Ross v. Rhodes Furniture, Inc.

• Citation: 146 F.3d 1286
• Decision Date: 20 July 1998
• Docket Number: No. 97-6729,97-6729
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 388, 73 Empl. Prac. Dec. P 45,474, 11 Fla. L. Weekly Fed. C 1622, 11 Fla. L. Weekly Fed. C 1640 Arthur ROSS, Plaintiff-Appellant, v. RHODES FURNITURE, INCORPORATED, d.b.a. Marks Fitzgerald, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1286

146 F.3d 1286

77 Fair Empl.Prac.Cas. (BNA) 388,

73 Empl. Prac. Dec. P 45,474,

11 Fla. L. Weekly Fed. C 1622,

11 Fla. L. Weekly Fed. C 1640

Arthur ROSS, Plaintiff-Appellant, v. RHODES FURNITURE, INCORPORATED, d.b.a. Marks Fitzgerald Defendant-Appellee.

No. 97-6729.

United States Court of Appeals Eleventh Circuit.

July 20, 1998.

Rocco Calamusa, Jr., James Mendelsohn, Birmingham, AL, for Plaintiff-Appellant.

Gary E. Thomas, Kenneth J. Barr, Donald B. Harden, Atlanta, GA, for Defendant-Appellee.

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

Before ANDERSON and BIRCH, Circuit Judges, and PAINE ^*, Senior District Judge.

PAINE, Senior District Judge:

Arthur Ross appeals the district court's setting aside a jury verdict that awarded him more than thirty seven thousand dollars in back pay. We reverse and remand with instructions to the district court to reinstate and enter judgment on the jury's verdict. First, the record on appeal is insufficient to permit an evaluation of whether the trial court erred when it granted the defendant's renewed motion for judgment as a matter of law. Second, our de novo review of the trial testimony convinces us that the jury could have reasonably disbelieved the defendant's proffered reasons for firing Ross.

In 1987, Ross, who is an African-American, was hired by Marks Fitzgerald to help deliver furniture. In 1990, Ross began working for Rhodes Furniture when that company acquired Marks Fitzgerald. Ross performed well and climbed the company ladder at Rhodes, ultimately rising to the position of delivery manager. R. 2-26-27. Ross was never disciplined before he was accused of and fired for soliciting tips. R. 2-30.

On December 23, 1993, Ross was supervising the loading dock at Rhodes's warehouse. He noticed that customers' tipping of employees for loading furniture was slowing down operations. Ross testified that, to remedy the situation, he made a tip box and placed it near the loading dock. R. 2-31-33. Ross further testified that he immediately removed the box from its perch outside the loading dock when the receptionist informed him that a customer had complained about the tip box. R. 2-35.

Ross finished work on December 23rd and went on Christmas vacation. When he returned a week later to pick up his paycheck, Ross noticed that Ricky Mann (Mann), a white male, was serving as the delivery manager. Until that time, Mann had been a driver for Rhodes and, at times, under Ross's supervision. On January 5, 1994, Ross returned from vacation to find that he was fired and that Mann had replaced him. R.2-37, 39.

Upon being fired, Ross filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Ross claimed that he was fired because he is black. He also charged that tip solicitation was Rhodes's pretext for discriminatory discharge. Pl.'s Trial Ex. 2 (Ross's EEOC charge). The EEOC issued Ross a right to sue letter. Ross then filed suit in the United States District Court for the Northern District of Alabama, seeking relief under Title VII and Section 1981.

Ross alleged that "[t]he defendant discriminated on the basis of race against the plaintiff with respect to discharge, discipline[,] and other terms of employment." Pl.'s Compl. at 2, p 6. The trial judge denied Rhodes's motion for summary judgment, and the case went to trial. Upon deliberation, the jury awarded Ross $37,341.85 in back pay.

After moving for and receiving an extension of time, Rhodes filed a renewed motion for judgment as a matter of law under Rule 50(b). Rhodes also moved for a new trial. Apparently, Ross opposed neither motion. See Trial Docket. Chief Judge Pointer granted Rhodes's renewed motion for judgment as a matter of law, set aside the jury's verdict, and entered judgment for Rhodes. He denied as moot Rhodes's motion for a new trial. Trial Docket No. 54. Ross appealed.

At oral argument to the appellate panel, counsel agreed that Rhodes moved for judgment as a matter of law both at the close of Ross's case and at the close of all the evidence. ¹ The parties did not, however, identify what grounds Rhodes offered in support of its pre-verdict motions under Rule 50(a). The record on appeal is also silent on this point. ² The abbreviated record prevents any meaningful appellate review of whether Ross was afforded his Seventh Amendment right to cure evidentiary deficiencies before his case went to the jury. Rule 50 was designed to protect that right, and therefore, we adhere to its procedural mandates. See Crawford v. Andrew Sys., Inc., 39 F.3d 1151, 1154 (11th Cir.1994)(holding that a district judge has no authority to grant a Rule 50(b) motion when no Rule 50(a) is made) and see also Sims' Crane Serv., Inc. v. Ideal Steel Prods., 800 F.2d 1553, 1557 (11th Cir.1986) (noting our attention to both the purpose and the wording of Rule 50(b)).

