                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-30153



                            AL MORRIS,

                                                Plaintiff-Appellee,

                              versus

            JEFFERSON PARISH SHERIFF’S OFFICE; ET AL.,

                                                         Defendants,

          HARRY LEE, Sheriff, in his official capacity,

                                               Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                           (98-CV-1656-K)
_________________________________________________________________
                            June 20, 2002

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     The principal issue on appeal is whether sufficient evidence

supports the jury’s verdict that Al Morris was not rehired by Harry

Lee, Sheriff of Jefferson Parish, Louisiana, because Morris opposed

same-sex harassment in the workplace.     Sheriff Lee appeals the

denial of his pre-verdict FED. R. CIV. P. 50(a) motions for judgment

as a matter of law (he did not so move post-verdict, pursuant to

Rule 50(b)) and his FED. R. CIV. P. 59 motion for new trial,


*
     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this opinion should not be published and is not precedent except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.
following a judgment of, inter alia, $5,000 in compensatory damages

and $47,000 in back pay.       AFFIRMED.

                                      I.

     Morris    was   hired   by    Sheriff   Lee     in   1988.   Two former

supervisors reported that Morris never received written reprimands

while under their supervision. One testified, however, that Morris

and several others were habitually late, but that Morris was never

late often enough to warrant a suspension.

     While on First District day watch from February 1996 until the

Fall of 1997, Morris witnessed a series of events, which he

characterized as homosexual harassment, directed against Deputy

Jeffrey Picone by Sergeant James Schanbein (their supervisor).

These events included unwelcome, public sexual advances, sexual

comments during roll call prior to the beginning of day watch, and

false   statements   to    third   parties   concerning     Picone’s   sexual

orientation.    Morris confronted Sergeant Schanbein, which resulted

in Sergeant Schanbein’s becoming upset, screaming at Morris, and

storming out of district headquarters.

     Morris    complained    to    Lieutenant   James     Cavalier,   Sergeant

Schanbein’s    immediate     supervisor,     about    Sergeant    Schanbein’s

harassment during August or September 1996, but Lieutenant Cavalier

did nothing.     Morris did not complain, however, to Lieutenant

Joseph Torres, Morris’ watch commander.

     Following these complaints, during the fall of 1996:              Morris

received several suspensions and reprimands for tardiness and

unsatisfactory performance; Sergeant Schanbein would “return[]


                                       2
every report that [Morris] filled out”; and Sergeant Schanbein

routinely screamed at Morris about problems with his reports.

     Morris then complained about the harassment to Lieutenant

Cavalier’s    immediate   supervisor,    Major       Lawrence    Juster,     on   2

December 1996. At that meeting, Lieutenant Cavalier accused Morris

of having “a mental problem”.     The next day, Morris was ordered to

DePaul Psychiatric Hospital for three weeks.             (Had Morris refused

to go, he probably would have been fired.)             Morris contends being

ordered to DePaul was for no particular reason, and doctors found

no medical necessity for his being there.

     Sergeant Schanbein’s harassment of Deputy Picone continued

during the early part of 1997, with Deputy Picone filing an

internal affairs report against Sergeant Schanbein that April.

That May, Morris’ supervisor, Major Sue Ellen Monfra, recommended

Sergeant Schanbein’s being suspended for ten days, but no one ever

told Major Monfra that Morris witnessed or complained of Sergeant

Schanbein’s    harrasment.     Chief    Craig       Taffaro   later   increased

Sergeant    Schanbein’s    punishment    to     a    30-day     suspension    and

demotion.

     Morris followed Deputy Picone’s complaint in April 1997 with

his own complaint to Jefferson Parish Sheriff’s Office (JPSO)

Internal Affairs that June.     This complaint was filed several days

after Morris was reassigned from the day to the midnight watch.

     Morris claims his personnel files were “doctored” to reflect

poor work; at trial, however, he could not specifically identify

what was changed.         Following his Internal Affairs complaint,


                                    3
Morris, in August 1997, received letters confirming his suspensions

for incidents of tardiness that occurred in October 1996.         (Morris

claims, throughout his brief here, that he was “suspended” multiple

times for the same incidents.    However, it appears that the second

“suspensions” were confirmations of earlier imposed suspensions.)

Morris was also put on probation for an automobile accident and

other minor incidents.

     Morris filed his first discrimination charge with the EEOC on

3 November 1997, claiming retaliation for complaining about same-

sex harassment.    Shortly thereafter, on 12 November, he received

another letter of reprimand confirming his suspension for tardiness

in October 1996.

