     Case: 13-60378   Document: 00512726101    Page: 1   Date Filed: 08/07/2014




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


                                No. 13-60378
                                                                       FILED
                                                                  August 7, 2014
                                                                  Lyle W. Cayce
KELSEY NOBACH,                                                         Clerk

                                         Plaintiff – Appellee Cross-
                                         Appellant
v.

WOODLAND VILLAGE NURSING CENTER, INCORPORATED,

                                         Defendant – Appellant Cross-
                                         Appellee

v.

LOCOCO & LOCOCO, P.A.,

                                       Appellee
________________________________________________________________________
                                       Consolidated with No. 13-60397

KELSEY NOBACH,

                                         Plaintiff – Appellee Cross-Appellant
v.

WOODLAND VILLAGE NURSING CENTER, INCORPORATED,

                                         Defendant – Appellant Cross-
                                         Appellee


                Appeals from the United States District Court
                   for the Southern District of Mississippi
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                                 No. 13-60378
Before JOLLY, SMITH, and SOUTHWICK, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Kelsey Nobach was a nursing home activities aide who was discharged
by Woodland Village Nursing Center (“Woodland”) because she refused to pray
the Rosary with a patient.      Nobach contends, and the jury found, that
Woodland violated Title VII of the Civil Rights Act of 1964 by unlawfully
discharging her for exercising her religious beliefs.          On appeal, the
determinative question is whether Nobach failed to produce sufficient evidence
that Woodland knew of her religious beliefs before it discharged her. We find
no such evidence anywhere in the record and hold that a reasonable jury would
not have had a legally sufficient basis to find that Woodland violated Title VII
by discharging her. Therefore, we REVERSE the district court’s denial of
Woodland’s motion for judgment as a matter of law, VACATE the judgment,
and REMAND for entry of judgment consistent with this opinion.
                                       I.
      We begin with the relevant facts and consider them in the light most
favorable to the jury verdict. Nobach was first hired as an activities aide in
August 2008. Her employment spanned thirteen months during which she
received four negative employment write-ups, two of which were for continual
tardiness, one for making a false accusation against a co-worker, and another
for stealing a resident’s nail polish, all noted in her employment record.
      On September 19, 2009, Nobach was called to work an unscheduled shift
in the facility’s main hall where she did not usually work. Early in her shift
Nobach began a transfer of a resident from the main hall back to the resident’s
room, one of her normal duties as an activities aide.       A certified nurse’s
assistant (“CNA”), a non-supervisory employee with no responsibilities over
Nobach, told Nobach that a particular resident had requested that the Rosary
be read to her. Nobach told the CNA that she could not because it was against
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                                       No. 13-60378
her religion. Although she did not explain her religious beliefs to the CNA, or
to anyone for that matter, Nobach later explained—after she had been
discharged—that she is a former Jehovah’s Witness who had been
disfellowshipped (expelled) from the church following her refusal to repent for
her sins when she was sixteen years old. 1
       After telling the CNA that she would not read the Rosary, she said to the
CNA: “[I]f you would like to perform the Rosary, you’re more than welcome to.”
The CNA remained silent.             Nobach testified that she no longer thought
anything of the conversation; neither did she make any effort to see that the
resident’s request was fulfilled. The Rosary was not read to the resident that
day. The resident later complained to Lynn Mulherin, Woodland’s activities
director and Nobach’s head supervisor, about this failure of the staff. Mulherin
then consulted with James Williams, Woodland’s Director of Operations.
Williams investigated and ensured the resident that her requests would be
promptly addressed in the future. After determining who was “on the floor”
that day, Williams met with Mulherin and instructed her to write up both
Nobach and Lorrie Norris, an activities supervisor and Nobach’s immediate
superior, for the incident. Following the meeting with Williams, Mulherin
advised Williams that she had decided to discharge Nobach. 2
       On September 24, 2009, five days after Nobach refused the request,
Mulherin called Nobach into her office along with Norris (who, along with



       1 Nobach further testified at trial that she had been baptized into the church at the
age of nine and regularly attended services. Although she is no longer a member of the
church, she testified that she still holds many of the Jehovah’s Witnesses’ beliefs and adheres
to many of its central tenets, such as avoiding symbolism and, relevant here, not praying
repetitive prayers. None of this information was provided to administrators at Woodland
before her discharge.
       2 Mulherin was unavailable to testify at trial. Williams and Norris were the only two

of Nobach’s superiors to testify.

