IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 02-2447 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KOHLER COMPANY, doing business as Sterling Plumbing Group, Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of Arkansas REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS THE APPELLANT NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731(w) (202) 663-7090 (fax) TABLE OF CONTENTS TABLE OF AUTHORITIES ii ARGUMENT 1 CONCLUSION 11 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Ahmann v. United Air Lines, Inc., 313 F.2d 274 (8th Cir. 1963) 10 Anderson v. Bessemer City, 470 U.S. 564 (1985) 10 Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000) 2 Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707 (8th Cir. 2000) cert. denied, 531 U.S. 1077 (2001) 6 Caudill v. Farmland Indus., Inc., 919 F.2d 83 (8th Cir. 1990) 2 Cochenour v. Cameron Savings and Loan, 160 F.3d 1187 (8th Cir. 1998) 11 Day v. Toman, 266 F.3d 831 (8th Cir. 2001) 9 First Nat. of Omaha v. Three Dimension Sys. Prods., Inc., 289 F.3d 542 (8th Cir. 2002) 8 Forbes v. Arkansas Educational Television Comm'n, 93 F.3d 497 (8th Cir. 1996), rev'd on other grounds, 523 U.S. 666 (1998) 11 Garner v. Buerger, 82 F.3d 248 (8th Cir. 1996) 11 Hudson v. Norris, 227 F.3d 1047 (8th Cir. 2000) 2 Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021 (8th Cir. 2002) 9 Hunt v. State of Missouri, 297 F.3d 735 (8th Cir. 2002) 10 Kipp v. Missouri Highway Transp. Comm'n, 280 F.3d 893 (8th Cir. 2002) 9 Lavender v. Kurn, 327 U.S. 645 (1946) 4, 5 National Molasses Co. v. Herring, 221 F.2d 256 (8th Cir. 1955) 8 Nelson v. J.C. Penney Co., Inc., 75 F.3d 343 (8th Cir.), cert. denied, 519 U.S. 813 (1996) 2 O'Bryan v. KTIV Television, 64 F.3d 1188 (8th Cir. 1995) 2 Rath v. Selection Research, Inc., 978 F.2d 1087 (8th Cir. 1992) 6 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) 6, 9, 10 Ryther v. KARE 11, 108 F.3d 832 (8th Cir.), cert. denied, 521 U.S. 1119 (1997) 5 Sherman v. Runyon, 235 F.3d 406 (8th Cir. 2000) 6 Stafne v. Unicare Homes, 266 F.3d 771 (8th Cir. 2001) 10 Three River Telco v. TSFL Holding Corp., 2002 WL 1927071 (8th Cir. Aug. 22, 2002) 9 Warren v. Prejean, 2002 WL 1842234 (8th Cir. Aug. 14, 2002) 11 Yates v. Rexton, Inc., 267 F.3d 793 (8th Cir. 2001) 9 FEDERAL RULES Fed. R. Civ. P. 50(a)(1) 10 ARGUMENT In its opening brief, the Commission contended that the district court erred by substituting its views of the case for that of the jury and granting judgment as a matter of law for Kohler Company on the retaliation claim brought by Equal Employment Opportunity Commission. The Commission argued that the district court improperly decided that Kohler's termination of John Reynolds was not retaliatory because there was substantial evidence in the record, beyond the temporal proximity of the adverse action and the protected conduct, to support the jury's verdict. This evidence included Reynolds' supervisor's failure to discipline, or disparate discipline of, similarly-situated employees, the decisionmaker's clear agitation about Reynolds' discrimination complaint and his immediate dismissal of Reynolds shortly afterwards, and Kohler's lax enforcement of its company and disciplinary policies except where Reynolds was concerned. Thus, the Commission urged reinstatement of the jury's verdict because the evidence was not so one-sided that a reasonable jury could not have decided that Reynolds' dismissal was retaliatory. In response, Kohler asserts that the district court's vacatur of the jury's verdict for the EEOC on the retaliation claim was correct. Taking issue with the EEOC's argument that the temporal proximity between Reynolds' discrimination complaint and his termination in this case could lead a reasonable jury to infer retaliation, Kohler Br. at 11, Kohler asserts that “this Court has held many times that more than a temporal connection is required to generate a permissible inference of retaliation.” Kohler Br. at 10.