Mead v. Lattimore Materials Company et al
Filing
92
MEMORANDUM OPINION AND ORDER denying 87 Motion for Judgment as a Matter of Law, for a New Trial, to Alter or Amend the Judgment, and for Reconsideration of Summary Judgment. (Ordered by Judge Sam A Lindsay on 9/27/2018) (zkc)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CLINTON MEAD,
Plaintiff,
v.
LATTIMORE MATERIALS
CORPORATION,
Defendant.
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Civil Action No. 3:16-CV-0791-L
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s Motion for Judgment as a Matter of Law, for a New Trial, to
Alter or Amend the Judgment, and for Reconsideration of Summary Judgment and Brief in Support
(Doc. 87), filed August 21, 2018. Having considered the motion, response, reply, record, evidence
adduced at trial, jury verdict rendered on August 10, 2018, and applicable law, the court denies
Plaintiff’s Motion for Judgment as a Matter of Law, for a New Trial, to Alter or Amend the
Judgment, and for Reconsideration of Summary Judgment.
I.
Background
Plaintiff Clinton Mead (“Mead”), a cement truck driver, filed this civil action against his
former employer, Lattimore Materials Corporation (“Lattimore” or “Defendant”), alleging it
violated the Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (“FMLA”), and Chapter
21 of the Texas Labor Code prohibiting disability discrimination when it terminated his
employment in September 2015. Lattimore contended that it terminated Mead for violation of
company policy when he failed to report a serious medical condition and medications he was
taking on his Department of Transportation (“DOT”) medical examination reports and to his DOT
Memorandum Opinion and Order - Page 1
physicians. On February 9, 2018, the court granted summary judgment in favor of Lattimore on
Mead’s FMLA interference and state law disability discrimination claims, leaving only his FMLA
retaliation claim for trial. Mead v. Lattimore Materials Corp., 2018 WL 807032 (N.D. Tex. Feb.
9, 2018), reconsideration denied, 2018 WL 2971128 (N.D. Tex. Mar. 6, 2018) (Lindsay, J.).
The FMLA retaliation claim was tried before a jury over a period of three days from August
8, 2018, to August 10, 2018. On August 10, 2018, the jury rendered a verdict in favor of Lattimore
by answering the relevant question as follows:
Question No. 1: Did Plaintiff Clinton Mead prove by a preponderance of the evidence that
Lattimore Materials Corporation would not have discharged him but for his FMLA-protected
activity?
Check only one answer.
Plaintiff did so prove. ____________
Plaintiff did not so prove. _____√______
The jury checked the answer “Plaintiff did not so prove,” and, in compliance with the
court’s instructions, it did not proceed any farther to answer questions pertaining to damages. On
August 14, 2018, the court, based on its prior decisions and in accordance with the jury’s verdict,
entered a final judgment in favor of Lattimore; ordered, adjudged, and decreed that Mead take
nothing against Lattimore; and dismissed this action against Lattimore with prejudice. Judgment
(Doc. 86).
Mead now moves for judgment as a matter of law under Federal Rule of Civil Procedure
50(b), for a new trial under Rule 59(a), to alter or amend the judgment under Rule 59(e), and for
reconsideration of the court’s summary judgment opinion. In support, Mead contends that
Lattimore’s evidence at trial was different from evidence offered in support of its summary
Memorandum Opinion and Order - Page 2
judgment motion and that this “new evidence” established that he had a disability or was regarded
as having a disability under Texas law. Mead asserts that the “new evidence” offered at trial
includes: the testimony of Mead’s two examining doctors, Drs. Kenneth Holcombe and Richard
Taylor, “as to the disabling effect of [his] osteoarthritic condition as an ‘illness’ or ‘injury’ and of
the drugs Tramadol and Valium which they testified [he] was taking”; the testimony of his
supervisors Andy Such and Doug Smith that he “suffered a reportable injury by catching a
pneumatic tube”; and the testimony of Linda Bull whose job it was to file notices of injury with
worker’s compensation and was in the course of making a filing of his injury until she was told it
was not work-related. See Pl.’s Mot. 3. Mead further asserts that “[i]f the issues of disability and
FMLA retaliation had been tried together [Lattimore] would have been precluded from changing
its summary judgment position on [his] disability from denial to affirmation, which led to an
improper verdict.” Id.
In opposition, Lattimore argues that “[n]one of these arguments is supported by the law or
by the record.” Def.’s Resp. 1 (Doc. 89). Lattimore contends:
Plaintiff has not come close to satisfying the test for relief from judgment
or new trial: (1) Plaintiff has waived any “JNOV” or “sufficiency of evidence”
arguments; (2) the evidence presented at trial was no different than the evidence
offered in support of Defendant’s motion for summary judgment; (3) the evidence
presented at trial would not support a judgment for Plaintiff on the “disability”
claim; and (4) the evidence was more than sufficient to support the jury’s verdict
with respect to the FMLA claim.
Id. at 12-13.
II.
