           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            March 6, 2009

                                       No. 08-10162                    Charles R. Fulbruge III
                                                                               Clerk

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

                                                   Plaintiff-Appellee
v.

BOBRICH ENTERPRISES, doing business as Subway

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:05-CV-01928


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
       This appeal stems from an Americans with Disabilities Act (ADA)
enforcement action filed against Bobrich Enterprises by the Equal Employment
Opportunity Commission (EEOC) on behalf of former Bobrich employee Tammy
Gitsham. See Americans with Disabilities Act of 1990 (Title I), 42 U.S.C. §§
12111-12117.       In January 2008, pursuant to a jury verdict—and after
considering Bobrich’s post-trial renewed motion for judgment as a matter of law



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-10162

(JMOL)—the district court entered judgment, ordering Bobrich, inter alia, to pay
$50,000 in compensatory and $100,000 in punitive damages for ADA violations.
      Bobrich urges: JMOL should have been granted because insufficient
evidence supported the jury’s finding Gitsham was disabled and subject to a
hostile-work environment; and the district court abused its discretion by
excluding certain impeachment evidence. AFFIRMED.
                                       I.
      Gitsham was employed by Bobrich from 2001 to 2003 as a Subway
restaurant store manager and, later, area supervisor. Gitsham has permanent
hearing loss in both ears; wears hearing aids; and, even with those hearing aids,
experiences difficulty comprehending speech and sounds in some situations.
      During her employment at Bobrich, Gitsham’s immediate supervisor,
Gilbert, repeatedly made statements about Gitsham’s hearing impairment that
Gitsham found embarrassing, including, inter alia, asking whether Gitsham had
her “ears on” at the start of staff meetings. There was also testimony that
Suarez, Bobrich’s president, made a similar remark to Gitsham at an office
Christmas party.
      The pattern of remarks continued even after Gitsham’s complaints to
Gilbert and to Schuster, a supervisor. Gitsham consulted with the EEOC in
January 2003; that May, she resigned from Bobrich. The EEOC commenced this
ADA enforcement action against Bobrich in September 2005.
      Trial was held in mid-2007.      In January 2008, pursuant to a jury
verdict—and after considering Bobrich’s post-trial renewed JMOL motion—the
district court entered judgment, requiring Bobrich, inter alia, to pay $150,000
in compensatory and punitive damages for ADA violations. (The district court
did, however, grant Bobrich JMOL on the constructive-discharge claim.)




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                                        II.
      Bobrich essentially raises two issues: whether the district court improperly
denied JMOL on the disability and hostile-work-environment claims; and
whether its exclusion of certain impeachment evidence was an abuse of
discretion. (The JMOL for Bobrich on constructive-discharge is not at issue.)
                                        A.
      Bobrich contests the denial of JMOL on the claims that Gitsham was:
disabled under the ADA; and subject to a hostile-work environment. A JMOL
denial is reviewed de novo. E.g., Arsement v. Spinnaker Exploration Co., 400
F.3d 238, 248 (5th Cir. 2005). “JMOL is proper when ‘the facts and inferences
point so strongly and overwhelmingly in favor of one party that the court
concludes that reasonable jurors could not arrive at a contrary verdict.’” Id. at
248-49 (quoting Bellows v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997)); see
also F ED. R. C IV. P. 50(a). Restated, the JMOL denial must be upheld unless
“there is no legally sufficient evidentiary basis for the jury’s verdict”. Lane v.
R.A. Sims, Jr., Inc., 241 F.3d 439, 445 (5th Cir. 2001) (emphasis in original)
(internal quotation marks omitted); see F ED. R. C IV. P. 50(a)(1).
      “For our de novo review of a JMOL-denial, we ‘review all of the evidence
in the record . . . [but] may not make credibility determinations or weigh
evidence’”. Arsement, 400 F.3d at 249 (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000)). Likewise, “the evidence, as well as all
reasonable inferences from it, are viewed in the light most favorable to the
verdict”. Lane, 241 F.3d at 445.
                                        1.
      The jury found that Gitsham “suffered from a ‘disability’ while she was
employed by Bobrich”. In denying Bobrich’s renewed JMOL motion, the district
court held “legally sufficient evidence supports the finding that Ms. Gitsham was
disabled as a matter of law”.

