_______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _______________________________________________________ Nos. 08-1096 & 08-1417 _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. SOUTHWESTERN BELL, TELEPHONE, L.P., d/b/a AT&T SOUTHWEST & SBC COMMUNICATIONS, Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Eastern District of Arkansas, Jonesboro Division Case No. 3:06-CV-176 (JLH) _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L St., N.W. Washington, D.C. 20507 (202) 663-4724 annenoel.occhialino@eeoc.gov SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT This is an appeal from a jury verdict in the Commission's favor on its claim that AT&T discriminated against two charging parties based on their religion when it refused to accommodate their request - made six months in advance - for a single day off to attend an annual religious convention and then fired them when they attended it. See 42 U.S.C. §§ 2000e-2(a), 2000e(j). Based on the jury's verdict, the district court entered judgment in the Commission's favor and awarded back pay and compensatory damages to the charging parties. The district court subsequently entered an order requiring reinstatement and front pay until then. AT&T failed to file any post-judgment motions but did timely file a notice of appeal.<1> In the Commission's view, oral argument is unnecessary to resolve the issues in this appeal because AT&T cannot appeal from the summary judgment ruling and its failure to file any post-judgment motions precludes it from challenging the district court's refusal to grant its Rule 50(a) motion for judgment as a matter of law. If, however, this Court determines that AT&T did not waive its arguments, the Commission requests that the argument be allotted 30 minutes of time (15 minutes per side) to enable the parties to address the merits of AT&T's appeal. TABLE OF CONTENTS SUMMARY AND STATEMENT REGARDING ORAL ARGUMENT....................................... i TABLE OF CONTENTS ..................................................................ii TABLE OF AUTHORITIES ............................................................. iv STATEMENT OF JURISDICTION.......................................................... 1 STATEMENT OF THE ISSUES............................................................. 1 STATEMENT OF THE CASE .............................................................. 2 1. Nature of the Case and Course of Proceedings.................................2 2. Statement of the Facts ................................................. 4 3. District Court Decision................................................... 16 SUMMARY OF ARGUMENT .............................................................. 17 ARGUMENT .......................................................................... 19 I. BECAUSE AT&T CANNOT APPEAL FROM THE DENIAL OF SUMMARY JUDGMENT AND FAILED TO RENEW ITS MOTION FOR JUDGMENT AS A MATTER OF LAW AFTER TRIAL OR TO FILE A MOTION FOR A NEW TRIAL, THIS COURT IS PRECLUDED FROM CONSIDERING AT&T'S ARGUMENTS ON APPEAL. ....................................... 19 A. AT&T cannot appeal from the denial of summary judgment........ 19 B. Because AT&T failed to file any post-trial motions, it is not entitled to judgment as a matter of law, or to a new trial............................ 20 TABLE OF CONTENTS (con't) II. EVEN IF THIS COURT CAN CONSIDER AT&T'S ARGUMENT THAT IT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW BASED ON INSUFFICIENCY OF THE EVIDENCE, THIS COURT SHOULD AFFIRM THE JUDGMENT AWARDING BACK AND FRONT PAY BECAUSE THE JURY'S VERDICT WAS NOT A MANIFEST MISCARRIAGE OF JUSTICE........................................................... 24 A. The evidence does not compel a jury finding that Gonzalez and Owen lacked a sincerely held religious belief. ....................................... 25 B. The evidence supports the jury's finding that AT&T failed to show that accommodating Gonzalez and Owen would have imposed an undue hardship................................. 31 C. Because the jury reasonably determined that Gonzalez and Owen had mitigated their damages, the award of back and front pay should be affirmed...................................................................... 38 CONCLUSION ....................................................................... 44 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Barnes v. Rivas, 207 Fed. Appx. 376, 378 (5th Cir. Nov. 17, 2006).................43 Bergman v. Bailey Controls Co., No. 89-3622, 1990 WL 140585 (6th Cir. Sept. 27, 1990)................................... 41 Broadus v. O.K. Indus, Inc., 238 F.3d 990 (8th Cir. 2001).............20, 24, 30, 31 Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995)............... 1, 32, 36, 37 Burns v. Southern Pacific Trans. Co., 589 F.2d 403 (9th Cir. 1978)............................................. 37 Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894 (8th Cir. 2006).................................................43 Carden v. Westinghouse Elec. Corp., 850 F.2d 996 (3d Cir. 1988).................. 41 Chalfant v. Titan Distrib., 475 F.3d 982 (8th Cir. 2007)......................... 43 Cook v. Chrysler Corp., 981 F.2d 336 (8th Cir. 1993)..............................35 Eaddy v. Yancey, 317 F.3d 914 (8th Cir. 2003)..................................1, 19 Federal Ins. Co. v. HPSC, 480 F.3d 26 (1st Cir. 2007)......................... 23 HI Ltd. Partnership v. Winghouse of Florida, Inc., 451 F.3d 1300 (11th Cir. 2006)............................................. 22 Hartley v. Dillard's, Inc., 310 F.3d 1054 (8th Cir. 2002).................... 39, 41 Henderson v. Simmons Foods, Inc., 217 F.3d 612 (8th Cir. 2000)................................... 1, 39, 40, 43 Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155 (8th Cir. 1975)............................................. 21 Mathieu v. Gopher News Co., 273 F.2d 769 (8th Cir. 2001)......................... 40 Matos v. PNC Fin. Serv. Group, 2005 WL 2656675 (D.N.J. Oct. 17, 2005)..................................28, 30 Metro. Life Ins. Co. v. Golden Triangle, 131 F.3d 351 (8th Cir. 1997)............................................19, 20 Newhouse v. McCormick & Co., 110 F.3d 635 (8th Cir. 1997).................... 39, 40 Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007).................. 23 Ollis v. HearthStone Homes, Inc., 495 F.3d 570 (8th Cir. 2007)............... 24, 25 Pearson v. Wellborn, 471 F.3d 732 (7th Cir. 2006).............................. 22 Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984)................................30 Schooley v. Orkin Extermination, Co., Inc., 502 F.3d 759 (8th Cir. 2006)............................................. 24 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).......... 1, 32, 34, 35 Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006)............................................. 1, 21, 22 Vetter v. Farmland Indus., Inc., 120 F.3d 749 (8th Cir. 1997)............... 1, 28 FEDERAL STATUTES 42 U.S.C. § 2000e(j).......................................................i, 24, 31 42 U.S.C. § 2000e-2(a)....................................................... ii, 25 28 U.S.C. § 1291................................................................. 1 28 U.S.C. §§ 1331................................................................. 1 TABLE OF AUTHORITIES (con't) 29 C.F.R. § 1605.1................................................................30 29 C.F.R. § 1605.2(e)....................................................... 34, 35 FEDERAL RULES Fed. R. Civ. P. 50(a)............................................................ 19 Fed. R. Civ. P. 50(b)............................................................ 19 STATEMENT OF JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345. The district court entered judgment on October 3, 2007, but retained jurisdiction to consider equitable relief, which it granted in its December 19, 2007, order. On January 8, 2007, AT&T filed a timely notice of appeal. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether AT&T can challenge on appeal the district court's refusal to grant judgment as a matter of law in its favor based on the grounds that the charging parties did not have a sincere religious belief, the requested accommodation imposed an undue hardship on AT&T, and the charging parties failed to mitigate their damages where AT&T moved for summary judgment before trial and made a Rule 50(a) motion at trial but failed to file a Rule 50(b) motion after trial, and also failed to file a Rule 59 motion for a new trial. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006) Eaddy v. Yancey, 317 F.3d 914 (8th Cir. 2003) 2. Assuming, arguendo, that AT&T can challenge on appeal the district court's refusal to grant judgment as a matter of law in its favor, whether the evidence supported the jury's findings that the charging parties sincerely believed that attending the annual Jehovah's Witnesses convention with their congregation on July 15 was an important aspect of their religious observance or practice, giving the charging parties a single day off of work did not impose an undue hardship on AT&T, and the charging parties mitigated their damages, and whether this Court should therefore affirm the verdict and awards of back and front pay. