Opinion
Case No. 6:18-cv-479-JDK-JDL
2020-08-06
Akia STANTON, Plaintiff, v. JARVIS CHRISTIAN COLLEGE, Defendant.
Katherine Elvira Britton, Law Office of Katherine Britton, Dallas, TX, for Plaintiff. Maurice Owens, Jr., Owens PLLC, Desoto, TX, for Defendant.
Katherine Elvira Britton, Law Office of Katherine Britton, Dallas, TX, for Plaintiff.
Maurice Owens, Jr., Owens PLLC, Desoto, TX, for Defendant.
ORDER DENYING DEFENDANT'S POST-TRIAL MOTIONS
JEREMY D. KERNODLE, UNITED STATES DISTRICT JUDGE
Akia Stanton was the head women's basketball coach at Jarvis Christian College before the college fired her in June 2018. Stanton later filed this lawsuit alleging, among other things, that Jarvis violated the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601, et seq. The case was tried to a jury in February 2020. The jury found in Stanton's favor and awarded her $12,500 in compensatory damages.
Jarvis now moves for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) or, alternatively, for a new trial under Rule 59, arguing that there is no evidence to support the verdict. Docket No. 130. Jarvis has also filed a separate motion for new trial arguing that Stanton's counsel's closing argument was improper. Docket No. 131. As explained below, the Court denies both motions.
I. Background
Stanton sued Jarvis on September 10, 2018, asserting claims of (1) sex discrimination and retaliation under 42 U.S.C. § 2000e-2(a) ("Title VII"); (2) FMLA interference; (3) FMLA retaliation; (4) libel; and (5) negligent supervision, training, and retention. Docket No. 1. The Court thereafter dismissed the negligence claims and part of the Title VII claim, and later entered summary judgment against Stanton on the remainder of her Title VII and libel claims. Docket Nos. 25; 64. This left Stanton's FMLA interference and retaliation claims.
A jury trial on the FMLA claims was held from February 10–13, 2020. Evidence at trial established that in June 2018 the President of Jarvis, Dr. Lester Newman, had become frustrated with the number of employees taking time off work, and he threatened to terminate anyone who did not report to campus. Around the same time, Stanton was experiencing severe anxiety and depression, suffering panic attacks, crying uncontrollably, and having chest and stomach pains. On June 8, 2018, Stanton visited nurse practitioner Yvette Levingston for treatment. Levingston referred Stanton to a psychiatrist, prescribed medication, and wrote a note excusing Stanton from her job as head women's basketball coach from "today and until [J]une 25th 2018." DX 116.
The Director of Human Resources at Jarvis, however, wanted more information before approving Stanton's leave request. DX 58 at 3. On June 15, the Director emailed Stanton requesting that her provider fill out and submit an FMLA medical certification form "in order for your sick leave request to be approved." Id. The Director attached a copy of U.S. Department of Labor Form WH-380, entitled "Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act)."
That same day, Stanton sent the FMLA form to Levingston, who completed it and faxed it to Jarvis that afternoon. On the form, Levingston listed conditions of "anxiety" and "depression," stated that Stanton had been prescribed medication and referred to "psych," and checked "yes" in answering whether Stanton's condition would "cause episodic flare-ups periodically preventing the employee from performing his/her job functions." DX 51 at 2–3. Levingston provided no response to some questions, responded "unknown" to others, and stated "no job description" when asked to "identify the job functions the employee is unable to perform." Id.
On June 18, Stanton emailed the Director of Human Resources at Jarvis inquiring about the status of her medical leave request. DX 58 at 3. The Director responded on June 20, explaining that the form was "insufficient" because it was "too vague and ambiguous to make a determination at this time regarding your leave request." Id. at 2. The Director's email attached another copy of the FMLA medical certification form, requested that Stanton's provider include "more information than what has been provided," and instructed Stanton to return the form within seven days. Id. Stanton responded the next day, asking for clarification on the portions that were too vague so that she could contact her provider. Id. The Director forwarded Stanton's response to Dr. Newman and asked how she should advise Stanton. PX 12. The Director later emailed Stanton that Levingston needed to provide more "[s]pecifics ... in the areas where she answered the questions by stating ‘unknown,’ ‘as determined by,’ and/or ‘to be determined by.’ " DX 58 at 1.
Also on June 18, a video taken from a security camera at Jarvis was brought to the attention of Dr. Newman. The video showed Stanton removing items from her office and loading them into her vehicle during the morning of June 15, including multiple chairs, a couch, athletic equipment, teaching equipment, and a number of boxes from her office and the surrounding area. PX C. During trial, the parties hotly disputed whether Stanton was removing personal property or property belonging to Jarvis. The athletic director at Jarvis testified that at least some of the items were the property of the college. Trial Tr. 2/12/20 at 99:3–101:1. Stanton, on the other hand, testified that everything she removed was her personal property. Trial Tr. 2/11/2020 at 201:3–18; 204:16–205:9; 214:11–13; Trial Tr. 2/12/2020 at 52:24–53:2; 61:2–20. Jarvis reported the incident to law enforcement on June 19, but testimony at trial established that the case was subsequently closed due to lack of prosecutable evidence. Trial Tr. 2/11/20 at 68:22–69:2.
