                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   October 15, 2008
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT




    ANGELO THOMAS GRUPPO,

                Plaintiff-Appellant,

    v.

    FEDEX FREIGHT SYSTEM, INC.,                         No. 08-1006
    a Delaware Corporation; TERRY           (D.C. No. 1:05-cv-02370-MSK-KLM)
    STAMBAUGH, Vice President Human                      (D. Colo.)
    Resources FedEx Freight System, Inc.,
    an individual; STEVE MOORE,
    Vice President IT Development,
    FedEx Freight System, Inc.,
    an individual,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiff-appellant Angelo Thomas Gruppo appeals the judgment of the

district court granting judgment as a matter of law under Fed. R. Civ. P. 50

(JMOL) to defendants on his claim of retaliation under 29 U.S.C. § 2615, a

portion of the Family and Medical Leave Act (FMLA). Mr. Gruppo argues the

district court erred in limiting him in the pretrial order to one exhibit or one

witness per fact or element in his case-in-chief and then granting JMOL to

defendants because of his evidentiary insufficiency. He further argues the grant

of JMOL was error because, contrary to the district court’s ruling, he did establish

a prima facie case of FMLA retaliation because, along with the other elements, he

proved a causal link between his alleged protected activity and defendants’

termination of his employment, even though he did not explicitly reference the

FMLA.

Background

      Mr. Gruppo was Senior Manager of electronic data interchange at the

Colorado Springs facility of FedEx Freight System, Inc. (FedEx). In August

2005, FedEx management became concerned that one of the employees

Mr. Gruppo supervised was experiencing repeated absences from work.

Mr. Gruppo informed management that those absences were sometimes due to

health-related issues of both the employee and her children, but Mr. Gruppo also

testified that he “did not know all of the laws about this” and “did not know if she

were protected under – under anything; for instance, FMLA or other type of laws

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that could be there.” Aplt. App. at 108. His main concern was that “terminating

for cause could create an issue.” Id.

      There is some dispute about whether Mr. Gruppo was told to terminate the

employee’s position, or whether he was simply instructed to take corrective action

to address the problem. Whatever his marching orders, Mr. Gruppo was opposed

to them and conveyed that opposition to FedEx’s human resources personnel in

Colorado Springs and ultimately to Terry Stambaugh, the vice president for

human resources at corporate headquarters in Harrison, Arkansas. An email to

himself, which he eventually forwarded to Mr. Stambaugh, summarizes

Mr. Gruppo’s opinion about the situation:

             Being required to manage an individual into failure, rather
      than continuing on a successful track, appears to me as, if not
      unethical, it is at least counter to company policies, and can expose
      the company to a number of obvious law suits, and if not that, it is at
      least not just or moral.

Id. at 138. On Thursday, September 1, 2005, after about a month of discussions

with the human-resource people in Colorado Springs, Mr. Gruppo met with

Mr. Stambaugh at corporate headquarters in Harrison. At that meeting,

Mr. Gruppo expressed his disagreement with the way the employee was being

treated, particularly her treatment by Steve Moore, a vice president for IT

development in Colorado Springs and one of Mr. Gruppo’s supervisors.

      Shortly after the meeting in Harrison, Mr. Gruppo prepared and apparently

sent to Mr. Stambaugh a document summarizing the events leading up to the

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Harrison meeting and recapped the meeting itself. He indicated he did not think

terminating the employee was “ethical or even legal,” id. at 143, and stated since

he had put all of his information and accusations on record, he would need

protection against any retribution from FedEx and specifically from Steve Moore,

id. at 146. On Tuesday, September 6, Mr. Gruppo’s first day back to work after

the Harrison meeting, his employment with FedEx was terminated.

      Mr. Gruppo’s initial complaint, filed in state court and removed to federal

court by defendants, included state breach-of-contract and tort claims and a claim

of retaliatory discharge in violation of the FMLA. By the time the case went to

trial, only the FMLA retaliatory discharge claim remained. At the close of

Mr. Gruppo’s case, the district court granted JMOL in favor of FedEx and the

remaining individual defendants finding that Mr. Gruppo had failed to establish a

prima facie case of retaliation, and Mr. Gruppo appeals. 1

Analysis

      “Rule 50 allows the trial court to remove cases or issues from the jury’s

consideration when the facts are sufficiently clear that the law requires a

particular result.” Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1089 (10th Cir.

2001) (quotations omitted). We review the grant of JMOL de novo, id., and after


1
       As part of its Rule 50 ruling, the district court determined Mr. Gruppo had
failed to make out a prima facie case of FMLA retaliation against defendants
Stambaugh and Moore. Aplt. App. at 78. Mr. Gruppo does not appeal from that
determination.

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this review we agree with the district court that Mr. Gruppo failed to establish the

required causation to sustain his prima facie case. Judgment for defendants was

therefore required.

      Mr. Gruppo’s first issue, that the district court erred in limiting him in the

pretrial order to only one evidentiary exhibit or witness per fact or element to be

proved during his case in chief, was not preserved for appellate review because

Mr. Gruppo did not object in the district court to that order or seek to have it

amended. See United States v. Rayco, Inc., 616 F.2d 462, 464 (10th Cir. 1980).

Even if the issue were before us, however, we would find no merit in it. While

the pretrial order does initially limit the parties to one exhibit or witness per fact,

additional exhibits or witnesses were allowed for rebuttal, Aplt. App. at 47, and

Mr. Gruppo introduced several exhibits in his case-in-chief without objection

from defendants or prohibition from the bench. In light of the fact that

Mr. Gruppo’s counsel admitted at trial that any exhibits she would have

introduced beyond the ones already in evidence would have been cumulative and

redundant, id. at 70-71, we find counsel’s argument on this point to be

unprofessional and a waste of this court’s and defendants’ time and resources.