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995) Vetter v. Farmland Indus., Inc., 120 F.3d 749 (8th Cir. 1997) Henderson v. Simmons Foods, Inc., 217 F.3d 612 (8th Cir. 2000) STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court entered in favor of the EEOC on its claim that AT&T discriminated against José Gonzalez and Glenn Owen because of their religious beliefs in violation of Title VII of the Civil Rights Act of 1964. On September 28, 2006, the EEOC filed a complaint alleging that AT&T discriminated against Gonzalez and Owen when it refused to accommodate their request for a single day off to attend an annual Jehovah's Witness convention and then discharged them when they attended the convention. APP1.<2> AT&T filed a motion for summary judgment arguing that it had not violated Title VII because giving Gonzalez and Owen the day off imposed an undue hardship on AT&T. APP11. On October 3, 2007, the district court denied the motion, APP372, and on October 15, 2007, a jury trial began. During the trial, AT&T made a Rule 50(a) motion for judgment as a matter of law at the close of the EEOC's case and at the close of all of the evidence as to the sincerity of Gonzalez's and Owen's religious beliefs, whether accommodating the men imposed an undue hardship, and whether they had mitigated their damages. The court denied both motions. Tr. at 643-55, 742-43. At the conclusion of the trial, the jury found for the EEOC on its claims of religious discrimination. APP421. The jury awarded Gonzalez $136,000 in lost wages and benefits and $230,000 in compensatory damages and awarded Owen $160,000 in lost wages and benefits and $230,000 in compensatory damages. Id. On October 23, 2007, the court entered judgment consistent with the jury's verdict but retained jurisdiction to determine what equitable relief, if any, to grant. APP424. On December 19, 2007, the district court entered an order directing AT&T to reinstate the charging parties, awarding front pay to the charging parties from the date of judgment to reinstatement, and awarding prejudgment interest. APP427. AT&T failed to renew its Rule 50(a) motion for judgment as a matter of law by filing a Rule 50(b) motion after trial, and AT&T failed to file a Rule 59 motion for a new trial. APPe-f (docket). 2. Statement of the Facts José Gonzalez and Glenn Owen are Jehovah's Witnesses who worked for AT&T in Jonesboro, Arkansas, until AT&T fired them for attending a religious convention. Tr. 62, 63, 236. Gonzalez began working for AT&T in 1997 in customer service and in 1999 became a customer service technician ("CST"). Tr. 73-75. CSTs install and repair phone lines. Owen, who is Gonzalez's brother- in-law and attends the same congregation, began working for AT&T as a CST in 1999. Tr. 62, 236, 240. It is undisputed that they were good workers and reliable employees. Tr. 369, 384, 538. Gonzalez became a baptized Jehovah's Witness in August 1984, and Owen was baptized in 1997. Tr. 63, 236. Jehovah's Witnesses do not celebrate any holidays or observe the Sabbath; their only observance is the memorial of Christ Jesus's death in the spring. Tr. 161-62, 67-68, 237. Accordingly, Gonzalez and Owen often worked weekends or holidays such as Thanksgiving so that other CSTs could have the day off. Tr. 83, 283, Pltf. Ex. 13 (Owen's charge). Although Jehovah's Witnesses do not celebrate holidays or observe the Sabbath, every summer they hold an annual convention lasting three days. Tr. 69. As Gonzales explained, the origins of the convention "go back to the Hebrew scriptures of the pre-Christian times." Tr. 69. He testified that the "Bible talked of three such occasions, yearly occasions, and those were required; to attend was required." Id. While Jehovah's Witnesses "don't observe those [three occasions], necessarily, anymore," Gonzalez testified that Jehovah's Witnesses believe that "Jehovah God doesn't change" and "if he viewed those, our gatherings, that important back then, surely he must now." Id.; see also Tr. 164 (stating that he realized not everyone agreed, but "in as much as Jehovah God holds it [the convention] up as very important, and it is indeed a commandment to meet together, and inasmuch as failing to do so in Hebrew times was punishable - they had three festivals, and they were required," Jehovah's Witnesses also view the convention "that importantly"). Similarly, Owen testified that it was "very important . . . to gather together. As it says in the Bible, 'Do not forsake the gathering of yourselves together.'" Tr. 238. He reiterated, "these [conventions] are very, very important parts of what we do during the year." Tr. 238; see Pltf. Ex. 13 (stating that he told his supervisor that attending the convention "was a religious observance" and that being told he had to work on July 15 rather than attend the convention was forcing him to "cho[o]se between my religion and my job"). Although there are several hundred conventions each year with thousands of attendees at each, an entire congregation is supposed to attend the same convention. Tr. 70-71, 80, 158, 165. According to Gonzalez, this was important "because it's the way we support what we call theocratic order." Tr. 80. He explained that organizing the conventions "is painstaking," given the logistics involved, and that they were "always encouraged to follow that order." Tr. 81. Owen similarly testified that he believed that he was supposed to attend the convention assigned to his congregation because "Jehovah is a God of order, not of disorder," and the conventions were planned out far in advance. Tr. 258-59. Additionally, both Gonzalez and Owen held leadership roles in their congregations; Gonzalez was an elder, and Owen was a ministerial servant. Tr. 163, 237. Gonzalez explained that while there is no doctrine requiring attendance at the convention, his failure to attend "would bring into question my qualifications, as an elder." Tr. 162-63. Neither Gonzalez nor Owen ever missed a convention. Tr. 71, 259. Two of AT&T's own witnesses, who were both AT&T employees and Jehovah's Witnesses, testified at trial as to the significance of the conventions. Joe Coble testified that although the conventions were not like a Sabbath, "we do consider them something sacred." Tr. 671. He always attended the convention with his congregation because he had responsibilities at the convention. Tr. 672, 674. Josh Worley also testified that the three-day convention was sacred to Jehovah's Witnesses. Tr. 681-82. Prior to 2005, AT&T had always accommodated Gonzalez's and Owen's requests to have time off to attend the summer convention.<3> Tr. 79. This was true even though they did not learn until January of each year which convention their congregation was assigned to attend, which was after AT&T's vacation schedule for that year had been circulated among the CSTs. Tr. 79. In January 2005, Gonzalez and Owen learned that their assigned convention would be Friday, July 15, through Sunday, July 17, in Little Rock, Arkansas. Tr. 87. Gonzalez testified that his congregation had an assignment at the convention to clean a section of the stadium each day and that he was going to help with the sound system. Tr. 103-04. He also testified that as a Jehovah's Witness it was important for him to follow through on the assignment and, furthermore, that as an elder in the congregation who urged others to be faithful about discharging their assignments, it was important that he be faithful in discharging his assignments. Tr. 104. Owen also testified that he was assigned to be an attendant at the convention, do cleanup, and do some accounting. Tr. 257. According to Owen, it was "very significant" to him as a Jehovah's Witness to have an assignment at the convention because it reflected his good standing in the congregation and because "[y]ou have to be doing what the Bible says that you're supposed to be doing." Tr. 257. Upon learning of the convention date, Gonzalez and Owen immediately requested to have Friday, July 15 off from work.<4> Tr. 87, 244. AT&T's policy was to allow only one CST to be on vacation during the busy season, from May through August, and another CST was already scheduled to have that day off. Tr. 305, 690-91. Gonzalez's and Owen's new manager, Jacob Garrett, gave no response to their written vacation request. Tr. 88-89. In March, Owen submitted another written request and even marked it "second request." Tr. 245. Gonzalez also asked Garrett about the request, stating that it was important that they attend the convention. Tr. 89. Garrett refused to say "yes" or "no" but indicated that they would be able to "'work something out.'" Tr. 89. On May 23, 2005, Owen submitted another request to have July 15 off for the convention and also asked to have time off in June to attend a rock concert. Tr. 245-46. Garrett immediately gave Owen approval to attend the rock concert - without mentioning anything about having to wait and see about the workload or the weather - but again refused to say whether Owen could have July 15 off. Tr. 246-48. By June, Gonzalez and Owen had become increasingly concerned about Garrett's lack of response either way about their request. Tr. 91 (explaining that had Garrett said "no," it would have "forced our hand to do something" but that Garrett was not saying yes or no). Accordingly, the men asked Gary Jones, a union steward, to join them in talking with Garrett. Tr. 91, 249-50. Garrett, however, still refused to say whether he would give the men the day off. Tr. 91. Gonzalez and Owen mentioned to Garrett several ways in which they could be accommodated besides taking July 15 as a vacation day, including working overtime on the Sunday before July 15. Tr. 92-95. Two weeks before the convention, Gonzalez and Owen again asked Garrett about their request and offered "to do anything that we had to to get off," including working without pay, working overtime without pay, or coming in Sunday.