Opinion
4:00CV3097
October 2, 2001
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR FOR A NEW TRIAL
The plaintiffs, who are current and former employees of TEK Industries, filed a three-count complaint alleging violations of 42 U.S.C. § 2000e et seq. of the Civil Rights Act of 1964, as amended (Title VII) and the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101-1125 (Michie 1995) (NFEPA) (filing 1). A jury trial was held, and on March 6, 2001, verdicts were returned in favor of the defendant against all plaintiffs. The plaintiffs have moved for judgment as a matter of law or, alternatively, for a new trial. After considering the briefs submitted by the parties, I conclude that the plaintiffs' motion must be denied.
The plaintiff's motion for judgment notwithstanding the verdict will be treated as a motion for judgment as a matter of law. The plaintiff's use of the former terminology is merely a formal error. See Fed.R.Civ.P. 50 advisory committee note (1991 amendment, subdivision (a)).
I. STANDARD OF REVIEW
Judgment as a matter of law may only be granted when "there is a complete absence of probative facts to support the conclusion reached so that no reasonable juror could have found for the nonmoving party."Anderson v. Richardson, 145 F. Supp.2d 1139, 1141 (D.N.D. 2001).
This standard requires [the court] to consider the evidence in the light most favorable to the prevailing party, assume that the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party's evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence.Minneapolis Community Dev. Agency v. Lake Calhoun Assoc., 928 F.2d 299, 301 (8th Cir. 1991) (quoting Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986, 989 (8th Cir. 1989). All of the evidence in the record, and not just the evidence in favor of the nonmoving party, must be reviewed by a court entertaining a motion for judgment as a matter of law. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
The standard for granting a new trial in the alternative to judgment as a matter of law is less stringent. "[A] new trial is appropriate if the verdict is against the weight of the evidence and if allowing it to stand would result in a miscarriage of justice." Moring v. Arkansas Department of Correction, 243 F.3d 452, 455 (8th Cir. 2001) (quoting Van Steenburgh v. The Rival Company, 171 F.3d 1155, 1160 (8th Cir. 1999)). "In determining whether a verdict is against the weight of the evidence, the trial court can rely on its own reading of the evidence — it can `weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict.'" White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992) (quoting Ryan v. McDonough Power Equipment, Inc., 734 F.2d 385, 387 (8th Cir. 1984)).
III. ANALYSIS
The plaintiff's motion is based upon the following grounds: (1) the verdict was contrary to the evidence and to law; and (2) errors of law occurred at trial. Each of these grounds will now be analyzed.
A. Whether the Verdict Was Contrary to the Evidence or the Law
At trial, the plaintiffs argued that their observance of the Sabbath on Saturday pursuant to the teachings of the House of Yahweh faith conflicted with the defendant's requirement that the plaintiffs work on certain Saturdays. The jury responded to special questions regarding the claims of each plaintiff. (Filings 75-80.) With respect to each plaintiff, the jury concluded that the plaintiffs were not discharged and did not lose benefits or have some other adverse action taken against them for failing to work on Saturdays, and that the defendant reasonably accommodated the plaintiffs' religious observance or practice regarding Saturday work. (Id.) The plaintiffs argue that the evidence and the applicable law do not support these conclusions.
To establish a prima facie case of religious discrimination under Title VII, a plaintiff must show (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed defendants of his belief; and (3) he was disciplined or discharged for failing to comply with the requirement. Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000). "Once a plaintiff establishes a prima facie case, the burden shifts to the employer to show that accommodation would result in undue hardship to the employer." Id. Following trial, the jury concluded that, although the first two elements of the prima facie case had been proven by each plaintiff, the plaintiffs were not disciplined or discharged for failing to observe the Saturday work requirement. The jury also determined that the plaintiffs' religious beliefs had been accommodated. The plaintiffs argue that the evidence presented at trial established that each of the plaintiffs was "disciplined or discharged" due to their religious beliefs and that the defendant did not accommodate the plaintiffs. As the plaintiffs must establish their prima facie case before the issue of accommodation arises, I shall first consider whether the plaintiffs have shown that they are entitled to judgment as a matter of law because there is a complete absence of probative facts to support the jury's conclusion, such that no reasonable juror could have found that the plaintiffs were not disciplined or discharged due to their religious beliefs. If the plaintiffs have not succeeded in making this showing, I shall then consider whether a new trial must be granted because the weight of the evidence is against the jury's finding that the plaintiffs were not disciplined or discharged due to their religious beliefs, such that allowing the jury's decision to stand would result in a miscarriage of justice. I need consider the plaintiffs' accommodation argument only if either of these showings is made, for the plaintiffs cannot demonstrate that they are entitled to either judgment as a matter of law or a new trial if they have failed to establish a prima facie case of religious discrimination.
