                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                        ____________________

                           No. 99-10330
                       ____________________

                        LLOLA TOTTY YOUNT,

                                                Plaintiff-Appellant,

                              versus

                      S & A RESTAURANT CORP.,

                                              Defendant-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Northern District of Texas
                          (3:96-CV-1400-D)
_________________________________________________________________
               ___________________________

                           July 7, 2000



Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     The district court having granted Llola Totty Yount’s former

employer, S & A Restaurant Corp. (S & A), a FED. R. CIV. P. 50

judgment as a matter of law, following a jury verdict in Yount’s

favor, the linchpin of this appeal is whether she engaged in

activity protected by the Americans with Disabilities Act (ADA), 42

U.S.C. § 12203(a).   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this opinion should not be published and is not precedent except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.
                                    I.

     S & A owns and operates several restaurant chains.            Yount

began her employment with S & A in 1987 as a waitress, and advanced

in S & A’s home office, receiving             commendations and salary

increases.     In July 1994, Yount was recruited into S & A’s

Furniture, Fixtures and Equipment Department (FF&E) by its manager,

Deanna Alder.      When FF&E was reorganized shortly thereafter,

Yount’s duties as a “buyer” were altered; and Alder began reporting

to John McLeod, Vice President of Field Support.

     On 20 September 1994, Yount was diagnosed with recurrent major

depressive disorder.       The next day, she informed Alder of her

condition and ongoing treatment.

     In mid-October, feeling she was “just spinning [her] wheels”

and “constantly behind” in her duties, Yount sought direction from

Alder.   Alder reviewed Yount’s “Daytimer” (daily schedule), and

told Yount it appeared she spent too much time in meetings.             To

assist Yount in prioritizing her projects, Alder suggested they

have weekly “one-on-one” meetings.

     It was not until 6 December that Alder criticized Yount’s

attendance or performance. Alder presented her then with a list of

her absences and tardies for that year, indicating that Yount would

be terminated if there was no improvement; and that McLeod agreed.

Alder also mentioned other “areas of concern”, including Yount’s

errors   on   business   card   orders,   overscheduling   meetings,   and

inability to prioritize.

                                     2
     Concerned about Alder’s termination threat, Yount met with

McLeod a week later, on 13 December.         Yount informed him:       Alder

threatened her job because of various absences and tardies; she

suffered from severe depression and was under psychiatric care,

taking medicine and attending therapy; and she was doing all she

could to get better.        She also expressed her disagreement and

confusion regarding Alder’s methods of calculating her absences and

tardies.

     Within    an   hour   of    the   Mcleod-meeting,   an    angry   Alder

approached Yount at her desk, and told her:           not to go over her

head again; “to be careful what [she] did”; and, later that day,

she would meet with Yount to discuss what Young and McLeod had

discussed.

     At that later meeting, a still angry Alder stated:                  she

planned to document, for Yount’s personnel file, their previous

conversations; and if Yount failed to improve her performance and

eliminate her tardies and absences, she would be fired.          Alder also

asked about rumors Yount was interested in a job in another

department, and stated no transfer would be allowed. The next day,

Alder gave Yount a memorandum summarizing their meetings and

conversations.

     On 4 January 1995, Yount had an emotional breakdown.                 At

Alder’s suggestion, she went on short-term disability leave, during

which   her   diagnosis    was   changed   from   depression   to   bi-polar

disorder.

                                       3
     Yount returned to work on 23 January.                       The next day, Alder

informed Yount that her employment was being terminated due to

numerous projects she mishandled or left incomplete, discovered by

Alder during Yount’s leave.

     In April 1996, Yount filed this action under, inter alia, §

503(a)    of    the    ADA,    42   U.S.C.       §   12203(a)    (employer     may   not

discriminate against employee for opposing act or practice made

unlawful by ADA), claiming S & A terminated her employment in

retaliation for her opposing Alder’s job threat by meeting with

McLeod on 13 December 1994.             (The district court dismissed Yount’s

discrimination and accommodation claims in September 1997.)

