Cham v. Station Operators, Inc.
Filing
113
MEMORANDUM AND ORDER: DENYING Defendant's 100 Motion for Judgment as a Matter of Law and GRANTING Defendant's 100 alternative Motion for a New Trial; and, finding as moot 88 Motion to Alter Judgment; finding as moot 89 Motion/Request for Entry of Judgment ; finding as moot 102 Motion to Strike. So Ordered by Chief Judge Mary M. Lisi on 6/2/2011. (Duhamel, John)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
OUSMAN CHAM,
Plaintiff,
v.
C.A. No. 08-326 ML
STATION OPERATORS INC.,
Defendant.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's motion for judgment as a matter oflaw,
or, in the alternative, for a new trial. On January 31, 2011, a jury found that Defendant had
retaliated against Plaintiff for his having taken medical leave under the Family Medical Leave
Act ("FMLA"). 29 U.S.C. § 2601. In its motion, Defendant argues that it is entitled to
judgment as a matter of law because Plaintiff failed to provide sufficient evidence to support his
FMLA retaliation claim. Alternatively, Defendant argues that a new trial is warranted because a
miscarriage ofjustice would result if the jury verdict were permitted to stand. For the reasons set
forth below, the Court denies Defendant's motion for judgment as a matter oflaw and grants
Defendant's motion for a new trial.'
! The granting of Defendant's motion for a new trial renders moot several pending motions,
including: Plaintiff s motion requesting entry ofjudgment, Docket No. 89; Plaintiffs motion to alter
judgment, Docket No. 88; and Plaintiffs motion to strike response in opposition, Docket No. 102.
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I. Background
Plaintiff, Ousman Cham ("Cham"), is a follower of the Muslim religion and is of African
heritage. He emigrated from Gambia to the United States in the year 2000. Beginning on May
13,2003, Cham was employed by Defendant, Station Operators Inc. ("Station Operators"), as a
sales associate at a gas station located in Smithfield, Rhode Island. After suffering an injury in a
non-work-related automobile accident on January 17, 2005, Cham took medical leave beginning
on January 18,2005. Cham returned to work at Station Operators on March 15,2005. In his
lawsuit, Cham claimed discrimination in the workplace and retaliatory employment actions on
account of his having taken medical leave. Cham ultimately left his employment with Station
Operators on May 20,2005, alleging that he was constructively discharged on that date.
Cham filed a charge of workplace discrimination with the Rhode Island Commission For
Human Rights ("RICHR") and the EEOC on February 8, 2006. Cham received notice of his
right to sue on May 6, 2008. Cham brought suit against his former employer alleging
discrimination based on his race, national origin, color, gender, and religion/ in violation of Title
VII, 42 U.S.C. § 2000e, and the Rhode Island Fair Employment Practices Act, R.I. Gen. Laws §
28-5-1. Cham claimed a failure to promote;' disparate treatment, and hostile work environment.
2 Cham dropped the gender and religion claims before the conclusion of trial. Trial Tr. vol. IV,
4:15-21, January 31, 2011, Docket No. 98.
3 A hearing was held on January 18,2011, to address the parties' motions in limine. There,
Cham's counsel concurred with this Court in concluding that the promotion claims were time-barred and
that dismissal was appropriate. Mot. Hr'g Tr. 7:17-8:22, Docket No. 94. The Court noted, however, that
evidence of the failure to promote could be relevant to show discriminatory animus with regard to the
timely discrimination claims. Id.
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Cham further alleged that he was retaliated" against for having taken protected medical leave in
violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, and the Rhode Island
Parental and Family Medical Leave Act ("RlPFMLA"), R.I. Gen. Laws § 28-48-1. 5
Ajury trial commenced on January 24,2011. There, Cham alleged that Station Operators
discriminated against him because of his protected characteristics and retaliated against him for
having taken protected medical leave. After Cham rested his case, Station Operators made a
motion, as to all counts, for judgment as a matter of law. Trial Tr. vol. III, 34:4, January 26,
2011, Docket No. 97. In response, Cham's counsel conceded that there was no evidence to
support the hostile work environment claim and agreed that it should be dismissed. Id.40:16-22.
As to the remaining claims, the Court took Station Operators' motion under advisement.
Before closing arguments, Cham made his own Rule 50 motion for judgment as a matter
oflaw as to all counts. Fed. R. Civ. P. 50(a); Trial Tr. vol. IV, 2:17-19, January 31, 2011,
Docket No. 98. The Court denied Cham's motion but ruled on Station Operators' Rule 50 motion
and found that Cham had failed to make a prima facie showing of disparate treatment. Id. at
14:10-16:6. Consequently, the only claim left for the jury's consideration was the FMLA
retaliation claim.