<1> In addition, Kohler challenges the Commission's disparate discipline evidence, arguing that Kohler did not treat any similarly-situated employees differently than Reynolds because essentially there were no similarly-situated employees. Id. at 12-15. Kohler also quibbles over what it believes motivated the termination decision and maintains that Reynolds' “cheating” and not his discrimination complaint led to his dismissal. Id. at 16-17. Further, Kohler argues that, despite evidence of Dickson's “‘disbelief' and ‘frustration'” following Reynolds' discrimination complaint, there was no evidence of any “hostility” by the decisionmaker towards Reynolds regarding his discrimination complaint and therefore no reasonable jury could have concluded that Dickson's discharge of Reynolds was retaliatory. Id. at 19-20. Finally, Kohler claims that its lax enforcement of its company policies is not evidence of retaliation because it does not have any bearing on whether Kohler's termination of Reynolds for cheating is a pretext for retaliation. Id. at 20-22. In sum, Kohler states that “[n]one of the evidence adduced by the EEOC allows a reasonable inference that Kohler retaliated against Reynolds.” Id. at 22. As the EEOC's and Kohler's briefs demonstrate, there is more than one way to interpret the facts of this case. Since Kohler fails to raise any substantive issue or argument in its response that has not already been addressed in the Commission's opening brief, the Commission limits its reply to the main point of this appeal -- judgment as a matter of law is entirely inappropriate following a jury verdict unless there is absolutely no evidence, when viewed in the light most favorable to the Commission, to support the verdict. In that the Commission's opening brief sets forth the evidence that could have led a reasonable jury to conclude that Kohler terminated Reynolds in retaliation for voicing a complaint of race discrimination, and that same jury already heard and rejected the account presented by Kohler's brief, the EEOC maintains that the jury's verdict should have been left undisturbed. Therefore, for the reasons discussed below (and in its main brief), the Commission urges this Court to apply the appropriate standard of review, reverse the district court's erroneous ruling, and reinstate the jury's verdict for the EEOC on the retaliation claim. a. At the outset, Kohler's contention that the EEOC's case rests entirely on speculation and conjecture simply because, after hearing all the evidence, a jury returned a verdict in favor of the Commission, is untenable. Kohler Br. at 8. While the Commission maintains that the jury's conclusion is supported by substantial evidence in the record, and not merely conjecture or speculation, we note that even if the jury had relied on some conjecture or speculation, the Supreme Court has made clear that such reliance is not fatal. In Lavender v. Kurn, 327 U.S. 645 (1946), a case where judgment in favor of a deceased railroad worker who had been killed on the job had been reversed by a state supreme court, that Court stated: It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. Id. at 652.<2> In the instant case, as the parties' briefs demonstrate, the jury was presented with undisputed facts subject to contrary interpretations and with conflicting evidence requiring it to choose what to believe. Hence, it is possible that the jury may have relied on some speculation or conjecture, or more appropriately common sense and personal experience, in choosing “the most reasonable inference.” That reliance, however, is not fatal to the jury's verdict in this case because the record contained probative facts supporting the jury's retaliation verdict that went well beyond mere conjecture or speculation. For example, when viewed in the light most favorable to the Commission, the jury heard evidence that Reynolds was not terminated until after he complained of race discrimination, even though he had twice admitted he had not actually worked all the clock hours shown on his timecard.<3> The jury heard evidence that the decisionmaker admittedly became upset because Reynolds registered a discrimination complaint. The jury heard evidence, while disputed, that other employees, such as Michael Senko, Jeremy Askins, or Howard Bailey, clocked in and out early, were seen in the breakroom at the beginning of or during the workday, and had timecards that indicated they had not made their production quotas and only worked eight clock hours. The jury heard evidence that Kohler's so-called zero tolerance policy for employees who “cheated” or claimed pay for hours not worked was not invoked against Alan Dickson, son of the decisionmaker, who had collected overtime wages for time he did not actually work as the company rules required, but instead was offered the opportunity to repay Kohler for the overpayment. The jury