      Turning to the merits of Mr. Gruppo’s FMLA retaliation case, § 2615(a)(2)

makes it unlawful “for any employer to discharge or in any other manner

discriminate against any individual for opposing any practice made unlawful by”

subchapter I of the FMLA. Because such claims are subject to the McDonnell

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Douglas burden-shifting analysis, Metzler v. Fed. Home Loan Bank of Topeka,

464 F.3d 1164, 1170 (10th Cir. 2006) (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973)), Mr. Gruppo initially was required to establish a

prima facie case of retaliation. Id. To do that, he had to show (1) he engaged in

activity protected by the FMLA; (2) FedEx “took an action that a reasonable

employee would have found materially adverse;” and (3) a causal connection

between the protected activity and the adverse action exists. Id. at 1171.

      We agree with the district court that “the evidence is inadequate to

establish a causal relationship due to the ambiguity of the communications by

Mr. Gruppo to management and due to the fact that there is no evidence to

establish that management ever understood that Mr. Gruppo was trying to

communicate, if he was, about a potential violation of the FMLA.” Aplt. App.

at 94. As thoroughly explained by the district court and confirmed by our

de novo review, there was no evidence that Mr. Gruppo informed defendants that

he thought what they were proposing to do to the employee was illegal because it

was contrary to the FMLA, or even more generally, because it interfered with the

employee’s right to take specific amounts of unpaid medical leave without

suffering adverse employment consequences. Counsel’s statements in her

opening brief indicating that such evidence was before the court, see Aplt. Br.

at 21, 32-33, are wrong and deliberately misleading. While there are references

in the record to Mr. Gruppo’s own belief that terminating the employee may have

                                         -6-
been generally illegal under the circumstances, see Aplt. App. at 107-08, 138,

143, and that he communicated as much to defendants, id. at 143, his vague

generalizations about possible illegality were insufficient to put defendants on

notice that he was engaged in protected opposition to policies which he believed

violated the FMLA. See Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188

(10th Cir. 2002) (holding absence of reference to unlawful racial or religious

discrimination “can preclude a retaliation claim because an employer cannot

engage in unlawful retaliation if it does not know that the employee has opposed

or is opposing a violation of Title VII”). Counsel’s argument that the district

court granted JMOL against her client because he introduced only one evidentiary

exhibit on causation is disingenuous. Mr. Gruppo lost in the district court

because his evidence, considered in its entirety, did not establish causation, an

element essential to his case.

      In his third argument, Mr. Gruppo contends the district court granted JMOL

on the causation issue because he did not specifically reference the FMLA in his

communications with defendants. This was not the basis of the district court’s

ruling, and counsel’s phrasing of the issue mischaracterizes what the district court

did. The district court specifically explained that ordinary employees are not

“required to invoke laws by name in order to engage in protected activity,” and

that “you don’t have to use magic words.” Aplt. App. at 82. But while

Mr. Gruppo did not have to specifically reference the FMLA in his

                                         -7-
communications with defendants, something more than a general charge of

potential legal problems was required. See generally Peterson, 301 F.3d at 1188

(supporting conclusion that defendants’ retaliation against Mr. Gruppo would be

prohibited under 29 U.S.C. § 2615 only if defendants knew that his opposition to

their treatment of the employee was motivated by his belief that they were, in the

words of the statute, “engaging in a practice made unlawful” by the FMLA).

Because Mr. Gruppo did nothing more than convey his general concern that

terminating the employee might be illegal, he did not adequately inform

defendants of his protected opposition under FMLA.

      Defendants have requested sanctions against Mr. Gruppo’s counsel under

28 U.S.C. § 1927 on the grounds that this appeal is groundless and frivolous.

Despite having the opportunity to respond to this request in a reply brief,

counsel has not done so. Section 1927 provides in pertinent part that “[a]ny

attorney . . . who so multiplies the proceedings in any case unreasonably and

vexatiously may be required by the court to satisfy personally the excess costs,

expenses, and attorneys’ fees reasonably incurred because of such conduct.”

As indicated in this order and judgment, all of the issues brought on appeal are

meritless at best or disingenuous at worst. “At the appellate level the bringing of

the appeal itself may be a sanctionable multiplication of proceedings,” and,

indeed, “[t]his appeal appears to have been frivolously and vexatiously

undertaken ab initio.” Braley v. Campbell, 832 F.2d 1504, 1513 (10th Cir. 1987)

                                         -8-
(en banc). Counsel’s conduct of this appeal “manifests either intentional or

reckless disregard of the attorney’s duties to the court.” Id. at 1512. In this case,

as in Hertzfeld & Stern v. Blair, 769 F.2d 645, 647 (10th Cir. 1985), “[t]he many

instances in which counsel’s references to the record are contrary to what is found

indicate that [she] has been either cavalier in regard to [her] approach to this case

or bent upon misleading the court. . . . These acts have added grievously to the

frivolous nature of this appeal,” and we believe sanctions are not only proper but

necessary. We emphasize that these sanctions are assessed solely against counsel

for the appellant, “who is responsible for this case and its presentation.” Id.

Mr. Gruppo bears no responsibility in this regard.

      The judgment of the district court is AFFIRMED, and defendants-appellees

are awarded excess costs, expenses, and reasonable attorneys’ fees for this appeal.

See 28 U.S.C. § 1927. This matter is REMANDED to the district court for a

hearing to determine the amount of attorneys’ fees and costs to be awarded and

entry of judgment in accordance with that determination. After that amount is

determined, counsel for Mr. Gruppo shall remit such amounts directly to

defendants-appellees.



                                                     Entered for the Court


                                                     John C. Porfilio
                                                     Circuit Judge

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