The jury returned a verdict for Cham and against Station Operators on the FMLA
retaliation claim. Station Operators now renews its Rule 50 motion for judgment as a matter of
At the January 18, 2011, motion hearing the Court dismissed Cham's substantive "interference"
claims as time-barred under both the federal and state statutes. Mot. Hr'g Tr. 4:18-5:17.
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5 The elements of the FMLA and the RIPFMLA are "essentially the same" and the "disposition
of the federal claims likewise disposes ofthe parallel state law claims." Hodgens v. General Dynamics
Corp., 144 F.3d 151, 158 n.l (1st Cir. 1998).
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law, arguing that Cham failed to make out a prima facie case of FMLA retaliation and that,
regardless, the retaliation claim was time-barred because Cham failed to prove willfulness. In the
alternative, Station Operators has made a Rule 59 motion for a new trial on the basis that a
miscarriage ofjustice would otherwise result because irrelevant evidence relating to the
dismissed discrimination claims was prejudicial with regard to the sole claim that was submitted
to the jury.
II. Standard of Review
A. Motion for Judgment as a Matter of Law
After trial, "the movant may file a renewed motion for judgment as a matter of law." Fed.
R. Civ. P. 50(b). "A motion for judgment as a matter oflaw only may be granted when, after
examining the evidence of record and drawing all reasonable inferences in favor of the
nonmoving party, the record reveals no sufficient evidentiary basis for the verdict." Zimmerman
v. Direct Fed. Credit Union, 262 F.3d 70, 75 (lst Cir. 2001). The Court "will evaluate neither
the credibility of the witnesses nor the weight of the evidence." Malone v. Lockheed Martin
Corp, 610 F.3d 16,20 (1st Cir. 2010) (quoting Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23,
29 (1st Cir. 2004)). "Courts may only grant ajudgment contravening ajury's determination
when the evidence points so strongly and overwhelmingly in favor of the moving party that no
reasonable jury could have returned a verdict adverse to that party." Malone, 610 F.3d at 20
(quoting Rivera Castillo v. Autokirey, Inc., 379 F.3d 4,9 (1st Cir. 2004)).
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B. Motion for a New Trial
A "court may, on motion, grant a new trial on all or some of the issues ... after a jury
trial, for any reason for which a new trial has heretofore been granted in an action at law in
federal court." Fed. R. Civ. P. 59(a). A district court may order a new trial "only if the verdict is
against the law, against the weight of the credible evidence, or tantamount to a miscarriage of
justice." Crowe v. Marchand, 506 F.3d 13, 19 (lst Cir. 2007) (quoting Casillas-Diaz v. Palau,
463 F.3d 77,81 (lst Cir. 2006)). Judicial interference with a jury verdict is warranted only
where the verdict "represents a blatant miscarriage ofjustice." Acevedo-Garcia v. Monroig, 351
F.3d 547,566 (lst Cir. 2003) (quoting Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 717 (1st Cir.
1994)). "Trial judges have more leeway to grant new trials than to set aside verdicts based on
insufficiency ofthe evidence under Rule 50." Valentin-Almeyda v. Municipality of Aguadilla,
447 F.3d 85, 104 (lst Cir. 2006).
III. Discussion
A. Station Operators' Motion for Judgment as a Matter of Law
The parties agree that Cham took protected medical leave beginning January 18,2005,
and ending March 14,2005. At trial, the parties wrangled over whether Station Operators
retaliated against Cham for having taken that leave. In its motion for judgment as a matter of
law, Station Operators argues that no reasonable jury could have rendered a verdict against it
because Cham failed to make a prima facie showing of retaliation. Station Operators additionally
argues that, aside from insufficient proof of FMLA retaliation, Cham's claim must fail because it
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is time-barred.