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                                   No. 13-60378
Nobach, testified at trial about the events of Nobach’s discharge). 3 Upon
entering the office, Mulherin told Nobach that she was fired. When Nobach
asked the reason, Mulherin said that Nobach had been written up for the
incident, and was now fired for failing to assist a resident with the Rosary,
which was a regularly scheduled activity when requested by a resident. She
told Nobach: “I don’t care if it’s your fifth write-up or not. I would have fired
you for this instance alone.”       Nobach—for the first time—then informed
Mulherin that performing the Rosary was against her religion, stating: “Well,
I can’t pray the Rosary. It’s against my religion.” Mulherin’s response was: “I
don’t care if it is against your religion or not.          If you don’t do it, it’s
insubordination.”
      During the meeting Mulherin handed two papers to Nobach, which had
apparently been prepared before the meeting. The record is unclear at which
point during the meeting they were given to her. The first paper was an
employee reprimand which said: “See attached. This is Ms. Nobach’s 5th write
up!” Attached to the employee reprimand was a second sheet of paper titled
“Employee Termination Report” (“Termination Report”), which stated as
follows: “The employee has been written up 5xs. The last write up on 9-24-09
for not doing [R]osary with resident is what brought forth termination. She
has refused to sign write up.”
      After her discharge, Nobach filed a charge against Woodland with the
E.E.O.C., alleging religious discrimination. In due course the E.E.O.C. issued
Nobach a right to sue letter and Nobach filed this suit. In her complaint she
alleged that she had been fired because of her religion in violation of Title VII
of the Civil Rights Act of 1964. The case was tried to a jury of seven persons,



      3 There were no material inconsistencies between Norris’s and Nobach’s testimony
about what transpired during the meeting between the three women.
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                                  No. 13-60378
which returned a verdict in Nobach’s favor, awarding her $69,584.00.
Woodland moved for judgment as a matter of law. The district denied the
motion and Woodland filed this timely appeal.
                                        II.
      Woodland raises three issues on appeal. First, it argues the district court
erred by denying its renewed motion for judgment as a matter of law for
insufficiency of the evidence to support a Title VII violation. Second, Woodland
alleges that the district court submitted an erroneous instruction to the jury
that substantially affected the outcome of the case.          Third and finally,
Woodland contends that the evidence does not support the verdict of $55,200
for emotional distress injuries and mental anguish. Nobach cross-appeals. She
contends that the district court erred by refusing to give the jury a punitive
damage instruction.
      We need not reach the second and third issues raised in Woodland’s
appeal, nor do we find it necessary to address the cross-appeal. Instead, we
hold that the district court erred when it denied Woodland’s motion for
judgment as a matter of law.
                                       III.
                                        A.
      We review a district court’s ruling on a motion for judgment as a matter
of law de novo. Brown v. Bryan Cnty., 219 F.3d 450, 456 (5th Cir. 2000). An
appellant “who wishes to appeal on grounds of insufficient evidence must make
a Rule 50(b) motion for judgment as a matter of law after the jury’s verdict,
even when the party has previously made a Rule 50(a) motion.” Downey v.
Strain, 510 F.3d 534, 543–44 (5th Cir. 2007). In this case, Woodland filed a
post-verdict Rule 50(b) motion; thus, we have a basis “to review [its] challenge
to the sufficiency of the evidence.” Id. at 544. “On review of the district court’s
denial of such a motion, [we] use[] the same standard to review the verdict that
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                                  No. 13-60378
the district court used in first passing on the motion.” Hiltgen v. Sumrall, 47
F.3d 695, 699 (5th Cir. 1995).       Accordingly, our standard is whether “a
reasonable jury would not have a legally sufficient evidentiary basis to find for
the party on that issue.” FED. R. CIV. P. 50(a)(1); see also Foradori v. Harris,
523 F.3d 477, 485 (5th Cir. 2008) (stating that when a case “is tried by a jury[,]”
as it was in this case, “a Rule 50(a) motion is a challenge to the legal sufficiency
of the evidence”).
      On appeal, Woodland argues that the district court erred by denying its
Rule 50 motion because Nobach failed to put on any evidence, direct or
circumstantial, that Woodland had knowledge of her religion before it
discharged her. Because Nobach did not introduce such evidence, Woodland
contends that the jury could not have had a legally sufficient basis to find that
it discriminated against her in violation of Title VII.
      Nobach responds by arguing that she provided evidence of intentional
discrimination to indicate that Woodland knew of her religious beliefs when it
discharged her. Nobach’s argues that evidence of intentional discrimination
based on her religion includes: (1) Mulherin’s reply to Nobach that she was
being fired for not “pray[ing] the Rosary with a resident[,]” (2) the Termination
Report, which stated that “[t]he last write up on 9-24-09 for not doing rosary
with resident is what brought forth termination[,]” along with (3) Mulherin’s
two responses after she had discharged Nobach that “[i]t doesn’t matter if its
against your religion or not, if you refuse it’s insubordination[,]” and “I don’t
care if you didn’t have previous write-ups, I would have terminated you for this
instance alone.” According to Nobach, these statements evince Woodland’s
discriminatory animus against her Jehovah’s Witness views.
                                        B.
      Title VII makes it unlawful for an employer to discharge an individual
“because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). An
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                                        No. 13-60378
employee may prove intentional discrimination “through either direct or
circumstantial evidence.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219
(5th Cir. 2001).         Nobach contends that she offered direct evidence of
Woodland’s discriminatory animus that motivated her discharge. She relies
primarily on Woodland’s acknowledgement that she was fired for not praying
the Rosary with the resident, and that Mulherin said that she did not care if
performing the Rosary was against her religion, she still would have been fired
because to refuse to perform the Rosary was insubordination. 4
       We of course fully accept Nobach’s version of the discharge as the view
that most favorably supports the jury verdict. In doing so, we have carefully
searched the record for evidence of such support. Even so, we simply cannot
find evidence that Nobach ever advised anyone involved in her discharge that
praying the Rosary was against her religion. According to the record, neither
did Nobach tell the CNA that she was a Jehovah’s Witness.                              Nobach
acknowledges that the only time she made any mention of her religious beliefs
was when she told the CNA: “I can’t do the Rosary with [the resident]. I’m not
Catholic, and it’s against my religion.” Nobach has never even claimed that
the CNA told anyone of her reason for refusing to aid the resident. In sum, she
has offered no evidence that Woodland came to know of her bona-fide religious
beliefs until after she was actually discharged.