On June 28, Stanton again emailed Jarvis's Director of Human Resources about the medical certification form. Stanton informed the Director that she had "notified [her] doctor of the specifics that [Jarvis was] requesting" and was "working with her [doctor] to get [Jarvis] the proper information ... as soon as possible." DX 58 at 1.
The next day, on June 29, Dr. Newman denied Stanton's request for medical leave and terminated her employment. PX 17.
Following closing arguments, the case was submitted to the jury. The jury returned a verdict in Stanton's favor on both her interference and retaliation claims and awarded her $12,500 in damages. See Docket No. 112.
On March 19, 2020, Jarvis moved for judgment as a matter of law or, alternatively, for a new trial. Docket Nos. 130, 131.
II. Motion for Judgment as a Matter of Law
Jarvis first moves for judgment as a matter of law under Rule 50(b), arguing that Stanton presented "no evidence" that: (1) Stanton was protected under the FMLA; (2) Stanton cured the alleged problems with her medical certification form; (3) Stanton was harmed by any alleged FMLA violation; and (4) Jarvis terminated Stanton because of her FMLA leave request. Docket No. 130 at 1–10. Jarvis also asserts that, "as a matter of law, there was no requirement to provide a designation notice" because Jarvis never received sufficient information to determine that Stanton's leave was requested "for a FMLA-qualifying reason." Id. at 10–12. Jarvis's motion fails both procedurally—because Jarvis failed to timely move for judgment as a matter of law at trial—and on the merits.
A.
Federal Rule of Civil Procedure 50 establishes a two-step process for moving for judgment as a matter of law in a jury trial. The first step is to move under Rule 50(a) "at any time before the case is submitted to the jury." FED. R. CIV. P. 50(a). The motion must "specify the judgment sought and the law and facts that entitle the movant to the judgment." Id. A court may grant the motion only if it "finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Id. A major purpose of this first step is "to alert the opposing party to the insufficiency of his case before being submitted to the jury" so that the party may cure the defect. MacArthur v. Univ. of Tex. Health Ctr. at Tyler , 45 F.3d 890, 897 (5th Cir. 1995) ; see also, e.g., Cornwell Ent., Inc. v. Anchin, Block & Anchin, LLP , 830 F.3d 18, 27 (1st Cir. 2016) ; see generally 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2533 (3d ed. 2020).
If the court denies the motion and submits the matter to the jury, the second step is to file a "renewed motion for judgment as a matter of law" under Rule 50(b) after the verdict. A party that fails to timely move for judgment under Rule 50(a) waives the right to file a renewed motion under Rule 50(b). See Seibert v. Jackson Cnty. , 851 F.3d 430, 435–36 (5th Cir. 2017) ; In re Isbell Records, Inc. , 774 F.3d 859, 867 (5th Cir. 2014) ; Arsement v. Spinnaker Expl. Co. , 400 F.3d 238, 247 (5th Cir. 2005).
Here, Jarvis never moved for judgment as a matter of law before the case was submitted to the jury. Despite the Court providing Jarvis several opportunities to do so—including at the close of Stanton's case in chief, at the conclusion of the charge conference, and immediately before instructing the jury—counsel for Jarvis repeatedly declined to move for judgment as a matter of law. Trial Tr. 2/12/20 at 80:20–25; 148:9–16; 150:3–8. Rather, counsel indicated he "was going to do the JNOV after the verdict came back, if need be." Id. at 150:3–8. Stanton therefore never had an opportunity to cure any claimed insufficiency before the case was submitted to the jury. Accordingly, Jarvis has waived the right to move for judgment as a matter of law under Rule 50(b) and the Court denies Jarvis's motion for judgment as a matter of law on that basis. See, e.g., Seibert , 851 F.3d at 435 ; Isbell , 774 F.3d at 867 ; Md. Cas. Co. v. Acceptance Indem. Ins. Co. , 639 F.3d 701, 707–08 (5th Cir. 2011) ; Arsement , 400 F.3d at 247.
B.
In any event, even if Jarvis had properly preserved a renewed motion for judgment as a matter of law, the motion would fail on the merits.
Judgment as a matter of law is appropriate only when "a reasonable jury would not have a legally sufficient evidentiary basis to find for the [nonmoving] party on that issue." FED. R. CIV. P. 50(a). A motion for judgment as a matter of law is thus "a challenge to the legal sufficiency of the evidence supporting the jury's verdict." Ford v. Cimarron Ins. Co. , 230 F.3d 828, 830 (5th Cir. 2000). In resolving such challenges, the Court must view all evidence in the light most favorable to the nonmoving party. Universal Truckload, Inc. v. Dalton Logistics, Inc. , 946 F.3d 689, 695 (5th Cir. 2020) ; Galan v. Valero Servs., Inc. , 777 F. App'x 756, 757 (5th Cir. 2019) (per curiam); In re Provident Royalties L.L.C. , 777 F. App'x 115, 116 (5th Cir. 2019) (per curiam), cert. denied , ––– U.S. ––––, 140 S. Ct. 1115, 206 L.Ed.2d 184 (2020).
