Foster v. Time Warner Entertainment Co.

• Decision Date: 09 April 2001
• Docket Number: No. 00-2734,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,00-2734
• Citation: 250 F.3d 1189
• Parties: (8th Cir. 2001) JANE M. FOSTER,, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1189

250 F.3d 1189 (8th Cir. 2001)

JANE M. FOSTER, PLAINTIFF-APPELLEE, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., DEFENDANT-APPELLANT.

No. 00-2734

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 9, 2001

Filed: May 24, 2001

Appeal from the United States District Court for the Western District of Arkansas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Wollman, Chief Judge , Murphy, Circuit Judge, and Piersol, ¹ District Judge.

Murphy, Circuit Judge

Jane M. Foster sued Time Warner Entertainment Company, L.P. (Time Warner) alleging that she was terminated for conduct protected under the Americans with Disabilities Act (ADA), 42 U.S.C. 12203(a). The jury returned a verdict finding that Time Warner had terminated Foster in retaliation for opposing unlawful discrimination under the ADA. It awarded lost wages and compensatory and punitive damages. After judgment was entered, Time Warner moved for judgment as a matter of law, a new trial, or remittitur. The district court ² denied the motions, and Time Warner appeals. We affirm.

Foster was employed by Time Warner as a supervisor of customer service representatives in Fayetteville, Arkansas. One of the employees she supervised was Kevin Terry who suffered from nocturnal seizures due to epilepsy. On this appeal, the evidence must be viewed in the light most favorable to Foster, the prevailing party, "'assum[ing] as true all facts which the prevailing party's evidence tended to prove, [and] giv[ing] the prevailing party the benefit of all favorable inferences. . . .'" Oriental Trading Co., Inc. v. Firetti, 236 F.3d 938, 945 (8th Cir. 2001) (citation omitted).

Terry told Foster that it was difficult for him to arrive at work consistently on time in the morning because of his seizures. He also indicated that he had more seizures on the weekend and might often miss some work on Mondays. The Time Warner Human Resources Manual included epilepsy in its definition of disability under the ADA and mentioned a flexible schedule as an example of a reasonable accommodation. Cathy Hill, the previous manager of the office and supervisor of Foster, had previously accommodated Terry by allowing him to arrive at work after the regular starting time in the morning and to stay later in the evening to make up the missed time. When Cindy Snyder replaced Hill as the supervisor of the Fayetteville office, she managed it from Memphis, Tennessee. The Fayetteville office was then supervised by Foster and Melanie Wilkerson, the technical supervisor.

One day Terry told Foster that his medication had been changed and that as a result he was experiencing more frequent seizures. He said this increase should last for about two months and requested a temporary adjustment in the flexibility accommodation to his work schedule. He came to work later more often after requesting the adjustment.

The accommodation to Terry's work schedule angered co-workers, and Wilkerson and others complained about it to Snyder. When Snyder told Foster about the complaints, Foster told her that Terry was covered by the ADA and that he should receive the accommodation mentioned in the company manual. Because of the complaints, Snyder issued a new sick leave policy prohibiting employees from making up time missed because of illness. Foster repeatedly questioned Snyder about the new policy's effect on Terry's accommodation. Snyder told Foster on one occasion that she had checked with Human Resources and was told Terry "needs to come to work" and "needs to take sick time."

Even though Time Warner managers receive some discrimination training, Snyder told Foster to "let [her] worry about the ADA," that it was "none of [Foster's] business," that "we don't have to follow the ADA," and "I don't care about the policy [in the manual]." On March 21, 1997, Snyder wrote a memo on some of her discussions with Foster about Terry's accommodation which said in part:

[Foster] says that [Terry] is out quite a bit, but she had been letting him make it up because he is covered by the ADA. I told her that the ADA doesn't say he doesn't have to come to work every day and that it doesn't mean we have to let him make it up. I told her - she was to follow the policy that I had put out - which was that sick time was not to be made up. By him or anyone else.

In another memo written that day Snyder noted:

(Bruce & I) Spoke, with Jane regarding Kevin Terry's absences. I let her know that altho [sic] Kevin is covered under ADA . . . . He should not be treated any different than any other employee. i.e., . . . . Sick time off is not to be 'made up' by him or anyone else . . . I let [Foster] know that I had been hearing complaints from her staff that [Terry] was getting special treatment.

