UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30538 and No. 99-30872 Summary Calendar

JOSEPH ROMANO, JR,

Plaintiff - Appellee,

VERSUS

CITIZENS UTILITIES COMPANY, Defendant - Appellant.

Appeals from the United States District Court for the Eastern District of Louisiana (87-CV-3673-L) March 17, 2000 Before JOLLY, DAVIS, and DENNIS, Circuit Judges. PER CURIAM:*

In this consolidated appeal, Citizens Utility Company

(Citizens) appeals a judgment entered by the district court on a

jury verdict awarding Joseph Romano, Jr., emotional distress damages on a claim for retaliation under Louisiana employment

discrimination law, as well as the district court’s award of front

pay and attorney fees. Having carefully reviewed the record on

appeal and fully considered the briefs of counsel and the

applicable law, we affirm.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 Facts and Procedural History

Romano worked for Citizens in its Harvey, Louisiana, office as

Accounts Payable Manager from December 1993 until his termination

on October 10, 1997. In August 1997 Romano made two formal

complaints to Citizens regarding his immediate supervisor’s

(Richard Cohen) alleged discriminatory conduct including sexual

harassment and age discrimination. An investigation by Citizens’s

in-house counsel did not result in any adverse action against

Cohen.

On October 1, 1997, Citizens extended a written job offer to

Romano for the position of General Ledger Water Property

Specialist. While the offer was presented as a two grade promotion

with a ten per cent salary increase, it did require Romano to

travel considerably more than his position as Accounts Payable

Manager. On October 8th or 9th, Romano declined the job offer.

Romano was terminated on October 10, 1997. Citizens informed

Romano via a letter of the same date that it viewed his decision to

decline the new position as an immediate resignation.

Romano filed suit in federal court under Louisiana law

pursuant to the court’s diversity jurisdiction seeking damages for

retaliation and age discrimination.2 Following discovery, Citizens

moved for summary judgment. The district court denied the summary

judgment motion and a jury trial ensued beginning January 25, 1999.

Following the presentation of Romano’s case in chief, Citizens

2 Romano also claimed intentional infliction of emotional distress and failure to pay overtime wages, but he voluntarily dismissed these claims prior to trial.

2 moved for a Rule 50 judgment as a matter of law. The district

court denied the motion. After resting its case, Citizens again

moved for judgment as a matter of law, and this motion too was

denied. The parties stipulated that the jury would only consider

mental anguish damages, and that damages for front pay and back pay

would be determined by the court. The jury returned a verdict in

favor of Romano on his retaliation claim and awarded mental anguish

damages of $75,000. The jury rejected Romano’s age discrimination

claim.

The district court issued an order with reasons on April 5,

1999 awarding back pay of $37,323 and front pay of $31,950. By the

same order the district court also reduced the jury’s mental

anguish award from $75,000 to $50,000. Citizens renewed its motion

for judgment as a matter of law and alternatively moved for a new

trial. The district court denied these motions, and Citizens

appealed.

Pursuant to Romano’s post-trial motion for an award of costs

and attorney fees, the district court entered an order on July 15,

1999 denying costs but awarding $30,000 for attorney fees. The

district court then amended its previous judgment to include this

award. Citizens appealed the Amended Final Judgment. The two

appeals were consolidated.

In this appeal, Citizens raises three issues: (1) whether the

district court erred in denying its Rule 50(a) motion for judgment

as a matter of law; (2) whether the district court abused its

discretion in the award of front pay; and (3) whether the district

3 court erred in awarding attorney fees to Romano. Because we find

that Romano produced sufficient evidence from which a reasonable

jury could have found for him on the employment retaliation claim,

and because the applicable facts and law disclose no abuse of

discretion in the award of front pay or error in the award of

attorney fees, we affirm.

Analysis

Citizens argues that the district court erred reversibly in

denying its Rule 50(a) motion for judgment as a matter of law

because there was no legally sufficient evidentiary basis on which

the jury could reasonably find for Romano on the retaliation claim.