1. Prima Facie Showing - Sufficiency of the Evidence
A plaintiff makes out a prima facie showing ofFMLA retaliation when he demonstrates
that "(1) he availed himself of a protected right under the FMLA; (2) he was adversely affected
by an employment decision; (3) [and] there is a causal connection between the employee's
protected activity and the employer's adverse employment action." Hodgens v. General
Dynamics Corp., 144 F.3d 151, 161 (1st Cir. 1998). Station Operators contends that Cham failed
to demonstrate that he suffered any adverse employment action and that, irrespective, there was
no causal connection between any such employment action and the taking of FMLA leave.
i. Adverse Employment Action
Cham argued at trial that, upon his return from leave, his hours were reduced. Cham
testified that prior to taking medical leave he was generally scheduled for 40 hours of work per
week. He stated, however, that during the first week of his return from medical leave, he worked
only 25.5 hours. Trial Tr. vol. I, 80:10-25, January 24,2011, Docket No. 95; CORS Work
Schedule, Pl.'s Ex. 22. The following week, the week ending March 23,2005, Cham was
scheduled for only 32 hours. Trial Tr, vol. I, 82:22-83:7. Records submitted into evidence
indicate that Cham worked 33.5 hours for the week ending March 30, 2005. Earnings
Statements, PI.'sEx. 106. Cham did not work 40 or more hours in any of the weeks between his
return from medical leave and his leaving Station Operators. Cham testified at trial that his hours
were even further reduced and that, for the week ending May 11,2005, his scheduled hours were
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cut back to only 24 hours of work. It was at this point in time, on May 20,2005, that Cham left
his employment with Station Operators.
In further support of his retaliation claim, Cham recalled an incident occurring one month
into his period of leave in which the store manager, Andrew Pelletier ("Pelletier"), who was in
charge of setting the work schedules, called Cham to ask if he was returning to work. Trial Tr.
vol. 1,.69:7-13. Cham told Pelletier that he was not yet fully recovered. Cham testified that
Pelletier first started yelling at him and then said "I'm going to kill you." Id. at 70:2.
Station Operators argues that there was no adverse employment action because Cham was
never guaranteed a 40-hour work week. Cham's hours did fluctuate during his employment but
this does not necessarily account for the declining number of hours he was scheduled to work
upon his return from medical leave. Station Operators also contests the work schedule for which
Cham's hours were reduced to 24. The debate at trial was over whether the schedule for that
week was from August 2004 or, as Cham argued, May 2005. Trial Tr. vol. II, 84-99, January 25,
2011, Docket No. 96. Pelletier's testimony, however, made clear that several individuals listed
on the contested schedule had not been hired until 2005. Id. at 158-162.
Ultimately, Station Operators argues that there was never any constructive discharge
because Cham merely resigned his employment. A constructive discharge occurs where,
objectively, the working conditions are found to "have been so difficult or unpleasant that a
reasonable person in the employees' shoes would have felt compelled to resign." Meuser v. Fed.
Express Corp., 564 F.3d 507,522 (1st Cir. 2009) (quoting GTE Products Corp. v. Stewart, 421
Mass. 22, 34 (1995)). In this case, Cham's evidence showed that he generally worked 40 hours
per week but that after his return from FMLA leave his work schedule was reduced to
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approximately 32 hours per week. His evidence further demonstrated that in May 2005 his
hours, for at least one week, were reduced to 24 hours per week. On these facts, a reasonable
jury could find the reduction in work hours to be evidence of an employment action so
intolerable so as to constitute a constructive discharge.
ii. Causal Connection
Station Operators argues that Cham has failed to show a causal connection between the
alleged adverse employment actions and the taking of medical leave. "Normally, employers do
not leave behind direct evidence of their discriminatory animus, such as express declarations of
their retaliatory intentions." Sima v. First Citizens' Fed. Credit Union, 170 F.3d 37, 48 (1st Cir.
1999). In this case, Cham produced sufficient circumstantial evidence for a reasonable jury to
find a causal connection between his taking of medical leave and the reduction in hours.
Namely, the time frame during which Station Operators reduced Cham's work hours closely
corresponded to his return from medical leave and such temporal proximity can bespeak
retaliatory intent and give rise to an inference of a causal connection. See Hodgens, 144 F.3d at
170. The strength of that inference will depend upon factors such as a defendant's nonretaliatory explanation and the plaintiffs showing of pretext. See id. Based on the evidence in
the record, there was a sufficient evidentiary basis for the jury to conclude that Station Operators
took adverse employment action against Cham because he had exercised his right to medical
leave.
Taking the evidence in the light most favorable to Cham and eschewing any credibility
determinations, the Court finds that Station Operators' motion for judgment as a matter of law
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must be denied.
2. Statute of Limitations
The viability of Cham's FMLA retaliation claim hinged upon whether or not Station
Operators' violation was willful. Without a finding of willfulness, Cham's claim was timebarred. Typically, the FMLA imposes a two-year limitations period. 29 U.S.C. § 2617(c)(I).
