     Case: 13-60378   Document: 00513163213    Page: 1   Date Filed: 08/20/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 13-60378                    United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
KELSEY NOBACH,                                                   August 20, 2015
                                                                  Lyle W. Cayce
             Plaintiff - Appellee Cross-Appellant                      Clerk

v.

WOODLAND VILLAGE NURSING CENTER, INCORPORATED,

             Defendant - Appellant Cross-Appellee

v.

LOCOCO ; LOCOCO, P.A.,

            Appellee
__________________________________________________
                       Consolidated w/ 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
 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
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
from which a jury could infer that Woodland was motivated by Nobach’s
religious beliefs before it discharged her. In an earlier opinion, we concluded
that there was no such evidence anywhere in the record and held that a
reasonable jury would not have had a legally sufficient basis to find that
Woodland violated Title VII by discharging Nobach. Nobach v. Woodland Vill.
Nursing Ctr., Inc., 762 F.3d 442 (5th Cir. 2014). Consequently, we reversed
and vacated the judgment of the district court and remanded for entry of
judgment. Id.
      Nobach petitioned for a writ of certiorari. The Supreme Court granted
the writ and vacated and remanded the case for reconsideration in the light of
EEOC v. Abercrombie & Fitch Stores, 575 U. S. ___, 135 S. Ct. 2028 (2015). See
Nobach v. Woodland Vill. Nursing Ctr., Inc., 135 S. Ct. 2803 (2015). We
requested and received supplemental letter briefs addressing the impact of
Abercrombie on Nobach’s case. After considering the Supreme Court’s decision
in Abercrombie and the parties’ briefing, we again 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.


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                                       No. 13-60378
                                              I.

       We begin with the relevant facts and consider them in the light most
favorable to the jury verdict. Woodland first hired Nobach as an activities aide
in August 2008. During her thirteen-month employment, Nobach received four
negative employment write-ups: two for continual tardiness, one for making a
false accusation against a co-worker, and one for stealing a resident’s nail
polish. Each write-up is recorded in Nobach’s 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 (“assistant”), 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 assistant that she could not because it
was against her religion. Although she did not explain her religious beliefs to
the assistant, 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 assistant that she would not read the Rosary, Nobach
said to the assistant: “[I]f you would like to perform the Rosary, you’re more
than welcome to.” The assistant remained silent. Nobach testified that she no
longer thought anything of the conversation; neither did she make any effort


       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.
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                                      No. 13-60378
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
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.
Mulherin told Nobach: “I don’t care if it’s your fifth write-up or not. I would
have fired you for this instance alone.”           Then, for the first time, Nobach
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.”



       2 Mulherin was unavailable to testify at trial. Williams and Norris were the only two
of Nobach’s superiors to testify.
       3 There were no material inconsistencies between Norris’s testimony and Nobach’s

testimony concerning what transpired during the meeting between the three women.
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                                       No. 13-60378
      During the meeting Mulherin handed two papers to Nobach, which had
apparently been prepared before the meeting. 4                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,” which stated, “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
EEOC, alleging religious discrimination.            In due course the EEOC 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, which returned a
verdict in Nobach’s favor. Woodland moved for judgment as a matter of law.
The district denied the motion, and Woodland filed this 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.




      4   The record is unclear at which point during the meeting they were given to Nobach.
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                                      No. 13-60378
       We need not reach the second and third issues raised in Woodland’s
appeal, nor do we find it necessary to address Nobach’s 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. 5 Brown v. Bryan Cnty., 219 F.3d 450, 456 (5th Cir. 2000). When
reviewing a district court’s denial of a post-verdict Rule 50(b) motion, we “use[]
the same standard to review the verdict that the district court used in first
passing on the motion.” Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995).
Accordingly, the legal 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”).

                                             B.

       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 was motivated by Nobach’s religion or religious
beliefs before it discharged her.         Because Nobach did not introduce such



       5 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.
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                                      No. 13-60378
evidence at trial, Woodland contends that the jury could not have had a legally
sufficient basis to find that Woodland discriminated against Nobach in
violation of Title VII. We agree.
       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) (emphasis
added). The Supreme Court recently provided guidance on Title VII’s “because
of” causation standard, noting that it is broader than the typical but-for
causation standard because it requires only that the religious practice be a
“motivating factor” of the employer’s employment decision. See Abercrombie,
135 S. Ct. at 2032. When evaluating causation in a Title VII case, the question
is not what the employer knew about the employee’s religious beliefs. Id. at
2033. Nor is the question whether the employer knew that there would be a
conflict between the employee’s religious belief and some job duty. Id. Instead,
the critical question is what motivated the employer’s employment decision.
Id.
       Nobach contends that she offered direct evidence of Woodland’s
discriminatory animus that motivated her discharge. 6 She relies primarily on
Woodland’s acknowledgements that (1) it fired Nobach for not praying the
Rosary with a resident and (2) her head supervisor, Mulherin, said that she
did not care if performing the Rosary was against Nobach’s religion and she
would have fired Nobach in any event because refusing to perform the Rosary
constituted insubordination. 7



       6   An employee may prove intentional discrimination “through either direct or
circumstantial evidence.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001).
        7 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
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                                        No. 13-60378
       We, of course, fully accept Nobach’s version of her 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.                   We simply cannot find
evidence that, before her discharge, Nobach ever advised anyone involved in
her discharge that praying the Rosary was against her religion. Nor can we
find evidence that anyone involved in her discharge suspected that Nobach’s
refusal to pray the Rosary was motivated by a religious belief. Accord id.
(holding that actual knowledge of a religious belief is not required and noting
that “[a] request for accommodation, or the employer’s certainty that the
practice exists, may make it easier to infer motive, but is not a necessary
condition of liability”). According to the record, Nobach did not even tell the
assistant that she was a Jehovah’s Witness. Nobach acknowledges that the
only time she made any mention of her religious belief was when she told the
assistant: “I can’t do the Rosary with [the resident]. I’m not Catholic, and it’s
against my religion.” Nobach has never claimed that the assistant told anyone
of her reason for refusing to aid the resident. In sum, Nobach has offered no
evidence that Woodland came to know of or suspect her bona-fide religious
belief until after she was actually discharged.
       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, suspected, or
reasonably should have known the cause for her refusing this task was her
conflicting religious belief—and that Woodland was motivated by this
knowledge or suspicion—the jury would certainly have been entitled to reject



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’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. 8

                                            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 put forth evidence that, before her termination, Woodland knew or
suspected that her religious belief needed an accommodation, which
necessarily means that there was no evidence that Nobach’s religious belief
was the motive for Woodland’s termination decision. Without evidence of an
impressible motive in Woodland’s termination decision, “a reasonable jury
would not have had a legally sufficient evidentiary basis” to find for Nobach on
her claim of religious discrimination under Title VII. Accordingly, 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.




       8 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 belief and the conflict with her job duties and Woodland’s lack of
knowledge or suspicion of any such conflict.
                                             9