     Morris initially filed this action against JPSO in June 1998,

claiming retaliation in violation of Title VII in the form of

reprimands,   suspensions,   poor       performance   reviews,   and   the

psychiatric evaluation’s being ordered.         In July, he amended his

complaint to add Sheriff Lee, in his official capacity as Sheriff

of Jefferson Parish. (The district court subsequently granted an

unopposed motion to dismiss JPSO because, under Louisiana law, that

entity lacks the legal capacity to sue or be sued.)

     Following Morris’ second EEOC charge in October 1998, he was

investigated for aggravated rape and weapons violations, which

included a search of his home.      In February 1999, he was required

to give a statement concerning an incident involving use of his

JPSO automobile by his friend Paulette Doyle, who was involved in

other incidents, discussed below.


                                    4
     In March 1999, Morris was investigated for criminal extortion

and conspiracy to commit murder.               On 16 March, he was questioned

about the conspiracy allegations and was suspended indefinitely,

pending investigation into the criminal charges.                     (Morris asserts

throughout his brief that he was charged with conspiracy to commit

murder; his trial testimony confirms he was never charged with that

crime by the District Attorney.)

     That April, Morris filed his third charge of discrimination

with the EEOC.        He claimed the investigations were a part of

ongoing retaliation.

     Morris was terminated on 20 May 1999, after the District

Attorney accepted for prosecution the criminal extortion charge.

(In Morris’ subsequent unemployment compensation hearing, Sheriff

Lee admitted    Morris    was     fired       because   of    the    pending    felony

extortion charges.)      Morris was arrested that June.

     That August, Morris amended his complaint in this action.                       He

added false arrest claims against several JPSO officers involved in

investigating the extortion charges and added a false imprisonment

claim   for   the    incident   concerning        the     psychiatric     hospital.

     Morris    was    acquitted    in     an    October      bench    trial    on   the

extortion charge. Nevertheless, Sheriff Lee refused to rehire him.

     The criminal allegations against Morris from late 1998 through

1999 (aggravated rape, weapons violations, conspiracy to commit

murder, and extortion) involved the same individuals.                          At that

time, Eric LeBlanc shared a security apartment with Morris and his

wife, Dawn Morris. LeBlanc was involved in an extra-marital affair


                                          5
with Paulette Doyle, the above-named friend of Morris and his wife.

Morris believes Shawn Doyle, Paulette Doyle’s husband, instigated

the rape complaint against Morris because Shawn Doyle was upset

with Morris’ role in facilitating LeBlanc’s affair with Shawn

Doyle’s wife, Paulette Doyle.

      The conspiracy to commit murder complaint (which, as noted,

was never pursued beyond the investigative stage) arose because

Morris:   allegedly made violent threats against Shawn Doyle; and

believed Paulette Doyle might be taking nude photographs of Morris’

child while she was babysitting.

      The extortion charge involved Morris’ alleged attempt to

extort concessions from a woman in the process of adopting a child

fathered by LeBlanc.     The biological mother was Paulette Doyle.

Morris’ conversation with the woman, in which Morris revealed he

was a JPSO deputy and mentioned his colleagues knew how to wrest

custody of a child away from others, was recorded and provided to

JPSO by the Volunteers of America (the adoption agency).

      This civil action was tried over five days in mid-2000.     Kevin

Nardelle, a friend of the Morrises, Doyles and LeBlanc, testified

JPSO officers coerced him into giving a false statement concerning

Morris’ involvement in a conspiracy to commit murder.         However,

Nardelle admitted Morris told him that he (Morris) would defend

himself if Doyle ever threatened him.

      In Sheriff Lee’s defense, Deputy Jeffrey Galpin testified

Sergeant Schanbein was obnoxious and picked on all of the deputies.

Two   officers   investigating   the   conspiracy   to   commit   murder


                                   6
allegations flatly denied coercing Nardelle and testified Nardelle

admitted to being afraid of Morris.          Further, Deputy Chief James

Miller testified he knew nothing of Morris’ complaint of workplace

sexual harassment when he (Deputy Chief Miller) was first informed

of the potential extortion charge against Morris.

     Finally, Chief Newell Normand testified he was the person who

declined to rehire Morris following his acquittal, with the sole

reason for not rehiring him being Morris’ attempt to interfere with

the adoption.     Chief Normand conceded on cross-examination that

Morris’ complaint for this civil action had to have come across his

desk because he (Chief Normand) has the sole authority to assign

attorneys to defend against discrimination actions.

     At the close of Morris’ case in chief, and pursuant to FED. R.