Here, Cham filed his complaint on May 6, 2008, and the last day on which Cham suffered any
injury as a result of the alleged retaliation was May 20,2005. Accordingly, Cham's FMLA
retaliation claim is untimely unless the FMLA's three-year limitations period for willful
violations applies. 29 U.S.C. § 2617(c)(2). A willful violation occurs when the "employer either
knew or showed reckless disregard for the matter of whether its conduct was prohibited by the
statute." Hillstrom v. Best Western TLC Hotel, 354 F.3d 27,33 (1st Cir. 2003).
On Station Operators' motion, the "willfulness" question synthesizes itself into whether
Cham presented sufficient evidence for a reasonable jury to conclude that Station Operators
wilfully violated the FMLA. Cham's counsel did not specifically reference willfulness in either
the opening or closing statements. Further, Cham's counsel never introduced direct evidence of
Station Operator's in-house medical leave policy and never specifically questioned Pelletier as to
his knowledge of the FMLA. Station Operators argues that the jury had no evidentiary basis for
finding a willful violation.
The question put to the jury was whether Station Operators engaged in conduct "such that
it knew its conduct violated the law or showed reckless disregard for whether its conduct violated
the law." Jury Verdict Form, Docket No. 85. As for the evidence presented to the jury, it is not
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enough to simply show that the "employer knew the Act was in the picture" or that the "employer
acted unreasonably in believing it was complying with the statue." Hillstrom, 354 F.3d at 33.
An employer must be more than negligent. See id. at 34.
Station Operators argues that Cham failed to prove that Pelletier was aware of the FMLA
and that "medical leave" is not synonymous with "FMLA leave." The record, however,
demonstrates that Pelletier was a supervisor who was aware of Station Operators' medical leave
policy and that he helped administer that policy. Pelletier was a point of contact while Cham was
out on leave and Pelletier spoke to him directly about his anticipated return date. In addition, at
all times, the FMLA governed and informed the Station Operators medical leave policy that
Pelletier administered. Cham has demonstrated a close enough connection between Pelletier and
the alleged adverse employment action to conclude that he has done more than merely show that
the FMLA was in the picture. In the end, Cham's evidence in support of his FMLA retaliation
claim was so closely entwined with his showing of willfulness that the Court cannot now
conclude that the evidence of willfulness was insufficient for a reasonable factfinder to have
found that Station Operators acted knowingly or with reckless disregard for whether its actions
violated the FMLA.
B. Station Operators' Motion for a New Trial
Station Operators' motion for a new trial presents a separate issue that is somewhat
related to its argument on the jury's determination of willfulness. At trial, evidence in support of
Cham's disparate treatment and hostile work environment claims was put before the jury; that
evidence, which was irrelevant to the FMLA claim, had a potentially prejudicial bearing on the
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single claim decided by the jury. The Court dismissed Cham's disparate treatment claim on
Station Operators' Rule 50 motion, and Cham voluntarily withdrew his hostile work environment
claim before the conclusion of trial but after presenting evidence in support of the claim. The
question now is whether the jury was presented with extraneous evidence that was unduly
prejudicial to Station Operators.
Cham's allegations of discriminatory treatment primarily involved Pelletier, an assistant
manager who was later promoted to store manager, and Stacy Vanner ("Vanner"), a sales
associate who was later promoted to assistant manager. As background evidence of
discriminatory animus, Cham testified that in October 2004 Pelletier passed him over for
promotion and instead promoted Vanner, a white woman, to the position of assistant manager
even though Cham had more experience. Trial Tr. vol. I, 37:5-38:11. As further evidence of
discriminatory intent and workplace hostility, Cham testified that Pelletier made derogatory
comments about Muslims and terrorists, id. at 39:22- 40:6, and berated him on another occasion
when he was late to work because of a flat tire, id. at 42:2-43:25. Additionally, Cham testified
that on several occasions Pelletier used the phrase "you people" in reference to Cham and an
African-American female employee. Id. at 40:12-16.
In further support of his discrimination claims, Cham testified that his holiday work hours
were reduced beginning on Labor Day in 2004. Id. at 44:1-60:15. He testified that under prior
store managers he had received eight hours of holiday pay on various holidays. He alleged,
however, that beginning in November 2004, just after Pelletier became store manager, he no
longer received such holiday pay. See Earnings Statements, Pl.'s Ex. 106. Also, Cham testified
that on December 21, 2004, he was disciplined for missing work due to an emergency while
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traveling out of town. Trial Tr. vol. r, 60:16-65:15. Cham testified that Pelletier had wrongly
disciplined him by putting him on probation because, although a "no call/no show is a posted
offense," it is not a violation of company policy if the event was "beyond the control of the
employee." rd. at 62:15-23; see also ExxonMobil Posted Offenses, Pl.'s Ex. 3; Cham Probation
Letter, Pl.'s Ex. 94.