The Court may not make credibility determinations or weigh the evidence, and it must draw all reasonable inferences from the evidence that favor the nonmoving party. See N. Cypress Med. Ctr. Operating Co. v. Aetna Life Ins. Co. , 898 F.3d 461, 473 (5th Cir. 2018) ; Fairchild v. All Am. Check Cashing, Inc. , 815 F.3d 959, 966 (5th Cir. 2016) (quoting Brennan's Inc. v. Dickie Brennan & Co. , 376 F.3d 356, 362 (5th Cir. 2004) ). The Fifth Circuit has counseled that "judgment as a matter of law should not be granted unless the facts and inferences point ‘so strongly and overwhelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion.’ " Flowers v. S. Reg'l Physician Servs. Inc. , 247 F.3d 229, 235 (5th Cir. 2001) (quoting Omnitech Int'l, Inc. v. Clorox Co. , 11 F.3d 1316, 1322 (5th Cir. 1994) ).
Here, there is legally sufficient evidence to support the verdict.
1. Jarvis first argues there was no evidence Stanton was protected under the FMLA because there was no evidence she suffered from "a serious health condition that made her unable to perform her job duties." Docket No. 130 at 2–4. As the jury was instructed, an employee is entitled to take up to twelve weeks of leave under the FMLA "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D) ; Docket No. 110 at 10–11. "The term ‘serious health condition’ means an illness, injury, impairment, or physical or mental condition that involves--(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11) ; Docket No. 110 at 10.
Jarvis argues that "[t]he only evidence at trial" of Stanton's serious health condition "came from Nurse Levingston," who testified that she never determined whether Stanton's condition of anxiety and depression affected her "ability to do [her] job." Docket No. 130 at 3. This argument, however, ignores substantial evidence establishing that Stanton's mental health condition made her unable to perform her job functions. For example, the medical certification form provided by Levingston plainly stated that Stanton was experiencing anxiety and depression requiring prescription medication and further treatment by a psychiatrist, and that these conditions would "cause episodic flare-ups periodically preventing the employee from performing his/her job functions. " DX 51 (emphasis added). Stanton herself also testified at length about her anxiety and depression and the impact of these conditions on her job functions. Stanton explained that she had been crying at work, suffered from chest and stomach pains, and had experienced a panic attack prompting her to seek medical treatment during work hours. Trial Tr. 2/11/20 at 162:20–163:2; 175:20–176:4; 177:9–17; 178:2–16; 184:19–23. Further, Stanton indicated she had been advised by her health care provider to see a psychiatrist and had been forced to take days off work because of the stress on her mental health. Trial Tr. 2/11/20 at 208:2–15; 178:6–179:5. Levingston's testimony, moreover, was more equivocal than Jarvis now contends. She testified that Stanton presented with increasing depressive and anxiety symptoms related to stress and dysfunction at work. Trial Tr. 2/11/20 at 34:7–15; 39:7–24; 41:5–9; 41:23–42:16. Levingston also corroborated that Stanton appeared to be having anxiety attacks accompanied by chest pains, headaches, and nausea—symptoms that were aggravated by stress at work. Id. at 31:25–32:4.
There was therefore legally sufficient evidence to find that Stanton suffered from a serious health condition that made her unable to perform her job functions. 29 U.S.C. § 2612(a)(1)(D) ; Lubke v. City of Arlington , 455 F.3d 489, 496 (5th Cir. 2006).
2. Jarvis next argues "there was no evidence that Plaintiff cured her medical certification [form] after Jarvis provided Plaintiff the regulatory seven day cure period." Docket No. 130 at 4–7. For this argument, Jarvis relies on Department of Labor FMLA regulations regarding the content of and procedure for handling medical certification forms. Id. (citing 29 C.F.R. § 825.305 ). Jarvis asserts that Stanton's medical certification form was incomplete and insufficient as a matter of law because some questions were left unanswered or answered with "unknown" or similar responses. Id. at 5–6.
The Fifth Circuit has stated:
[A] medical certification is considered sufficient if it contains certain information, including: (1) the date on which the serious health condition commenced; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider regarding the condition; and (4) if the leave is for the employee's own serious health condition, a statement that the employee is unable to perform the functions of his or her job.
Urban v. Dolgencorp of Tex., Inc. , 393 F.3d 572, 574 (5th Cir. 2004) (citing 29 U.S.C. § 2613(b) ). Here, the form submitted by Levingston left some questions blank, but (1) stated that Stanton's condition commenced at the "[b]eginning of school year 2018 Aug/Sep/Oct"; (2) answered "unknown" to the question about "[p]robable duration of condition"; (3) identified "Anxiety" and "Depression" as the "relevant medical facts"; and (4) affirmed that Stanton's condition "[w]ill ... cause episodic flare-ups periodically preventing the employee from performing his/her job functions." DX 51.