The plaintiffs argue that each of them was docked absentee time for their refusal to work on mandatory Saturdays, and that this docking constitutes an adverse employment action as a matter of law. In support of its argument, the plaintiffs refer me to Cooper v. Oak Rubber Company, 15 F.3d 1375 (6th Cir. 1994). I have reviewed this case in connection with the defendant's motion for summary judgment. (See Mem. and Order on Def.'s Mot. for Summ. J., filing 42, at 4-5.) To refresh, the plaintiff in Cooper filed suit under Title VII, claiming that she was disciplined and constructively discharged due to her religious beliefs against working on the Sabbath. The defendant maintained an attendance policy whereby employees accumulated points for unexcused absences, and absences in observance of the Sabbath qualified as "unexcused." One point was accumulated for each unexcused absence that was reported in advance of the employee's scheduled shift. The accumulation of six points within a year resulted in a verbal warning; eight points resulted in a written warning; ten points resulted in a three-day suspension; and twelve points resulted in discharge. The plaintiff accumulated points due to her absences on Saturdays in observance of the Sabbath, and she resigned just prior to her tenth absence. It was undisputed in Cooper that the plaintiff was disciplined due to her absences. Id. at 1379 n. 1. Therefore, Cooper does not stand for the proposition that the accumulation of penalty points for absences, without more, constitutes "discipline" for the purposes of a plaintiff's prima facie case of religious discrimination. In the absence of any supporting law, I must reject the plaintiffs' suggestion that as a matter of law, the mere docking of absence hours when an employee is absent from work constitutes an adverse employment action or "discipline" for the purposes of a religious discrimination claim.
The plaintiffs next argue, however, that plaintiffs Jones, Gracier, DeHaas, and Hobby were terminated due to their absences on mandatory Saturdays, and these terminations were the result of these plaintiffs' failure to comply with the conflicting employment requirement of mandatory Saturday work. Initially, I note that the stipulated facts are not consistent with the plaintiff's claim that these four plaintiffs were terminated due to excessive absenteeism. Gracier may have been terminated due to absenteeism on February 11, 1999, and rehired on February 22, 1999, but there is evidence that his attendance records were in error and that he did in fact continue to work at TEK during February 1999. (Trial Tr. at 226:7-23; 310:14-21; 313:13-314:12.) Also, Gracier was rehired on February 22, 1999, and voluntarily resigned from TEK upon his transfer to the Hastings Correctional Center. (Trial Tr. at 226:7-23.) It was also stipulated that DeHaas resigned from TEK in good standing. (Trial Tr. at 325:6-15.)
At any rate, the evidence demonstrated that all the plaintiffs indeed lost hours from their allotment of absence time due to their observance of the Sabbath. However, as the defendant correctly argues, the evidence also showed that each of the plaintiffs was absent from work for hours unrelated to their religious activities. Thus, it is clear that there is not a complete absence of probative facts to support the jury's conclusion that the plaintiffs were not disciplined due to their refusal to comply with mandatory Saturday work assignments, as it may be that the plaintiffs were disciplined for broader attendance problems. Judgment as a matter of law is therefore inappropriate on this issue.
Also, I cannot conclude that the jury's conclusion was against the weight of the evidence. At trial, the plaintiffs did not show that if it had not been for their mandatory Saturday absences, they would not have been terminated due to absenteeism. Nor can I determine whether the evidence would support such testimony even if it had been given. The record simply shows that a number of absences was recorded for each plaintiff, and that a portion of those absences was due to the plaintiffs' Sabbath observances. I cannot determine whether the plaintiffs who exceeded their allotment of absentee hours would not have done so if it had not been for the Saturday absences. Thus, it has not been established that the plaintiffs were discharged for failing to comply with the Saturday work requirement. Also, the fact that at least two, if not four, of the plaintiffs were able to avoid termination despite absences on mandatory Saturdays strongly supports the jury's conclusion that the plaintiffs were not discharged due to their observance of the Sabbath.