<5> Tr. 252. Garrett again refused to say whether the men could have the day off, telling them only that "'we'll just have to wait and see what the load does.'" Tr. 252. Owen reiterated that the request had been pending for six months and that "this is not a light matter to me." Tr. 252. On the morning of July 14, Gonzalez and Owen again demanded to know if they could be off the next day, and they told Garrett that federal law required that they be given the day off. Tr. 95, 353, 251. Because Garrett "didn't know much about federal law," Garrett finally brought the men's request up with his supervisor, Phil Farley. Tr. 353, 359. By Garrett's own account, he violated AT&T's policy by waiting so long to ask Farley about Gonzalez's and Owen's request instead of raising it as soon as they made it. Tr. 352. Farley and Garrett discussed the request with another AT&T manager, Marty Binns. Tr. 512. Based on the "load" and on the weather (some rain was forecast, which generally causes the number of service calls to increase), the three managers decided that the request should be denied.<6> Tr. 512. Garrett called Gonzalez and Owen and told them this. Tr. 99-100. Gonzalez and Owen again reminded Garrett that they had made the request more than six months ago for a religious purpose and that they had already made arrangements to attend the convention, and they said that they were going to attend it. Tr. 99-101, 253. At some point that afternoon, Farley talked to Jim Hamilton, an AT&T labor relations manager, and to his boss, Alejandro Olea. Tr. 553-54, 574. At 4:30 PM, Garrett called Gonzalez and Owen and told them, per Hamilton's instruction, that he was giving them a "work directive" to show up for work the next day. Tr. 101, 253. The men again said that they had been asking for the day off for six months, that they already had hotel reservations, and they were going to attend the convention. Tr. 253. That evening, Farley called Jackie Fields, the president of the local union, and asked her to call Gonzalez and Owen and encourage them to go to work, which she did. Tr. 438, 255, 323. When Gonzalez and Owen failed to show up for work on July 15, because they had gone to the convention, Garrett informed Farley. Although Garrett believed Gonzalez and Owen were "reliable employees," he and Farley drove by their homes to be sure that they were not just sitting around. Tr. 368, Tr. 443-44. According to Farley, had Gonzalez and Owen simply been sitting around at home instead of having gone to the convention, he would have just asked them to come to work and "it could have changed the whole element of everything." Tr. 444. On Monday, July 18, Garrett held brief investigatory meetings with Gonzalez and Owen. Tr. 260-61. That afternoon, Farley talked with Olea, three in-house attorneys, and a vice president. Tr. 558. They discussed suspending the men, which Farley did that day.<7> Tr. 601. Later in the week, Farley recommended that Gonzalez and Owen be terminated for insubordination. Tr. 452-54. On August 2, AT&T held a "day in court" for Gonzalez and Owen. Tr. 614. After the "day in court" and consulting with several people, Olea - who was the final decisionmaker - decided to terminate Gonzalez's and Owen's employment. Tr. 636, 457. The stated reasons for the terminations were "misconduct; job abandonment; insubordination; and failure to follow a work directive." Tr. 631. At trial, AT&T offered evidence that on Friday, July 15 it had 58 trouble reports (which, under state law, required repair within 24 hours) and 12 service orders (which required installation within several days). Tr. 531, 385. The ten Jonesboro CSTs who worked on July 15 completed the combined total of 70 tickets with 27.75 hours of overtime. Tr. 532, 371. According to AT&T, it paid regular overtime wages of $41.38/hour for 3.75 of those overtime hours and "premium," or double, overtime of $55.18/hour for 24 of those overtime hours. Tr. 561-62. (The base hourly wage was $27.59/hour. Tr. 564.) CSTs earned overtime whenever they worked more than 8 hours in a day, and they earned double overtime when they worked more than 49 hours in a week. Tr. 564. Working overtime, however, was a job requirement. Tr. 375. Some CSTs liked working overtime and volunteered for it. Tr. 377. There was also abundant evidence offered at trial that overtime was not only required but was the norm. Garrett testified that overtime was a "weekly occurrence," and Binns testified that the CSTs worked overtime "pretty much every day." Tr. 367, 521. It is also undisputed that the twenty CSTs in Jonesboro and nearby towns worked over 7,088 hours of overtime in just the first seven months of 2005. Tr. 376-77; Pltf. Ex. 25. Gonzalez and Owen also testified that working overtime was the norm. Gonzalez testified that in 2005 before his termination, he worked 240 hours - or 6 weeks - of overtime, and he testified that approximately 30% of his $82,113 earnings in 2004 was from overtime. Tr. 117. Similarly, Owen testified that in 2005 he worked 468 hours - or more than eleven weeks - of overtime before he was fired, which included 82.75 hours of premium overtime, and that at least 40% of his $91,689 in earnings in 2004 came from overtime. Tr. 265-66. Working overtime was so routine that Garrett did not even consider whether approving a shift-swap between CSTs, which was a common occurrence, would result in increased overtime for the company - even if the shift swap was to allow a CST to attend a baseball game. Tr. 346, 354. The EEOC also offered evidence that working overtime on Friday, in particular, was to be expected. Tr. 548-49. Although all of the Jonesboro CSTs had to work some overtime on July 15, none of them complained about it. Tr. 549. AT&T offered evidence that on July 15 it had to "close the clocks" (meaning that it stopped accepting service calls for that day) at 10:00 AM instead of the 2:00 target time because the load was so heavy. Tr. 531. Farley testified, however, that it "doesn't always happen" that the clocks stay open until 2:00 PM, and it is undisputed that on July 14 - when Gonzalez and Owen were working - the clocks closed at 10:15 AM. Tr. 422-23, 531. AT&T also offered general evidence at trial as to the competitive nature of the phone company business and that the failure to provide prompt service can cause some customers to change companies. Tr. 566. It is undisputed, however, that AT&T did not receive a single customer complaint on July 15 due to untimely service. Tr. 532. At trial Gonzalez testified that he went on unemployment for twenty weeks, during which time he contacted between two and three employers a week looking for work. Tr. 119-20, 148. He had an interview at Arkansas Glass but was not offered a position. Tr. 122, 150. None of the jobs for which he applied paid $75,000-$80,000 per year, as did his AT&T job. Tr. 122. In 2005, he mowed some lawns and made $200. Tr. 120. He and his wife also invested $4000 in a company, Phone Jacks Half Price, that turned out not to be profitable. Tr. 119. In 2006, Gonzalez made about $930 mowing lawns. Tr. 123. In 2006, he made $12,710 painting apartments. Tr. 124-25. He continued painting in 2007 and, as of the time of trial, had earned about $20,040 between January and September. Tr. 125. After his termination from AT&T, where he had medical and dental benefits, Gonzalez had no benefits and was forced to forego needed medical and dental treatment. Tr. 128, 130-31. He specifically testified that he used his best efforts to find a job with health care benefits but was unable to do so. Tr. 142. He also testified that, for a time, he spent twelve to fifteen hours a week home- schooling his son and another twelve to fifteen hours a week helping his wife with her business. Tr. 145. Once his painting work picked up, however, he became too busy to do the home-schooling or to help his wife with her business. Tr. 146. Although Gonzalez had carpentry experience, he did not seek that work because he had neither the vehicle nor the tools required for the trade. Tr. 147, 223. Owen testified that in 2004 he earned $91,689.38 from AT&T and that he had intended to work for AT&T until he retired. Tr. 264, 280. A day after AT&T fired him, Owen and his wife started a company called "Pinnacle Phone Technologies," which did phone installation and repair. Tr. 265-66. The start-up cost was $15,000, but the company never became profitable. Tr. 268, 270-71. Owen also received unemployment for twenty weeks. Tr. 286. After his termination, Owen's wife, who had ten years of HR experience, also put out "quite a few résumés" for him and they "looked around," but Owen did not receive any responses. Tr. 266, 285. Owen personally applied for a position at the "Nucor" and "Maverick" companies but, due to the long drive and the hours, he did not pursue a job at either place. Tr. 287, 288. In late 2006, Owen personally contacted the Automatic Door Company and had an interview, but he decided that he did not want the position because it involved extensive travel. Tr. 266, 288-89. In 2006, Owen applied for a job at Engines, Incorporated. Tr. 286. He was hired and started working there in 2007 making $28,000/year, although he soon received a raise to $29,038/year. Tr. 271-72. 