Howard v. Walgreen Co.
22 Fla. L. Weekly Fed. C837 (11th Cir. 2010)
After his employment was terminated, an employee filed a racial discrimination and retaliation suit against his former employer. In the span of around a week in December 2004, the employee became sick and missed work on several occasions. On the 8th, he called and stated that he would likely not be in that day or the next. After he did not show up on the 9th and did not call that day, his supervisor left him a message stating that his “job was in jeopardy” because he “pulled a no call/no show.” When they spoke on the phone a few days later, the employee told his supervisor that he did not appreciate his job being threatened and that he was going to complain to company higher ups. Later that month, the employee wrote a letter to the company’s management office complaining about the way he was being treated. He was fired by his supervisor that same day. At trial, the employer twice moved for judgment as a matter of law, but the trial judge twice denied that motion. The jury awarded the employee $300,000 based on his retaliation claim, but found against him on the discrimination claim. The judge denied a motion for a new trial following this award. The circuit court reversed and remanded for an entry of judgment for the employer. The court first rejected the employee’s assertion that the employer was barred from raising various issues on appeal because while it did so in its motion for judgment as a matter of law after trial, it had not done so on its initial motion for judgment as a matter of law after the employee’s case in chief; because the employee had not raised that issue before the lower court, he was prohibited from raising it on appeal. The court further held that there was no reasonable basis for a retaliation claim when the only allegedly discriminatory conduct was the supervisor’s phone message, which was not an adverse employment action as a matter of law.