                   United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                              ________________

                                 No. 08-1096
                              ________________

Equal Employment                     *
Opportunity Commission,              *
                                     *
            Appellee,                *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Eastern District of Arkansas.
Southwestern Bell Telephone, L.P.,   *
doing business as AT&T Southwest     *
and SBC Communications,              *
                                     *
            Appellant.               *
                              ________________

                          Submitted: October 16, 2008
                              Filed: December 19, 2008
                             ________________

Before GRUENDER, BEAM and SHEPHERD, Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.

      The Equal Employment Opportunity Commission (“EEOC”) filed suit against
Southwestern Bell Telephone, L.P., doing business as AT&T Southwest and SBC
Communications (“AT&T”), for terminating the employment of Jose Gonzalez and
Glenn Owen in violation of Title VII. AT&T filed a motion for summary judgment,
which the district court1 denied. After the EEOC presented its evidence at trial,
AT&T filed a motion for judgment as a matter of law under Federal Rule of Civil
Procedure 50(a), which the district court also denied. AT&T renewed the Rule 50(a)
motion at the end of its presentation of evidence. The jury returned a verdict in favor
of the EEOC. AT&T failed to renew its motion for judgment as a matter of law after
the entry of judgment pursuant to Rule 50(b). AT&T appeals the denial of its motion
for summary judgment and its Rule 50(a) motion for judgment as a matter of law. We
conclude that we cannot consider the merits of AT&T’s appeal.

I. BACKGROUND

       Gonzalez and Owen are Jehovah’s Witnesses who were employed by AT&T
as customer service technicians (“CSTs”). CSTs install new telephone and high-speed
internet lines and respond to customer complaints about telephone outages. Under the
collective bargaining agreement, AT&T assigns vacation time by seniority and allows
it only if the workload permits. While Jehovah’s Witnesses do not celebrate holidays,
every year they hold three-day conventions throughout the country. Jehovah’s
Witnesses are encouraged to attend the convention with their congregations, but no
one takes attendance and no doctrine requires attendance.

      After the CSTs signed up for vacation time for the 2005 calendar year,
Gonzalez and Owen learned that their convention would be held Friday, July 15,
through Sunday, July 17. Their supervisor allowed them to switch workdays with
other CSTs so that they could both attend the convention on Saturday, July 16, but
both were still scheduled to work on Friday, July 15. After many discussions, their
supervisor continued to refuse to allow Gonzalez and Owen to take a vacation day on
July 15 and ultimately issued a “work directive” ordering them to report to work on


      1
       The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.

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July 15. Gonzalez and Owen failed to report to work on July 15 because they were
attending the conference, and AT&T ultimately fired them for “misconduct; job
abandonment; insubordination; and failure to follow a work directive.”

       Gonzalez and Owen filed charges of discrimination with the EEOC alleging that
AT&T terminated their employment in violation of 42 U.S.C. § 2000e-2(a), which
prohibits an employer from “discharg[ing] any individual . . . because of such
individual’s . . . religion.” The EEOC investigated the charges and found probable
cause that AT&T failed to reasonably accommodate Gonzalez and Owen’s religious
beliefs. The EEOC then filed this suit on behalf of Gonzalez and Owen, claiming that
AT&T engaged in unlawful employment practices by denying them a reasonable
accommodation of their sincerely held religious beliefs and terminating their
employment because of their religious beliefs. The EEOC sought a permanent
injunction enjoining AT&T from violating Title VII, as well as reinstatement, back
pay, front pay and compensatory damages for Gonzalez and Owen.

       AT&T moved for summary judgment, arguing that, as a matter of law,
Gonzalez and Owen’s absence from work on July 15 caused AT&T an undue
hardship, and, therefore, allowing them to take a vacation day was not a reasonable
accommodation. Because Gonzalez and Owen were not at work, AT&T had to “close
the clock,” or stop scheduling maintenance and repairs for the same day, at 10:00 a.m.,
long before the preferred 2:00 p.m. closing time, and it also had to pay extra overtime
to the employees working that day. The district court denied AT&T’s motion for
summary judgment, declaring that AT&T “failed to show that there is no genuine
issue of material fact as to whether accommodating Owen’s and Gonzalez’s religious
beliefs would have caused it to suffer more than a de minimis hardship.” The case
proceeded to trial.