Plaintiffs Maeder and Cichowski remain employed by TEK, and have argued that although they were not discharged, they were disciplined due to their observance of the Sabbath on mandatory Saturdays. Specifically, Maeder claims that he was told that he would not be allowed to move to a higher-paying position due to his refusal to work on mandatory Saturdays, and, although he was eventually promoted, his promotion was delayed until January of 2001. Cichowski claims that he was denied full-time status and benefits, presumably due to his absences on Saturdays.
Maeder testified that he was told by Terry LaFavor that he would not be promoted due to his observance of the Saturday Sabbath. (Trial Tr. at 502:21-506:25.) Maeder stated that this conversation occurred at the time of his promotion to "Level C" in early 1999, and that LaFavor told him that although Maeder was promoted to "Level C," he would not be promoted from there to "Level 4 or 5" in the future. (Trial Tr. at 503:1-9.) Despite these alleged comments by LaFavor, Maeder was promoted beyond "Level C" in January of 2001. LaFavor testified that the earliest opportunity for Maeder to move from his "Level C" bender die position into a position as a "Level 4 or 5" processor die maker would have been in late 2000. (Trial Tr. at 606:23-607:5.) Furthermore, LaFavor denied telling Maeder that due to Maeder's inability to work on Saturdays he would not be able to become a processor die maker. (Id.) I must reject the plaintiffs' argument that there is a complete absence of probative facts to support the jury's conclusion that Maeder was not disciplined for observing the Sabbath. In addition, after carefully considering the evidence, I cannot say that the jury's verdict was against the weight of the evidence, such that allowing it to stand would result in a miscarriage of justice.
Cichowski testified that although he is a part-time employee, he volunteers to work both the morning and afternoon shifts on most days. (Trial Tr. at 451:1-25.) He stated that he asks for and receives the extra hours, but if he did not wish to work those hours, he simply need not request them. (Id.) Cichowski admited that he would not be docked absentee time for declining to volunteer for extra hours. (Id.) It seems to me that Cichowski's own testimony does not support the argument that he has been denied full-time status and benefits by the defendant due to his observance of the Sabbath. Instead, the evidence shows that he is a part-time employee who requests and receives a substantial number of extra hours of work. The jury's conclusion that Cichowski was not disciplined due to his observance of the Saturday Sabbath is supported by the weight of the evidence.
Finally, the plaintiffs argue that Jones was removed from a position he developed at TEK and replaced by a person he trained and who was not a member of the House of Yahweh. Also, the plaintiffs assert that Jones was denied full-time hours although he was the most senior worker on his shift. These allegations are argued to constitute adverse employment actions against Jones due to his refusal to work on Saturdays. However, there is evidence that would support a conclusion that Jones voluntarily left his special "incoming verification" position when he asked to be moved to the die tables. (Trial Tr. at 178:12-179:16; 182:18-20.) Additionally, the evidence showed that Jones was one of many employees on the die side who were moved to the assembly side of the plant as a part of a larger reorganization. Indeed, it is possible that everyone on the morning shift on the die side moved to the assembly side, although Jones only indirectly admitted so:
Q. Now, in fact didn't everyone in the a.m. area that you were working in die prep move over to Lucent at the time that you moved?
A. Well, I wasn't actually in die prep. My department was separate. It was in a different side of the building.
Q. Did everyone in die prep on the a.m. shift move over to Lucent at that time?
A. I am not sure when they moved everybody over there, sir.
Q. But everybody was moved from the a.m. die prep to Lucent, correct?
A. I really don't know, sir.
Q. Were there other people moved over to Lucent when you made your move to Lucent?
A. Yes, sir.
Q. And were those people that were moved, any of those members of House of Yahweh?
A. No, I don't believe so.
(Trial Tr. at 180:23-181:16.) In addition, Jones testified that he was told that he and others were being moved to the assembly side because Jones' department would be slowing down and that help was needed on the Lucent side:
Q. And you were told when you made the move over to the Lucent side that they needed the help over there?
A. That's what I was told. I was told that the department I was in was going to be slowing down and that they needed help on the other side.