3. District Court's Decision At the close of the EEOC's case, AT&T made a motion for judgment as a matter of law arguing: (1) Gonzalez and Owen lacked a sincere religious belief that they had to attend the convention on Friday, July 14; (2) the requested accommodation imposed an undue hardship; and (3) Gonzalez and Owen had failed to mitigate their damages. Tr. 643-50. The district court denied the motion.<8> At the close of AT&T's case, it renewed its motion for judgment as a matter of law, and the district court again denied it. Tr. 742-43. The jury returned a verdict in the EEOC's favor on its claims of religious discrimination on behalf of both Gonzalez and Owen. ADD11-112. The jury awarded Gonzalez $136,000 in lost wages and benefits and $230,000 in compensatory damages and awarded Owen $160,000 in lost wages and benefits and $230,000 in compensatory damages. Id. On October 23, 2007, the court entered judgment consistent with the jury's verdict but retained jurisdiction to determine what equitable relief, if any, to grant. ADD13-15. On December 19, 2007, the district court entered an order directing AT&T to reinstate the charging parties, awarding front pay to the charging parties from the date of judgment to reinstatement, and awarding prejudgment interest. ADD16. AT&T failed to file any post-judgment motions. APPe-f (docket). SUMMARY OF ARGUMENT This Court should affirm the jury's verdict and the award of damages because AT&T is procedurally barred from challenging on appeal the district court's refusal to grant it judgment as a matter of law. Although AT&T seeks to appeal the court's denial of AT&T's motion for summary judgment, it is well established that a denial of summary judgment is not appealable after a full-blown trial on the merits. AT&T also seeks to appeal from the district court's denial of its Rule 50(a) motion for judgment as a matter of law, but AT&T's failure to renew this motion after trial precludes such a challenge, and AT&T never filed a motion for a new trial. Even assuming, arguendo, that AT&T was entitled to a plain error review of the court's refusal to grant judgment as a matter of law in its favor, this Court should affirm the jury's verdict because it did not represent a manifest miscarriage of justice. AT&T first argues that the EEOC failed to show that Gonzalez and Owen sincerely believed that, as Jehovah's Witnesses, attending the convention on July 15 was an important religious observance or practice. The evidence presented at trial, however, fully supported the jury's finding that both men sincerely believed that it was a religious obligation not just to attend any convention, but to attend the July 15 convention to which their congregation had been assigned. Accordingly, the jury's verdict did not represent a manifest miscarriage of justice. AT&T also argues that, as a matter of law, it established that giving Gonzalez and Owen the day off imposed an undue hardship because other employees had to work overtime. The evidence presented at trial, however, would have allowed the jury to reasonably conclude that accommodating Gonzalez and Owen cost the company a combined total of $220.56, or $110.28 per employee. Given the overwhelming evidence presented at trial that overtime was a required part of the job and a weekly - if not daily - occurrence, that just twenty CSTs earned more than 7,000 overtime hours in the first seven months of 2005, and that Garrett routinely approved shift-swaps for any reason - even to attend a ball game - without regard to whether doing so would result in more overtime pay, it certainly cannot be said that the jury was required to find undue hardship. Accordingly, the verdict was not a manifest miscarriage of justice. Finally, AT&T argues that, as a matter of law, Gonzalez and Owen failed to satisfy their duty to mitigate their damages. At trial, both men testified that they made extensive efforts to mitigate their damages by applying for other jobs and starting their own businesses. AT&T bore the burden of showing that the men failed to mitigate their damages. AT&T never offered any evidence at trial, however, that there were substantially equivalent positions available but that Gonzalez and Owen unreasonably failed to seek them out. Accordingly, this Court should affirm the verdict and the awards of back and front pay. ARGUMENT I. BECAUSE AT&T CANNOT APPEAL FROM THE DENIAL OF SUMMARY JUDGMENT AND FAILED TO RENEW ITS MOTION FOR JUDGMENT AS A MATTER OF LAW AFTER TRIAL OR TO FILE A MOTION FOR A NEW TRIAL, THIS COURT IS PRECLUDED FROM CONSIDERING AT&T'S ARGUMENTS ON APPEAL. AT&T argues that the district court erred in refusing to grant its motion for summary judgment and in denying its Rule 50(a) motion for judgment as a matter of law. As discussed below, however, the law is clear that AT&T is unable to appeal from the denial of summary judgment and that its failure to file any post- trial motions precludes this Court from considering whether the district court erred in denying AT&T's motion for judgment as a matter of law. Therefore, AT&T has procedurally forfeited its argument that it was entitled to judgment as a matter of law, and this Court should affirm the jury's verdict and award of damages. A. AT&T cannot appeal from the denial of summary judgment. Although AT&T seeks to appeal from the district court's denial of its motion for summary judgment, "even a cursory review of precedent in this Circuit reveals that [this Court] does not review a denial of a summary judgment motion after a full trial on the merits." Eaddy v. Yancey, 317 F.3d 914, 916 (8th Cir. 2003); see also Metro. Life Ins. Co. v. Golden Triangle, 131 F.3d 351, 354 (8th Cir. 1997) ("[W]e are unable to review the denied summary judgment motion because Met Life had a full and fair opportunity to litigate its position before a jury."). This is true regardless of whether the motion for summary judgment is based on the sufficiency of the evidence or on an interpretation of substantive law. Metro. Life, 131 F.3d at 354-55. Accordingly, AT&T cannot appeal from the district court's order denying its motion for summary judgment. This Court should therefore disregard AT&T's arguments as to the summary judgment motion. B. Because AT&T failed to file any post-trial motions, it is not entitled to judgment as a matter of law, or to a new trial. Although AT&T also argues on appeal that the district court erred in refusing to grant its Rule 50(a) motion for judgment as a matter of law, AT&T procedurally forfeited this argument by failing to renew its motion for judgment as a matter of law after trial and by failing to file a motion for a new trial. Accordingly, this Court is without authority to consider AT&T's arguments on appeal. Federal Rule of Civil Procedure 50 governs the procedural requirements for challenging the sufficiency of the evidence in civil jury trials. A motion under Rule 50(a) for judgment as a matter of law may be made prior to submission of the case to the jury. Fed. R. Civ. P. 50(a). AT&T did this. Rule 50(b) allows a party to renew the motion after trial. Fed. R. Civ. P. 50(b). AT&T failed to do this. AT&T also failed to file a motion for a new trial under Rule 59. Prior to 2006, a litigant's failure to renew a motion for judgment as matter of law after trial did not entirely deprive a litigant of appellate review. Instead, this Court allowed for a plain error review, i.e., "to prevent a manifest miscarriage of justice." Broadus v. O.K. Indus., Inc., 238 F.3d 990, 991 (8th Cir. 2001) (internal quotations and citation omitted). When this standard was satisfied, the only available relief was a new trial. Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155, 157 n.2 (8th Cir. 1975). In 2006, however, the Supreme Court broadly held that the failure to file any post-judgment motions precludes a litigant from challenging on appeal the sufficiency of the evidence to support a jury's verdict. