.

• Decision Date: 15 August 2008
• Docket Number: No. 07-5006.,07-5006.
• Citation: 538 F.3d 394
• Parties: Martha L. BRYANT, Plaintiff-Appellee, v. DOLLAR GENERAL CORP., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

538 F.3d 394

Martha L. BRYANT, Plaintiff-Appellee, v. DOLLAR GENERAL CORP., Defendant-Appellant.

No. 07-5006.

United States Court of Appeals, Sixth Circuit.

Argued: March 13, 2008.

Decided and Filed: August 15, 2008.

ARGUED:

Keith D. Frazier, Ogletree, Deakins, Nash, Smoak & Stewart, Nashville, Tennessee, for Appellant. Douglas B. Janney III, Nashville, Tennessee, for Appellee.

ON BRIEF:

Keith D. Frazier, Jonathan O. Harris, Ogletree, Deakins, Nash, Smoak & Stewart, Nashville, Tennessee, for Appellant. Douglas B. Janney, III, Nashville, Tennessee, for Appellee. Jay E. Sushelsky, AARP Foundation Litigation, Washington, D.C., for Amicus Curiae.

Before MOORE, GILMAN, and SUTTON, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellee Martha Bryant ("Bryant") prevailed in a jury trial on her claim that Defendant-Appellant Dollar General Corporation ("Dollar General") fired her in retaliation for her exercise of leave guaranteed by the Family and Medical Leave Act ("FMLA"). Dollar General now appeals, contending that the FMLA does not prohibit retaliation against an employee who takes FMLA leave. Bryant has filed a motion to dismiss Dollar General's appeal, arguing that we lack jurisdiction because Dollar General failed to file a post-verdict motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). Prior to oral argument, the AARP requested leave to file a brief amicus curiae in support of Bryant, arguing that federal courts have widely accepted that the FMLA and related federal regulations prohibit retaliation against an employee who takes FMLA leave. We DENY Bryant's motion to dismiss Dollar General's appeal, GRANT the AARP's motion for leave to file a brief amicus curiae, and, because we hold that both the FMLA and its implementing regulations prohibit employers from retaliating against employees who have exercised FMLA leave, we AFFIRM the judgment of the district court.

I. BACKGROUND

Dollar General's appeal presents a purely legal issue—whether the FMLA prohibits retaliation against an employee's exercise of FMLA leave—and accordingly the factual background of the case has little bearing on the outcome of this appeal. As a result, we provide only a brief recitation of the underlying facts.

In 2001, Bryant began working for Dollar General as a senior programmer analyst in its financial marketing department. In 2002, Bryant was diagnosed with Type II diabetes, high blood pressure, and a heart condition, and Bryant's supervisors were aware of her conditions. In early 2004, Dollar General assigned Bryant to the Distribution Center Transaction Project ("DCT Project"), a project that was running behind schedule and missing deadlines. Joint Appendix ("J.A.") at 330 (Trial Tr. at 207).

In early May 2004, Bryant completed paperwork for FMLA leave; shortly afterward Dollar General began a disciplinary process against her, allegedly for her involvement in an office argument in late April 2004. Bryant took FMLA leave from May 12 to 14 and from May 19 to May 23, 2004, and Dollar General fired her on May 27, 2004. Bryant testified in a deposition and at trial that, at the time Dollar General fired her, a supervisor commented on her health problems, stating that "[b]ecause of your health, I don't think you can do the job." J.A. at 423 (Trial Tr. at 344).

In October 2005, Bryant filed this lawsuit, claiming that Dollar General had violated the Americans with Disabilities Act ("ADA") and the FMLA. In August 2006, the district court granted Dollar General's motion for summary judgment on Bryant's claims under the ADA and her claim for harassment under the FMLA, but denied the motion as to Bryant's claim for retaliation under the FMLA.

A trial on Bryant's FMLA retaliation claim occurred from October 31, 2006, to November 2, 2006. At the conclusion of the parties' proofs, Dollar General made an oral motion for judgment as a matter of law. Dollar General argued that the relevant statutory section of the FMLA, 29 U.S.C. § 2615, does not prohibit retaliation against the exercise of FMLA leave. J.A. at 481 (Tr. of Oral Argument) (arguing that the statute only "specifically deals with discrimination `against any individual for opposing any practice made unlawful by this subchapter'") (quoting § 2615(a)(2)). Dollar General noted that a regulation, 29 C.F.R. § 825.220(c), "expanded somewhat" on § 2615 and that the regulation "says[] `An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave.'" J.A. at 481 (quoting § 825.220(c)). Dollar General's counsel continued, stating that "[l]ooking at the regulations, again it just prohibits discrimination against an employee who has used FMLA leave. Ms. Bryant testified . . . that the first time she exercised rights under FMLA, took FMLA leave, was on May 12th of 2004." J.A. at 482. Dollar General then argued that "the question then becomes whether the fact that she took six days off . . . is enough to leave a jury a question of fact as to whether her termination was the result of taking that leave. And the defendant's position is that it is not." J.A. at 482 (Trial Tr. at 463).

