Equal Employment Opportunity Commission v. Go Daddy Software, Inc.
581 F.3d 951, 2009 U.S. App. LEXIS 20159, 107 Fair Empl. Prac. Cas. (BNA) 242 (2009)
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Rule of Law:
A jury's finding of Title VII retaliation can withstand a Rule 50(b) motion for judgment as a matter of law if there is substantial evidence for properly preserved arguments, and 'any evidence' for unpreserved arguments, to support the conclusions that the employee engaged in protected activity and that the activity was a causal factor in the adverse employment action.
Facts:
- In September 2001, Go Daddy hired Youssef Bouamama, a Muslim of Moroccan national origin, as a temporary Technical Support Representative.
- Between December 2001 and February 2002, supervisor Brett Villeneuve, after hearing Bouamama speak French to a customer, asked Bouamama about his origin, languages, and religion; Bouamama felt the questions were inappropriate.
- In July 2002, Villeneuve promoted Bouamama to Inbound Sales Manager; shortly after, Bouamama complained to Human Resources (Heather Slezak) about Villeneuve's earlier questions (Slezak denied this).
- At some point, Bouamama overheard Villeneuve make a comment near his cubicle, "The Muslims need to die. The bastard Muslims need to die," but Bouamama did not report this at the time.
- On April 1, 2003, Craig Franklin was hired as Director of Call Center Operations, demoting Villeneuve, and Franklin immediately reorganized the call center, eliminating Bouamama's position.
- On April 4, 2003, Franklin, Villeneuve, and Slezak informed Bouamama that his position was eliminated, and he could apply for new Sales Supervisor positions or "walk away."
- On the morning of April 7, 2003, Franklin asked Bouamama about pictures in his cubicle, specifically inquiring about his Moroccan origin and Muslim religion, and then stated, "You know, you're lucky that I like you."
- On the afternoon of April 7, 2003, Bouamama complained to Slezak about Franklin's comments, linking them to earlier inquiries about his origin and religion (Slezak denied this); he later called in sick on April 17 and visited the EEOC.
- On April 17, 2003, Slezak and Franklin informed Bouamama that he was no longer with Go Daddy, effective immediately, and offered a severance package, but did not offer him a return to his previous sales representative role.
Procedural Posture:
- The Equal Employment Opportunity Commission (EEOC) brought suit against Go Daddy Software, Inc. in federal district court on Youssef Bouamama’s behalf, alleging discrimination and retaliation under Title VII.
- A jury returned a verdict in favor of the EEOC on the retaliation claim, awarding Bouamama $5,000 for mental and emotional pain, $135,000 for lost earnings, and $250,000 in punitive damages, while finding for Go Daddy on the discrimination claim.
- Go Daddy filed a Rule 50(a) motion for judgment as a matter of law after closing arguments, which the trial court took under advisement.
- Following the verdict, Go Daddy filed a renewed motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and, in the alternative, moved for a new trial under Federal Rule of Civil Procedure 59(a).
- The district court denied Go Daddy’s Rule 50(b) and Rule 59(a) motions.
- The district court granted Go Daddy’s motion to reduce the total jury damage award to $200,000 and granted the EEOC’s motion for equitable relief in part, awarding Bouamama back pay and prejudgment interest, but declining reinstatement.
- Go Daddy appealed the district court’s denial of its Rule 50(b) motion and its Rule 59(a) motion for a new trial to the United States Court of Appeals for the Ninth Circuit (Go Daddy as appellant, EEOC as appellee).
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Issue:
Does a jury's verdict finding an employer liable for Title VII retaliation withstand a Rule 50(b) motion for judgment as a matter of law when the employer claims insufficient evidence of protected activity and causation, particularly when some arguments were not preserved in the pre-verdict Rule 50(a) motion?
Opinions:
Majority - William A. Fletcher
Yes, the jury's verdict of retaliation properly withstood Go Daddy's Rule 50(b) motion because there was sufficient evidence to support the jury's findings of protected activity and causation. The court applied different standards of review based on whether Go Daddy's arguments were preserved in its Rule 50(a) motion: the "substantial evidence" standard for preserved arguments and the more deferential "plain error" standard (requiring "any evidence" to support the verdict) for unpreserved arguments. The court found that Bouamama's testimony that he complained to Slezak two or three times about discriminatory comments was sufficient evidence for the jury to believe him over Slezak's denial. It held that a reasonable person could believe the conduct Bouamama complained about (Villeneuve's questions, his 'Muslims need to die' comment, and Franklin's comments) collectively constituted more than "offhand comments" or "isolated incidents" under Clark County School District v. Breeden, and that unreported comments were relevant to the reasonableness of Bouamama's belief that a Title VII violation occurred. Regarding causation, the court found a reasonable jury could conclude Slezak informed Franklin of Bouamama's April 7 complaint given their subsequent joint activities. Additionally, evidence that Bouamama was offered other options and a new project after April 4, and was still working on April 15, contradicted Go Daddy's claim that the termination decision was made before his protected activity. The district court also did not abuse its discretion in denying the Rule 59(a) motion for a new trial as the record supported the verdict.
Dissenting - Noonan
No, the jury's verdict for retaliation should not stand because there was no evidence that Bouamama engaged in protected activity by opposing an unlawful employment practice. The dissent argued that Bouamama reported only two conversations to Slezak, not three, and neither constituted a "pattern of discriminatory conduct" that a reasonable person could interpret as violating Title VII. Villeneuve's questions about Bouamama's origin and religion were seen as "unremarkable" and led to a promotion, thus not discriminatory. Villeneuve's later "Muslims need to die" comment was "random," "not aimed at Bouamama," and crucially, unreported, making it irrelevant to a retaliation claim. Franklin's April 7 comments, even if negative, were a "single remark" and an "isolated incident" that did not meet the standards for actionable harassment affecting employment terms and conditions as established in Faragher and Breeden. The dissent concluded that the EEOC produced "zero evidence of protected activity" affecting Bouamama's conditions of employment and that the jury's verdict was a miscarriage of justice that flouted Supreme Court holdings.
Analysis:
This case offers critical guidance on the standards for overturning jury verdicts in Title VII retaliation claims, particularly when an employer fails to preserve arguments properly. It clarifies that a series of incidents, even with some unreported comments, can establish a "reasonable belief" of a Title VII violation, distinguishing this from isolated incidents. The decision also underscores that circumstantial evidence, such as proximity in time and opportunities for communication among decision-makers, can be sufficient for a jury to infer a causal link between protected activity and an adverse employment action. This provides a stronger shield for plaintiffs against post-verdict challenges when their claims involve a pattern of behavior and demonstrates the high deference appellate courts accord to jury findings under the 'any evidence' standard for unpreserved arguments.