      At the close of the EEOC’s evidence, AT&T moved for judgment as a matter
of law under Rule 50(a), claiming that it was entitled to judgment in its favor on the

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issue of undue hardship and relying on the same argument that it made in its motion
for summary judgment. The district court rejected AT&T’s argument, concluding that
it had “already ruled on that on summary judgment, and [it was] going to stick with
the ruling [it] made on the summary judgment.” In the alternative, AT&T argued that
no reasonable jury could conclude that Gonzalez and Owen mitigated their damages.
The district court also rejected this argument. Finally, AT&T argued that Gonzalez
and Owen did not have a sincerely held religious belief that required attendance at the
conference on July 15. The district court rejected that argument as well and denied
AT&T’s Rule 50(a) motion. At the end of AT&T’s presentation of evidence, before
the case went to the jury, AT&T renewed its motion for judgment as a matter of law,
saying “I would assume since we recently discussed those, the Court doesn’t want to
hear me reiterate those [arguments].” The district court denied AT&T’s motion
saying:

      I don’t want to hear any more argument on it. We did discuss it recently
      and I remember very vividly all of your arguments, and, for the most
      part, they’re things that we studied fairly recently in the motion for
      summary judgment. So for my purposes, I don’t need them, and I don’t
      think you need to do that to preserve your record. I think it’s as well
      preserved as it can be. And I’m denying your motion again.

      The jury found in favor of the EEOC, awarding Gonzalez $396,000 and Owen
$390,000 in damages based on their lost wages, benefits and compensatory damages.
The district court then ordered AT&T to reinstate Gonzalez and Owen and awarded
them front pay until the date of reinstatement. AT&T failed to renew its motion for
judgment as a matter of law under Rule 50(b) within ten days of the entry of
judgment.

      AT&T now appeals the denials of its motion for summary judgment and its
Rule 50(a) motion for judgment as a matter of law. AT&T argues that, as a matter of
law, Gonzalez and Owen did not hold a sincere religious belief requiring attendance


                                         -4-
at the conference on July 15-17, that the award of back pay and front pay should be
reversed based on Gonzalez and Owen’s failure to mitigate their damages, and that the
accommodation of allowing Gonzalez and Owen to take a vacation day constituted an
undue burden. The EEOC, however, argues that we cannot consider AT&T’s
arguments on appeal because AT&T failed to renew its motion for judgment as a
matter of law after the entry of judgment pursuant to Rule 50(b).

II. DISCUSSION

      AT&T first appeals the district court’s denial of its motion for summary
judgment. We will not review a district court’s denial of a motion for summary
judgment after a trial on the merits. See Eaddy v. Yancey, 317 F.3d 914, 916 (8th Cir.
2003) (“Even a cursory review of precedent in this Circuit reveals that we do not
review a denial of a summary judgment motion after a full trial on the merits.”); see
also Metro. Life Ins. Co. v. Golden Triangle, 121 F.3d 351, 354 (8th Cir. 1997)
(“[W]e are unable to review the denied summary judgment motion because Met Life
had a full and fair opportunity to litigate its position before a jury.”). Therefore,
because the parties had a full trial on the merits, we will not review the district court’s
decision to deny AT&T’s motion for summary judgment.

       AT&T next appeals the denials of its motion for judgment as a matter or law
made at the close of the EEOC’s case-in-chief and renewed prior to submitting the
case to the jury. Rule 50(a)(1) states:

      [i]f a party has been fully heard on an issue during a jury trial and the
      court finds that a reasonable jury would not have a legally sufficient
      evidentiary basis to find for the party on that issue, the court may: (A)
      resolve the issue against the party; and (B) grant a motion for judgment
      as a matter of law against the party on a claim or defense that, under the
      controlling law, can be maintained or defeated only with a favorable
      finding on that issue.


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According to Rule 50(b), if the district court does not grant the motion for judgment
as a matter of law under Rule 50(a):

      the court is considered to have submitted the action to the jury subject to
      the court’s later deciding the legal questions raised by the motion. No
      later than 10 days after the entry of judgment . . . the movant may file a
      renewed motion for judgment as a matter of law . . . .

      It is undisputed that AT&T never filed a renewed motion for judgment as a
matter of law after the entry of judgment pursuant to Rule 50(b). The Supreme Court
has held that when a party fails to file a motion under Rule 50(b), “there [is] no basis
for review of [the party’s] sufficiency of the evidence challenge in the Court of
Appeals.” Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407 (2006).