also heard evidence that, even though Kohler considered cheating a serious offense, no attempt was made to investigate, terminate, or discipline as harshly employees other than Reynolds, such as Senko, Askins, or Bailey, who also may have claimed pay for hours they had not worked since there were days they only worked eight clock hours, spent time in the breakroom or in their trucks, and did not meet their production quota. Finally, the jury heard evidence that Kohler rarely enforced its company's disciplinary policies and rules but showed no leniency with respect to Reynolds' infractions. Taken as a whole, this evidence, which the jury apparently believed, along with the timing of Reynolds' termination and the discrimination complaint, undermined Kohler's articulated reason for the termination and permitted a reasonable inference of retaliation. Thus, the substantial evidence supporting the verdict belies Kohler's argument that the jury relied only on speculation and conjecture and the jury's reasonable inferences provide no basis for challenging the verdict. Moreover, while it is true that this jury could have reached a different conclusion on the retaliation issue and could have decided that Kohler had actually fired Reynolds for cheating, it is also true that in a close case, such as this one, where the timing of the admission of wrongdoing, the discrimination complaint, and the termination are nearly contemporaneous, deference to the jury's decision is particularly appropriate. As this Court has said, “ the need to resolve factual issues in close cases is the very reason we have juries.” First Nat. of Omaha v. Three Dimension Sys. Prods., Inc., 289 F.3d 542, 545 (8th Cir. 2002); National Molasses Co. v. Herring, 221 F.2d 256, 259 (8th Cir.1955) ("[w]hat frequently seems to be overlooked in cases such as this is that where inconsistent inferences reasonably may be drawn from undisputed evidentiary facts, it is for the jury, and not the court, to determine which inference shall be drawn"). Lastly, in that this same jury entered a verdict against the EEOC on its race discrimination claim, this jury demonstrated its competence at weighing contradictory evidence and inferences, judging the credibility of witnesses, receiving instructions, and drawing the ultimate conclusion as to the facts, and its factual findings and legal conclusions on the retaliation claim should not be set aside merely because the jury resolved the retaliation evidence in favor of the EEOC. Resolution of conflicting evidence is within the province of the jury and its verdict should have been left intact even if the district court reached a different conclusion. b. Accordingly, Kohler's refutation of the Commission's arguments in support of the jury's verdict should be rejected because Kohler simply makes its own credibility assessments, reweighs the evidence, and offers a different interpretation of the facts. In determining the propriety of a judgment as a matter of law following a jury verdict, the standards that control the review of the case require: (1) substantial deference to the jury verdict;<4> (2) a reviewing court to refrain from substituting its judgment for that of the jury;<5> (3) all evidence to be viewed in the light most favorable to the nonmoving party;<6> (4) all conflicts in the evidence to be resolved in favor of the nonmoving party;<7> and (5) all evidence favoring the moving party to be disregarded if the jury was not required to believe it.<8> More importantly, the standards preclude judgment as a matter of law following a verdict unless there is absolutely no evidence to support the jury's conclusions. See Fed. R. Civ. P. 50(a)(1) (judgment as a matter of law against a party may not be granted unless that “party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue”); Kipp, 280 F.3d at 896 (judgment as a matter of law is appropriate only when all of the evidence points one way, and is susceptible of no reasonable inference sustaining the jury's verdict). Applying these principles to this case, it is clear that, even if Kohler and the district court reached a different conclusion than the jury about whether Kohler terminated Reynolds because he cheated or because he complained about race discrimination, the jury's verdict to the contrary should stand because the jury was entitled to disbelieve Kohler's justification and because there is sufficient evidence in the