O'Neal v. Ferguson Const. Co., No. 99-2037

• Decision Date: 24 January 2001
• Docket Number: No. 99-2037
• Citation: 237 F.3d 1248
• Parties: (10th Cir. 2001) HENRY B. O'NEAL, Plaintiff-Appellee, v. FERGUSON CONSTRUCTION COMPANY, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1248

237 F.3d 1248 (10th Cir. 2001)

HENRY B. O'NEAL, Plaintiff-Appellee, v. FERGUSON CONSTRUCTION COMPANY, Defendant-Appellant.

No. 99-2037

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 24, 2001

Appeal from the United States District Court for the District of New Mexico. (D.C. No. CIV-97-1269-MV/LFG) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] W. T. Martin, Jr., of Martin & Shanor, L.L.P., (Stephen S. Shanor, with him on the briefs), Carlsbad, New Mexico, for Appellant.

Holly Rene Harvey, of Toulouse & Associates, P.A. (John G. Travers, with her on the brief), Albuquerque, New Mexico, for Appellee.

Before TACHA, Chief Judge, McWILLIAMS, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiff Henry B. O'Neal was terminated from his job one day after his attorney sent a letter to his employer, Ferguson Construction Company ("Ferguson"), accusing the company of reassigning O'Neal in retaliation for his filing race discrimination and retaliation claims with the Equal Employment Opportunity Commission ("EEOC"). O'Neal filed suit against Ferguson under 42 U.S.C. 2000e-3(a) ("Title VII") and 42 U.S.C. 1981, alleging hostile work environment and retaliation. The jury found for O'Neal on his retaliation claim but not on his hostile work environment claim; the jury awarded O'Neal $302,721.25 in compensatory damages and $3,500 in punitive damages. Ferguson filed motions for judgment as a matter of law and remittitur, which the district court denied. This court exercises jurisdiction pursuant to 28 U.S.C. 1291 and affirms.

II. BACKGROUND

O'Neal worked for Ferguson for approximately thirty-two years. Until a few days before his termination, O'Neal spent twenty-nine of those years as the sole person responsible for maintaining and servicing Ferguson's vehicle fleet. For most of the twenty-nine years, O'Neal worked a split shift from 5:00 a.m. until 10:00 a.m. and from 4:00 p.m. until 9:00 p.m.

In the early 1990s, Mark Weiser became president of Ferguson. A former Ferguson employee testified at trial that sometime in 1994 Weiser told him that when he "got rid of Henry," he would never have another "black son of a bitch" working at Ferguson. O'Neal testified that around the same time, Weiser stopped interacting with him. O'Neal further testified that Nat Rendon, a Ferguson vice president who was responsible for hiring and firing employees, regularly told racial jokes which included derogatory, offensive terms to African-Americans.

On October 22, 1996, O'Neal filed a charge with the EEOC in which he alleged racial discrimination in the workplace. On October 28, the EEOC notified Ferguson of the charge. On January 13, 1997, O'Neal's hours were reduced from fifty-six to thirty-three hours per week.

On January 29, 1997, O'Neal filed a second charge with the EEOC in which he claimed Ferguson retaliated against him for filling the previous EEOC charge by reassigning his work duties and reducing his work hours. On June 30, 1997, Ferguson received a copy of O'Neal's Right to Sue Notice from the EEOC on the racial-discrimination claim. O'Neal's work continued to be reassigned to other employees.

On September 10, 1997, Ferguson received a Right to Sue Notice from the EEOC on the retaliation claim. On September 15, O'Neal was transferred to Ferguson's supply warehouse. O'Neal reported to his new assignment the next day. On September 18, O'Neal's attorney wrote a letter to Ferguson, demanding that O'Neal be reinstated in his old position and accusing the company of reassigning O'Neal in an attempt to retaliate against him for filing EEOC claims. O'Neal was fired the next day.

On September 25, O'Neal filed a lawsuit against Ferguson, alleging hostile work environment and retaliation, both in violation of Title VII and 42 U.S.C. 1981. The case eventually went to trial. At the close of O'Neal's case-in-chief, Ferguson moved for judgment as a matter of law ("JMOL"); the district court denied the motion. Ferguson again moved for JMOL before submission of the case to the jury; the district court denied the renewed motion for JMOL.