CIV. P. 50(a), Defendants (Sheriff Lee and the individual officers)

moved for judgment as a matter of law (JML) on all claims.               The

court dismissed all federal and state claims for false imprisonment

stemming from Morris’ psychiatric treatment and dismissed, on

qualified immunity grounds, the false arrest claims against the

individual officers.      The court deferred ruling on the Title VII

claim.

     Sheriff Lee renewed his Rule 50(a) motion at the close of all

the evidence.    The motion was denied.

     Following the jury verdict and award of $5,000 in compensatory

damages and     $47,000   in   back   pay,   the   district   court   entered

judgment on 28 August 2000. Because Schanbein no longer worked for

JPSO and Morris had little contact with those making employment


                                      7
decisions, the court ordered his reinstatement rather than front

pay.

       Pursuant to FED. R. CIV. P. 59, Sheriff Lee moved for a new

trial and, in the alternative, to alter or amend the judgment to

remit the back pay award by any earnings realized by Morris during

the relevant time period.    But, Sheriff Lee did not make a post-

verdict motion for JML pursuant to FED. R. CIV. P. 50(b).   Following

a hearing on the Rule 59 motion (in which no argument concerning

JML was made), the court denied the motion.

                                 II.

       Again, post-verdict, Sheriff Lee only sought a new trial; he

did not move for JML pursuant to Rule 50(b).      On appeal, however,

he seeks either a new trial (based upon his Rule 59 motion) or

reversal of the jury verdict based upon insufficiency of the

evidence (the equivalent of JML).        It goes without saying that

whether Sheriff Lee can now seek reversal on insufficiency grounds

is important because of the differing standards of review.

       “The denial [of a new trial motion] will be affirmed unless,

on appeal, the party that was the movant in district court makes a

clear showing of an absolute absence of evidence to support the

jury’s verdict, thus indicating that the trial court had abused its

discretion in refusing to find the jury’s verdict contrary to the

great weight of the evidence.”        Whitehead v. Food Max of Miss.,

Inc., 163 F.3d 265, 269 (5th Cir. 1998) (emphasis in original;

internal quotation marks omitted; quoting Hidden Oaks Ltd. v. City

of Austin, 138 F.3d 1036, 1049 (5th Cir. 1998)).        On the other


                                  8
hand, for a JML denial, we will overturn a jury verdict only if

“there is no legally sufficient evidentiary basis for a reasonable

jury to find for” the nonmovant.       Id. (quoting FED. R. CIV. P.

50(a)); see also Mato v. Baldauf, 267 F.3d 444, 450-51 (5th Cir.

2001).   In short, Sheriff Lee’s burden is not as great under the

standard of review for JML as it is for a new trial.      Whitehead,

163 F.3d at 269 & n.2.

                                 A.

     The Federal Rules of Civil Procedure were amended in 1991 to

change the terminology for pre-verdict motions for directed verdict

and post-verdict motions for judgment notwithstanding the verdict

(JNV).   Prior to the adoption of the 1991 amendments to FED. R. CIV.

P. 50, it was well-established that failure to move, pursuant to

Rule 50(b), for JNV within ten days of the verdict precluded

granting JNV on appeal.   See, e.g., Johnson v. New York, New Haven

& Hartford R.R. Co., 344 U.S. 48, 50 (1952) (“We have said that in

the absence of a motion for [JNV] made in the trial court within

ten days after reception of a verdict the rule forbids the trial

judge or an appellate court to enter such a judgment.” (emphasis

added)); Zervas v. Faulkner, 861 F.2d 823, 832 n.9 (5th Cir. 1988)

(if appellant does not move for JNV, new trial is only available

relief); Smith v. Trans-World Drilling Co., 772 F.2d 157, 160, 162

(5th Cir. 1985).

     In Johnson, appellant moved for a directed verdict at the

close of all evidence; but, following an adverse jury verdict,

appellant moved only to set aside the verdict as excessive.      344


                                  9
U.S. at 49.    Restated, a JNV motion was not filed.     Nevertheless,

on appeal, appellant asserted that the relief sought post-verdict

should be treated as a motion for JNV.        Id. at 50-51.   The Court

disagreed:    “Rule 50(b) was designed to provide a precise plan to

end the prevailing confusion” surrounding directed verdicts and

JNV, id. at 52; Rule 50(b) required a timely post-verdict motion as

“an essential part of the rule, firmly grounded in principles of

fairness”; the Court had previously rejected an amendment allowing

appellate courts to enter judgments for parties who failed to

timely move for JNV, id. at 53; and, because the appellant only

timely moved to set aside the verdict and for new trial, it was

“entitled only to a new trial, not to a judgment in its favor”,

id. at 54.

