Daigle v. Liberty Life Insurance

United States Court of Appeals,

Fifth Circuit.

No. 95-30443

Summary Calendar.

Ray DAIGLE, Plaintiff-Appellant,

v.

LIBERTY LIFE INSURANCE COMPANY, Defendant-Appellee.

Dec. 11, 1995.

Appeal from the United States District Court for the Eastern

District of Louisiana.

Before JOHNSON, JONES and EMILIO M. GARZA, Circuit Judges.

JOHNSON, Circuit Judge:

Ray Daigle ("Mr. Daigle") appeals the district court's

judgment entered against him in accordance with the jury verdict in

his discrimination suit against his former employer, Liberty Life

Insurance Company ("Liberty"). Because we believe that the verdict

reached by the jury was more than adequately supported by the

evidence, we affirm the district court's entry of judgment upon

such verdict.

I. Facts and Procedural History

Mr. Daigle filed this suit against Liberty after his

termination from Liberty's employment. Among several other grounds

which have been abandoned on appeal, Mr. Daigle claimed that

Liberty discriminated against him in violation of the Americans

with Disabilities Act ("ADA").

Mr. Daigle was working as a District Manager at Magnolia Life

Insurance Company ("Magnolia") in October of 1992 when Magnolia was

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purchased by Liberty. Mr. Daigle retained his position as District

Manager of the Houma region in Louisiana after the sale to Liberty.

After the company's sale, several new policies were implemented by

Liberty with which Mr. Daigle was required to comply. One such

policy was the requirement that all Liberty management memorize

five recruitment talks to be used in recruiting new agents for

employment with Liberty. Mr. Daigle claims that he was unable to

memorize these five talks because he suffers from a learning

disability. He claims that he was eventually fired from his

position with Liberty because of his failure to adequately recite

the talks. Mr. Daigle asserts that his termination violates the

ADA because Liberty unlawfully discriminated against him because he

was suffering from a learning disability.

Liberty, on the other hand, claims that it fired Mr. Daigle

for very different reasons. Liberty asserts that Mr. Daigle was

mistreating his employees in the Houma District. Liberty claims

that Mr. Daigle verbally and physically abused several of his

agents and that he was less than honest with employees and Liberty

officials. Additionally, Liberty claims that Mr. Daigle

successfully completed the memory talks to the company's

satisfaction. It is Liberty's position that any learning

disability Mr. Daigle may have had in no way affected the decision

to terminate him.

During the trial, conflicting evidence was presented as to

both of the above-mentioned positions. After reviewing such

evidence, the jury found that Mr. Daigle had not proven that he was

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fired due to a disability and that he had not proven that Liberty's

proffered reason for the termination was a pretense for

discrimination. Mr. Daigle now appeals the judgment entered by the

district court in accord with the jury verdict on the ground that

the verdict was clearly erroneous.

II. Discussion

The ADA prohibits discrimination against a qualified

individual with a disability because of the disability of such

individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job

training and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a); see also Daugherty v. City of El Paso, 56

F.3d 695 (5th Cir.1995); Dutcher v. Ingalls Shipbuilding, 53 F.3d

723 (5th Cir.1995). The term "qualified individual with a

disability" means an individual with a disability who, with or

without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or

desires. 42 U.S.C. § 12111(8).

A plaintiff may establish a claim of disability

discrimination by presenting direct evidence of discrimination.

Alternatively, the indirect method of proof set for Title VII

actions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93

S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), may also be utilized. See

Grinstead v. Pool Co., No. 93-2320, 1994 WL 25515 (E.D.La.1994),

aff'd without opinion, 26 F.3d 1118 (5th Cir.1994); Aikens v.

Banana Republic, Inc., 877 F.Supp. 1031, 1036-37 (S.D.Tex.1995).

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Under the McDonnell Douglas analysis, a plaintiff must first

make out a prima facie case of discrimination by showing that: (1)

he or she suffers from a disability; (2) he or she is qualified

for the job; (3) he or she was subject to an adverse employment

action; and (4) he or she was replaced by a non-disabled person or

was treated less favorably than non-disabled employees. See Norris

v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 254 (5th

Cir.1990); EEOC v. Brown & Root, Inc., 688 F.2d 338, 340-41 (5th

Cir.1982); Aikens, 877 F.Supp. at 1037.

Once the plaintiff has stated a prima facie case, the

defendant must "articulate some legitimate nondiscriminatory

reason" for its action that adversely affected the employee. Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101

S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). While an employer need

not prove the legitimate reason, it must produce some evidence to

support. St. Mary's Honor Center v. Hicks, --- U.S. ----, ----,

113 S.Ct. 2742, 2748, 125 L.Ed.2d 407 (1993). If the employer

produces any evidence "which, taken as true, would permit the

conclusion that there was a nondiscriminatory reason for the

adverse action," then the employer has satisfied its burden of

production. Id.