Legal Standards
A. Motion for Judgment as a Matter of Law
A motion for judgment as a matter of law “challenges the legal sufficiency of the evidence
to support the verdict.” Hodges v. Mack Trucks, Inc., 474 F.3d 188, 195 (5th Cir. 2006). The
Memorandum Opinion and Order - Page 3
court will “‘uphold a jury verdict unless the facts and inferences point so strongly and so
overwhelmingly in favor of one party that reasonable [jurors] could not arrive at any verdict to the
contrary.’” Goodner v. Hyundai Motor Co., 650 F.3d 1034, 1039 (5th Cir. 2011) (alteration in
original) (quoting Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir. 2001)). “In other
words, the ‘jury verdict must be upheld unless there is no legally sufficient evidentiary basis for a
reasonable jury to find as the jury did.’” Id. at 1039-40 (quoting Foradori v. Harris, 523 F.3d 477,
485 (5th Cir. 2008)).
B. Motion for New Trial
A court, upon motion, may “grant a new trial on all or some of the issues” to any party
“after a jury trial, for any reason for which a new trial has heretofore been granted in an action at
a law in federal court[.]” Fed. R. Civ. P. 59(a)(1)(A). New trials may be granted if a district court
determines that the “verdict is against the weight of the evidence, the damages awarded are
excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith v.
Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) (footnote and citations omitted). The
appeals court reviews the denial of a motion for new trial for an abuse of discretion. A “district
court abuses its discretion by denying a new trial ‘only when there is an absolute absence of
evidence to support the jury’s verdict.’” Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881
(5th Cir. 2013) (citations omitted). If the evidence at trial is legally sufficient to support the jury’s
verdict, a district court does not abuse its discretion by denying a motion for new trial. One Beacon
Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 676 (5th Cir. 2016) (citations omitted). The
appeals court is to view the evidence “in the light most favorable to the jury verdict.” Wellogix,
716 F.3d at 881 (citation omitted). A motion for new trial must clearly show that “a manifest error
Memorandum Opinion and Order - Page 4
of law” occurred at the trial. Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1991) (citation
omitted).
The moving party has the burden to demonstrate harmful error justifying a second trial.
Streber v. Hunter, 221 F.3d 701, 736 (5th Cir. 2000). When a party challenges the jury verdict, the
court has no obligation to grant a new trial unless it finds the evidence—viewed in the light most
favorable to the verdict—weighs so strongly and overwhelmingly in favor of one party that no
reasonable person could arrive at a contrary conclusion. Alaniz v. Zamora-Quezada, 591 F.3d 761,
770 (5th Cir. 2009).
C. Motion to Alter or Amend Judgment or for Reconsideration
A motion to alter or amend the judgment or to reconsider under Rule 59(e) “calls into
question the correctness of a judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir.
2004) (citation omitted). 1 Amending a judgment under Rule 59(e) is appropriate: “(1) where there
has been an intervening change in the controlling law; (2) where the movant presents newly
discovered evidence that was previously unavailable; or (3) to correct a manifest error of law or
fact.” Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (citing Schiller v.
Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003)). Rule 59(e), however, is “not the
proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered
or raised before entry of judgment,” Templet, 367 F.3d at 478, and may not be used to relitigate
issues that were resolved to the movant’s dissatisfaction. Forsythe v. Saudi Arabian Airlines
Corp., 885 F.2d 285, 289 (5th Cir. 1989). District courts have “considerable discretion in deciding
1
A determination of whether a motion to alter or amend or reconsider a judgment falls under Rule 59(e) or
Rule 60(b) of the Federal Rules of Civil Procedure depends on when the motion was filed. Demahy v
Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012) Rule 59(e), rather than Rule 60(b), applies
here because Mead filed his motion within 28 days after the final judgment in this case was entered. See id.
Memorandum Opinion and Order - Page 5
whether to grant or deny a motion to alter a judgment.” Hale v. Townley, 45 F.3d 914, 921 (5th
Cir. 1995). In exercising this discretion, a district court must “strike the proper balance between
the need for finality and the need to render just decisions on the basis of all the facts.” Id. With
this balance in mind, the Fifth Circuit has observed that Rule 59(e) “favor[s] the denial of motions
to alter or amend a judgment.” Southern Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606,
611 (5th Cir. 1993). Stated another way, “[r]econsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly.” Templet, 367 F.3d at 479.
III.
Analysis
A. Mead’s Motion for Judgment as a Matter of Law
Lattimore argues that Mead waived his right to seek relief under Rule 50(b) because he did
not make a timely motion for judgment as a matter of law under Rule 50(a). The court agrees.
“[W]hen a party fails to raise an issue in a Rule 50(a) motion, it waives the right to raise that issue
in a Rule 50(b) motion.” Waganfeald v. Gusman, 674 F.3d 475, 481 n.14 (5th Cir. 2012) (citation
omitted); see also Flowers v. Southern Reg’l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir.