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      “A ‘disability’ under the ADA is defined as ‘a physical or mental
impairment that substantially limits one or more of the major life activities of
[an] individual; a record of such impairment; or being regarded as having such
an impairment’”. McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 280 (5th Cir.
2000) (quoting 42 U.S.C. § 12102) (emphasis added). Hearing is a “major life
activity”. E.g., Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999). That major life
activity is “substantially limited” when the individual is:
      (i) [u]nable to perform a major life activity that the average person
      in the general population can perform; or
      (ii) [s]ignificantly restricted as to the condition, manner, or duration
      under which an individual can perform a particular major life
      activity as compared to the condition, manner, or duration under
      which the average person in the general population can perform
      that same major life activity.
McInnis, 207 F.3d at 280 (quoting 29 C.F.R. § 1630.2).
      A reasonable juror could find Gitsham was disabled under the ADA.
Among other things, Gitsham has worn hearing aids since 1995; an audiologist
testified regarding Gitsham’s impairment; and another witness, Massey,
testified about the limitations Gitsham experiences even while wearing her
corrective hearing aids.
                                         2.
      The jury found “that . . . Suarez and/or . . . Gilbert subjected Tammy
Gitsham to a hostile work environment because she [is disabled under the
ADA]”. In denying Bobrich’s renewed JMOL motion, the district court held:
“[T]he Bobrich managers’ conduct was sufficiently severe to . . . create a hostile
work environment”.
                                         a.
      Bobrich failed to raise this hostile-work-environment challenge in its
JMOL motions at the close of the EEOC’s case and at the close of its own case.
See F ED. R. C IV. P. 50(a). Instead, Bobrich’s hostile-work-environment challenge

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was raised, for the first time, in its post-trial renewed JMOL motion. See F ED.
R. C IV. P. 50(b).
       Generally, “[i]f a party fails to raise an issue in its Rule 50(a)(1) [JMOL]
motions at trial, it may not do so in its post-trial Rule 50(b) [JMOL] motion”.
Arsement, 400 F.3d at 247. However, “[a]n exception occurs if the nonmovant
. . . fails to [object] to the Rule 50(b) motion”. Id.
       The EEOC did not object to the inclusion of the new hostile-work-
environment challenge in Bobrich’s Rule 50(b) motion. Because of this failure,
this issue is not forfeited, and is reviewed under the same de novo standard
applied to Bobrich’s disability challenge, supra. E.g., Thompson & Wallace of
Memphis, Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996) (discussing
failure to object); Arsement, 400 F.3d at 248-49 (discussing the applicable de novo
standard of review).
       Along this line, Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546
U.S. 394 (2006) (involving the interplay of Federal Rules of Civil Procedure 50(a)
and 50(b)) does not require reconsideration of our court’s above-stated failure-to-
object rule.
                                          b.
       A hostile-work environment, sufficient to give rise to an action under the
ADA, exists when “the disability-based harassment [is] ‘. . . sufficiently pervasive
or severe to alter the conditions of employment and create an abusive working
environment’”. Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 236 (5th
Cir. 2001) (quoting McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563
(5th Cir. 1998)). For determining whether a working environment is abusive,
       this court must consider the entirety of the evidence presented at
       trial, including the frequency of the discriminatory conduct, its
       severity, whether it is physically threatening or humiliating, or a
       mere offensive utterance, and whether it unreasonably interferes
       with an employee’s work performance. Even under this circuit’s


