                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                             No. 05-14892
                                                               April 5, 2006
                         Non-Argument Calendar             THOMAS K. KAHN
                       ________________________                CLERK

                  D. C. Docket No. 02-00069-CV-4-HGD

JOSEPH FAULKNER,


                                                           Plaintiff-Appellant,

                                  versus

WOODS TRANSPORTATION, INC.,

                                                          Defendant-Appellee,

GEORGE WOODS,

                                                                   Defendant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                              (April 5, 2006)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Appellant Joseph Faulkner filed this employment discrimination action

against Woods Transportation, Inc., alleging violations of anti-retaliation

provisions of Title VII, 42 U.S.C. § 2000e-3(a), the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12203(a), and the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 623(d). Faulkner appeals the district court’s grant of

Woods Transportation’s motion for judgment as a matter of law. After review, we

affirm.

                                I. BACKGROUND

A.    First EEOC Charge

      Appellant Faulkner, a disabled, 74-year-old African-American, worked as a

bus driver for Woods Transportation from August 1985 until April 1997, when he

was terminated. After his April 1997 termination, Faulkner filed a charge with the

Equal Employment Opportunity Commission (“EEOC”) alleging age and disability

discrimination and retaliation. He also filed a complaint with the National Labor

Relations Board (“NLRB”). As part of the NLRB settlement, Woods

Transportation reinstated Faulkner in August 1997. The EEOC proceedings

continued, and the EEOC issued Faulkner a notice of right to sue.



B.    Second EEOC Charge



                                          2
       In August 1998, Woods Transportation suspended Faulkner for violating the

company’s sexual harassment policy and then terminated him in October 1998.

Faulkner filed another EEOC charge, alleging that his second termination was

retaliation for his first EEOC charge and his NLRB complaint. After the EEOC

issued a notice of right to sue, Faulkner filed this action in district court against

Woods Transportation and George Woods, the president of Woods Transportation,

alleging violations of the anti-retaliation provisions of Title VII, the ADA and the

ADEA. Following discovery, the defendants moved for summary judgment. The

district court granted summary judgment as to George Woods, finding that he was

not a proper party, but denied summary judgment as to Woods Transportation.1

C.     Jury Trial

       Faulkner’s case against Woods Transportation proceeded to trial before a

jury. At the close of Faulkner’s evidence, Woods Transportation orally moved for

a judgment as a matter of law under Rule 50(a). Counsel for Woods

Transportation argued that Faulkner had failed to present evidence that Woods

Transportation fell within the statutory definition of an “employer,” which it

claimed was a threshold jurisdictional requirement. The district court granted the

motion in a written order. Specifically, the district court determined that Faulkner


       1
       On appeal, Appellant Faulkner does not challenge the district court’s entry of summary
judgment in favor of George Woods.

                                              3
had failed to show through either testimony or exhibits that Woods Transportation

had 15 or more employees during the requisite period.2 The district court also

noted that, after Woods Transportation made its Rule 50(a) motion, Faulkner did

not seek to introduce evidence regarding the number of employees. As a result, the

district court dismissed Faulkner’s action with prejudice.

          Faulkner timely appealed but only as to his retaliation claim under Title

VII.3

                                          II. DISCUSSION

          On appeal, Faulkner argues that the district court, though citing Rule 50,

actually dismissed his Title VII claim for lack of subject matter jurisdiction under

Rule 12(b)(1). According to Faulkner, whether Woods Transportation meets the

statutory definition of an “employer” under Title VII implicates both a

jurisdictional question and an underlying substantive element of his claim. Citing

Morrison v. Amway Corporation, 323 F.3d 920 (11 th Cir. 2003), Faulkner contends

that the factual issue whether Woods Transportation had 15 or more employees


          2
        Title VII defines an employer as “a person engaged in an industry affecting commerce
who has fifteen or more employees for each working day in each of twenty or more calendar
weeks in the current or preceding calendar year, and any agent of such a person . . . .” 42 U.S.C.
§ 2000e(b). The ADA contains a similar definition of employer. See 42 U.S.C. § 12111(5)(A).
The ADEA limits the definition of employer to persons having 20 or more employees. 29
U.S.C. § 630(a).
          3
              Faulkner does not challenge on appeal the dismissal of his ADA and ADEA retaliation
claims.

