Johnson v. Armored Transport of California, Inc.

• Decision Date: 02 April 1987
• Docket Number: 85-2446,Nos. 85-2081,s. 85-2081
• Citation: 813 F.2d 1041
• Parties: 126 L.R.R.M. (BNA) 2504, 43 Empl. Prac. Dec. P 37,027, 106 Lab.Cas. P 12,329, 7 Fed.R.Serv.3d 1188, 2 Indiv.Empl.Rts.Cas. 954 Michael B. JOHNSON, Plaintiff-Appellee, v. ARMORED TRANSPORT OF CALIFORNIA, INC., a California Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1041

813 F.2d 1041

126 L.R.R.M. (BNA) 2504, 43 Empl. Prac. Dec. P

37,027,

106 Lab.Cas. P 12,329, 7 Fed.R.Serv.3d 1188,

2 Indiv.Empl.Rts.Cas. 954

Michael B. JOHNSON, Plaintiff-Appellee, v. ARMORED TRANSPORT OF CALIFORNIA, INC., a California Corporation, Defendant-Appellant.

Nos. 85-2081, 85-2446.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 15, 1986.

Withdrawn from Submission May 15, 1986.

Resubmitted June 16, 1986.

Decided April 2, 1987.

W. David Holsberry, San Francisco, Cal., for plaintiff-appellee.

Geoffrey M. Faust, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, FARRIS and BOOCHEVER, Circuit Judges.

WALLACE, Circuit Judge:

Armored Transport of California, Inc. (Armored) appeals from a judgment by the district court for Johnson on a Title VII claim and a general jury verdict on claims alleging violation of 42 U.S.C. Sec. 1981 and a state claim of wrongful discharge. Armored argues that Johnson failed to plead and prove all the elements of his wrongful discharge claim, that this claim is preempted by federal law, and that Johnson's federal law claims were not supported by sufficient evidence. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

Armored provides armored car service to businesses in the San Francisco Bay area. In October 1979, Armored hired Johnson, a Black man, to work in armored vans that have a two-man crew. Johnson's employment was governed by a collective bargaining agreement between Armored and Johnson's union. The agreement gave Armored the right to discharge employees for good cause. The agreement also provided a several-step procedure for resolving disputes between Armored and its employees, including any disputes about the propriety of a discharge. This grievance procedure included a clause requiring an employee to initiate a grievance within four days after discharge. The last step in the procedure involved submitting the grievance to binding arbitration.

Irvin, the Division Manager in overall charge of Armored's San Francisco operations, made racially derogatory remarks in the presence of Johnson on several occasions. In early 1981, Armored began frequently to assign Johnson to work with Bathke, who also made racially derogatory comments to Johnson. On several occasions, Johnson asked Armored to reassign him to a new partner because of Bathke's racial slurs, but Armored did nothing. During the week of April 26, 1982, Johnson was scheduled to work with Bathke, and again asked for a reassignment. When Armored refused his request, Johnson left the premises. The next day, Armored discharged him.

Johnson filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging discrimination and retaliation for a previous EEOC charge he had filed. After the EEOC declined to litigate the matter, Johnson filed suit in district court alleging violation of Title VII (42 U.S.C. Secs. 2000e to 2000e-5) and 42 U.S.C. Sec. 1981, and wrongful discharge under California law. After a trial, the jury entered a verdict of $45,000 in compensatory damages and $250,000 in punitive damages. The district court ordered a partial new trial unless Johnson consented to reducing punitive damages to $150,000. Johnson complied. The district court found Armored liable on the Title VII claim for $45,000 in compensatory damages, but properly held that this award constituted the same compensatory damages found by the jury for the state claim. The court then entered judgment for $45,000 compensatory damages, $150,000 punitive damages, and awarded Johnson $53,591.07 in attorneys' fees pursuant to 42 U.S.C. Secs. 1988, 2000e-5(k).

II

Armored's primary contentions on appeal were placed before the district court in a motion for a directed verdict and a motion for judgment notwithstanding the verdict. These motions preserve for appeal Armored's challenge to the sufficiency of the evidence only if they satisfied the requirements of rule 50(b) of the Federal Rules of Civil Procedure. Farley Transportation Co. v. Santa Fe Trail Transportation Co., 786 F.2d 1342, 1347 (9th Cir.1986) (Farley ). Under rule 50(b), a party may move for a judgment notwithstanding the verdict only if the party has moved for a directed verdict at the close of all the evidence. Fed.R.Civ.P. 50(b); Farley, 786 F.2d at 1345. "In general, the requirement that the motion be made at the close of all the evidence is to be strictly observed." Id. at 1346.

The district court heard and denied Armored's motion for a directed verdict, which was made at the conclusion of the plaintiff's case, before the last witness had finished testifying. Armored did not renew this motion at the close of evidence. Armored has thus not complied with the strict requirements of rule 50(b).

Armored argues, however, that its failure to renew its directed verdict motion should not be fatal because the only evidence introduced after the district court denied the motion was "brief and could not conceivably have changed the court's decision." Appellant's Opening Brief at 13, quoting 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil Sec. 2537 (1971). In Farley, 786 F.2d 1342, we addressed a similar, although more general, argument: that the failure to renew a directed verdict motion does not bar a motion for judgment notwithstanding the verdict if the default did not prejudice the opposing party. We stated that "[a] strict application of Rule 50(b) obviates the necessity for a court to engage in a difficult and subjective case-by-case determination of whether a failure to renew a motion for directed verdict ... has resulted in ... prejudice to the opposing party." Farley, 786 F.2d at 1346. We declined "to adopt an interpretation of Rule 50(b) ... that requires us to engage in a subjective analysis of the strength or weakness of the evidentiary foundation of one party's case, before we even determine whether we may review the sufficiency of the evidence on appeal." Id. at 1346 n. 2.

Although these statements in Farley do not directly address the issue here, they represent a sound approach to rule 50(b). In this case, deciding whether the evidence introduced after the denial of a motion for directed verdict was of sufficient quality and quantity to affect the outcome of the motion would require us "to engage in a difficult and subjective case-by-case determination." Id. We need not devote our resources to such an inquiry if, instead, we require a party to renew his motion at the close of all the evidence--an expedient imposing a minimal burden on litigants. Accordingly, we hold that, under rule 50(b), a party cannot bring a motion for judgment notwithstanding the verdict if he fails to move for a directed verdict at the close of all the evidence, irrespective of the nature of that evidence. Therefore, because Armored has failed to meet the requirements of rule 50(b), Armored cannot challenge the sufficiency of the evidence on appeal.

III

Armored argues that section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, preempts Johnson's wrongful discharge claim. Litigants ordinarily argue preemption in a motion to dismiss, either...