Jarvis argues that the form was "incomplete" and "insufficient" as a matter of law. Docket No. 130 at 5. But Levingston attempted to answer each of the questions required by § 2613(b). Although she responded "unknown" to "[p]robable duration of condition," her testimony at trial confirmed that "unknown" was the best response she could provide based on the information then available to her. DX 51; see Trial Tr. 2/11/20 at 49:22–50:6; 51:10–15. Indeed, with many medical conditions—including anxiety and depression—a provider may be unable to provide anything more specific than what Levingston did here. See Green v. Third Party Sols., Inc. , No. 08-cv-2569, 2010 WL 11493078, *6 (W.D. Tenn. April 12, 2010) (certification form sufficient even though provider was "unable to estimate the period of time needed for the employee to care for the family member due to the indefinite duration of the serious health condition"). Further, Levingston's earlier note to Jarvis had indicated how much time Stanton needed off work—from June 8 to June 25—which is likely why Jarvis did not dispute this point at trial. DX 116.
Jarvis cites Ryder v. Shell Oil Co. , 652 F. App'x 234, 236 (5th Cir. 2016) (per curiam), but that case is inapposite. Unlike here, the form in Ryder failed to address the employee's absences and indicated that the employee was able to work despite her condition. See id.
In any event, the Court need not decide whether the form was legally sufficient because the evidence at trial showed that Stanton was attempting to cure any problems when Jarvis denied her leave request and fired her. The Fifth Circuit has explained that the FMLA is "a statute that requires cooperation from the employer and employee." Mauder v. Metro. Transit Auth. of Harris Cnty. , 446 F.3d 574, 582 (5th Cir. 2006). And here, the evidence showed Stanton cooperating with Jarvis: she submitted the certification form when Jarvis requested it, contacted Jarvis a few days later requesting an update on her leave request, and attempted to address the alleged deficiencies in her certification form. When Jarvis told Stanton that parts of the form were "vague and ambiguous," Stanton requested "a copy of the form that was faxed over" and asked Jarvis to "specifically tell me what part is too vague so I can contact my doctor." DX 58 at 2. Jarvis replied that more "[s]pecifics" were needed in the sections of the form where Levingston had answered " ‘unknown,’ ‘as determined by,’ and/or ‘to be determined by.’ " Id. at 1. And Stanton responded a week later—on the deadline set by Jarvis—in an email to the Director of Human Resources:
I have notified my doctor of the specifics that you are requesting. I am working with her to get you the proper information. We are aware of the 7 day request and we are working to get you the information as soon as possible. Due to the confusion on what is being requested, we want to ensure you will receive the proper information.
Id. In light of this evidence, the jury could reasonably conclude that Stanton was cooperating with her employer as required by the statute when it abruptly denied her request and fired her. Cf. Mauder , 446 F.3d at 582–83 (employee not eligible for FMLA in part because he refused to provide requested information about his health condition).
Jarvis cites 29 C.F.R. § 825.305 and argues that Stanton did not provide the requested information within the required "7 calendar days." Docket No. 130 at 4–5. But § 825.305 says the employer should give the employee seven days to cure "unless not practicable under the particular circumstances despite the employee's diligent good faith efforts." 29 C.F.R. § 825.305(c). And here, the jury could reasonably conclude that the seven-day period was not practicable in light of Stanton's ongoing health condition, Jarvis's vague instructions about curing any deficiency, and Stanton's inability to get the information from Levingston. Stanton, for example, testified that she attempted to contact Levingston during that seven-day period but was unable to reach her. Trial Tr. 2/12/20 at 30:10–18. So Stanton did what any employee exercising "diligent good faith efforts" would do: she emailed the Director of Human Resources on the eve of the deadline to say she was still working on it. See, e.g., Picarazzi v. John Crane, Inc. , No. C-10-63, 2011 WL 486211, at *13 (S.D. Tex. Feb. 7, 2011) ; Crane v. Gore Design Completion, Ltd. , 21 F. Supp. 3d 769, 779 (W.D. Tex. 2014) (employee excused from satisfying seven-day deadline to cure certification form because of the unavailability of a medical specialist to diagnose her condition); Fischer v. Cincinnati Optimum Residential Env't, Inc. , No. 1:14-CV-208, 2015 WL 457473, at *8 (S.D. Ohio Feb. 3, 2015) (employee excused from satisfying seven-day deadline to cure certification form because employer accepted the delayed certification and did not notify the employee of any problems with the form).
There was therefore legally sufficient evidence that Stanton was attempting to cure any deficiencies in the form when Jarvis denied her FMLA leave and terminated her employment.