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      fairly high standard for severe or pervasive conduct, this court can
      reverse a jury verdict only when reasonable minds in the exercise of
      impartial judgment could not have arrived at that verdict.
Id. (internal quotations and citations omitted); see also Soledad v. U.S. Dep’t of
Treasury, 304 F.3d 500, 506 (5th Cir. 2002).
      A reasonable juror could find a hostile-work environment. Among other
things, the testimony of witnesses Massey and Shuster, as well as Gitsham’s
own testimony, is probative of a repeated pattern of harassing statements;
Gitsham voiced her objection to these statements; and the harassment
continued.
      In sum, and essentially for the reasons stated by the district court in its
detailed opinion concerning the renewed JMOL motion, JMOL was properly
denied for the disability and hostile-work-environment issues.         See Equal
Employment Opportunity Comm’n v. Bobrich Enters., No. 3:05-CV-1928-M (N.D.
Tex. 8 Jan. 2008) (order addressing Bobrich’s renewed JMOL motion).
                                        B.
      The last issue concerns the exclusion of certain impeachment evidence.
At trial, Bobrich sought to elicit testimony that, inter alia, Gitsham, on her
Bobrich job application, failed to honestly disclose past job experience, felony
convictions, and use of other names. The district court did not allow Bobrich to
cross examine Gitsham about these matters, ruling: “The prejudicial impact of
this [evidence] is extremely significant”; and “the probative value is not
sufficient to outweigh that prejudicial effect”.
      Evidentiary rulings are reviewed for abuse of discretion. E.g., DeCorte v.
Jordan, 497 F.3d 433, 440 (5th Cir. 2007). Moreover, “[e]ven if an abuse of
discretion is found, the error will be considered harmless unless a substantial
right of the complaining party was affected”. Id. (citing Compaq Computer Corp.
v. Ergonome Inc., 387 F.3d 403, 408 (5th Cir. 2004)); see F ED. R. E VID. 103(a).



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      Because the felony convictions at issue were more than ten years old,
Bobrich did not seek to introduce them under Federal Rule of Evidence 609
(pertaining to impeachment using conviction evidence for “the purpose of
attacking the character for truthfulness of a witness”). See F ED. R. E VID. 609(b)
(generally prohibiting admission of convictions more than ten years old).
Instead,    Bobrich     sought    to   introduce     Gitsham ’s     job-application
misrepresentations about the convictions, along with other job-application
misrepresentations, under Federal Rule of Evidence 608(b) (permitting specific
instances of conduct to “be inquired into on cross-examination of the witness
. . . concerning the witness’ character for truthfulness or untruthfulness”).
      The district court excluded this job-application-misrepresentation evidence
pursuant to Federal Rule of Evidence 403, determining its probative value was
outweighed by its prejudicial effect. Consistent with that determination, our
court has recognized,
      [s]pecific instances of the conduct of a witness, for the purpose of
      attacking or supporting the witness’ character for truthfulness,
      other than conviction of crime as provided in [R]ule 609, may not be
      proved by extrinsic evidence. They may, however, in the discretion
      of the court, if probative of truthfulness or untruthfulness, be
      inquired into on cross-examination of the witness . . . . F ED. R. E VID.
      608(b). . . . The district court has substantial discretion in
      determining the admissibility of impeachment evidence under Rule
      608(b). United States v. Farias-Farias, 925 F.2d 805, 809 (5th Cir.
      1995). Finally, even if character evidence is deemed admissible
      under Rule 608(b), its admissibility is subject to Rule 403. Id.; see
      also United States v. Williams, 822 F.2d 512, 517 (5th Cir. 1987)
      (“The district court may under Rule 608(b) determine if evidence is
      probative of truthfulness, and under Rule 403 exclude even probative
      evidence if the prejudicial effect outweighs the probative value.”).
United States v. Skelton, 514 F.3d 433, 443-44 (5th Cir.), cert. denied, 129 S.Ct.
102 (2008) (emphasis added).




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      Evidence provided by witnesses other than Gitsham showed, inter alia, the
existence of a disability and a hostile-work environment; the jury did not depend
solely upon Gitsham’s testimony. The district court did not abuse its discretion
when it determined the probative value of the impeachment evidence at issue
would be outweighed by, inter alia, the prejudicial effect of referencing
Gitsham’s prior felonies.
                                      III.
      For the foregoing reasons, the judgment is AFFIRMED.




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