This court reviews de novo the district court’s Rule 50(a) rulings,

see Travis v. Bd. of Regents of the University of Texas System,

(5th Cir. 1997), and we must consider all evidence

“in the light and with all reasonable inferences most favorable to

the party opposed to the motion.” Boeing Co. v. Shipman,

(5th Cir. 1969)(en banc). Granting the motion is only

proper “[i]f the facts and inferences point so strongly and

overwhelmingly in favor of one party that the Court believes that

reasonable men could not arrive at a contrary verdict.”

Where

“there is substantial evidence opposed to the motion, that is,

evidence of such quality and weight that reasonable and fair-minded

men in the exercise of impartial judgment might reach different

conclusions, the motion should be denied, and the case submitted to

the jury [because] . . . it is the function of the jury as the

4 traditional finder of the facts, and not the Court, to weigh

competing evidence and inferences, and determine the credibility of

witnesses.” Id at 374-75 (citations omitted).

The retaliation claim was premised upon Louisiana Revised

Statute § 51:22563 proscribing retaliation by an employer against

an employee because he has opposed unlawful practices such as age

discrimination, see La.Rev.Stat. § 51:2231, and inappropriate

commentary to a female employee. See La.Rev.Stat. § 23:332. Even

though suit was filed under Louisiana employment law, federal

employment discrimination and retaliation statutes and cases are

persuasive authority given the substantial similarities between

Louisiana’s antidiscrimination law and Title VII. See Trahan v.

Rally’s Hamburgers, Inc.,

(La.App. 1st Cir.

1997); Plummer v. Marriott Corp.,

(La.App. 4th

Cir. 1995); Wyerick v. Bayou Steel Corp.,

(5th

Cir. 1989).

The burden shifting analysis applicable in employment

retaliation claims not founded upon violations of constitutional

rights is prescribed by McDonnell Douglas Corp. v. Green,

(1973). See Sherrod v. American Airlines, Inc.,

(5th Cir. 1998). Under McDonnell Douglas, once Romano

3 “It shall be unlawful for a person . . . to retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this Chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this Chapter.” La.Rev.Stat. § 51:2256 (in pertinent part).

5 establishes a prima facie case of retaliation,4 the burden shifts

to Citizens to come forward with a legitimate, nondiscriminatory

reason for the adverse employment action. See Sherrod,

. If Citizens satisfies this burden by advancing a legitimate

reason for the adverse employment action, Romano must then adduce

sufficient evidence that would permit a reasonable trier of fact to

find that the proffered reason is a pretext for retaliation. See

Because the ultimate issue is whether Citizens unlawfully

retaliated against Romano, Romano must prove that the adverse

employment action would not have occurred “but for” the protected

activity. See

(citing Long v. Eastfield College,

(5th Cir. 1996)).

Specifically, Citizens contends that Romano failed to produce

sufficient evidence of an adverse employment action, or to

establish that “but for” his protected conduct, he would not have

suffered the adverse employment. Preliminarily, the district court

properly concluded that Romano presented sufficient evidence from

which a reasonable jury could conclude that Citizens offered him a

position it suspected he might reject as a pretext for firing him.

4 A prima facie case of unlawful retaliation is established by evidence (1) that the employee engaged in protected activity, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action -- and this causal link in the prima facie case is much less onerous to prove than the “but for” causation requirement in the ultimate issue of retaliation. See Sherrod,

n.8 (citing Long,

n.4). The prima facie causal link is established by evidence showing that the employer’s decision to take the adverse action was based in part on knowledge of the employee’s protected activity. See Sherrod,

.

6 This termination constitutes an adverse employment action.

Romano established a prima facie case of retaliation by

demonstrating that he engaged in protected activity by complaining

of alleged sexual harassment of a female co-employee, age

discrimination, and the creation of a hostile work environment by

Cohen; that he was terminated; and that a causal link existed

between the protected activity and the termination. Citizens

satisfied its burden under McDonnell Douglas by advancing a

legitimate, nondiscriminatory reason for the termination: that

Romano’s actions in rejecting the job offer constituted a

resignation. Romano produced substantial evidence that the

proffered legitimate reason was pretext. Specifically, Romano

demonstrated that he had never expressed an intention to resign,

that company policy did not construe his refusal as a resignation,

that the written job offer did not indicate that declining the

offer would constitute a resignation, that the written offer did

not indicate that Romano’s Accounts Receivable position was being

terminated, that the person making the offer never indicated that

refusal would constitute a resignation, and that he was terminated

the day after he declined the promotion.

