Starr v. QuikTrip Corporation
OPINION AND ORDER by Chief Judge Gregory K Frizzell ; denying 77 Motion for New Trial; denying 79 Motion to Reconsider (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
PAUL STARR, an individual,
a domestic for-profit corporation,
Case No. 14-CV-621-GKF-TLW
OPINION AND ORDER
Before the court are the Motion for New Trial [Doc. No. 77] and Motion to Reconsider
[Doc. No. 79] of plaintiff Paul Starr (“Starr”). For the reasons set forth below, the motions are
This dispute arises from defendant QuikTrip Corporation’s (“QuikTrip”) termination of
Starr’s employment on August 31, 2012. Starr filed suit on October 17, 2014, alleging claims of
premature termination in violation of 38 U.S.C. § 4316(c) and discriminatory termination in
violation of 38 U.S.C. § 4311(a). Summary judgment was granted against Starr on his
discrimination claim, Starr v. QuikTrip Corp., No. 14-CV-621-GKF-TLW, 2015 WL 12915596
(N.D. Okla. Aug. 7, 2015), aff’d in relevant part by 655 Fed. App’x 642 (10th Cir. 2016); his
premature termination proceeded to trial on December 5, 2016.
At trial, the parties agreed that Starr established a prima facie case of premature
termination—that is, Starr was a reemployed service-member who discharged within a year of
reemployment after a term of service lasting more than 180 days. [Doc. No. 67, p. 3]. Thus,
QuikTrip bore the burden of establishing “for cause” dismissal. Specifically, QuikTrip was
required to show that: (1) it was reasonable to terminate Starr based on his conduct; and (2) Starr
had notice—express or implied—that such conduct constituted grounds for termination. Starr v.
QuikTrip, 655 Fed. App’x 642, 644 (10th Cir. 2016) (citing 20 C.F.R. § 1002.248(a)). The case
centered on whether QuikTrip personnel manager Craig Hall (“Hall”) orally modified the
company’s “No Call/No Show” policy to allow Starr to report absences before the start of his
next shift—i.e., the next working day. QuikTrip’s written policy required absences be reported
within two hours of the start of a missed shift. Following a two day jury trial, the jury returned a
verdict for QuikTrip. [Doc. No. 75]. These motions followed.
II. Legal Standard
By post-trial motion, a party may alternatively seek judgment as a matter of law under
Fed. R. Civ. P. 50(b) and a new trial under Fed. R. Civ. P. 59(a). See 9B A. Miller, Fed. Prac. &
Proc. Civ. § 2539 (3d ed. 1998). Each basis for relief, however, is distinct—“[t]he rules serve
different purposes, implicate different substantive standards . . . and involve different
procedures.” See Dunlop Tire Corp. v. I.M.E. of Miami, Inc., 232 F.3d 900 (Table) (10th Cir.
Under Rule 50(b), “the court views the evidence in the light most favorable to the
prevailing party.” See Ward v. Healthsouth Corp., No. CIV-03-1564-F, 2007 WL 649291, at *1
(W.D. Okla. Feb. 27, 2007) (citing Webco Industries, Inc. v. Thematool Corp., 278 F.3d 1120,
1123 (10th Cir. 2003)). And judgment as a matter of law shall not be granted unless “there is no
legally sufficient evidentiary basis” supporting the jury’s verdict. See Mason v. Okla. Turnpike
Auth., 115 F.3d 1442, 1450 (10th Cir. 1997) (internal quotations omitted). Under Rule 59(a), by
contrast, the court “is free to weigh the evidence . . . and need not view it in the light most
favorable to the verdict winner.” See DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124,
134 (2d Cir. 1998). Indeed, “a new trial may be granted even if there is substantial evidence
supporting the jury’s verdict.” See id. The question is whether “prejudicial error has occurred.”
Miller, Fed. Prac. & Proc. Civ. § 2531.
In this way, Rule 50(b) enunciates “a more stringent standard” for granting relief than
Rule 59(a). See Henning v. Union Pac. R. Co., 530 F.3d 1206, 1216 (10th Cir. 2008). That is
unsurprising. When considering entry of judgment as a matter of law, the court “‘determine[s]
whether there is any evidence to carry the case, or any issue in it, to the jury.’” See Miller, Fed.
Prac. & Proc. Civ. § 2531 (quoting Reid v. Md. Cas. Co., 63 F.2d 10, 12 (5th Cir. 1933)). When
granting a new trial, the court considers whether a verdict—even one supported by evidence—
should stand in light of “the right and justice of the case.” Miller, Fed. Prac. & Proc. Civ. § 2531
(quoting Reid, 63 F.2d at 12).1
Starr moves for judgment as a matter of law, or, alternatively a new trial on three
grounds: (1) QuikTrip improperly struck prospective jurors with military service backgrounds;
(2) evidence of Starr’s service record was improperly excluded; and (3) QuikTrip prejudicially
referenced damages in closing argument of the liability phase of trial. For the reasons set forth
below, the alternative motions are denied.