     In cases where no JNV motion was made, our court followed

Johnson with respect to limiting the available remedy to a new

trial.   See Zervas, 861 F.2d at 832 n.9 (citing cases back to 1970

and noting the 11th Circuit followed 5th Circuit precedent in this

regard).     In such instances, however, when a pre-verdict directed

verdict motion was timely made, our standard of review was the same

as if a post-verdict JNV motion had been made.        Trans-World, 772

F.2d at 160 (reversal required if “the facts and inferences point

so strongly in [appellant’s] favor that reasonable men could not

arrive at a contrary verdict”).     Trans-World held that a directed

verdict motion properly preserved sufficiency of evidence issues

for appeal, but the failure to move for JNV limited the available

relief to a new trial.     Id. at 159, 162.


                                  10
     Logically, this result is correct given the circumstances.

Based on appellant’s directed verdict motion, appellee (nonmovant)

was put on notice his evidence might be insufficient.                     However,

because the appellant failed to request JNV following the verdict,

as required by Rule 50, his relief should be limited to what he

requested post-verdict in the trial court - a new trial.

     A similar result is logical under Rule 50 as it exists today

because, pursuant to the Rule, the court should only consider JML

post-judgment upon the movant’s renewal of that motion, and the

renewed JML must be made within 10 days of the entry of judgment.

See FED. R. CIV. P. 50(b) (“The movant may renew its request for

judgment as a matter of law by filing a motion no later than 10

days after entry of judgment – and may alternatively request a new

trial or join a motion for a new trial under Rule 59. In ruling on

a renewed motion, the court may:....” (Emphasis added.)).

     Again, the 1991 amendments to Rule 50 merely changed the

terminology, and not the substance, of the Rule, see 9A Wright &

Miller,   FEDERAL   PRACTICE   AND   PROCEDURE:   CIVIL   2D   §   2537    (1995).

Accordingly, in Satcher v. Honda Motor Co., 52 F.3d 1311 (5th Cir.

1995), our court followed the pre-1991 approach:

           To fully preserve error on appeal for failure
           to grant a motion for judgment, the moving
           party must file both a pre-verdict Rule 50(a)
           motion at the close of all the evidence and
           the renewed Rule 50(b) motion. An appellant
           who failed to do so in the district court is
           not entitled to rendition of judgment in his
           favor on appeal, but is at most entitled to a
           new trial.




                                       11
Id. at 1315 (emphasis added); see also Whitehead, 163 F.3d at 271.

In   Satcher,      our     court     concluded        that    Honda’s      technical

noncompliance with Rule 50(b) (styling the post-verdict motion as

one for new trial but, in the body of the motion, arguing for JML

in the alternative) was de minimus because Rule 50's two basic

purposes were satisfied:          alerting the opposing party of potential

insufficiency      prior   to     submitting    the    case     to   the   jury;   and

enabling the trial court to re-examine the sufficiency of the

evidence following the verdict.           52 F.3d at 1315; see also Bohrer

v. Hanes Corp., 715 F.2d 213, 216 (5th Cir. 1983), cert. denied,

465 U.S. 1026 (1984).

     In   this   case,     with    his   Rule   50(a)     motions,     Sheriff     Lee

certainly satisfied this first purpose of Rule 50; however, his

failure to renew his Rule 50(a) motion with one under Rule 50(b)

did not allow the district court post-verdict to re-evaluate the

sufficiency of the evidence. Consequently, although we will review

to determine whether “there is no legally sufficient evidentiary

basis for a reasonable jury to find for” Morris, Sheriff Lee’s only

available remedy is a new trial.              Whitehead, 163 F.3d at 269.

                                         B.

     Under   the    well-known,       McDonnell       Douglas    framework,    which

applies when, as here, plaintiff presents only circumstantial

evidence of retaliatory animus, plaintiff must present a prima

facie case; defendant bears the burden of producing a legitimate,

non-discriminatory reason; and, if defendant does so, plaintiff

must show the proferred reason is merely a pretext for intentional


                                         12
discrimination.   E.g., Price v. Fed. Express Corp., 283 F.3d 715,

719-20 (5th Cir. 2002); Montemayor v. City of San Antonio, 276 F.3d

687, 692 (5th Cir. 2001).

     A prima facie Title VII retaliation case requires Morris to

show:   he engaged in protected conduct; he was subject to an

adverse employment action; and the adverse employment action was

motivated by the protected conduct.   E.g., Chaney v. New Orleans

Public Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999).