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006). In Unitherm, as in this case, the defendant filed a Rule 50(a) motion but failed to file either a Rule 50(b) motion or a motion for a new trial under Rule 59. Id. at 398. On appeal, the defendant argued that the evidence was insufficient to sustain the jury verdict and that a new trial should be granted. Id. at 398. The Supreme Court, however, noted that under its precedent, a litigant's failure to file a Rule 50(b) motion precludes the entry of judgment in that party's favor. Id. at 404. Reasoning that "if . . . a litigant that has failed to file a Rule 50(b) motion is foreclosed from seeking the relief it sought in its Rule 50(a) motion - i.e., the entry of judgment - then surely respondent is foreclosed from seeking a new trial, relief it did not and could not seek in its preverdict motion," the Court held that the defendant also was not entitled to a new trial based on the insufficiency of the evidence. Id. at 404. Thus, Unitherm clarified that a litigant's failure to renew a motion for judgment as a matter of law after trial precludes the court of appeals from ordering the district court to enter judgment in that party's favor - even under a plain error review - and also held that, in the absence of a motion for a new trial, the court of appeals also cannot order a new trial based on the insufficiency of the evidence. See Unitherm, 546 U.S. at 404; 546 U.S. at 407 (Stevens, J., dissenting) (criticizing the majority's decision for foregoing plain error review where a litigant fails to file a Rule 50(b) motion). Although this Court has not had an occasion to apply Unitherm, several other courts of appeals have. See, e.g., Pearson v. Wellborn, 471 F.3d 732, 738-39 (7th Cir. 2006) (holding that Unitherm precluded review of the sufficiency of the evidence where the defendant failed to file any postverdict motions); HI Ltd. P'ship v. Winghouse of Florida, Inc., 451 F.3d 1300, 1302 (11th Cir. 2006) (stating that it had "no authority" to consider an appeal from a jury verdict based on insufficiency of the evidence where litigant failed to file either a Rule 50(b) or Rule 59 motion); Barnes v. Rivas, 207 Fed. Appx. 376, 378 (5th Cir. Nov. 17, 2006) (per curiam) (holding that it could not consider the plaintiff's argument that the verdict was against the weight of the evidence in the absence of any Rule 50 or Rule 59 motions). Significantly, two courts of appeals have explicitly held that Unitherm precludes even a "plain error" challenge to the sufficiency of the evidence when a litigant fails to file any post-judgment motions. See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089-90 (9th Cir. 2007) (stating that "Unitherm precludes even plain error review when a party fails to file a Rule 50(b) motion" and that "to the extent that our prior decisions permitted a discretionary plain error review, we must overrule those decisions"); Fed. Ins. Co. v. HPSC, 480 F.3d 26, 32 (1st Cir. 2007) ("Despite our previous case law establishing a strict 'dearth of evidentiary support' standard of review when a party failed to comply with" Rule 50, "the Supreme Court made it abundantly clear in Unitherm [ ] that in the absence of a" Rule 50(b) motion, "we are utterly 'without power to direct the District Court to enter judgment contrary to the one it had permitted to stand'") (citation omitted). Accordingly, AT&T is not even entitled to a plain error review of the sufficiency of the evidence; its failure to file any post-judgment motions means, quite simply, that this Court is without authority to order the district court to enter judgment in AT&T's favor, or to order a new trial, which is relief AT&T never even requested from the district court. Therefore, this Court should affirm the verdict and award of damages. II. EVEN IF THIS COURT CAN CONSIDER AT&T'S ARGUMENT THAT IT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW BASED ON INSUFFICIENCY OF THE EVIDENCE, THIS COURT SHOULD AFFIRM THE JUDGMENT AWARDING BACK AND FRONT PAY BECAUSE THE JURY'S VERDICT WAS NOT A MANIFEST MISCARRIAGE OF JUSTICE. Assuming, arguendo, that despite the Supreme Court's holding in Unitherm, AT&T can challenge on appeal the district court's denial of its Rule 50(a) motion for judgment as a matter of law under a plain error review, this Court should affirm the judgment because the jury's verdict did not result in a "manifest miscarriage of justice." Broadus, 238 F.3d at 991 ("Because appellants did not renew their motion for judgment as a matter of law after the jury rendered its verdict, 'this court [will not] test the sufficiency of the evidence to support the jury's verdict beyond application of the plain error doctrine in order to prevent a manifest miscarriage of justice") (internal quotation marks and citation omitted).<9> As discussed below, the jury's findings that: (1) Gonzalez and Owen had a sincere religious belief requiring attendance at the July 15 convention; (2) accommodating their request to attend the convention did not impose an undue hardship; and (3) Gonzalez and Owen mitigated their damages, were well supported by the evidence and therefore did not represent a manifest miscarriage of justice. Accordingly, should this Court actually reach the merits of AT&T's argument on appeal, this Court should affirm the verdict and the awards of back and front pay. A. The evidence does not compel a jury finding that Gonzalez and Owen lacked a sincerely held religious belief. Title VII makes it unlawful for an employer to fail to reasonably accommodate an employee's religious practices unless an employer shows that accommodation would cause an undue hardship. 42 U.S.C. § 2000e-2(a)(i) (prohibiting discrimination based on religion); 42 U.S.C. § 2000e(j) (defining religion to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's . . . religious observance or practice without undue hardship"). To prevail on a claim of religious discrimination, plaintiffs must show that their religious beliefs conflicted with an employment requirement and that their beliefs were bona fide, i.e., sincerely held. Ollis v. Hearthstone Homes, Inc., 495 F.3d 570, 575 (8th Cir. 2007). Here, AT&T wisely does not challenge the sincerity of Gonzalez's and Owen's belief that, as Jehovah's Witnesses, attending an annual convention was an important part of their religious practice or observance. Such an argument would be frivolous, as Gonzalez and Owen testified at length to their sincere belief that, as Jehovah's Witnesses, attending the annual convention was an important aspect of their religious observance and practice rooted in the Bible and that they had never missed a convention. See supra at 4-5. Moreover, AT&T's own witnesses - Joe Coble and Josh Worley - testified that the conventions are "sacred" to Jehovah's Witnesses. See supra at 6. AT&T instead makes the narrower argument that "there was no proof or testimony whatsoever to indicate that Gonzalez and Owen held a sincere religious belief requiring them to attend" the July 15 convention in Little Rock. Br. at 44. According to AT&T, Gonzalez and Owen could just as well have attended any other of the 200 conventions held that summer. This argument is factually and legally meritless. As a factual matter, this argument is meritless because, in contravention of the standard of review, it completely ignores evidence presented to the jury that would have allowed it to conclude that Gonzalez and Owen sincerely believed that attending the July 15 convention with their congregation was an important aspect of their religious practice or observance. Specifically, Gonzalez testified that it was important to attend the convention assigned to his congregation "because it's the way we support what we call theocratic order." Tr. 80. Gonzalez also testified that his congregation was assigned to clean a section of the stadium each day, he was going to help with the sound system, and as a Jehovah's Witness it was important for him to follow through on the assignment, particularly because he was an elder in the congregation. Tr. 103, 160, 104. Owen similarly testified that he had several assignments at the convention and that it was "very significant" to him as a Jehovah's Witness to have an assignment at the convention because it reflected his good standing in the congregation and because "You have to be doing what the Bible says that you're supposed to be doing." Tr. 257; see also Pltf. Ex. 13 (stating that he told his supervisor that being denied the day off on July 15 "was making me cho[o]se between my religion and my job"). Gonzalez also testified that he attended the convention every year with his congregation, except for a single day in 2004 when he volunteered to attend one day at a different convention in order to accommodate AT&T, and it is undisputed that Owen always attended with his congregation. See 71, 84-86, 259. Even AT&T's own witness, Joe Coble, testified that he always attended with his congregation. Tr. 674. Additionally, the evidence also showed that Gonzalez and Owen chose to attend the July 15 convention despite Garrett's directive to come to work the next day and their knowledge that serious consequences might result. Thus, the jury's finding that Gonzalez and Owen sincerely believed that attending the July 15 convention was an important aspect of their religious practice was not a