Best read, Starr’s motions seek relief under Rule 50(b) and Rule 59(a). [Doc. No. 77, p. 1]
(describing requested relief as judgment as a matter of law, or, alternatively, a new trial). The
court recognizes, however, that the motion for judgment as a matter of law is styled as a request
for reconsideration. [Id.]. A motion under Fed. R. Civ. P. 59(e) offers relief in extraordinary
circumstances, not a second bite at the apple. Syntroleum Corp. v. Fletcher Int’l, Ltd., No. 08CV-384-JHP-FHM, 2009 WL 761322, at *1 (N.D. Okla. Mar. 19, 2009). Extraordinary
circumstances generally include: “(1) an intervening change in controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “In other words, when
the court has ‘misapprehended the facts, a party’s position, or the controlling law,’ a motion to
reconsider is appropriate.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Whitney, 2010 WL
2079668, at *1 (N.D. Okla. May 20, 2010) (quoting Servants, 204 F.3d at 1012). For the reasons
set forth in this order, in the event the motion is more properly considered as a Rule 59(e)
motion, that motion is also denied.
A. Jury Selection
The Equal Protection Clause forbids the use of peremptory strikes to exclude jurors on
the basis of immutable characteristics. See Batson v. Kentucky, 476 U.S. 79, 96–97 (1986);
J.E.B. v. Alabama, 511 U.S. 127, 128 (1994). To that end, a litigant challenging a peremptory
strike must show: (1) a prospective juror’s membership in a suspect or quasi-suspect class; (2)
the juror’s exclusion; and (3) facts and circumstances raising an inference that class membership
motivated the peremptory strike. See United States v. Ogaz-Nevarez, 89 F.3d 851 (Table) (10th
Cir. 1996). If a prima facie case of discrimination is established, the burden shifts to the striking
party to provide a neutral explanation for exclusion. See id.
Here, Starr argues that QuikTrip improperly struck jurors with prior military experience.
That argument lacks merit. As a general matter, “[p]eremptory strikes may be validly exercised
on the basis of employment status and occupation.” See United States v. Simon, 422 Fed. App’x
489, 494 (6th Cir. 2011); United States v. Ramirez-Soberanes, 210 F.3d 391 (Table) (10th Cir.
2000) (“Federal courts have consistently upheld peremptory challenges based upon the
employment of the juror.”); United States v. Adkins, 35 F.3d 1401, 1406 (8th Cir. 1994) (“We
have consistently allowed the . . . use of employment as a valid, race-neutral proxy for juror
selection[.]”). And that is unsurprising—unlike race or gender, employment status is not an
“immutable characteristic” triggering heightened scrutiny under the Fourteenth Amendment. See
United States v. Prince, 647 F.3d 1257, 1262–63 (10th Cir. 2011).
Starr responds that Congress—in legislative enactments like USERRA—has recognized
veterans as a protected class. The court disagrees. For one thing, Congress lacks the
constitutional prerogative to define suspect or quasi-suspect classes under the Equal Protection
Clause. See United States v. Harris, 197 F.3d 870, 875–76 (7th Cir. 1999) (“Congress does not
have the power to . . . declare a class of persons ‘suspect’ under the Fourteenth Amendment.”).
For another, Congress provides benefits to any number of discrete subgroups, the recognition of
which for constitutional purposes could functionally eliminate peremptory challenges.
Accordingly, the court concludes veteran employment status does not constitute a suspect or
quasi-suspect class within the meaning of the Fourteenth Amendment, and a Batson challenge
In any case, QuikTrip did not exercise its peremptory strikes in a discriminatory manner.
To start, QuikTrip did not exclude all venire members with prior military service—as Starr
concedes, a veteran did, in fact, serve on the jury. [Doc. No. 77, p. 3]; [Doc. No. 78, p. 4, n.1].
Moreover, QuikTrip excluded non-veteran members of the venire as well. That corroborates
QuikTrip’s assertion that non-employment based rationales justified the exclusion of other jurors
who were military veterans. [Doc. No. 78, p. 3]. The court also notes that Starr struck a veteran
from the venire. And while “unclean hands” is not a per se defense to a discrimination challenge,
the use of strikes “by the objecting party can be used to establish how . . . the makeup of the final
jury was formed.” See United States v. Ochoa-Vasquez, 428 F.3d 1015, 1047 n. 47 (11th Cir.