Cham called several witnesses in support of his discrimination claims. Vanner testified
that "[e]very once in a while" a friend of hers would come to work and tell "childish jokes" ofa
"racial" nature in front of the other employees, including Cham. Trial Tr. vol. II, 47:9-18.
Vanner also testified as to the harassment training she received while working for Station
Operators and she testified as to her general understanding of Station Operators' progressive
discipline policy. Finally, Vanner testified about an allegedly discriminatory incident occurring
in 2005 in which she and Cham were "screaming at each other" over how to handle a situation
involving a customer who left without paying for gas after filling the tank. rd. at 78: 12-81:25.
Cham also called Pelletier to testify. Pelletier testified that he was responsible for hiring
a replacement to fill the assistant manager position. rd. at 106:25-109:12. He further testified
that Vanner, a white woman, was hired for the assistant manager position even though six weeks
prior to her promotion she had been disciplined for having a short register. rd. at 112:17-113:3.
Pelletier also provided testimony regarding Station Operators' posted offense list and the
company's discipline policy. rd. at 114:11-131 :19. Additionally, Pelletier testified as to why he
put Cham on probation and what he meant with regard to certain written comments he made
about Cham's work performance after Cham had left the company. rd. 132:19-134:18.
Station Operators argues that Cham's evidence in support of his hostile work
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environment and disparate treatment claims prejudiced the jury, warranting a new trial. Much of
that evidence involved discrete discriminatory acts that were independently inactionable because
they were untimely. See 42 U.S.C. § 2000e-5(e); R.I. Gen. Laws § 28-5-17. As to disparate
treatment, both the probation and promotion incidents were time-barred since they occurred in
2004 and the discrimination charge was not filed until February 8, 2006. The evidence came in,
however, as background evidence of discriminatory animus. Similarly, the allegations about
holiday pay occurred outside the applicable limitations period. None of this evidence had any
relevancy beyond Cham's employment discrimination claims and that evidence was rendered
wholly irrelevant when this Court granted Station Operators' Rule 50 motion.
In addition to the evidence that came in on Cham's disparate treatment claim, a great deal
of irrelevant evidence also came in on Cham's hostile work environment claim. A hostile work
environment is one that is "sufficiently severe or pervasive so as to alter the conditions of the
plaintiff's employment and create an abusive work environment." Rosario v. Dept. of Army, 607
F.3d 241,246 (1st Cir. 2010) (quoting Lockridge v. Univ. of Me. Sys., 597 F.3d 464,473 (1st
Cir.2010)). Such a determination looks to "all the attendant circumstances" and thus potentially
pulls into the fray a plethora of workplace conduct. Rosario, 607 F.3d at 247. Cham's
allegations in support of his hostile work environment claim were vague and lacked an
established connection to race, color, or national origin. The jury was left considering evidence
relating to: Pelletier's offhand comment about terrorists, Vanner's friend's off-color jokes, and
incidences of flared tempers in which Pelletier "berated" Cham for being late and Vanner
"screamed" at Cham over how to resolve an incident with a customer. None of this evidence had
any bearing on the FMLA retaliation claim that ultimately went to the jury, and Cham's counsel,
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recognizing the claim's lack of merit, voluntarily withdrew the hostile work environment claim
but only after putting the extraneous evidence before the jury.
On Station Operators' motion for a new trial, the Court must consider whether a
miscarriage ofjustice would result if the jury verdict were allowed to stand. In this case, only the
FMLA retaliation claim went to the jury. The jury, however, was left to try sort through a slew
of wholly irrelevant evidence in order to make a finding of willful conduct and to render a verdict
for money damages. Under these circumstances, that irrelevant evidence had great potential to
confuse the jury and to unfairly prejudice Station Operators. The viability of Cham's retaliation
claim depended entirely upon whether or not Station Operators' actions were willful. On these
facts, a miscarriage ofjustice would result if the jury verdict were to stand. Simply, in the
aggregate, too much extraneous and prejudicial evidence was put before the jury for the Court to
conclude that the verdict, especially with regard to the willfulness determination, was not
erroneous.
Station Operators' motion for a new trial is granted.
IV. Conclusion
For the reasons set forth above, Station Operators' motion for judgment as a matter of law
is DENIED and Station Operators' motion for a new trial is GRANTED.
SO ORDERED
/s/ Mary M. Lisi
MaryM. Lisi
United States District Judge
June 2,2011
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