manifest miscarriage of justice. See, e.g., Matos v. PNC Fin. Servs. Group, 2005 WL 2656675, *4 (D.N.J. Oct. 17, 2005) (holding that the plaintiff had shown a bona fide religious belief in the importance of attending annual Jehovah's Witness conference where she attended the last four years with her congregation and quit rather than miss the convention). Finally, the jury also could have found AT&T's challenge to the sincerity of Gonzalez's and Owen's religious belief disingenuous in light of AT&T's history of accommodating this very belief in past years, and in approving Gonzalez's and Owen's shift-swap on Saturday, July 16, which suggests that AT&T never actually doubted the sincerity of Gonzalez's and Owen's belief that attending the convention with their congregation was an important aspect of their religious observance or practice. Ironically, the only case cited by AT&T to support its argument, Vetter v. Farmland Indus., Inc., 120 F.3d 749 (8th Cir. 1997), actually supports the Commission's view that whether Gonzalez and Owen held a sincere belief that attending the convention on July 15 was an important part of their religious observance and practice was a question properly put to the jury. In Vetter, the plaintiff objected to his employer's residency requirement on the ground that he wanted to live in an active Jewish community. This Court held that whether the plaintiff's belief was a sincere religious belief or merely a personal preference was a question for the jury to resolve because there was conflicting evidence. Id. at 752 (reversing grant of judgment as a matter of law in the plaintiff's favor). Here, as in Vetter, there was evidence from which the jury reasonably could have found that, contrary to AT&T's argument at trial, attendance at the July 15 trial was not a "personal preference" but was instead a sincerely held religious belief. The jury chose to believe that it was a sincerely held religious belief. Accordingly, there was no manifest miscarriage of justice in the district court's denial of AT&T's motion for judgment as a matter of law. AT&T also argues that Gonzalez's testimony that attendance was not taken at the conventions, he had never heard of a Jehovah's Witness being criticized for failing to attend a convention, and it was possible to listen to an audio tape of the convention rather than to attend one precludes a finding that he and Owen held a sincere religious belief in attending the convention. Br. at 44. This argument, which AT&T fails to support with a single legal citation - and which would also apply to attendance at any convention - is utterly meritless, as it reflects AT&T's fundamental misapprehension of the legal standard applicable to determining whether an employee's beliefs are sincerely held. Whether a religious belief is bona fide is not determined objectively by whether a particular religion espouses a particular belief and condemns those who fail to follow it but is determined subjectively based on the sincerity of a particular individual's religious views. See Quaring v. Peterson, 728 F.2d 1121, 1124-25 (8th Cir. 1984) (in First Amendment case, holding that the fact that other "members of the Pentecostal group with whom [plaintiff] associates do not share her [specific] belief" "does not lessen the religious nature of her convictions," and holding that the plaintiff's religious belief was sincerely held); Matos, 2005 WL 2656675, at *4 ("the determination of sincerity is a subjective inquiry, requiring examination of an individual's inward attitudes towards a particular belief system") (internal quotations and citations omitted); see also 29 C.F.R. § 1605.1 ("The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is religious belief of the employee . . . ."). Moreover, AT&T's argument is absurd as a practical matter. It suggests that an individual can show a sincere religious belief in a particular observance or practice only if everyone in the religion is required to participate and is condemned for failing to participate, and if no audio tapes of the event are available. According to this logic, for example, the only way a Christian seeking to observe the Sabbath by attending church services with his or her congregation would be able to show a sincere religious belief would be to prove that attendance was taken at the service, that those who do not attend were condemned, and that no audio tapes were made of the service. Similarly, a Jewish employee seeking time off to observe Yom Kippur and attend services would be unable to do so unless he or she were able to show that observation of the holiday was mandatory and that other Jewish individuals who failed to observe the holiday were criticized for it. Clearly, Congress did not intend to impose such a harsh standard for showing a bona fide religious belief, which would deprive many - if not most - religious observants of the statutory right to accommodation. Thus, the evidence presented to the jury was more than sufficient to support the jury's finding that Gonzalez and Owen sincerely believed that attending the July 15 convention with their congregation was an important aspect of their religious practice or observance. Accordingly, the jury's verdict did not result in a manifest miscarriage of justice and should therefore be affirmed. See Broadus, 238 F.3d at 991. B. The evidence supports the jury's finding that AT&T failed to show that accommodating Gonzalez and Owen would have imposed an undue hardship. AT&T's central argument on appeal is that giving Gonzalez and Owen the day off on July 15 to attend the convention would have imposed an undue hardship. As AT&T acknowledges, it bore the burden of showing an undue hardship. Br. at 31; see 42 U.S.C. § 2000e(j). In addition, under the plain error standard of review, AT&T must establish that the record evidence compels a finding that it would have incurred undue hardship by accommodating Gonzalez and Owen. The trial record simply does not compel such a finding. Although Title VII does not define "undue hardship," the Supreme Court has said that anything "more than a de minimis cost . . . is an undue hardship." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). Undue hardship encompasses not only pecuniary costs to an employer, but also costs in the form of lost efficiency or productivity. Id. (holding that both the regular payment of premium wages and the lost productivity that would result in forcing the defendant to be short-handed on the one shift each week that the plaintiff wanted off to observe the Sabbath constituted an undue hardship). To show an undue hardship, however, an employer must do more than point to conceivable or hypothetical hardship. Brown v. Polk County, 61 F.3d 650, 655 (8th Cir. 1995) ("An employer stands on weak ground when advancing hypothetical hardships in a factual vacuum.") (internal quotations and citations omitted). Instead, the employer must show a "real" hardship. Id. AT&T first argues that it established as a matter of law that Gonzalez's and Owen's failure to work on July 15 imposed an undue hardship because AT&T had to pay extra overtime to other CSTs who worked that day. According to AT&T, the ten Jonesboro CSTs who worked on July 15 incurred 27.75 hours of overtime, which included 24 hours of premium overtime at $55.18/hour and 3.75 hours of regular overtime at $41.38/hour. Br. at 38; Tr. at 56-62. AT&T then reasons that had Gonzalez and Owen worked on Friday, July 15, AT&T's overtime for that day would have been reduced by 16 hours, which means that their absence cost the company a minimum of $662.08 (16 hours x $41.38). Br. at 38. AT&T's argument, however, lacks merit because it fails to take into account that Gonzalez and Owen said that they would take leave without pay on July 15 in order to be able to attend the convention. Tr. 252. Accordingly, the jury was reasonably entitled to subtract from the $662.08 the amount of money AT&T would have saved by allowing Gonzalez and Owen leave without pay on July 15 (instead of allowing them a paid vacation day). Since the base rate of pay was $27.59/hour, and the men worked eight hours a day, the jury was therefore entitled to find that Gonzalez's and Owen's failure to work on July 15 saved AT&T $441.44 (16 hours x $27.59/hour). Accordingly, the jury reasonably could have found that the true cost of accommodating Gonzalez and Owen was not $662.08 but only $220.56. In other words, the jury reasonably could have found that it cost AT&T as little as $110.28 to accommodate each employee. Based on the evidence offered at trial showing that overtime was not only required but was a routine part of the job, the jury reasonably could have concluded that a one-time expenditure of $110.28 each to accommodate Gonzalez and Owen did not represent anything "more than a de minimis cost" for AT&T and therefore was not an undue hardship. Hardison, 432 U.S. at 84 (emphasis added); see 29 C.F.R. § 1605.2(e) ("The Commission will determine what constitutes 'more than a de minimis cost' with due regard given to the identifiable cost in relation to the size and operating cost of the employer . . . ."). It was undisputed