Once Sheriff Lee offered a non-discriminatory reason for his

failure to rehire Morris, any inference of discrimination drops

away; Morris must prove the failure to rehire would not have

occurred but for his protected conduct.   See Montemayor, 276 F.3d

at 692. However, even though plaintiff presents a prima facie case

and provides sufficient evidence to reject defendant’s explanation,

          an employer would be entitled to [JML] if the
          record revealed some other, nondiscriminatory
          reason for the employer’s decision, or if the
          plaintiff created only a weak issue of fact as
          to whether the employer’s reason was untrue
          and there was abundant and uncontroverted
          independent evidence that no discrimination
          had occurred.

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148

(2000). In other words, if the employee would have been terminated

even in the absence of the protected conduct, the employer is not

liable for unlawful retaliation even if the plaintiff’s conduct is

a substantial element in the employer’s termination decision. Long

v. Easterfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996).




                                13
                                  1.

     Sheriff Lee contends the evidence: is insufficient to support

the jury’s verdict that Morris was fired because he opposed same-

sex harassment in the workplace; does not establish causation

(necessary for Morris’ prima facie case) because of the three-year

gap between Morris’ complaint and the adverse employment action;

and, in the light of the extortion charges brought against Morris,

fails to prove, as pretextual, using the extortion charge as a

reason for not rehiring Morris.

     Morris counters:   the evidence was sufficient; and the series

of reprimands, suspensions, transfers, and investigations mitigate

against finding a three-year gap between his protected conduct and

the adverse employment action.     Further, quoting the portion of

Reeves set out above, Morris contends Reeves placed the factfinder

in the position to determine discrimination vel non.   Reeves, 530

U.S. at 148.   In this regard, when a reviewing court is asked to

overturn a jury verdict, it “must disregard all evidence favorable

to the moving party that the jury [was] not required to believe”.

Id. at 151.

     The jury had evidence that Sheriff Lee did not retaliate

against Morris: evidence (including his own admission) of habitual

tardiness, poor work performance, and, in less than six months,

four complaints involving criminal misconduct (one of which went to

trial).   On the other hand, it is, of course, the function of the

jury to weigh the evidence and make credibility determinations.

E.g., id. at 150; Green v. Adm’rs of the Tulane Educ. Fund, 284


                                  14
F.3d 642, 652 (5th Cir. 2002).        As Sheriff Lee correctly observes,

“a plaintiff’s prima facie case, combined with sufficient evidence

[of pretext], may permit a trier of fact to find” discrimination.

Reeves, 530 U.S. at 148.      Apparently, that is what occurred here:

the jury weighed the evidence; made credibility determinations

concerning witnesses; and found evidence of discrimination.

     Chief Normand testified that:          JPSO investigates all criminal

reports, particularly those lodged against JPSO officers; and

Morris’   attempted     interference       with   the    adoption    procedures

justified his not rehiring Morris.          But, as noted, the jury was not

required to believe this testimony.

     To support causation and pretext, Morris testified he was

unaware of anyone else being disciplined for tardiness as he had

been following his same-sex harassment complaints (Sheriff Lee

produced no evidence to refute this); the evidence suggested a

pattern of adverse actions (while probably not reaching the level

of adverse employment actions) over the course of several years

following   Morris’     harassment    complaints;       the   jury   could   have

inferred that Chief Normand knew about this civil action when he

made the decision not to rehire Morris; and Chief Normand could not

dispute that Sheriff Lee hired two officers with felony records

after Normand refused to rehire Morris (even though Morris was not

convicted of extortion).

     Sheriff Lee’s position was that he terminated Morris because

of pending criminal charges and did not rehire him because of the

conduct   which   led    to   those    charges.         There   is   no   “other


                                      15
nondiscriminatory reason” provided or “abundant and uncontroverted

independent evidence that no discrimination had occurred”.           Id. at

148.    The jury was provided evidence supporting and contradicting

both Sheriff Lee’s and Morris’ theories.            Accordingly, given our

standard of review requiring us to disregard all evidence favorable

to the moving party that is controverted, the evidence, which the

jury was permitted to believe, could support the jury’s finding

that Morris’ complaints concerning same-sex harassment motivated

Sheriff    Lee’s   decision   not   to     rehire   Morris   following   his

acquittal.

                                     2.

       Obviously, because there was sufficient evidence to support

the jury’s verdict, we need not address whether there was “an

absolute absence of evidence” to support Sheriff Lee’s Rule 59 new

trial motion.      See Whitehead, 163 F.3d at 269.

                                    III.

       For the foregoing reasons, the judgment is

                                                               AFFIRMED.




                                     16