     In February 1999, a jury found that S & A had intentionally

retaliated against Yount in terminating her employment. It awarded

approximately         $1.1    million   in   damages,       including    $750,000    in

punitive damages. (Yount notes that, under applicable damage caps,

the verdict would have been reduced to approximately $350,000, plus

attorney’s fees and costs.)

     Concluding, as a matter of law, that Yount “did not prove she

engaged    in    a    protected     activity         and   did   not   prove   but-for

causation”, the district court granted S & A’s Rule 50 post-verdict

motion for judgment as a matter of law.                    It alternatively granted

it a new trial.

                                          II.




                                             4
     Yount maintains she produced sufficient evidence that her

meeting with McLeod was both a protected activity and the cause of

her termination. She also contests the court granting a new trial.

Because Yount did not engage in protected activity, we do not reach

the other issues.

     For our de novo review of a judgment as a matter of law

(JMOL), e.g., King v. Ames, 179 F.3d 370, 373 (5th Cir. 1999),

           all of the evidence [is considered] ... in the
           light and with all reasonable inferences most
           favorable to the party opposed to the motion.
           If 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, granting ...
           the motion[] is proper. On the other hand, if
           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 ....

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc),

overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107

F.3d 331 (5th Cir. 1997) (en banc).     See FED. R. CIV. P. 50; Reeves

v. Sanderson Plumbing Prods., Inc., __ U.S. __, 120 S. Ct. 2097,

2110 (2000) (court reviewing JMOL “should give credence to the

evidence   favoring   the   nonmovant   as   well   as   that   ‘evidence

supporting the moving party that is uncontradicted and unimpeached,

at least to the extent that that evidence comes from disinterested

witnesses’”) (quoting 9A C. WRIGHT & A. MILLER, FEDERAL PRACTICE      AND

PROCEDURE § 2529 (2d ed. 1995))).

                                    5
     Of course, in applying this standard, we examine the elements

of a retaliation claim.       When, as here, “a case has been fully

tried on the merits, we no longer focus on the McDonnell Douglas

burden-shifting rubric”; rather, our factual review is limited to

whether “sufficient evidence ... support[s] the jury’s ultimate

finding of” retaliation.      Deffenbaugh-Williams v. Wal-Mart Stores,

Inc., 156 F.3d 581, 588 (5th Cir. 1998), reh’g en banc granted and

opinion vacated, 169 F.3d 215, opinion reinstated, 182 F.3d 333

(5th Cir. 1999).    See also Soileau v. Guilford of Maine, Inc., 105

F.3d 12, 16 (1st Cir. 1997) (“The ADA incorporates the procedures

and enforcement mechanisms of Title VII.”); Penny v. United Parcel

Serv., 128 F.3d 408, 417 (6th Cir. 1997) (“Retaliation claims are

treated the same whether brought under the ADA or Title VII.”).

     For   unlawful    retaliation,          a   plaintiff   must    show:    “(1)

engagement in an activity protected by the ADA, (2) an adverse

employment   action,    and   (3)    a       causal    connection   between    the

protected act and the adverse action”.                Seaman v. CSPH, Inc., 179

F.3d 297, 301 (5th Cir. 1999); e.g., Long v. Eastfield College, 88

F.3d 300, 304 (5th Cir. 1996).

     The   ADA   provides,    in    relevant      part:      “No    person   shall

discriminate against any individual because such individual has

opposed any act or practice made unlawful by this chapter....”                  42

U.S.C. § 12203(a).     Under this “opposition” clause, an employee is

not required to make a formal complaint or show that the employer’s

                                         6
conduct was actually unlawful; she need only prove she had a

“reasonable belief that the employer was engaged in unlawful

employment practices”.      Payne v. McLemore’s Wholesale & Retail

Stores, 654 F.2d 1130, 1140 (5th Cir. 1981 (emphasis added)).