The district court denied Dollar General's motion, stating that "it's a jury question for the jury to determine whether there is that required causal connection between the adverse employment—that is, her termination—and the fact that she took time off under the Family and Medical Leave Act." J.A. at 494.

Dollar General asserted its statutory interpretation claim again in argument about the jury instructions. Dollar General stated its position that the jury instruction

should read that instead of "for having exercised rights," it should say "for taking leave under the Family and Medical Leave Act."

The source for that, again, as I explained during the Rule 50 motion, is the statute itself does not provide for a retaliation claim such as the one being brought. The statute only provides for a retaliation claim when an individual has opposed practices.

And the regulations—29, CFR, Section 825.220(c). That is the source for this particular part of the claim. And the first sentence says, "An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave." It does not say for exercising FMLA rights.

And so . . . we're asking again . . . that the instructions and the claim mirror the language of the regulation. J.A. at 497 (Trial Tr. at 472) (quoting 29 C.F.R. § 825.220(c)); see also J.A. at 515-16 (Trial Tr. at 498-99) (requesting again that "consistent with the regulations, we would ask that rather than `exercising their rights' that that be `taking leave'"). The district court declined to make Dollar General's proposed change to the jury instructions and, after the district court instructed the jury, Dollar General again stated its position regarding "the language of the statute," namely "that there should be no instruction, because the FMLA does not provide for a retaliation claim under these circumstances. The only circumstance is when an individual opposes—it's an opposition clause, like under Title VII. And that's the only issue covered by [the] FMLA." J.A. at 528 (Trial Tr. at 572).

The jury returned a verdict in favor of Bryant on the FMLA-retaliation claim and awarded her $73,942.68 in damages.¹ Dollar General made no post-verdict motions. Following the district court's entry of judgment on November 21, 2006, Dollar General timely appealed.

In May 2007, Bryant filed a motion in our court to dismiss Dollar General's appeal for lack of jurisdiction. In June 2007, Dollar General filed a response, and Bryant then filed a reply. On July 30, 2007, a panel of our court filed an order referring Bryant's motion to dismiss to the merits panel.

II. ANALYSIS

A. Bryant's Motion to Dismiss for Lack of Jurisdiction

In her motion to dismiss Dollar General's appeal, Bryant argues that Dollar General's post-verdict failure to renew its pre-verdict Rule 50 motion for judgment as a matter of law deprives our court of jurisdiction under the Supreme Court's decision in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006). Dollar General responds by arguing that Bryant reads Unitherm too broadly and that in any event our court has jurisdiction to consider Dollar General's statutory interpretation argument through its objections to the jury instructions or by construing its pre-verdict motion as one brought pursuant to Federal Rule of Civil Procedure 12(h)(2), which permits a defendant to raise "at trial" the defense that the plaintiff's has "[f]ail[ed] to state a claim upon which relief can be granted." FED.R.CIV.P. 12(h)(2). We agree with Dollar General and DENY Bryant's motion to dismiss because Dollar General's objections to the jury instructions support our jurisdiction in this case.

Dollar General's principal argument on appeal is that the FMLA does not prohibit an employer from firing an employee because that employee took FMLA-guaranteed leave. Dollar General's repetition of this argument in challenging the jury instructions suffices to preserve the issue for our review. That Dollar General also made this argument in a pre-verdict Rule 50 motion for judgment as a matter law and then failed to renew that motion post-verdict is therefore inconsequential, even if we were to accept Bryant's reading of Unitherm.²

As stated above, Dollar General repeatedly challenged the jury instructions adopting the same basic position it took in its oral motion for judgment as a matter of law and arguing "that there should be no instruction, because the FMLA does not provide for a retaliation claim under these circumstances. The only circumstance is when an individual opposes—it's an opposition clause, like under Title VII. And that's the only issue covered by [the] FMLA." J.A. at 528; see also J.A. at 497-98, 515-16....