Citizens asserts that as to the ultimate issue of retaliation

the jury could not have reasonably found that he would not have

been terminated “but for” his protected activity as required in

Sherrod. The district court addressed this contention by stating:

A reasonable jury could, and apparently did, conclude from [the contents of the written job offer] and other evidence presented at trial that Citizens retaliated

7 against Romano by offering him a position it suspected that he might reject, as a pretext for firing him. It is permissible for a jury to draw such inferences in an employment discrimination or retaliation case, since direct evidence of such conduct is rarely available. This was a reasonable and legally sufficient inference from the trial record as a whole, so that grounds for judgment as a matter of law do not exist.

Minute Entry, May 12, 1999 p.3 (addressing Citizens’s renewed

motion for judgment as a matter of law). Citizens argues that

Romano failed to meet the “but for” test of causation because even

if the jury could have reasonably disagreed with Citizens’s view

that Romano had resigned, there was no evidence that Romano’s job

as Accounts Receivable Manager was not being eliminated as a result

of the company’s implementation of a new corporate structure and

accounting system to facilitate its expansion. In short, Citizens

cites Long v. Eastfield College,

n.4, for the

proposition that no liability for unlawful retaliation arose since

Romano would have been terminated even in the absence of the

protected conduct.

Our review of the record on appeal does not indicate that the

trial court’s assessment of the sufficiency of the evidence was

erroneous. The evidence showed that Don Hare, the Vice President

of Human Resources for Citizens’s Public Services Sector, the

person who made the decision to terminate Romano, was aware of

Romano’s protected activity and inquired of Romano’s former boss

whether Romano had a history of pursuing such claims. Hare

8 testified that he regarded Romano as “flippant,” a “troublemaker,”

and having a “chip on his shoulder.” Cohen testified that solely

as a result of Romano’s discrimination complaints against Cohen in

August 1997, he was personally offended, he regarded the

allegations as unfounded, he deemed Romano less trustworthy, and he

became concerned about Romano’s sense of judgment. The jury also

heard testimony from a former manager of accounting at Citizens who

voluntarily resigned after Cohen attempted to convince him to stay

on at Citizens and who was given an exit interview with Human

Resources and was not escorted out of the building and to his car

- all of which differed markedly from the treatment given to Romano

upon his termination. Finally, Romano presented evidence that the

Harvey office of Citizens was actually increasing the number of

employees during the time period at issue.

The jury was presented with conflicting evidence and was

required to assess the credibility of the witnesses, and this court

is ill-positioned to disturb this assessment and may not properly

weigh the evidence. See Ray v. Iuka Special Municipal Separate

Sch. Dist.,

(5th Cir. 1995)(citing and quoting

Johnson v. Chapel Hill Ind. Sch. Dist.,

(5th Cir.

1988)). Romano produced substantial evidence on the ultimate

issue of retaliation such that reasonable and fair minded persons

might reach different conclusions, and judgment as a matter of law

was properly denied. See Boeing Co. v. Shipman,

-

75. Accordingly, we affirm the district court’s denial of

judgment as a matter of law for Citizens.

9 Citizens argues that the evidence established that Romano

would have left the employ of Citizens on December 31, 1998. Thus,

Citizens contends that the award of front pay by the district court

for an 18 month period extending beyond the end of 1998 by

approximately four months was an abuse of discretion. The evidence

relied upon by Citizens is a memorandum written by Romano that

indicated a desire to retire at the end of 1998 if Citizens would

then treat him as if he was 55 years old with ten years of service

for purposes of its retirement plan. Because on December 31, 1998

Romano would have been only 49 years old, whether Citizens would

have credited him with six years of service to satisfy the

conditional offer of retirement calls for undue speculation since

Citizens terminated Romano’s employment on October 10, 1997 having

never responded to the memorandum. Therefore, we conclude that the

district court’s award of front pay was not an abuse of discretion.

Finally, as the only argument against the award of attorney

fees is that a reversal of the retaliation judgment would undermine

the sole legal basis of the fee award, see La. Rev. Stat. §

51:2264, because we affirm the judgment awarding damages on the

retaliation claim, the award of attorney fees is likewise affirmed.

Conclusion

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

10