The EEOC brought suit alleging discrimination on the ?basis ?of ?national ?origin ?and ?religion, ?and retaliation in violation of Title VII. ?Prior to jury deliberation, the defendant moved for a directed verdict under Fed. R. Civ. P. 50(a), which was denied.? ?The jury found for Plaintiff on the retaliation claim and awarded damages of $5,000 for? emotional? distress,? $135,000? for? lost earnings,? and? $250,000? in? punitive? damages. Post-trial the defendant renewed its motion under Fed.? R.? Civ.? P.?? ?50(b).?? ?The? defendant? also moved for remittitur.? ?The EEOC moved for equitable relief including back pay with prejudgment interest and reinstatement or front pay.?? The Court denied the defendant?s motion under ?Rule ?50(b), ?but ?did ?grant ?remittitur ?to $200,000.?? The trial court granted the EEOC?s motion in part, awarding $36,552 in back pay and $5,156 in prejudgment interest. The Court denied front pay or reinstatement. ?On appeal the Ninth?? Circuit?? affirmed.???? ?The?? case?? is?? fact intensive.
Plaintiff? is? a? Muslim? of? Moroccan? national origin.?? He was hired on a temporary basis and promoted to full time by Villeneuve.????? Shortly thereafter,? Villeneuve ?overheard ?Plaintiff speaking with a customer in a foreign language and asked where Plaintiff was from, what language he was speaking and what was his religion.?? ?Thereafter, Villeneuve promoted Plaintiff to a Team Lead position.??? ?Villeneuve promoted Plaintiff again to the position of Inbound Sales Manager.?? ?After the last promotion, Plaintiff complained to HR about the conversation that had occurred with Villeneuve, which had occurred six months earlier. ?The HR representative denied any complaint.? ?On a different occasion, Villeneuve allegedly stated to another? employee,? ?The? Muslims? need? to? die. The bastard Muslims need to die.? ?Plaintiff did not complain about this remark, and there is no corroboration.
The new supervisor, Franklin, was hired for unrelated ?reasons? to? replace? Villeneuve. Franklin initiated a reorganization.? ?Plaintiff?s position was one many eliminated, and he was given the opportunity to interview for another. He didn?t get the job.?? ?Thereafter, Franklin allegedly asked Plaintiff about photos on his desk, and learned that Plaintiff was Moroccan and Muslim.? ?In response, Franklin allegedly stated ?You know, you?re lucky that I like you.? ?Plaintiff states that he again complained to HR, who denied it. Franklin, Villeneuve, and HR then interviewed numerous employees for still another position. Plaintiff didn?t get the job.? ?Ultimately, he was terminated by a panel of the three management officials and offered a severance agreement.
The Ninth Circuit ruled that a Rule 50(b) motion was only as good as the Rule 50(a) motion, and new issues or arguments could not be added. ?As to those issues properly raised in a Rule 50(a) motion, the post trial standard is whether ?substantial evidence? supports the verdict.?? As to issues, not properly raised, the standard is whether any evidence supports the verdict.?? ?Because the Defendant did not raise all of its issues sufficiently in a Rule 50(a) motion, the Ninth Circuit limited its analysis on appeal.
The? Court? concluded? that? when? Plaintiff complained a reasonable person could have concluded that he was being subjected to discrimination.???? In ?making ?that ?judgment, ?the Court included instances of discriminatory remarks about which Plaintiff did not complain.?? ?[I]f a person has been subjected to more than one comment, and if those comments, taken together, would be considered by a reasonable person to violate Title VII, that person need not complain specifically about all of the comments to which he or she has been subjected. Unreported comments, in other words, are relevant to the inquiry concerning the reasonableness of the belief that a violation has occurred.?
The Defendant argued that retaliation was not possible since there was no evidence that either Franklin or Villeneuve was aware that Plaintiff had complained.? ?The Court ruled that there was substantial ?evidence ?that ?the ?HR ?manager ??had ample opportunities to inform Franklin of [Plaintiff?s] complaint and had, in fact, done so.? Judge Noonan dissented.?EEOC v. Go Daddy Software, Inc., — F.3d — (9th Cir. Sep. 10, 2009) (W. Fletcher, Noonan, Tashima).