Rule 50 motions must made on the record. That rule is not unique to this circuit. See Keith v. Truck Stops Corp. of Am., 909 F.2d 743, 744 (3rd Cir.1990) ("the better practice would be for such motions to be made on the record"). An adequate record may allow us to excuse technical non-compliance with Rule 50. See MacArthur v. University of Texas Health Ctr., 45 F.3d 890, 898 (5th Cir.1995). More importantly, an adequate record on appeal reveals whether a plaintiff's Seventh Amendment rights have been ambushed. It also controls the evidentiary standard we apply when reviewing a district court's decision to set aside a jury verdict. The standard of review is de novo. General American Life Insurance Company v. AmSouth Bank, 100 F.3d 893, 899 (11th Cir.1996); Bateman v. Mnemonics, 79 F.3d 1532 (11th Cir.1996)(district judge's resolution of post trial motions renewed de novo).

When reviewing a trial court's resolution of a Rule 50(b) motion, we compare the grounds originally argued by the movant in its Rule 50(a) motion with those cited by the trial court in granting a renewed motion for judgment as a matter of law. See National Indus., Inc. v. Sharon Steel Corp., 781 F.2d 1545(11th Cir.1986); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 845-46 (5th Cir.1975). If the grounds argued in a motion under Rule 50(a) are "closely related" to those argued in a Rule 50(b) motion, then setting aside a jury's verdict is no surprise to the non-movant. No Seventh Amendment right is ambushed. National Indus., Inc. v. Sharon Steel Corp., 781 F.2d at 1549-50. But if the new and old grounds vary greatly, then a trial judge may not rely on the new grounds to set aside the jury's verdict. See Sulmeyer v. Coca Cola Co., 515 F.2d at 845-46. If they do vary greatly and the trial court relies upon the new grounds to set aside the jury's verdict, we will reverse. See id.

In National Industries, the record on appeal enabled us to conclude that the new grounds in the Rule 50(b) motion constituted no surprise to the non-movant because the new and old grounds were "closely related." See National Indus., Inc. v. Sharon Steel Corp., 781 F.2d at 1549. In this case, however, we are unable to evaluate whether the grounds in Rhodes's Rule 50(a) motions were substantially different from those asserted in its Rule 50(b) motion. Hence, we cannot ascertain if this appeal is more like National Industries, where "[t]he difference ... between the matters raised in the motion for judgment n.o.v. and the earlier motion is not so great[,]" or whether it is akin to Sulmeyer v. Coca Cola Company and Wilson v. Attaway, 757 F.2d 1227 (11th Cir.1985), where the matters varied greatly and required reversal.

We see no difference between a record that omits any mention of a Rule 50(a) motion and one that is mute concerning the grounds argued in support of the Rule 50(a) motion. Both deficiencies go to the heart of our concerns that a plaintiff's Seventh Amendment rights not be ambushed and that a plaintiff be allowed to cure evidentiary deficiencies before the jury retires.

The record before us makes it impossible to determine whether the trial court should be affirmed under the "flexible approach" we took in National Industries or whether we should follow a stricter approach as we did in Sulmeyer and Wilson. Accordingly, we must act in an abundance of caution towards preserving the sanctity of a jury's verdict and vacate the trial judge's decision. Cf. Dunn v. H.K. Porter Co., Inc., 602 F.2d 1105, 1113 (3rd Cir.1979) (vacating judgment of district court because "[t]he record before us is not sufficiently complete to permit adequate appellate review of the district court's action."). Instead of culling the record for substantial evidence to support the verdict (as we would normally do), we will look for any evidence that would sustain the jury's decision. We employ the "any evidence" standard because we are unable to ascertain whether Ross was sandbagged by new arguments in Rhodes's motion under Rule 50(b). Cf. Wilson v. Attaway, 757 F.2d at 1237 (applying the "any evidence" standard when no Rule 50(a) motion was made).

Applying this "any evidence" standard, we conclude that the jury verdict was supported by the evidence, and therefore, it must be reinstated. We review de novo a district court's determination of a Rule 50(b) motion. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir.1997). In doing so, "we must consider all the evidence in the light most favorable to [the nonmovant] and determine 'whether or not reasonable jurors could have concluded as this jury did based on the evidence presented.' " Id. (quoting Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir.1993)).

In his quest for relief, Ross must clear several evidentiary hurdles. He must make a prima facie case. Id. at 1528. Ross made a prima facie case for discriminatory discharge. As an African-American, he is a member of a protected class. Given the glowing evaluations Ross received prior to being discharged, he was certainly qualified to serve as Rhodes's...