(Trial Tr. at 181:17-21.) Jones soon contradicted himself, however:
Q. And you were told that the reason for that move was because of business needs. Things were picking up there —
A. No, it's not. I was just told they needed me to go to the other side. They didn't tell me any specifics.
(Trial Tr. at 182:12-16.) There is evidence supporting the jury's conclusion that Jones' move from his incoming verification position was not discipline for failing to comply with the employment requirement of Saturday work. In addition, the weight of the evidence is not against the jury's finding that Jones was not disciplined due to his religious beliefs, such that allowing the jury's decision to stand would result in a miscarriage of justice. I find that Jones was not a credible witness. His testimony on this issue was evasive and contradictory with respect to the matter of his incoming verification position, his desire to move to the die tables in order to achieve full time status, and his subsequent transfer to the Lucent side of TEK.
The jury concluded that none of the plaintiffs established a prima facie case of religious discrimination because the plaintiffs were not disciplined or discharged for failing to comply with TEK's mandatory Saturday work requirement. I do not find that there is a complete absence of probative facts to support the jury's conclusion, such that no reasonable juror could have found that the plaintiffs were not disciplined or discharged due to their religious beliefs. Thus, it would be inappropriate to grant the plaintiffs' motion for judgment as a matter of law. In addition, I find that the weight of the evidence supports the jury's finding that the plaintiffs were not disciplined or discharged due to their religious beliefs, and that allowing the jury's decision to stand would not result in a miscarriage of justice. Therefore, the plaintiffs' alternate motion for a new trial must also be denied.
Since the jury appropriately concluded that the plaintiffs each failed to set forth a prima facie case, there is no need to consider whether its conclusion that the plaintiffs' religious beliefs were accommodated was not supported by probative facts or was against the great weight of the evidence. This is because the defendant's burden to demonstrate that accommodation would result in undue hardship does not arise until the plaintiff establishes a prima facie case. Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000). I shall nevertheless briefly address the argument raised by the plaintiffs regarding the Easter meal containing ham.
The plaintiffs argue that the defendant discriminated against them when ham was served as part a bonus meal during the Easter holiday. (See Pls.' Br. in Supp. of Mot. for J. Notwithstanding the Verdict at 6.) The plaintiff argues, "Although this was just a one time occurrence, it is further evidence of Defendant's refusal to accommodate and further evidence of the jury's incorrect conclusion that the Plaintiff's religious convictions were reasonably accommodated." (Id.) However, the plaintiffs did not set forth a prima facie case that the Easter meal amounted to religious discrimination. The jury was only instructed regarding the Saturday work requirement and whether that requirement conflicted with the plaintiffs' bona fide religious beliefs. The plaintiffs chose not to present a claim based upon the Easter bonus meal to the jury. In addition, to the extent the plaintiffs mean to suggest that the Easter meal issue provides evidence that the defendant failed to accommodate the plaintiffs in some general sense, such a suggestion must be rejected for the simple reason that no prima facie case of religious discrimination has been established.
B. Whether Errors of Law Occurred at Trial
The plaintiffs argue that two errors of law occurred at trial and require that the plaintiffs' motion for judgment as a matter of law, or alternatively for a new trial, must be granted: 1) the disclosure of the crimes for which the plaintiffs had been convicted was prejudicial and contrary to the rules of evidence; and 2) the jury was instructed erroneously. Each of these arguments will be considered in turn.
1. Evidence of Prior Convictions
The plaintiffs argue that the decision to allow the defendant to introduce the plaintiffs' convictions and lengths of sentences violates Fed.R.Evid. 403, in that this evidence was not highly relevant or probative, but that the potential for unfair prejudice was comparatively great.
This issue was the subject of a motion in limine (see filings 43, 46), and my decision to admit the evidence with certain limitations was announced prior to the commencement of trial (filing 53). The evidence of the plaintiffs' prior convictions was clearly relevant to the issue of credibility. See Fed.R.Evid. 609(a). After carefully weighing the probative value of this evidence against the potential for unfair prejudice against the plaintiffs, I concluded that the defendant should be permitted to introduce the name of the crimes for which the plaintiffs were convicted and the length of each plaintiff's sentence, but not any details of the plaintiffs' crimes. Moreover, upon the introduction of this evidence the plaintiffs were permitted a limiting instruction such as the following:
One of the plaintiffs was serving a sentence for a sexual assault of a minor. The defendant was forbidden to introduce the fact that the sexual assault was against a minor.