3. Jarvis next argues "there was no evidence that Plaintiff was harmed by any alleged FMLA violation." Docket No. 130 at 7. After referencing its previous arguments for why Stanton was not entitled to FMLA leave, Jarvis contends that it would have fired Stanton anyway because it believed she had "stolen and destroyed Jarvis property." Id. at 8. As discussed more fully below, however, there was legally sufficient evidence that Jarvis fired Stanton for requesting FMLA leave. Because termination for requesting FMLA leave is a recognized harm under the statute, this argument fails. See, e.g., Perkins v. Child Care Assocs. , 751 F. App'x 469, 474 (5th Cir. 2018) (per curiam) (recognizing termination as an adverse employment action under FMLA); Trautman v. Time Warner Cable Tex., L.L.C. , 756 F. App'x 421, 426 (5th Cir. 2018) (per curiam) (same); Ion v. Chevron USA, Inc. , 731 F.3d 379, 393 (5th Cir. 2013) (same).
4. Jarvis next argues there is "no evidence that Plaintiff's request for FMLA [leave] played any role in Jarvis’ decision to terminate Plaintiff." Docket No. 130 at 8. In support, Jarvis recounts trial testimony indicating that Stanton was fired because of the video showing her allegedly stealing school property. But again, Jarvis ignores other evidence to the contrary.
For example, Stanton testified that everything she removed from her office and campus storage was her own personal property. Trial Tr. 2/11/2020 at 201:3–18; 204:16–205:9; 214:11–13; Trial Tr. 2/12/2020 at 52:24–53:2; 61:2–20. She further testified that no one from Jarvis ever confronted her about her alleged theft or gave her an opportunity to explain the situation. Trial Tr. 2/12/2020 at 61:21 – 62:3. Based on that evidence, the jury could reasonably have determined that Jarvis's reliance on the video was merely a pretext.
Moreover, Dr. Newman's testimony about the specific determination to fire Stanton was conflicting. On the one hand, Dr. Newman claimed he terminated Stanton based on the video of Stanton taking campus property and destroying files and paperwork, and because she abandoned her job. Trial Tr. 2/10/2020 at 52:8–16; 59:18–22. But he also testified that he was fully aware of Stanton's medical leave request when he terminated her and that her request was a "factor" he considered. Id. at 75:14–24; 130:11–131:14. Stanton's counsel also effectively impeached Dr. Newman with his own deposition testimony and interrogatory responses stating that Stanton's request for FMLA leave played a role in his decision to terminate her. Id. at 76:13–22.
Dr. Newman further testified that, shortly before Stanton's termination, he was concerned about falling enrollment and frustrated by employees taking time off work and not helping recruit new students. Trial Tr. 2/10/20 at 68:6–69:16; 137:17–138:20. He held a campus-wide meeting the day Stanton submitted her leave request, demanded that everyone report to work, and threatened to fire anyone who did not comply with his directive. Id. ; see also Trial Tr. 2/11/2020 at 179:6–20. Thus, the evidence supports a finding that Dr. Newman fired Stanton because she asked for FMLA leave during a financial crisis in which he had forbidden anyone from taking leave.
There was also circumstantial evidence that Stanton's leave request was a motivating factor in the termination decision. For example, the proximity of Stanton's request on June 8 to her termination on June 29 is at least some evidence that the two events are related. See, e.g., Mauder , 446 F.3d at 583 ("When evaluating whether the adverse employment action was causally related to the FMLA protection, the court shall consider the ‘temporal proximity’ between the FMLA leave, and the termination."); see also Powers v. Woodlands Religious Cmty. Inc. , 323 F. App'x 300, 302 (5th Cir. 2009). The first paragraph of Stanton's June 29 termination letter, moreover, focused on her FMLA leave request and denied it "due to insufficient documentation," notwithstanding Stanton's June 28 email that she was working diligently to obtain the requested information from her provider. DX 121. And, finally, both Dr. Newman and his chief of staff Cynthia Stancil testified that Jarvis failed to follow its procedures when terminating Stanton, which could indicate that the reason for Stanton's termination was illegitimate. Trial Tr. 2/10/20 at 126:19–127:23; see Trial Tr. 2/11/20 at 91:7–9.
As the jury was instructed, Stanton needed only to show that her "engaging in FMLA-protected activity was a motivating factor in Defendant Jarvis Christian College's decision to terminate her employment." Docket No. 110 at 13; Ion , 731 F.3d at 389–90 ; Richardson v. Monitronics Int'l, Inc. , 434 F.3d 327, 334–35 (5th Cir. 2005). Here, there was legally sufficient evidence for the jury to find that Stanton's request for FMLA leave was a motivating factor in the decision to terminate her and that Jarvis would not have terminated Stanton in the absence of her leave request. Lubke , 455 F.3d at 496.
5. Finally, Jarvis argues that it had no duty to "provide the designation notice" regarding Stanton's FMLA leave because it never received sufficient information that the "leave is being taken for a FMLA-qualifying reason." Docket No. 130 at 10–12. Jarvis fails to explain, however, how this argument bears on the jury verdict or relates to its request for judgment as a matter of law. In any event, as discussed above, there was sufficient evidence to find that Jarvis received the necessary information, or alternatively, was in the process of receiving it from Stanton.