at trial that the twenty CSTs in Jonesboro and the nearby towns had earned 7,088 hours of overtime in just the first seven months of 2005. Tr. 376-77; Pltf. Ex. 25. The jury therefore could have reasonably concluded that in 2005, just these twenty CSTs wracked up approximately 12,000 hours in overtime at a minimum cost to AT&T of $496,560.00 (conservatively assuming that the hours were all just straight overtime and therefore cost the company $41.38/hour). Based on this, the jury also could have reasonably concluded that the combined total of $220.56 in additional overtime AT&T incurred to accommodate Gonzalez and Owen was truly de minimis because it represented no more than .04% of AT&T's 2005 overtime budget for the twenty CSTs in and around Jonesboro. Even if the jury accepted that AT&T would have saved 16 hours of overtime if Gonzalez and Owen had taken July 15 as a vacation day (therefore assuming that they were paid for their eight hours that they did not work), the jury could have concluded that an additional 16 hours of overtime (which represented just .12% of the approximately 12,000 overtime hours twenty CSTs earned in 2005) still was "de minimis." The jury's conclusion that any overtime costs AT&T did incur were de minimis is also supported by undisputed evidence that overtime was a required part of the job. Additionally, Garrett testified that he freely allowed CSTs to swap shifts without giving any regard to whether the swap would result in increased overtime for AT&T, even if the swap was to attend a baseball game. Tr. 346, 354. This evidence would have allowed the jury to find that, for AT&T, a once-a-year expenditure of an extra sixteen hours of overtime wages was not any kind of burden at all. Accordingly, this case is distinguishable from those cases holding that the regular payment of overtime wages imposes an undue hardship. Compare Hardison, 432 U.S. at 84 (concluding that payment of premium wages to allow employee to have every Saturday off was an undue hardship), and Cook v. Chrysler Corp., 981 F.2d 336, 339 (8th Cir. 1993) (applying clearly erroneous standard and finding that evidence supported the district court's finding that accommodating employee's request to have every Friday night off imposed an undue hardship because it would require "significant costs") with 29 C.F.R. § 1605.2(e)("[T]he Commission will presume that the infrequent payment of premium wages for a substitute [worker] . . . are costs which an employer can be required to bear as a means of providing a reasonable accommodation.") (emphasis added). AT&T also argues that, apart from the overtime cost, accommodating Gonzalez and Owen imposed an undue hardship in terms of "lost efficiency" and because disruption of phone service can "cause customers to lose 911 emergency service" and "may . . . adversely affect[]" physicians conducting surgeries. Br. at 37. These argument are factually and legally unfounded. The undisputed evidence presented at trial was that the ten Jonesboro CSTs completed all 70 tickets for that day. While AT&T argues that it had to close the clocks at 10:00 AM rather than its target of 2:00 PM, which shows a loss in efficiency, the undisputed evidence was that on July 14 - when Gonzalez and Owen were both working - the clocks also closed at 10:15 AM. Tr. 531. Thus, Gonzalez's and Owen's absence on July 15 cannot be said, as a matter of law, to have been the reason the clocks closed early that day. Additionally, Garrett testified that it "doesn't always happen" that they keep the clocks open until 2:00 PM. Tr. 422-23. Thus, the mere fact that the clocks closed at 10:00 AM does not show an undue hardship. Moreover, the undisputed evidence at trial was that AT&T did not have a single customer complain on July 15, Tr. 532, much less that 911 service or any surgeries were disrupted. Accordingly, the record did not compel the jury's finding that accommodating Gonzalez and Owen would have imposed an undue hardship on the grounds of lost efficiency or decreased customer service. See Polk, 61 F.3d at 655 (holding that "any hardship asserted . . . must be 'real' rather than 'speculative,' 'merely conceivable,' or 'hypothetical'") (internal citations omitted). Similarly, there is no factual or legal support for AT&T's contention that "it is undisputed that Gonzalez['s] and Owen's defiance of Garrett's work directive . . . resulted in an increased burden on their co-workers." Br. at 37. Tellingly, although AT&T calls this fact "undisputed," AT&T fails to cite to even a single piece of evidence to support it. The evidence presented at trial actually showed that overtime was a required part of the job, a daily occurrence, and to be expected on Fridays. Tr. 375, 521, 548-49. Additionally, Jerry Jernigan, who was one of the Jonesboro CSTs who had to work overtime on July 15, testified that none of the CSTs were upset about having to work overtime that day, Tr. 549, and Garret testified that some CSTs liked working overtime and volunteered for it. Tr. 377. Accordingly, there is simply no evidence showing that giving Gonzalez and Owen the day off imposed any actual burden on the ten other CSTs who worked that day. See Polk, 61 F.3d at 655 ("'Undue hardship requires more than proof of some fellow-worker's grumbling . . . . An employer . . . would have to show . . . actual imposition on co-workers or disruption of the work routine.'") (quoting Burns v. Southern Pacific Transp. Co., 589 F.2d 403, 407 (9th Cir. 1978)). Thus, the jury's finding that giving Gonzalez and Owen the day off on July 15 to attend the convention did not result in any undue hardship was not a miscarriage of justice. C. Because the jury reasonably determined that Gonzalez and Owen had mitigated their damages, the award of back and front pay should be affirmed. Finally, AT&T argues that the district court erred in denying its motion for judgment as a matter of law as to mitigation of damages. Br. at 3, 45-47. At trial, the district court denied AT&T's motion for judgment as a matter of law on this ground and instructed the jury that Gonzalez and Owen had a duty to mitigate their damages. Tr. 649-50, 768. The jury awarded Gonzalez and Owen, respectively, $136,000 and $160,000 in back pay, implicitly concluding that the men had mitigated their damages, and the court awarded back pay based on the jury's verdict. The court also awarded front pay up until the date of reinstatement.<10> Even assuming that AT&T can raise on appeal the district court's denial of judgment as a matter of law on the mitigation of damages - and the court's award of back and front pay based on the jury's finding of mitigation - this Court should reject AT&T's argument. As AT&T notes, a plaintiff has a duty to mitigate damages. What AT&T fails to note, however, is that "the burden remains on the employer to show that the employee failed to mitigate his damages." Hartley v. Dillard's, Inc., 310 F.3d 1054, 1061(8th Cir. 2002) (emphasis added). Thus, AT&T bore the burden of proving at trial that substantially equivalent employment was available to Gonzalez and Owen but that they failed to use reasonable care in seeking out those positions. Id. As the jury found, and the district court agreed, AT&T failed to meet this burden. AT&T first argues that Gonzalez did not mitigate his damages because he had only two interviews, but this argument reflects a misunderstanding of the law of mitigation. While the law requires that Gonzalez use "reasonable diligence in seeking new employment, the law imposes no requirement that h[is] attempts yield success." Henderson v. Simmons Foods, Inc., 217 F.3d 612, 618 (8th Cir. 2000) (holding that the plaintiff mitigated her damages and affirming back pay award where she sought "numerous positions commensurate with her education and skill levels" and the employer failed to offer any "evidence that [plaintiff] refused a position that was substantially similar to her previous"); see also Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir. 1997) ("The burden to mitigate damages is not onerous and does not require success.") (internal quotation and citation omitted). Thus, the fact that Gonzalez succeeded in obtaining only two interviews says nothing about whether he satisfied his duty to mitigate his damages by diligently seeking out new employment. In fact, the evidence offered at trial showed that he satisfied this burden by applying for two to three jobs a week during the twenty weeks he was on unemployment in 2005, mowing lawns in 2005 and 2006, investing with his wife in a company that turned out not to be profitable, and, in 2006, accepting a position painting apartments, which was work he continued until the time of trial. See, supra at 14-15. These efforts satisfied Gonzalez's duty to find new employment. See, e.g., Mathieu v. Gopher News Co., 273 F.2d 769, 784 (8th Cir. 2001) (holding that the plaintiff had exercised reasonable diligence to find new employment where he applied for eight to ten jobs a week for three months and then devoted six to eight hours a week looking for work); Henderson, 217 F.3d at 618 (holding that the plaintiff mitigated her damages and affirming