     On the other hand, the employee’s statement of opposition must

refer to an “allegedly unlawful” employment practice.                Equal

Employment Opportunity Comm’n v. Crown Zellerbach Corp., 720 F.2d

1008, 1013 (9th Cir. 1983).     See Barber v. CSX Distrib. Servs., 68

F.3d 694, 702 (3d Cir. 1995) (general complaint of unfair treatment

in employee’s letter to management was not protected activity

because it “d[id] not explicitly or implicitly allege that age was

the reason for” such treatment (emphasis added)).

     Therefore, “[t]he relevant question ... is not whether a

formal   accusation   of   discrimination   is   made   but    whether   the

employee’s communications to the employer sufficiently convey the

employee’s reasonable concerns that the employer has acted or is

acting in an unlawful discriminatory manner.”       Garcia-Paz v. Swift

Textiles, Inc., 873 F. Supp. 547, 560 (D. Kan. 1995) (emphasis

added) (opposition related to “personal grievance[s]” rather than

unlawful employment practices is not protected activity).

     Needless to say, whether an employee’s statement or action is

protected “opposition” is a fact-specific inquiry.            See Sumner v.

United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)



                                   7
(noting   opposition   clause   covers   wide     range    of   activities,

including complaints to management); Dupont-Lauren v. Schneider

(USA), Inc., 994 F. Supp. 802, 822 (S.D. Tex. 1998) (collecting

cases finding protected opposition).      Yount contends that, viewing

her testimony in the light most favorable to her, and in the

context of Alder’s job threat based on absences and tardies Yount

perceived to be symptomatic of her depression, a reasonable jury

could conclude she had a good faith reasonable belief that Alder

planned to terminate her because of her disability, and that Yount

opposed such action in her meeting with McLeod.            She asserts she

explicitly alleged in her meeting with McLeod that her disability

was the reason for Alder’s job threat.     S & A counters that Yount’s

testimony demonstrates she did not objectively and reasonably

believe Alder’s conduct was unlawful, and her merely informing

McLeod about her depression was not in opposition; it was not a

protected activity.

     In short, because Yount’s meeting with McLeod is when her

claimed   opposition   took   place,   required   is   a   review   of   her

thoroughly covered, and re-covered, version about what occurred at

that meeting:

           [Direct Examination]: Tell us what you recall
           about your meeting with Mr. McLeod.

           A:   I went into his office and I told him
           that I appreciated him talking to me, that
           Deanna [Alder] and I had had a one-on-one the
           week before and that she had told me that she
           had spoken with him and that my job was in

                                   8
jeopardy over my tardies and absences, and
that I wanted to talk to him to make sure that
he understood everything that was going on,
that I had been to a psychiatrist, that I was
under therapy, that I was taking medication,
that I was trying to get better and that I was
trying to do my job to the best of my
abilities.

And he said, no, he had not been informed of
that.

Then we went on to discuss the issues of ...
when exactly are you [Yount] late and when
exactly are you not late.

I told him that it would concern me that she
would put in writing something that could end
up in my personnel file that said hours not
worked when I was in meetings ... for business
for the company ... and that these things
concerned me, because I was doing everything
that I could to try and do a good job,
including going to her in the very beginning
and   telling  her   I   was  suffering   from
depression and also going to her later on and
saying I need help getting my job done.

                    ....

[Cross-Examination]: Do you remember anything
else that was said when you had your meeting
with Mr. McLeod?

                    ....

A:   I went to John McLeod to make sure that
he was getting the same information that I was
... and to make sure that he had all the
details on my side. I didn’t expect him to do
anything, except take into consideration what
I was saying before I was – I lost my job.

                    ....




                      9
A:   ... [W]hen I went to John McLeod, I was
only trying to give him information. I wasn’t
trying to get any action taken.

                    ....

Q:   .... When you went to John McLeod, was
there anything that Ms. Alder had just done to
you that you thought was inappropriate or
unfair?

A:   I mean, inappropriate, unfair, no.

Q:   Well, anything more serious than [whaat]
she had just done to you?