       In Unitherm, Unitherm filed suit against Swift-Eckrich, doing business as
ConAgra, regarding a ConAgra patent. Id. at 397. Before the case was submitted to
the jury, ConAgra filed a Rule 50(a) motion, arguing the evidence was insufficient,
which the district court denied. Id. at 398. The jury returned a verdict in favor of
Unitherm, and ConAgra failed to renew its motion for judgment as a matter of law
under Rule 50(b) after the entry of judgment. Id. On appeal, ConAgra argued that
there was insufficient evidence to sustain the jury’s verdict. Id. The Supreme Court
concluded that because ConAgra failed to file a Rule 50(b) motion, “there was no
basis for review of [the] sufficiency of the evidence challenge in the Court of
Appeals.” Id. at 407.2


      2
        Although the Court in Unitherm did not explicitly hold that courts of appeals
lack jurisdiction based on a party’s failure to renew its motion for judgment as a
matter of law under Rule 50(b), several courts of appeals have considered the issue.
The First Circuit has observed that “[t]he Unitherm dissenters suggest that this holding
establishes that courts of appeals lack subject-matter jurisdiction over unrenewed
sufficiency [of the evidence] challenges in civil cases. There are legitimate questions

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        The procedural posture of Unitherm is virtually identical to that presented here.
However, AT&T emphasizes that Unitherm only precludes our review of sufficiency
of the evidence challenges. On appeal, AT&T raises the same three arguments for
judgment as a matter of law that it raised to the district court in its Rule 50(a) motions.
Initially, we note that Rule 50(a) allows a district court to grant a motion for judgment
as a matter of law only when “the court finds that 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) (emphasis added). We conclude that each of the arguments made in AT&T’s
Rule 50(a) motion is a sufficiency of the evidence argument and that Unitherm
precludes our review of all three.3

      At oral argument, AT&T conceded that its argument that Gonzalez and Owen
did not hold a sincere religious belief requiring their attendance at the conference


as to whether the Unitherm holding is jurisdictional.” United States v. Maldonado-
García, 446 F.3d 227, 230 n.4 (1st Cir. 2006) (internal citation omitted). The Sixth
Circuit concluded that, after Unitherm, “it is now clear that renewing the motion post-
verdict is jurisdictional and cannot be waived” and that the court was “without
jurisdiction to consider the merits” of the party’s claim. Allison v. City of East
Lansing, 484 F.3d 874, 876 (6th Cir. 2007). Yet most recently, the Tenth Circuit
acknowledged that the question is open, stating that “we need not definitely decide
this jurisdictional question—a matter of first impression—here.” Kelley v. City of
Albuquerque, 542 F.3d 802, 817 n.15 (10th Cir. 2008). The Tenth Circuit questioned
if the Supreme Court’s decision in Bowles v. Russell, 551 U.S. ---, 127 S. Ct. 2360
(2007), has altered the legal analysis concerning whether Unitherm is jurisdictional
before concluding that it need not resolve the jurisdictional question. Id. Although
we discern little difference between lacking a “basis for review” and lacking
jurisdiction, we likewise conclude that we need not decide the issue.
      3
       On appeal, AT&T does not seek a new trial pursuant to Federal Rule of Civil
Procedure 59. We note that its failure to file a Rule 59 motion after the entry of
judgment would also preclude our review of any request for a new trial on appeal. See
Unitherm, 546 U.S. at 404 (“[A] party is not entitled to pursue a new trial on appeal
unless that party makes an appropriate postverdict motion in the district court.”).

                                           -7-
amounted to a challenge to the sufficiency of the evidence. We agree and conclude
that Unitherm applies and precludes us from reviewing this argument.

      AT&T next argues that it should be granted judgment as a matter of law on the
award of back pay and front pay to Gonzalez and Owen because they failed to
mitigate their damages. However, AT&T bases its argument solely on the lack of
evidentiary support for the EEOC’s claim that Gonzalez and Owen mitigated their
damages. Once again, we conclude that this argument, raised in its Rule 50(a) motion
but not renewed under Rule 50(b), is a challenge to the sufficiency of the evidence,
that Unitherm applies, and that we cannot review it.