After the new sick leave policy was issued, Foster allowed Terry to continue to work a flexible schedule.

Neither Foster nor Terry was aware that Snyder had asked Wilkerson to monitor Terry's work hours. Snyder gave this assignment to Wilkerson even though she knew she was upset with Terry for filing a grievance against one of the employees she supervised. Wilkerson told Snyder that Terry was absent from work on five occasions when he had claimed on his time sheets that he worked a full day, that he was absent from work about once a week, that others had to do his job, and that he claimed to have worked overtime on various occasions. Since the company time sheets recorded the number of hours worked but not the specific times, it was possible that Terry could have worked after Wilkerson left for the day. A co-worker testified that many times when she was called in late at night, Terry would be there working. Without verifying Wilkerson's reports on Terry by use of computer logs or alarm codes, Snyder and her supervisor, Bruce Simmons, discharged Terry for falsifying his time sheets. Terry denied making false reports and pointed out that his work had always been completed. Simmons told Terry that he wanted to keep him but that his co-workers were complaining about his special arrangement.

After Terry was fired, Snyder and Simmons met with Foster and told her they were going to terminate her for colluding with Terry in falsifying his time sheets. At that meeting Foster asked Snyder and Simmons to show her his time sheets, but they refused. Foster also retrieved the Time Warner employment manual and showed both Snyder and Simmons the parts of the company disability policy listing epilepsy as a protected condition and indicating that a flexible schedule was an appropriate accommodation. Snyder and Simmons responded that they did not have to give Terry an accommodation.

After her termination, Foster sued Time Warner under the ADA, 42 U.S.C. 12203(a). She alleged that she was fired in retaliation for opposing the removal of Terry's accommodation and for opposing his termination in violation of the ADA. The matter went to trial, and the jury returned a verdict finding that Time Warner terminated Foster in retaliation for engaging in conduct protected by the ADA. The jury awarded her $33,515.28 for lost wages and benefits, $75,000 in compensatory damages, and $136,000 in punitive damages. After judgment was entered, Time Warner moved for judgment as a matter of law and alternatively for a new trial or remittitur. The district court denied the motions.

On appeal Time Warner argues that Foster failed to produce sufficient evidence that she engaged in statutorily protected conduct, that there was a casual connection with her termination, and that she was entitled to damages. In the alternative, it asserts that the damage awards were excessive and that the court erred in evidentiary rulings and instructing the jury. The denial of a motion for judgment as a matter of law is reviewed de novo. See Douglas County Bank & Trust Co. v. United Fin. Inc., 207 F.3d 473, 477 (8th Cir. 2000). Judgment as a matter of law is proper "'only when there is a complete absence of probative facts to support the conclusion reached' so that no reasonable juror could have found for the nonmoving party." Blackmon v. Pinkerton Sec. & Investigative Servs., 182 F.3d 629, 635 (8th Cir. 1999). The denial of a motion for a new trial or remittitur will only be reversed upon a "manifest abuse of discretion" or because the verdict is so grossly excessive as to shock the conscience. American Bus. Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135, 1146 (8th Cir. 1986). ³

The ADA "prohibits discrimination against an individual because that individual 'opposed any act or practice made unlawful by [it] . . . .'" Amir v. St. Louis Univ., 184 F.3d 1017, 1025 (8th Cir. 1999) quoting 42 U.S.C. 12203(a). To make out a retaliation claim a plaintiff must show "(1) that [s]he engaged in statutorily protected activity, (2) that an adverse action was taken against [her], and (3) a casual connection between the adverse action and the protected activity." Id. An employee engages in protected activity when she opposes an action "based on a reasonable belief that [her] employer has engaged in discriminatory conduct, . . . and it can include refusal to implement a discriminatory policy." E.E.O.C. v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (internal citation omitted). A manager may be shown to have engaged in protected conduct if she refused to implement a discriminatory policy or took some action against it. See id.

Time Warner argues that Foster did not establish that she opposed Time Warner's new sick leave policy or that she had an objective good faith belief that she was opposing a discriminatory practice. There was evidence that Foster repeatedly questioned Snyder about how the new sick leave policy affected Terry's reasonable accommodation, and the two had a continuing discussion on the subject. Although Snyder said that Terry was not to make up sick time, Foster continued to allow him to work a flexible schedule. Foster thus refused to implement the...