2005); see also United States v. Novaton, 271 F.3d 968, 1004 (11th Cir. 2001) (“[T]he district
court was free to consider all other relevant circumstances, such as the fact that . . . appellants
themselves exercised peremptory challenges to strike Hispanic jurors[.]”); United States v. CruzEscoto, 476 F.3d 1081, 1090 (9th Cir. 2007). On these facts, the court concludes Starr’s Batson
challenge must fail.
B. Service Record Evidence
Starr also argues that the court improperly excluded evidence of his military service.
Starr’s “motion[s] . . . simply rehash[ ] the position taken” at pretrial conference. See United
States v. Morrow, No.98-40040-02-SAC, 1998 WL 1054230, at *7 (D. Kan. Dec. 22, 1998). But
contrary to Starr’s representation, the court did not exclude records of his military service in
limine; that evidentiary ruling was made at trial. [Doc. No. 56, TR of Pretrial Conf. 17: 9–16]
(“I don’t believe it was raised in the motion in limine . . . The way I see it is that you’re giving
me a preview of some evidentiary objections that are going to be raised at trial, so we’ll think
about it and be ready to rule as it comes up at trial.”).
And in any event, the court’s ruling did not sweep as broadly as Starr suggests. Starr
claims he “was not allowed to discuss . . . why he was having problems after his tour of combat.”
[Doc. No. 77, p. 4]. Not so. In fact, the court expressly noted that “QuikTrip’s knowledge of
Starr’s ‘issues’ and whether QuikTrip offered a modified attendance policy to accommodate
[them] . . . [we]re plainly relevant to Starr’s claim.” [Doc. No. 52, pp. 4–5] (Order Granting In
Part and Denying In Part Defendant QuikTrip Corporation’s Motion In Limine). It was Starr’s
counsel that did not develop such testimony further. On some level, that is unsurprising because
Starr’s counsel represented in pretrial briefing that Starr was never diagnosed with post-traumatic
stress disorder. [Doc. No. 51, pp. 5–6]. But in any case, in light of the parties’ stipulation as to
the dates of Starr’s service and termination, the court cannot conclude its exclusion of military
service records—specifically, commendations, awards, and letters of distinction—was “clearly
erroneous,” “manifests a clear error in judgment,” or would have meaningfully altered the mix of
facts available for the jury’s deliberation. [Doc. No. 56, TR at 15:20-16:16] (plaintiff’s counsel’s
description of the content of military records).
C. Closing Argument
Starr argues that QuikTrip improperly referenced damages in closing argument during the
liability phase of trial. Specifically, he suggests that reference may have influenced members of
the jury. [Doc. No. 77, p. 5–6]. That argument lacks merit. “[S]imilar to the rule 50(b) motion,
a party must lay the necessary predicate to a motion for new trial during the trial. ‘[A] new trial
will not be granted on grounds not called to the court’s attention during the trial unless the error
was so fundamental that gross injustice would result.’” Guidance Endodontics, LLC v. Dentsply
Int’l, Inc., 728 F.Supp.2d 1170, 1185 (D.N.M. 2010) (quoting 11 C. Wright, A. Miller & M.
Kane, Fed. Prac. & Proc. Civ. § 2805 (2d ed. 1995)). Here, Starr’s “failure to object alone
justifies the denial of his motion[s] to the extent [they] [are] based on improper close.” See
Spahr v. Ferber Resorts, LLC, 686 F.Supp.2d 1214, 1223 (D. Utah 2010); see also United States
v. Hill, 60 F.3d 672, 675 (10th Cir. 1995) (objecting in a motion for new trial “does not make up
for the failure to object when the evidence was proffered at trial”). Such a rule discourages a
“wait and see” approach to objections, whereby a party sits silent until a verdict is returned
before lodging a complaint. See id.; see also United States v. Thomas, 627 F.3d 146, 158 (5th
Cir. 2010) (“A defendant who fails to object immediately to part of a counsel’s argument and
instead waits until the argument has concluded fails to preserve the issue.”).
In any case, Starr does not articulate precisely how the jury was prejudiced by QuikTrip’s
fleeting comments. And “the [c]ourt is not convinced that this brief comment constitutes such
plain error affecting substantial rights and the fairness or integrity of judicial proceedings.” See
Ryan Dev. Co., L.C. v. Ind. Lumbermens Mut. Ins. Co., No. 09-1264-EFM, 2011 WL 5080309, at
*2 (D. Kan. Oct. 25, 2011).
WHEREFORE, Starr’s Motion for New Trial [Doc. No. 77] and Motion to Reconsider
[Doc. No. 79] are denied.
IT IS SO ORDERED this 1st day of February, 2017.
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