                                                    4
should have been decided by a jury rather than by a judge.4

       On February 22, 2006, after the parties submitted their appellate briefs, the

Supreme Court decided Arbaugh v. Y & H Corporation, ___ U.S. ___, 126 S. Ct.

1235 (2006). In Arbaugh, the Supreme Court held that “the threshold number of

employees for application of Title VII is an element of a plaintiff’s claim for relief,

not a jurisdictional issue.” Id. at 1245. Therefore, to the extent the district court

based its ruling on the lack of subject matter jurisdiction, that determination is

erroneous. Nonetheless, we conclude that the dismissal of Faulker’s Title VII

claim should be affirmed. See Collado v. United Parcel Serv., Co., 419 F.3d 1143,

1151-53 (11 th Cir. 2005) (“If judgment as a matter of law was due to be granted, it

matters not whether the district court got the reasons for doing so right.”).

       The district court may enter judgment as a matter of law if, during a jury

trial, the plaintiff fails to present a “legally sufficient evidentiary basis for a

reasonable jury” to find any element of the plaintiff’s claim. See Fed. R. Civ. P.

50(a)(1).5 We review de novo a district court’s grant of a Rule 50(a) motion for


       4
        In Morrison, we held that when the jurisdictional issue becomes intertwined with the
merits of the claim, the district court should not resolve the question under Rule 12(b)(1), but
under either Rules 12(b)(6) or 56 and review for sufficiency of the evidence. 323 F.3d at 929-
30.
       5
        Rule 50(a)(1) provides:
               If during a trial by jury a party has been fully heard on an issue and there
       is no legally sufficient evidentiary basis for a reasonably jury to find for that party
       on that issue, the court may determine the issue against that party and may grant a

                                                  5
judgment as a matter of law, considering all the evidence in the light most

favorable to the non-moving party. Carruthers v. BSA Adver., Inc., 357 F.3d

1213, 1215 (11th Cir. 2004). “A directed verdict is only proper when the facts and

inferences so overwhelmingly favor the verdict that no reasonable juror could

reach a contrary decision. However, a mere scintilla of evidence does not create a

jury question; instead, there must be a substantial conflict in evidence to support a

jury question.” Id. (citations and quotation marks omitted).

      As discussed above, Title VII’s employee-numerosity requirement is an

element of the plaintiff’s claim. Arbaugh, 126 S. Ct. at 1245. Thus, to survive

Woods Transportation’s Rule 50(a) motion, Faulkner needed to present at trial

legally sufficient evidence from which a reasonable jury could find that Woods

Transportation had at least 15 employees during the statutory time period. The

district court concluded that Faulkner did not present such evidence.

      Furthermore, on appeal Faulkner has not identified any evidence that he

contends showed the number of employees at Woods Transportation. In addition,

Faulkner failed to provide this Court with a trial transcript, which precludes us

from independently reviewing the district court’s finding regarding the numerosity



      motion for judgment as a matter of law against that party with respect to a claim
      or defense that cannot under the controlling law be maintained or defeated
      without a favorable finding on that issue.

                                               6
requirement. See Fed. R. App. P. 10(b) (placing burden on appellant to provide

necessary record on appeal, including transcripts); Loren v. Sasser, 309 F.3d 1296,

1304 (11 th Cir. 2002) (concluding that appellants “must provide trial transcripts in

the appellate record to enable this court to review challenges to sufficiency of the

evidence”).

      Accordingly, we affirm the district court’s order granting Wood

Transportation’s motion for judgment as a matter of law.

      AFFIRMED.




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