Cham v. Station Operators, Inc.

Decision Date16 July 2012
Docket NumberNo. 11–1988.,11–1988.
Citation115 Fair Empl.Prac.Cas. (BNA) 821,19 Wage & Hour Cas.2d (BNA) 520,685 F.3d 87
PartiesOusman CHAM, Plaintiff, Appellant, v. STATION OPERATORS, INC., Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit


Mark P. Gagliardi for appellant.

Neal J. McNamara, with whom Nixon Peabody LLP was on brief, for appellee.

Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.

LYNCH, Chief Judge.

In this employment discrimination suit, Ousman Cham alleges that the defendant, Station Operators, discriminated against him on the basis of race and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and retaliated against him for taking medical leave, in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.

This appeal follows two trials. At the first trial, the district court dismissed the Title VII claims before the case was submitted to the jury, and the jury returned a verdict in favor of Cham on the FMLA claim. The district court then granted Station Operators's motion for a new trial. Only the FMLA retaliation claim was at issue in the second trial, and the jury returned a verdict for Station Operators on that claim.

Cham appeals, challenging (1) the dismissal of his disparate treatment Title VII claim during the first trial, (2) the grant of the defendant's motion for a new trial, and (3) the exclusion of certain evidence during the second trial. We reject Cham's claims of error and affirm.

A. Factual Background

Ousman Cham was at the time of the second trial a thirty-two year old Muslim and a native of The Gambia who had immigrated to the United States in 2000. Cham worked for the defendant, Station Operators, Inc. (a division of Exxon Mobil) from May 13, 2003, to May 20, 2005, at an Exxon Mobil gas station and convenience store in Smithfield, Rhode Island.

Cham was hired by Station Operators as a sales associate, a term for a cashier and clerk, and so remained for the duration of his employment. Cham was hired as a part-time hourly employee and shortly thereafter became a full-time hourly employee. Cham testified that he was regularly scheduled to work forty hours per week once he became a full-time employee. The undisputed testimony at trial was that no employee was entitled to any particular shift and that Cham did not have a contract with Station Operators guaranteeing him any shifts or even forty hours per week. Full benefits were provided at thirty-two hours a week.

In February 2004, Andrew Pelletier became the new assistant manager at the Smithfield store and so became Cham's supervisor. Pelletier took over scheduling responsibilities in September of 2004, and became manager in December 2004. Cham claims his hours began to be reduced when Pelletier took over scheduling.

While under Pelletier's supervision, on December 20, 2004, Cham was scheduled to work an eight-hour shift, but did not come in or inform the store that he would not be able to work. Cham testified that his car broke down on the way back from New York and he did not have access to a phone to call in to work. Cham was placed on probation for violating company policy by failing to notify the store that he would not be able to make it to work.

A few weeks later, on January 17, 2005, Cham was injured in a car accident. The next day, Cham informed Pelletier that he was taking FMLA leave from January 18 to February 15, 2005, due to a back injury sustained in the accident, on his doctor's recommendation. At some point during this leave, Cham informed Pelletier that his leave would need to be extended until March 14, 2005, and Cham remained out of work until March 14.1

When Cham returned to work, he was consistently scheduled to work thirty-two hours per week, although his actual work hours fluctuated. Sometimes he worked less than scheduled. For example, Cham “called out” on two shifts; that is, he called to say he could not work those shifts. Cham claimed this reduction in scheduled hours was in retaliation for taking FMLA leave and in violation of Title VII. Cham quit his employment at Station Operators on May 20, 2005, two days after suffering a panic attack at work that sent him to a hospital emergency room for treatment.

B. Procedural History

Cham filed suit against Station Operators on May 6, 2008, in Rhode Island state court.2 Cham's initial complaint alleged that Station Operators discriminated against him on account of race, national origin, and religion, in violation of Title VII and certain state-law provisions. The complaint pled disparate treatment, failure to promote, and hostile work environment theories under Title VII.

Station Operators removed the case to federal court on August 29, 2008. Cham filed a second amended complaint on February 2, 2010, which added new claims of interference with FMLA rights and retaliation in violation of the FMLA. The second amended complaint also added sex discrimination as one of the bases of the Title VII claim.