Members of the jury, the evidence of the crime for which a person is convicted and a sentence given is usable by you only to test the credibility of the witness. That is, whether he is to be believed in what he testifies to. Nothing else.
(Trial Tr. at 274:8-15.) These limitations served to reduce the risk of unfair prejudice to the plaintiffs. The evidence was not admitted in violation of the Federal Rules of Evidence, and therefore I reject the plaintiffs' argument that judgment as a matter of law or a new trial must be granted.
2. The Instruction to the Jury
Finally, the plaintiffs argue that they are entitled to judgment as a matter of law or a new trial because paragraph (d) of the Special Questions presented to the jurors was erroneous. That paragraph read:
would TEK Industries, Inc. have taken such adverse action against [this plaintiff] regardless of his religion? ___ YES ___ NO
(See, e.g., filing 76.) The plaintiffs claim that this question presents a "mixed motive question," which was an issue not addressed at trial, and argues that the inclusion of this question is not harmless error.
The defendant points out that the plaintiffs did not object to this question or to paragraph 2 of the instructions to the jury, which mirrors question (d) (see Trial Tr. at 763:9-14), during the jury instruction conference. The defendant understates the point, as it seems to me that the plaintiffs themselves proposed a jury instruction entitled "5.01 Title VII — Disparate Treatment — Essential Elements," which presents another variety of "mixed motive question." (Filing 64.) Counsel for the plaintiffs moved to have the plaintiffs' proposed jury instructions given in total. (Trial Tr. at 750:11-17.) It seems disingenuous, at best, for the plaintiff to now claim that there was no evidence adduced at trial on any "mixed motive" issue.
See also Special Questions Regarding the Claim of Austin DeHaas, filing 79, ¶ b: "was Austin DeHaas' religion a motivating factor in TEK Industries, Inc.'s actions in making the working conditions intolerable? ___ YES ___ NO" (emphasis added).
More importantly, there is no showing that the instruction or the special question caused prejudice. Absent a showing of prejudice, a new trial shall not be granted due to the submission of an erroneous instruction to the jury. See, e.g., Moran v. Vermeer Mfg. Co., 742 F.2d 456, 458-59 (8th Cir. 1984). Citing Rubinstein v. Administrators of the Tulane Educational Fund, 218 F.3d 392 (5th Cir. 2000), the plaintiff argues that the jury may have been misled by the inclusion of a "mixed motive" causal test, and thus did not make "an explicit finding as to `but for' causation of the adverse action." (Pls.' Br. in Supp. of Mot. for J. Notwithstanding the Verdict at 10.) However, the jury completed special verdict forms, and the jury's specific findings that each plaintiff suffered no adverse employment action for failing to comply with the conflicting employment requirement of working on Saturdays belies the plaintiff's argument that the jury did not make an explicit finding of causation of the adverse action. It must be recalled that the jurors did not specifically find that there were no adverse actions taken against the plaintiffs, but that there were no adverse actions for failing to comply with the Saturday work requirement. Even if it could be shown that the confusion suggested by the plaintiffs occurred, such confusion would only inure to the plaintiffs. In other words, the error that is suggested by the plaintiffs actually would have prejudiced the defendant, since the jury might have concluded that it could find for the plaintiffs if the evidence showed that religion was a mere motivating factor in the alleged adverse employment actions suffered by the plaintiffs.
Most importantly, the jury found that the third element of the plaintiffs' prima facie case had not been satisfied, and thus the question presented in paragraph (d) was mere surplusage. Once the jury determined that each plaintiff failed to set forth a prima facie case, it need not have proceeded to answer question (d) or (e). Under the circumstances, any errors connected with paragraph (d) or its associated jury instruction are necessarily harmless and not prejudicial, and therefore the plaintiffs' motion for judgment as a matter of law and alternate motion for a new trial shall not be granted.
IT IS ORDERED that the plaintiffs' motion for judgment notwithstanding the verdict and their alternative motion for a new trial, filing 84, are each denied.