       4 Although Nobach does not argue the point, other circuits have held that an employer
has no obligation to withdraw its termination decision under Title VII based on information
supplied after that termination decision has been made. See Wilkerson v. New Media Tech.
Charter Sch., Inc., 522 F.3d 315, 319 (3d Cir. 2008) (holding that no duty to accommodate
arises under Title VII when the employee fails to inform the employer that a requirement
conflicts with his or her religious beliefs); accord Chalmers v. Tulon Co. of Richmond, 101
F.3d 1012, 1020 (4th Cir. 1996) (“Giving notice to co-workers [of one’s religious beliefs] at the
same time as an employee violates an employment requirement is insufficient to provide
adequate notice to the employer and to shield the employee’s conduct.”); Johnson v. Angelica
Unif. Grp., Inc., 762 F.2d 671, 673 (8th Cir. 1985).

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                                    No. 13-60378
      Woodland must admit, as it does, that Nobach’s failure to perform the
Rosary with the resident was the factor that precipitated her discharge. If
Nobach had presented any evidence that Woodland knew or reasonably should
have known the cause for her refusing this task was her conflicting religious
beliefs, the jury would certainly have been entitled to reject Woodland’s
explanation for Nobach’s termination, but no such evidence was ever provided
to the jury. We hold, therefore, that a reasonable jury would not have had a
legally sufficient evidentiary basis to find that Woodland intentionally
discriminated against Nobach because of her religion. 5
                                          IV.
      To sum up, we hold that the district court erred by not granting
Woodland’s Rule 50(b) motion for judgment as a matter of law because Nobach
failed to produce any evidence of Woodland’s knowledge, before termination,
regarding her Jehovah’s Witness beliefs.           Without any evidence of such
knowledge, “a reasonable jury would not have had a legally sufficient
evidentiary basis” to find for her on her claim of religious discrimination under
Title VII. The denial of Woodland’s motion for judgment as a matter of law is
REVERSED, the judgment is VACATED, and the case is REMANDED for
entry of judgment consistent with this opinion. 6




      5   With regard to Nobach’s allegation of Woodland’s failure to accommodate her
religious beliefs, her claim fails for essentially the same reason—the failure to advise
Woodland of her religious beliefs and the conflict with her job duties.

      6 Consistent with our holding, we need not address the other issues on appeal
regarding the disputed jury instruction and damages.
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