Cham's FMLA and Title VII theories were advanced in his pretrial memorandum as pled in the second amended complaint, with Cham additionally contending that the disparate treatment amounted to a constructive discharge. At a January 18, 2011 pretrial conference, Cham agreed to dismissal of his Title VII failure to promote claim and his FMLA interference claim as time-barred.

Cham's first jury trial, which lasted four days, began on January 24, 2011, on his disparate treatment and hostile work environment claims under Title VII, the FMLA retaliation claim, and certain pendent state-law claims. At the close of plaintiff's evidence, Station Operators moved for judgment on all claims under Federal Rule of Civil Procedure 50(a). Cham's counsel agreed to dismiss the hostile work environment claim. The remainder of the motion was disputed. The court dismissed the hostile work environment claim as agreed, and took the motion under advisement as to the FMLA retaliation claim and the Title VII disparate treatment claim.

At the close of all the evidence, Station Operators renewed its Rule 50(a) motion as to all claims, which the court took under advisement. At the start of the final day of trial, Cham moved for judgment as a matter of law under Rule 50(a) on his two remaining claims. Cham clarified that he was no longer advancing a Title VII claim on the basis of religion or sex, leaving national origin and race as the bases of his disparate treatment claim. The district court denied Cham's motion and granted Station Operators's motion for judgment as a matter of law as to the Title VII disparate treatment claim. Only the FMLA retaliation claim went to the jury, and it returned a verdict in favor of Cham and awarded $20,000 in damages. No final judgment was entered.

On February 25, 2011, Station Operators filed a motion for judgment as a matter of law under Rule 50(b) or, in the alternative, a new trial under Rule 59, as to the FMLA retaliation claim, which Cham opposed.

On June 3, 2011, the district court denied the defendant's request for judgment as a matter of law on the FMLA retaliation claim but granted the request for a new trial on that claim. Cham v. Station Operators Inc., 832 F.Supp.2d 131 (D.R.I.2011). The court explained that a great deal of prejudicial evidence had been introduced which was relevant to the hostile work environment claim but was irrelevant to the FMLA retaliation claim. Id. at 139. The court noted that the hostile work environment claim was voluntarily dismissed by plaintiff after the evidence was introduced. Id. The court concluded this evidence “had great potential to confuse the jury and to unfairly prejudice Station Operators,” and so granted the motion.3Id. Station Operators filed two motions in limine before the second trial, the allowance of which are claimed to be error. First, the court excluded evidence of Cham's work hours and schedules for all time periods before September 2004. Second, the court excluded the testimony of two health care providers who had treated Cham for a panic attack on May 18, 2005.

The second trial, restricted to the FMLA retaliation claim, lasted three days, and the jury returned a verdict in favor of Station Operators. The district court entered judgment in favor of Station Operators and Cham timely appealed.


Cham argues that the district court erred (1) in granting Station Operators's Rule 50 motion to dismiss his disparate treatment claims, (2) in granting Station Operators's Rule 59 motion for a new trial, and (3) in granting the motions in limine excluding evidence of his work hours before September 2004 and his panic attack. We reject each challenge.

A. Rule 50 Dismissal of the Title VII Disparate Treatment Claim

We review de novo a grant of judgment under Rule 50(a). J.R. v. Gloria, 593 F.3d 73, 78 (1st Cir.2010). A district court may grant a Rule 50 motion before the case is submitted to the jury if, after the party “has been fully heard on an issue,” the court “finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed.R.Civ.P. 50(a)(1). The court considers [a]ll of the evidence and reasonable inferences drawn from the evidence ... in the light most favorable to the non-moving party,” and may not evaluate the credibility of the witnesses or the weight of the evidence. Malone v. Lockheed Martin Corp., 610 F.3d 16, 20 (1st Cir.2010) (alteration in original) (quoting Espada v. Lugo, 312 F.3d 1, 2 (1st Cir.2002)) (internal quotation marks omitted). However, “the plaintiff is not entitled to inferences based on speculation and conjecture.” Id. (quoting Vázquez–Valentín v. Santiago–Diaz, 385 F.3d 23, 30 (1st Cir.2004), rev'd on other grounds,546 U.S. 1163, 126 S.Ct. 1329, 164 L.Ed.2d 43 (2006)) (internal quotation marks omitted).

The McDonnell Douglas burden-shifting framework, see McDonnell Douglas Corp. v. Green, ...

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