A:   When she stated if I could not get rid of
my excessive absences and tardiness my job was
in jeopardy, and that she had talked to John
McLeod, it scared me and I thought I was in
danger of losing my job.

Q:   Did you think that that comment about
getting rid of your excessive absences and
tardyism was directed at your disability?

A:   We   had  discussed   that   it   was   my
disability that was my problem.

                    ....

Q:   ... What is it that you said to Mr.
McLeod that you believe led to the company
retaliating against you?

A:    The only thing I can think of is that I
gave him information that she had not [given
him].

                    ....

[Redirect Examination]: Why did you go over
[Alder’s] head [to McLeod]?

A:   I went over her head because ... I wanted
to be sure that he understood that I was
suffering from depression and I was seeking


                     10
medical help, that I was taking medication and
that [Alder] and I had both discussed that
some of those tardies and absences were
related to my depression, and I felt as though
if he understood that perhaps my job – he
would be able to make an informed decision
about what was going on.

     And he told me that, no, Deanna had not
told him that I was suffering from depression.

                    ....

Q:   Did you believe that there was a
relationship between your – any attendance and
tardy problems that you were having and your
disability?

A:   Yes.

Q:   And did you tell Mr. McLeod that?

A.   Yes.

Q:   Had you told Ms. Alder that?

A:   Yes.

Q:   Did you have any concern about whether or
not Ms. Alder had communicated that to Mr.
McLeod?

A:   Yes.

Q:   And is that one of the reasons that you
talked to Mr. McLeod?

A:   Yes.

Q:   What did you hope to accomplish by
talking to Mr. McLeod about the relationship
between your attendance and tardies and your
disability?

A:   I wanted them to make       an   informed
decision before I lost my job.

                    ....

                     11
Q:   At the time that you went to John McLeod,
did you believe that Deanna Alder was
unreasonably failing to take into account your
disability in evaluating your absences and
tardies?

A:   Yes. I didn’t think she was taking it
into account.

                    ....

[Re-Cross Examination]: What should [Alder]
have   done  by   way   of taking  [Yount’s
depression] into account?

                    ....

A:   I mean talking to me about it and asking
me if I thought it was going to improve over
the next however long and, you know, had it
improved from a specific point to another
point or had it gotten worse, instead of
threatening my job.

Q:   Did you tell Mr. McLeod that you didn’t
think she was adequately taking it into
account?

A:   What I told Mr. McLeod was Deanna had
told me my job was in jeopardy.

                    ....

Q:   And go ahead and tell us, as best you
recall, what you told Mr. McLeod on the 13th.

A:   I told him that Deanna had told me that
my job was in jeopardy because of my excessive
absences and tardies and that she had told me
that she had spoken to him about it and I was
concerned because I felt like if he knew that
I was suffering from depression, that I was
seeking therapy, that I was taking medication,
that he would not have allowed her to do that.
I asked if she would – if she had informed him
of that.

     He said no.

                     12
                We then talked about some of my concerns
           and confusion over was I late at 8:30 or not.
           And, I mean, the discussion was that I felt as
           though my tardies and absences were related to
           my depression, was he aware of the depression
           when he was made aware of the excessive
           absences and tardies.

                   And he said no.

(Emphasis added.)

     As discussed, employees cannot be expected to voice their

concerns   about    unlawful   discrimination   “with   the    clarity    or

precision of lawyers”.      Garcia-Paz, 873 F. Supp. at 560.      Yount’s

characterization of her meeting with McLeod is belied, however, by

her testimony. She repeatedly testified that she told McLeod about

her depression so he could make an informed decision about her

employment.    There is nothing in the record to indicate she

considered Alder’s actions unlawful or that she made such an

allegation to McLeod.       Viewing the evidence in the light most

favorable to Yount, a jury “could not logically infer that ... she

was engaged in protected opposition to an unlawful practice or

reasonably believed that she was so engaged”.      Id. at 560 (emphasis

added).

                                     III.

     For the foregoing reasons, the judgment is

                                                              AFFIRMED.




                                      13