* * * *
The Court thus denies Jarvis's motion for judgment as a matter of law under Rule 50(b) because Jarvis failed to move for judgment under Rule 50(a). See Seibert , 851 F.3d at 435 ; In re Isbell Records , 774 F.3d at 867 ; Arsement , 400 F.3d at 247. Further, even if Jarvis had not waived its right to file a Rule 50(b) motion, the Court would deny the motion because there was legally sufficient evidence to support the jury's verdict. See, e.g., Ford , 230 F.3d at 830.
III. Motion for New Trial
Jarvis alternatively moves for a new trial under Rule 59. Docket Nos. 130, 131. That rule provides that 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)(1)(A). "The rule does not specify what grounds are necessary to support such a decision." Smith v. Transworld Drilling Co. , 773 F.2d 610, 613 (5th Cir. 1985). Rather, it depends on "the trial court's historic power to grant a new trial based on its appraisal of the fairness of the trial and the reliability of the jury's verdict." Id. at 612–13. "A new trial may be granted, for example, if the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed." Id. (footnotes omitted); see also Seibert , 851 F.3d at 438–39 ("Under our precedent, ‘[a] trial court should not grant a new trial on evidentiary grounds unless the verdict is against the great weight of the evidence.’ ") (quoting Whitehead v. Food Max of Miss., Inc. , 163 F.3d 265, 269 (5th Cir. 1998) ). The Fifth Circuit has stated that, in ruling on a motion for new trial, the jury's verdict may not be set aside lightly. See, e.g., Ellis v. Weasler Eng'g, Inc. , 258 F.3d 326, 342–43 (5th Cir. 2001).
Here, Jarvis argues for a new trial because the verdict "is against the great weight of the evidence" and "was the improper product of emotion and passion." Docket No. 130 at 12; Docket No. 131 at 2. The Court rejects both arguments.
A.
Jarvis argues that the verdict is against the great weight of the evidence because "there is no evidence that Plaintiff was protected under the Act." Docket No. 130 at 12.
The Court may grant a new trial if the "verdict is clearly contrary to the weight of the evidence." Smith , 773 F.2d at 613. "In making this determination, the district court weighs all the evidence, but need not view it in the light most favorable to the nonmoving party." Id. ; see also 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2806 (3d ed. 2020) ("The judge is not required to take that view of the evidence most favorable to the verdict-winner."). The Court should respect the jury's "collective wisdom," but "if [the Court] is not satisfied with the verdict of a jury, [it] has the right—and indeed the duty—to set the verdict aside and order a new trial." Smith , 773 F.2d at 613 (citation omitted). A jury's verdict should be set aside, however, only if it "is against the great, not merely the preponderance, of the evidence." Jones v. Wal-Mart Stores, Inc. , 870 F.2d 982, 986 (5th Cir. 1989). Applying that standard here and after having reviewed the totality of the evidence, the Court concludes that the verdict is not against the great weight of the evidence. See Seibert , 851 F.3d at 439 (affirming denial of motion for new trial).
As noted above, there was substantial evidence at trial that Stanton was protected under the FMLA. She sought medical leave because of a serious health condition making her unable to perform her job functions. Trial Tr. 2/11/20 at 177:13–17; 178:14–16; 184:19–23. As both she and her medical provider explained, Stanton suffered from severe anxiety and depression requiring her to see a psychiatrist and causing flare-ups that would prevent her "from performing his/her job functions." DX 51; Trial Tr. 2/11/20 at 34:9–10; 178:14–16; see also supra Part II.B.1. Evidence at trial also showed that Stanton provided the requisite FMLA notice to Jarvis, submitted the medical certification form requested by Jarvis, and was cooperating with Jarvis in providing additional requested information when Jarvis denied her leave request and fired her. See DX 58; Trial Tr. 2/12/20 at 30:10–18; see also supra Part II.B.2. To be sure, Jarvis cites evidence to the contrary, but "the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion" as long as there is some evidentiary basis for the jury's verdict. E.g., Seibert v. Jackson Cnty. , No. 1:14-CV-188, 2015 WL 8484547, at *4 (S.D. Miss. Dec. 9, 2015) (quoting Indamer Corp. v. Crandon , 217 F.2d 391, 393 n.3 (5th Cir. 1954) ), rev'd on other grounds , 851 F.3d 430, 440 (5th Cir. 2017).
Even if the Court construes Jarvis's motion for new trial to include the other points raised in its motion for judgment as a matter of law (discussed in parts II.B.3–4 above), the Court would deny the motion. In particular, weighing all the evidence here, the Court concludes that the jury findings of causation and harm are not against the great weight of the evidence because evidence showed that Stanton was harmed by Jarvis's FMLA violation when it denied her request for leave and that Stanton's FMLA request was a motivating factor in Jarvis's termination decision. See supra Parts II.B.3–4. Although some evidence could support a contrary conclusion, the Court finds that the verdict is not against the great weight of the evidence such that the verdict will result in a miscarriage of justice. See, e.g., Kie v. Williams , 697 F. App'x 388, 390 (5th Cir. 2017) (per curiam).