       In its third argument, AT&T claims that the district court should have granted
judgment as a matter of law on the issue of undue hardship because “the jury’s verdict
was against the clear and undisputed evidence presented at trial.” In its motion for
summary judgment, its argument before the district court on its Rule 50(a) motion,
and its brief on appeal, AT&T argued that the evidence uniformly supported its claim
that the requested accommodation created an undue hardship. AT&T asks us to
review the sufficiency of the evidence and decide that it is entitled to judgment as a
matter of law on the reasonable accommodation issue. Because this argument is also
a sufficiency of the evidence argument, we conclude that Unitherm again precludes
our review.

       In its reply brief, AT&T also argues that “in a religious discrimination case, an
employer is entitled to a complete affirmative defense when it meets its burden of
proving that a requested accommodation would have resulted in an undue hardship”
and that “Unitherm and its progeny are distinguishable . . . as those cases address
challenges to the sufficiency of the plaintiff’s proof in support of a verdict in the
plaintiff’s favor.” In other words, AT&T argues that Unitherm does not apply to a
motion for judgment as a matter of law based on an affirmative defense. AT&T cites
no authority to support this proposition, and we have found none. To the contrary,

                                          -8-
Rule 50(a) explicitly states that the district court may grant judgment as a matter of
law “on a claim or defense.” Fed. R. Civ. P. 50(a)(1)(B) (emphasis added). Thus,
Rule 50(a) allows a district court to grant judgment as a matter of law on both claims
and defenses, see, e.g., Arabian Agric. Servs. Co. v. Chief Indus., Inc., 309 F.3d 479,
483 (8th Cir. 2002) (affirming the district court’s grant of judgment as a matter of law
under Rule 50(a) on an affirmative defense), and “a Rule 50(b) motion is a renewal
of a prior Rule 50(a) motion,” Hinz v. Neuroscience, Inc., 538 F.3d 979, 983 (8th Cir.
2008). Moreover, filing a Rule 50(b) motion is a prerequisite for appealing the denial
of a Rule 50(a) motion because it allows the district court, which has “first-hand
knowledge of witnesses, testimony, and issues,” an opportunity after the verdict to
review the legal sufficiency of the evidence. See Unitherm, 546 U.S. at 401 n.3. This
reasoning applies with equal force to both claims and defenses that challenge the
sufficiency of the evidence. Accordingly, we conclude that Unitherm’s requirement
of a Rule 50(b) motion applies to motions for judgment as a matter of law based on
the sufficiency of the evidence with regard to an affirmative defense.

        Finally, AT&T argues that it was not required to file a Rule 50(b) motion after
the entry of judgment because when it renewed its Rule 50(a) motion at the close of
the evidence the district court stated that it did not want to hear any more argument
and that the issue was preserved. However, the district court did not direct AT&T not
to file a Rule 50(b) motion after the entry of judgment. Instead, we read the court’s
direction to suggest that it was unnecessary for AT&T to repeat its arguments made
in support of its motion for summary judgment and its initial motion for judgment as
a matter of law made at the close of the EEOC’s case because the arguments were
sufficiently preserved to allow AT&T to file a Rule 50(b) motion after the entry of
judgment.

      The requirement of filing a Rule 50(b) motion after the entry of judgment is
well known. The Supreme Court decided Unitherm nearly two years before this trial.
Indeed, as early as 1947 the Supreme Court noted that “[i]n the absence of” a Rule

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50(b) motion, an “appellate court [is] without power to direct the District Court to
enter judgment contrary to the one it had permitted to stand.” Cone v. W. Va. Pulp &
Paper Co., 330 U.S. 212, 218 (1947). “This requirement of a timely application for
judgment after verdict is not an idle motion” but “an essential part of the rule, firmly
grounded in principles of fairness.” Johnson v. N.Y., N.H. & H. R. Co., 344 U.S. 48,
53 (1952). “Rule 50(b) was designed to provide a precise plan to end the prevailing
confusion about directed verdicts and motions for judgments notwithstanding
verdicts.” Id. at 52. “The rule carefully sets out the steps and procedures to be
followed by the parties as a prerequisite to the entry of judgments notwithstanding an
adverse jury verdict.” Id. at 51. The court did not direct AT&T not to file a Rule
50(b) motion after the entry of the judgment, and the law was well established that
AT&T was required to do so to preserve the issue for appeal.

III. CONCLUSION

      We conclude that AT&T’s failure to file a Rule 50(b) motion after the entry of
judgment leaves us without a basis to review AT&T’s sufficiency of the evidence
challenges.
                     ______________________________




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