back pay award where she sought "numerous positions commensurate with her education and skill levels" and the employer failed to offer any "evidence that [plaintiff] refused a position that was substantially similar to her previous employment or that she failed to use reasonable care in obtaining a suitable position"); Newhouse, 110 F.3d at 641 (finding that the plaintiff used reasonable diligence to seek new employment where he applied for various positions, sought the help of a job service, accepted the only job offered to him (which happened to be part-time), and applied for only one job after receiving social security benefits but testified that there were no open positions for which to apply); Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1005-06 (3d Cir. 1988) (plaintiff's decision to start his own business constituted reasonable effort to mitigate his damages where no evidence showed otherwise and he had been unemployed for a year). AT&T further argues that as a matter of law Gonzalez did not mitigate his damages because after 2006 he did not apply for any positions besides the contract painting position and did not apply for any positions offering health benefits. Br. at 46-47. But AT&T fails to point to a single piece of evidence showing that there were any suitable positions available in 2006 that Gonzalez should have applied for, much less that there were any available positions offering health benefits, and Gonzalez testified that he made his best effort to find a position with benefits. Tr. 142. Accordingly, there was no manifest miscarriage of justice in the jury's finding that AT&T had failed to meet its burden of showing a lack of mitigation, or in the court's award of back and front pay based on that finding. See Hartley, 310 F.3d at 1062 (affirming district court's determination that the plaintiff had mitigated his damages where the defendant had failed to meet its burden of showing "'that there were suitable positions and that Plaintiff failed to use reasonable care in seeking them'") (quoting district court's opinion); Henderson, 217 F.3d at 618 (rejecting the defendant's argument that the plaintiff failed to mitigate her damages where the defendant failed to proffer any evidence "that [plaintiff] refused a position that was substantially similar to her previous employment or that she failed to use reasonable care in obtaining a suitable position"). There was also no manifest miscarriage of justice in the jury's finding that AT&T failed to show that Owen had not mitigated his damages. Owen testified that a day after AT&T unlawfully fired him, he and his wife started their own business (which failed to become profitable); his wife, who had ten years of HR experience, put out "quite a few resumes" for him; and Owen himself applied for two positions. See, supra at 15. AT&T failed to offer any evidence that there were substantially similar positions available and that Owen failed to apply for them. While AT&T argues that Owen's efforts were unreasonable because "his wife sent out copies of his resume [and] he never made any personal contact with any businesses," Br. at 47, AT&T cites no authority for the proposition that a plaintiff must personally send out his resume and, in any event, the record shows that Owen did personally contact businesses about his employment. Tr. at 287-89 (testifying that he personally talked to the Maverick, Nucor, and Automatic Door companies). AT&T also argues that it showed that Owen failed to mitigate his damages because he declined an interview for a position requiring travel throughout Arkansas and Missouri, Br. at 47, but this argument is unavailing because a plaintiff does not have to accept a position requiring extensive travel as part of his mitigation efforts. See Bergman v. Bailey Controls Co., No. 89-3622, 1990 WL 140585, at * 7 (6th Cir. Sept. 27, 1990) (concluding that "a reasonable juror could find that Bergman did not fail to mitigate his damages by refusing the Senior Instructor position" where it required "substantially more travel than" original position). Accordingly, far from representing a manifest miscarriage of justice, the jury's finding that Owen and Gonzales satisfied their duty to mitigate their damages was well supported by the trial record. Therefore, the district court's award of back pay based on the jury's verdict should be affirmed. See Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 704 (8th Cir. 2006) (holding that "the record evidence support[ed] the jury's compensatory damage award" and that "the district court [therefore] did not clearly err in refusing to" reduce the back pay award for lack of mitigation); Henderson, 217 F.3d at 617-18 (concluding that the jury did not err as a matter of law in finding that the plaintiff had mitigated her damages and in awarding back pay, and therefore holding that the district court did not err in refusing to reduce or set aside back pay award). Similarly, inasmuch as AT&T relies on the same arguments to challenge front pay, that award should also be affirmed. See Chalfant v. Titan Distrib., Inc., 475 F.3d 982, 993 (8th Cir. 2007) (award of front pay reviewed for abuse of discretion). CONCLUSION For the foregoing reasons, the judgment of the district court and the award of damages in the EEOC's favor should be affirmed. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ______________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4724 annenoel.occhialino@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 10,483 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. _________________________________ Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4724 annenoel.occhialino@eeoc.gov Dated: May 14, 2008 CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I filed ten copies of the foregoing brief with one copy of the digital version of the brief in PDF format on a virus-free diskette by overnight mail. I also certify that I served two copies of the foregoing brief with one copy of the digital version of the brief in PDF format on a virus-free diskette by overnight mail to the following counsel of record: Counsel for Defendant/Appellee: Byron Freeland Jeffrey L. Spillyards MITCHELL, WILLIAMS, SELIG, GATES & WOODYARD, P.L.L.C 425 West Capitol Ave., Ste. 1800 Little Rock, Arkansas 72201 (501) 688-8800 ________________________________ Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4724 annenoel.occhialino@eeoc.gov *********************************************************************** <> <1> The EEOC also filed a notice of appeal as to the court's refusal to instruct the jury on punitive damages but is no longer pursuing its cross-appeal. <2> Consistent with AT&T's opening brief, "APP" refers to AT&T's Separate Appendix, and "ADD" refers to AT&T's Addendum. <3> In 2004, Gonzalez was scheduled to work on one of his assigned convention days. Tr. 85. After consulting with his supervisor, Gonzalez offered to attend only two of the three days with his congregation at his assigned convention and to attend the third day of the convention at a different convention site the next week. Tr. 86. <4> Owen and Gonzalez were also scheduled to work on Saturday, July 16, but they both found other CSTs to work that day. Tr. 92, 563. Although AT&T refers throughout its brief to the fact that Gonzalez and Owen were allowed to swap shifts on July 16, the issue in this case is whether AT&T's failure to accommodate the men on July 15 was unlawful. <5> According to Garrett, this was the first time the men had asked to be off July 15. Tr. 345. <6> On July 14, 2005, it rained .45 inches, and on July 15, it rained .25 inches. Tr. 169. <7> Because Garrett had never had an employee fail to follow a work directive, Farley handled matters after the investigatory hearing. Tr. 381-82. <8> The district court granted AT&T's motion for judgment as matter of law as to punitive damages. <9> Even if AT&T had properly renewed its motion for judgment as a matter of law, the evidence was also more than sufficient to support the jury's verdict. This court reviews de novo a district court's decision to deny judgment as a matter of law. Schooley v. Orkin Extermination, Co., Inc., 502 F.3d 759, 764 (8th Cir. 2006). Judgment as a matter of law is appropriate only when "the evidence adduced at trial is entirely insufficient to support the verdict." Id. In making this determination, this Court "considers all the evidence in the record without weighing credibility, while resolving conflicts and making all reasonable inferences in favor of the" EEOC as the "non-moving party." Id. The jury's verdict cannot be set aside "unless there is a complete absence of probative facts to support the verdict and only speculation supports the verdict." Ollis v. HearthStone Homes, Inc., 495 F.3d 570, 575 (8th Cir. 2007). As set out above, there were more than enough facts offered at trial to support the jury's verdict under this standard. <10> Significantly, AT&T does not challenge the order of reinstatement. Thus, AT&T has conceded that Gonzalez and Owen are entitled to reinstatement even if this Court were to find that they failed to mitigate their damages.