Accordingly, the Court denies Jarvis's motion for new trial on this ground.
B.
Jarvis also requests a new trial because Stanton's counsel was allegedly "crying and bawling in closing argument" and "improperly infected the jury with emotion and sympathy." Docket No. 131 at 1. Jarvis cites the affidavit of the jury foreperson, which states that the verdict was "based off of emotions and not the evidence in this case," and that the foreperson "tried to direct the jurors to the evidence" but "went along with the verdict when it became clear they would not look at the evidence." Id. at Ex. A. Jarvis did not object to the closing argument during trial but argues that the Court should nevertheless grant a new trial under Edwards v. Sears, Roebuck & Co. , 512 F.2d 276, 283 (5th Cir. 1975). Having observed the closing argument and reviewed it carefully post-trial, the Court denies the request.
Jarvis's counsel's communication with a juror violates Local Rule CV-47(b), which states: "After a verdict is rendered, an attorney must obtain leave of court to converse with members of the jury." In response to the Court's Show Cause Order, counsel for Jarvis stated that the juror contacted Jarvis unilaterally, but counsel acknowledged that he then conversed with the juror without leave of the Court.
A court "may order a new trial if improper closing argument irreparably prejudices a jury verdict or if a jury fails to follow instructions." Nissho-Iwai Co. v. Occidental Crude Sales, Inc. , 848 F.2d 613, 619 (5th Cir. 1988) ; see also, e.g., Colburn v. Bunge Towing, Inc. , 883 F.2d 372, 376 (5th Cir. 1989). In examining the propriety of a closing argument, the court should "review[ ] the entire argument ‘within the context of the court's rulings on objections, the jury charge, and any corrective measures applied by the trial court.’ " Nissho-Iwai Co. , 848 F.2d at 619 (quoting Westbrook v. Gen. Tire & Rubber Co. , 754 F.2d 1233, 1238 (5th Cir. 1985) (per curiam)). Failure to object during trial results in waiver. See id. ; see also, e.g., Baisden v. I'm Ready Prods., Inc. , 693 F.3d 491, 509 (5th Cir. 2012) (movant waived objection to statements in closing argument because he "raised no objection to the statements at trial"). In the event of waiver, a court may grant a new trial only if the closing argument " ‘affect[s] the substantial rights of the parties’ " by, for example, "seriously prejudic[ing] [the movant's] right to a fair trial." Edwards , 512 F.2d at 286 (quoting FED. R. CIV. P. 61) ; see also Baisden , 693 F.3d at 509 n.17 (movant who failed to object to closing argument at trial must show "the statements rise to the level of severity that would require a new trial to avoid a miscarriage of justice").
Here, as Jarvis concedes, its counsel failed to object to the closing argument at trial. Counsel also failed to move for a mistrial before the case was submitted to the jury. Jarvis argues that its counsel was afraid to object during Stanton's closing argument for fear of "appear[ing] to the jury that he is attacking this young crying woman." Docket No. 131 at 1. This argument is unavailing. Jarvis's counsel clearly knew how to approach the bench for discrete objections, as he requested countless sidebars during trial. Instead, like the movant in Nissho-Iwai Co. , counsel for Jarvis "chose to submit the case to the jury" and only raised a complaint about the closing argument when that "strategy failed." 848 F.2d at 619. Accordingly, Jarvis may not argue now that Stanton's allegedly improper closing argument is grounds for a new trial. Id. (movant "barred ‘from urging the improper arguments as grounds for a new trial after the jury had returned its verdict’ " where it failed to object at trial (quoting Comput. Sys. Eng'g, Inc. v. Qantel Corp. , 740 F.2d 59, 69 (1st Cir. 1984) )).
Jarvis, moreover, has not shown that the closing argument by Stanton's counsel affected its substantial right to a fair trial. Jarvis complains primarily about counsel's "crying and bawling." Docket No. 131 at 1. But as a first-hand observer of the argument, the Court rejects that claim in its entirety. Stanton's counsel was passionate and admitted to the jury that she was "a bit nervous," Trial Tr. 2/12/20 at 166:10–11, but she did not appear to "cry" or "bawl." Further, the Court unambiguously instructed the jury to distinguish attorney argument and conduct from evidence and not to be influenced by passion or sympathy:
The testimony of the witnesses and other exhibits introduced by the parties constitute the evidence. The statements of counsel are not evidence; they are only arguments. It is important for you to distinguish between the arguments of counsel and the evidence on which those arguments rest. What the lawyers say or do is not evidence.
Docket No. 110 at 2; Trial Tr. 2/12/20 at 152:3–9.