record to sustain its decision. See Ahmann v. United Air Lines, Inc., 313 F.2d 274, 281 (8th Cir. 1963) (“[c]ourts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable”); cf. Anderson v. Bessemer City, 470 U.S. 564, 574 (1985) ("[w]here there are two permissible views of the evidence, the factfinders's choice between them cannot be clearly erroneous"). To permit otherwise would run afoul of settled law that it is within the province of the jury to resolve conflicting evidence<9> and to make the determination of whether discrimination, or in this case retaliation, occurred. Warren v. Prejean, 2002 WL 1842234, *7 (8th Cir. Aug. 14, 2002) (“conflicts in the evidence are for the jury to decide”); Cochenour v. Cameron Savings and Loan, 160 F.3d 1187, 1190 (8th Cir. 1998) ( “[i]t was province of the jury, not trial court, to decide whether evidence presented at trial supported” the conclusion that plaintiff sought to draw); see also Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996) ("This demanding standard reflects our concern that, if misused, judgment as a matter of law can invade the jury's rightful province."). Therefore, because there is substantial evidence in the record to support the jury's verdict, the Commission urges this Court to defer to the jury's verdict and reverse the district court's judgment as a matter of law. CONCLUSION It is the function of the jury as the traditional factfinder to weigh conflicting evidence and inferences. The jury in the instant case performed these tasks and entered a verdict in favor of the Commission on the retaliation claim. Because reasonable inferences and conclusions in support of that verdict can be drawn from the evidence in the record, the district court's vacatur of that verdict and entry of judgment as a matter of law in favor of Kohler was inappropriate. Therefore, to correct this error, this Court should reverse the district court's judgment as a matter of law and reinstate the jury's verdict on the retaliation claim. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731(w); (202) 663-7090 (fax) September 18, 2002 CERTIFICATE OF WORD PROCESSING PROGRAM Pursuant to 8th Cir. R. 28A(c) and Fed. R. App. Proc. 32(a)(7(C), the undersigned certifies that the brief complied with the type-volume limitations. 1. Exclusive of the exempted portions in Fed. R. App. Proc. 32(a)(7)(B)(iii), the brief contains 3,199 words. 2. The brief was prepared in proportionally spaced typeface using Corel Wordperfect 9, Times Roman, 14 point. 3. If the Court so requests, the undersigned will provide an electronic version of the brief and/or a copy of the work or line printout. 4. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Fed. R. App. Proc. 32(a)(7(C) may result in the court's striking the brief and imposing sanctions against the person signing the brief. _________________________________ Paula R. Bruner CERTIFICATE OF SERVICE This is to certify that on September 18, 2002, two copies of the foregoing brief and a computer diskette along with the certificate of service was mailed first class, postage prepaid, to the following counsel of record: Steven W. Quattlebaum, Esq. E.B. “Chip” Chiles, IV, Esq. QUATTLEBAUM, GROOMS, TULL& BURROW,PLLC 111 Center Street, Suite 1900 Little Rock, Arkansas 72201 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 September 18, 2002 1 Actually, this Court has acknowledged that it vacillates on the issue of temporal proximity and causation. In deciding that a state department of corrections' adverse actions against an employee within four months of his testimony in a lawsuit between a former coworker and the department was “significant” evidence of causation and not a mere coincidence, this Court initially noted: The perceived import of such temporal proximity [in this Circuit] has ranged from being sufficient, by itself, to create an inference of causation, see, e.g., Bassett v. City of Minneapolis, 211 F.3d 1097, 1105 (8th Cir.2000), and O'Bryan v. KTIV Television, 64 F.3d 1188, 1193 (8th Cir.1995), to being nothing more than a "slender reed of evidence," Caudill v. Farmland Indus., Inc., 919 F.2d 83, 87 (8th Cir.1990), that was not enough to support an inference of causation, see, e.g., id. at 86-87, and Nelson v. J.C. Penney Co., Inc., 75 F.3d 343, 346-47 (8th Cir.), cert. denied, 519 U.S. 813 (1996). Hudson v. Norris, 227 F.3d 1047, 1051 (8th Cir. 2000). In the Commission's view, these cases suggest there is no bar to finding that the timing of the protected conduct and the adverse action is, by itself, sufficient to establish causation, and that at a minimum, such evidence is relevant to the causation issue. 