Once the employer has met its burden, the shifting burden

scheme is abandoned and becomes irrelevant. The employer's intent

is a question of fact, for which the plaintiff carries the burden

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of persuasion. Id. at ----, 113 S.Ct. at 2749.1

Daigle first argues that the district court erred in denying

his motion for partial summary judgment because Liberty failed to

present any evidence to create a disputed fact issue as to the

existence of a disability on the part of Daigle. In Black v. J.I.

Case Co., this Court made clear that it will not review the

pretrial denial of a motion for summary judgment where on the basis

of a subsequent full trial on the merits final judgment is entered

adverse to the movant. 22 F.3d 568, 569-70 (5th Cir.1994). As the

Black court noted, "[i]t makes no sense whatsoever to reverse a

judgment on the verdict where the trial evidence was sufficient

merely because at summary judgment it was not." Id. at 572. Once

trial begins, summary judgment motions effectively become moot.

Id. at 571. Thus, in reviewing the case at bar, this Court will

focus on the evidence before the jury at trial on the merits as

opposed to the evidence before the judge during pretrial

activities.

Whether Mr. Daigle met his burdens within his prima facie

case need not be considered at this stage in the litigation because

the case before this Court was tried fully on the merits. This

Court need not consider the adequacy of either party's showing at

1

The issue of whether pretext alone is sufficient for a

successful discrimination claim as opposed to pretext coupled

with further evidence of discrimination is currently before the

en banc Court in the form of Rhodes v. Guiberson Oil Tools, No.

92-3770. The analysis dictated by the en banc Court in the final

Rhodes opinion will dictate the degree of proof necessary for a

successful ADA discrimination claim as well. Since there was not

even a showing of pretext in the case at bar, the issue currently

before this Court in Rhodes is not implicated.

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the three stages set forth in St. Mary's, but must instead focus on

the record as a whole to determine the sufficiency of the

evidence.2 See Purcell v. Seguin State Bank & Trust Co., 999 F.2d

950, 957 (5th Cir.1993); Atkin v. Lincoln Property Co., 991 F.2d

268, 271 (5th Cir.1993).

After hearing and reviewing several days worth of evidence,

the jury determined in this case that Mr. Daigle had not met his

burden of proving by a preponderance of the evidence that Liberty's

proffered reason for his termination—his mistreatment of his

employees and his dishonesty—was pretextual. There is certainly

more than enough credible evidence from which a rational fact

finder could make such a determination. Thus, this Court need not

inquire further3 and must affirm the district court's judgment

2

The standard of review when a party attacks a jury

verdict's evidentiary basis is determined by whether the

appropriate motions for directed verdict and judgment have been

made. See FED.R.CIV.P. 50; Purcell v. Seguin State Bank & Trust

Co., 999 F.2d 950, 956-57 (5th Cir.1993). When an insufficiency

of evidence issue is not raised before the district court through

Rule 50(a) and Rule 50(b) motions, the standard of review on

appeal is plain error. Purcell, 999 F.2d at 957. The record is

unclear as to whether or not Mr. Daigle made such Rule 50

motions. However, in the present case the result is the same

regardless of whether the analysis entails either whether there

was any evidence to support the verdict or whether there was

substantial evidence to support the verdict since Liberty has, in

fact, provided substantial evidence in support of its successful

position.

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Because this Court finds that Mr. Daigle did not meet his

overall burden of proving that Liberty fired him under pretextual

reasons, this Court need not further inquire into the more

specific issues for which Mr. Daigle bore the burden of proof

such as the existence of a disability and the essential nature of

the tasks which such disability may have prevented him from

completing.

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entered in accordance with the verdict.4

III. Conclusion

The determination made by the jury in this ADA case as to

whether the proffered reason for the termination decision was

pretextual for discrimination is solely within the jury's province

when there is a sufficient evidentiary basis for such a

determination. Because the evidence in Liberty's favor was more

than sufficient to support such a determination, the district

court's judgment entered upon the jury verdict is in all respects

affirmed.

AFFIRMED.

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Mr. Daigle additionally appeals the district court's

dismissal of his negligent infliction of emotional distress claim

during pretrial summary judgment proceedings. Because we agree

with the district court that Mr. Daigle has failed as a matter of

law to allege actions of the requisite outrage necessary for a

negligent infliction of emotional distress claim, we believe this

basis for appeal is also without merit. See Moresi v. Department

of Wildlife & Fisheries, 567 So.2d 1081, 1096 (La.1990)

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