2001) (“If party fails to move for judgment as a matter of law under [Rule 50(a)] on an issue at the
conclusion of all of the evidence, that party waives both its right to file a renewed post-verdict
Rule 50(b) motion and also its right to challenge the sufficiency of the evidence on that issue on
appeal.”). At the conclusion of the evidence, Mead did not move for judgment as a matter of law
under Rule 50(a). The court, therefore, concludes that he waived his right to seek postverdict relief
under Rule 50(b). Alternatively, even absent waiver, the court would deny Mead’s Rule 50(b)
motion, as its review of the trial record demonstrates that the evidence was more than sufficient to
support the jury’s verdict.
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B. Mead’s Motion for New Trial
Mead maintains that the trial was unfair because the jury was allowed to hear evidence
about the osteoarthritic condition in his hands, and that Lattimore used this evidence against him
at trial by contending that this medical condition, along with drugs he took for relief, impaired his
ability to perform his job as a truck driver, and that it terminated Mead’s employment for failing
to disclose this condition in DOT medical examinations—in violation of company policy—and
not for taking intermittent FMLA leave. Relatedly, Mead contends that Lattimore should not have
been permitted to argue in support of summary judgment that Mead was not disabled under
Chapter 21 of the Texas Labor Code and then introduce evidence at trial that his osteoarthritis was
a serious health condition that should have been reported.
In response, Lattimore argues that the “test for determining what needs to be disclosed on
a DOT medical examination is different than the test for determining whether someone is
disabled.” Def.’s Resp. 14. The court agrees.
As set forth by the court in its summary judgment opinion: “Section 21.002(6) of the Texas
Labor Code defines ‘disability’ as ‘a mental or physical impairment that substantially limits at
least one major life activity of that individual, a record of such an impairment, or being regarded
as having such an impairment.’” Mead, 2018 WL 807032, at *9 (quoting Tex. Lab. Code Ann. §
21.002(6) (West 2015)). Lattimore’s argument that Mead’s osteoarthritis in his hands was severe
enough to require him to disclose it on DOT medical examination reports and to DOT physicians
is not equivalent to Lattimore offering testimony or other evidence that he was disabled pursuant
to Chapter 21 of the Texas Labor Code.
In sum, after reviewing the trial record, the court concludes that Mead has failed to meet
his burden of showing that Lattimore’s introduction of argument and evidence relating to his
Memorandum Opinion and Order - Page 7
osteoarthritis resulted in an unfair trial or led to prejudicial error. Accordingly, the court will deny
Mead’s motion for a new trial.
C. Mead’s Motion to Alter or Amend Judgment or for Reconsideration
Mead contends that newly discovered evidence offered by Lattimore at trial of his disability
requires the court to alter or amend its judgment and reconsider its summary judgment opinion.
He argues that Lattimore’s evidence at trial was different from evidence offered in support of its
summary judgment motion, and that this “new evidence” established that he had a disability, or
was regarded as having a disability, under Texas law. As “new evidence,” Mead points to the trial
testimony of his examining doctors, Drs. Holcombe and Taylor, “as to the disabling effect of [his]
osteoarthritic condition as an ‘illness’ or ‘injury’ and of the drugs Tramadol and Valium which
they testified [he] was taking”; the testimony of his supervisors that he “suffered a reportable injury
by catching a pneumatic tube”; and the testimony of Linda Bull whose job it was to file notices of
injury with worker’s compensation and was in the course of making a filing of his injury until she
was told it was not work-related. See Pl.’s Mot. 3.
After examining the evidence, the court concludes that what Mead describes as “new
evidence” is entirely consistent with the evidence offered at summary judgment. Mead is
essentially rehashing evidence, legal theories, and arguments that he raised before the entry of
judgment in response to Lattimore’s motion for summary judgment on his state law disability
claims, arguments the court rejected. 2 He fails to identify an intervening change in controlling
law, point out the availability of new evidence not previously available, or identify a manifest error
2
With respect to his disability discrimination claim, the court determined that Mead had failed to raise a
genuine dispute of material fact that his physical impairments were sufficiently limiting to rise to the level
of a “disability” as that terms is defined by Texas law, or that Lattimore regarded him as “disabled,” and
that even had Mead’s impairments risen to the level of a “disability,” his disability discrimination claim
would still fail because he failed to raise a genuine dispute of material fact that his disability was a
motivating factor in Lattimore’s decision to discharge him. Mead, 2018 WL 807032, at *8-12.
Memorandum Opinion and Order - Page 8
of law or fact. He has provided insufficient grounds to justify the extraordinary remedy available
in Rule 59(e). Accordingly, the court will deny Mead’s motion to alter or amend judgment or for
reconsideration.
IV.
Conclusion
For the reasons herein set forth, the court denies Plaintiff’s Motion for Judgment as a
Matter of Law, for a New Trial, to Alter or Amend the Judgment, and for Reconsideration of
Summary Judgment (Doc. 87).
It is so ordered this 27th day of September, 2018.
_________________________________
Sam A. Lindsay
United States District Judge
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