You are required by law to decide the case in a fair, impartial, and unbiased
manner, based entirely on the law and on the evidence presented to you in the courtroom. You may not be influenced by passion, prejudice, or sympathy you might have for the plaintiff or the defendant in arriving at your verdict. Do not let bias, prejudice, or sympathy play any part in your deliberations.
Docket No. 110 at 2; Trial Tr. 2/12/20 at 152:18–25. Jarvis has not shown how these instructions were insufficient to cure any concerns about a passionate closing argument.
Jarvis also identifies two objectionable statements allegedly made by Stanton's counsel during argument—"it's not fair" and "twisting the truth." Docket No. 131 at 1. Jarvis, however, provides no citation for these statements. The Court does not recall such statements in Stanton's closing argument, and a review of the transcript shows no evidence of such statements. Rather, the transcript verifies that Stanton's counsel concisely referenced the evidence and argued that it supports a finding that (a) Stanton suffered from a serious medical condition that prevented her from working, (b) Stanton was entitled to leave under the FMLA, but (c) Jarvis failed to the "right thing," the "lawful thing," for Stanton here. Trial Tr. 2/12/20 167:13–14. Stanton's counsel also discussed the two separate claims brought against Jarvis—interference and retaliation under the FMLA—and argued that the jury should hold Jarvis responsible for its failure to comply with the law. Id. at 168:17–25. The argument was entirely appropriate. See, e.g., Com. Credit Equip. Corp. v. L&A Contracting Co. , 549 F.2d 979, 981 (5th Cir. 1977) (attorneys should generally be given "a good deal of leeway" in closing arguments and may permissibly argue reasonable inferences that can be drawn from the evidence).
Stanton's counsel's closing argument was certainly nothing like the one in Edwards. 512 F.2d at 286. In Edwards the Fifth Circuit held that a new trial was necessary, even though no objection had been raised at trial, "to avoid a miscarriage of justice." Id. In the closing argument there, the attorney:
[D]iscussed with the jury the value which his own son would place on his father's life, played on counsel's personal association with the deceased, evoked the image of deceased's children crying at [the] graveside and forlornly awaiting the return of their father, and urged upon the jury the need for retributive payments from defendants.
Id. at 285 (footnotes omitted). Stanton's counsel presented nothing comparable to that here. Further, the district court in Edwards found that the jury was "swayed by passion or prejudice and failed to respond to the court's instructions" in rendering its verdict. Id. at 283. This Court makes no such finding.
Jarvis's argument also relies heavily on an affidavit of the jury foreperson. The foreperson states that the other jurors were swayed by their "emotions and not the evidence in this case" in part because Stanton's attorney was "crying ... during her closing arguments." Docket No. 131 at Ex. A. It is well established, however, "that a juror may not impeach the validity of the verdict after it is rendered, absent a showing that ‘extraneous prejudicial information was improperly brought to the jury's attention or ... any outside influence was improperly brought to bear upon any juror.’ " United States v. Gerardi , 586 F.2d 896, 898 (1st Cir. 1978) (quoting FED. R. EVID. 606(b) ). The foreperson's assumption about the motives of other jurors is not the kind of extraneous prejudicial information or outside influence warranting a new trial. Nor are her apparent second thoughts about the verdict. See id. (noting that "the juror's vacillations and second thoughts did not impugn the unanimity of the guilty verdict nor in any way necessitate a new trial"); see also, e.g., United States v. Moses , 15 F.3d 774, 778 (8th Cir. 1994) (new trial improper even though a juror wrote a letter to the court expressing his "post-verdict belief that [the defendant was] innocent").
The affidavit filed in this case demonstrates why courts generally do not grant leave for counsel to interview jurors after the verdict has been returned. Haeberle v. Tex. Int'l Airlines , 739 F.2d 1019, 1021 (5th Cir. 1984). The Fifth Circuit has "repeatedly refused to ‘denigrate jury trials by afterwards ransacking the jurors in search of some new ground ... for a new trial.’ " Id. (quoting United States v. Riley , 544 F.2d 237, 242 (5th Cir. 1976) ). By not allowing interviews, the certainty of civil trials is strengthened, and the district court is spared from conducting lengthy and futile post-trial proceedings. Id.
Here, the foreperson signed her name to the verdict form and then represented to the Court on the record that it was her verdict and she agreed with it. Trial Tr. 2/13/20 at 8:2–6. The Court thus denies Jarvis's motion for a new trial on this ground.
IV. Conclusion
In sum, the Court DENIES Jarvis's motion for judgment as a matter of law (Docket No. 130) under Federal Rule of Civil Procedure 50(b) because Jarvis failed to move for judgment under Rule 50(a) and, alternatively, because there was legally sufficient evidence to support the jury verdict. The Court also DENIES Jarvis's motion for a new trial (Docket No. 130) because the Court finds that the verdict is not against the great weight of the evidence. Finally, the Court DENIES Jarvis's separate motion for new trial (Docket No. 131) because the closing argument made by Stanton's counsel did not improperly influence the jury.
So ORDERED and SIGNED this 6th day of August, 2020.