2 While the Lavender analysis arose in a case brought under the Federal Employers' Liability Act, this Court has articulated the same principle in deciding employment discrimination cases. See, e.g., Ryther v. KARE 11, 108 F.3d 832, 845 (8th Cir. 1997) (ADEA) (citing Lavender, 327 U.S. at 652), cert. denied, 521 U.S. 1119 (1997). 3 In attacking the Commission's timing evidence indicating that there could be a causal connection between Reynolds' protected conduct and and his termination, Kohler misstates the Commission's argument as suggesting that “timing alone sufficiently supports a retaliation verdict.” Kohler Br. at 11. As the EEOC noted, this Court has recognized that timing may be sufficient to establish a prima facie case of retaliation. Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 715-16 (8th Cir. 2000) (the requisite causal connection may be proved circumstantially by showing the discharge followed the protected activity so closely in time as to justify an inference of retaliatory motive) (citing Rath v. Selection Research, Inc., 978 F.2d 1087, 1090 (8th Cir.1992), cert. denied, 531 U.S. 1077(2001). However, the Commission further noted that temporal proximity, by itself, generally is not considered enough to establish pretext and thus offered other evidence to support its claim. EEOC Br. at 28-46. Notwithstanding, because the law makes clear that the timing evidence remains relevant to the pretext determination, Sherman v. Runyon, 235 F.3d 406, 410 (8th Cir. 2000) (timing of discharge should be evaluated in light of other evidence or lack of evidence), it was presented by the Commission in its brief as prima facie evidence on which the jury could have relied in part in reaching its ultimate determination that Kohler retaliated against Reynolds when it fired him following his discrimination complaint. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (“the trier of fact may still consider evidence establishing the plaintiff's prima facie case ‘and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual”). Therefore, contrary to Kohler's assertion, Kohler Br. at 10, the Commission's argument that a jury could have inferred a causal connection between Reynolds' complaint and his termination is not “inconsistent[]” with controlling law or the EEOC's other arguments in its brief. 4 Three River Telco v. TSFL Holding Corp., 2002 WL 1927071, *2 (8th Cir. Aug. 22, 2002) (review of issue of whether motion for judgment as a matter of law should have been granted must be deferential to the jury's verdict); Day v. Toman, 266 F.3d 831, 836 (8th Cir. 2001) (appellate review of a jury verdict is “extremely deferential”). 5 See Yates v. Rexton, Inc., 267 F.3d 793, 801 (8th Cir. 2001) (neither the court of appeals nor the district court is permitted to substitute its judgment concerning the weight of the evidence for that of the factfinder). 6 See Reeves, 530 U.S. at 150 (“the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence”); Kipp v. Missouri Highway Transp. Comm'n, 280 F.3d 893, 896 (8th Cir. 2002) (same). 7 Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir.2002) (“where conflicting inferences reasonably can be drawn from the evidence, it is the role of the jury, not the court, to determine which inference shall be drawn”). 8 Hunt v. State of Missouri, 297 F.3d 735, 744 n.5 (8th Cir. 2002)(appellate court must disregard all evidence favorable to the moving party that the jury is not required to believe); Stafne v. Unicare Homes, 266 F.3d 771, 779 n.8 (8th Cir. 2001) (Lay, J., dissenting) (a jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion; it is immaterial that the reviewing court might draw a contrary inference or feel that another conclusion is more reasonable); see also Reeves, 530 U.S. at 151. 9 Indeed, this Court has stated that: "We do not know what our answer would have been if we had been sitting on the jury, but that is not important. There was conflicting evidence on this issue, and it could have gone either way. Making decisions of this kind is exactly what juries are for." Forbes v. Arkansas Educational Television Comm'n, 93 F.3d 497, 501 (8th Cir. 1996), rev'd on other grounds, 523 U.S. 666 (1998).