After finding for O'Neal on his retaliation claim, the jury awarded him $302,721.25 in compensatory damages and $3,500 in punitive damages. The jury did not find for O'Neal on the hostile work environment claim. Ferguson renewed its motion for JMOL and filed a motion for remittitur. The district court denied these motions.

On appeal, Ferguson makes three arguments. First, it claims the trial court committed reversible error in submitting O'Neal's retaliation claims to the jury because the evidence was legally insufficient to support it. Second, Ferguson claims the trial court improperly instructed and submitted damage claims to the jury for lost employment benefits and future emotional distress. Third, it claims the trial court committed reversible error by failing to apply the statutory cap under 42 U.S.C. 1981a to O'Neal's compensatory damage award. Ferguson does not appeal the jury verdict on the hostile work environment claim.

III. DISCUSSION

A. Retaliation Claims

At trial, O'Neal prevailed on two retaliation claims. The jury found that Ferguson retaliated against O'Neal by reducing his work hours. Additionally, the jury found that Ferguson retaliated against O'Neal by terminating his employment. Ferguson claims the district court erred in denying its motion for JMOL because O'Neal's evidence was legally insufficient to establish a prima facie case of retaliation or to establish pretext in the face of evidence of a business justification.

This court reviews a district court's denial of a motion for JMOL de novo, applying the same standard as the district court and construing the evidence in the light most favorable to the nonmoving party. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996). Unless the evidence so overwhelmingly favors "the movant as to permit no other rational conclusion, judgment as a matter of law is improper." Id. (citation omitted). In challenging the sufficiency of the evidence in this context, Ferguson must establish that no reasonable person could find retaliatory motive in Ferguson's decisions to reduce O'Neal's hours and later terminate him.

To establish a prima facie case of retaliation, O'Neal must establish that: (1) he engaged in protected opposition to discrimination; (2) he suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action. See Kendrick v. Penske Transp. Srvs., Inc., 220 F.3d 1220, 1234 (10th Cir. 2000); Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1103 & n.1 (10th Cir. 1998). Once O'Neal makes a prima facie showing, Ferguson must articulate a legitimate, nondiscriminatory reason for the adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). O'Neal must respond by demonstrating Ferguson's asserted reasons for the adverse action are pretextual. See Perry v. Woodward 199 F.3d 1126, 1135 (10th Cir. 1999).

1. O'Neal's Reduction in Hours

Ferguson concedes that O'Neal's filing of an EEOC claim on October 22, 1996, constitutes a protected activity. Furthermore, it does not take issue with whether O'Neal's reduction in work hours on January 13, 1997, was an adverse employment action. Ferguson argues that the absence of a causal connection between the filing and reduction in hours, however, prevents O'Neal from establishing a prima facie case of retaliation.

A causal connection may be shown by "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982). Unless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation. See Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir. 1997). "[W]e have held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation. By contrast, we have held that a three-month period, standing alone, is insufficient to establish causation." Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (citation omitted). Because O'Neal presented additional evidence from which a reasonable jury could find causation, this court need not address whether two months and three weeks, by itself, is sufficient to support a prima facie case of retaliation.

At trial, O'Neal testified that after he filed his October EEOC claim Ferguson took "[his] work away from [him]." Specifically, he discovered that the field service mechanic began performing a significant number of O'Neal's regular duties. O'Neal indicated that from the time he filed his first complaint until the time Ferguson reduced his hours, trucks began to be left in the field, where the mechanic was changing the oil, oil filter, and air filter, jobs previously assigned to O'Neal. O'Neal further testified that the field mechanic explained to him several times, "They ought to give you your work because I can't handle it." O'Neal's testimony suggests that the work was not reallocated to the mechanic because it was more efficient for the mechanic to perform the work in the field. In fact, the mechanic indicated to O'Neal that he did not have time to perform all of the work O'Neal usually performed on the trucks, including greasing them and checking the carrier bands and universal joints. The jury could have inferred from this evidence that the reallocation of responsibilities soon after the filing of the EEOC claim was a precursor to the ultimate reduction in O'Neal's hours, thus providing the causal connection between the EEOC filing and the adverse employment action.

O'Neal adduced other evidence during his case-in chief which supports an inference that...