Ava Wales v. City of Zachary, No. 09-31201 (5th Cir. 2010)

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Case: 09-31201 Document: 00511313123 Page: 1 Date Filed: 12/06/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 6, 2010 No. 09-31201 Lyle W. Cayce Clerk AVA WALES, Plaintiff Appellee v. CITY OF ZACHARY, Defendant Appellant Appeal from the United States District Court for the Middle District of Louisiana No. 3:08-CV-408 Before KING, STEWART, and OWEN, Circuit Judges. PER CURIAM:* Ava Wales won a $45,000 judgment against the City of Zachary (the City ) in a jury trial on her claim of sex discrimination. The City appeals the district court s denial of its Rule 50(a) motion for judgment as a matter of law, and contests the damages award as excessive. Because the City failed to renew its motion for judgment as a matter of law under Rule 50(b), and failed to move for a new trial or for remittitur following the jury s verdict, we affirm the judgment of the district court. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-31201 Document: 00511313123 Page: 2 Date Filed: 12/06/2010 No. 09-31201 I. Facts and Procedural History Wales, formerly a police officer for the City, filed suit against the City alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยงยง 2000e to 2000e-17. Specifically, Wales claimed that certain actions of the Zachary Police Department s assistant chief constituted sexual harassment and had created a hostile work environment. The district court conducted a brief jury trial. At the close of Wales s evidence, the City moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The district court denied this motion.1 The City then rested without presenting any additional evidence. The jury returned a verdict in favor of Wales and awarded her $45,000 in damages. The City did not renew its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) following the jury s verdict, nor did it move for remittitur or for a new trial under Federal Rule of Civil Procedure 59. The district court entered judgment on the jury s verdict and the City appealed. II. A. Analysis Denial of Rule 50(a) Motion The City s failure to renew its motion for judgment as a matter of law after the jury s verdict is fatal to its appeal of the district court s denial of its motion. In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006), the Supreme Court held that when a party fails to renew its pre-verdict motion for judgment as a matter of law as specified in Rule 50(b), there is no basis for review of that party s challenge to the sufficiency of the evidence supporting the verdict on appeal. Id. at 407; see also Downey v. Strain, 510 F.3d 534, 543 44 (5th Cir. 2007) ( Unitherm establishes that a party who wishes to appeal on 1 We note that the asserted grounds for the City s Rule 50(a) motion are not in the record. Instead of a transcript of that portion of the trial, there is a brief docket annotation and a minute entry stating that the court denied the City s pre-verdict motion for judgment as a matter of law. R. 3, R. 89. 2 Case: 09-31201 Document: 00511313123 Page: 3 Date Filed: 12/06/2010 No. 09-31201 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. ). Because the City failed to make a Rule 50(b) motion, there is no basis for this court to review the City s challenge to the sufficiency of the evidence supporting the jury s verdict. See Unitherm, 546 U.S. at 407; accord Downey, 510 F.3d at 544. B. Damages Award The City separately challenges the $45,000 damages award as excessive. Because the City failed to raise this argument in any post-verdict motions, it is not properly before us. See Verdin v. C & B Boat Co., 860 F.2d 150, 156 57 (5th Cir. 1988) (stating that a court of appeals cannot review a jury award of damages as excessive or inadequate without a trial court ruling on remittitur ); Bueno v. City of Donna, 714 F.2d 484, 493 94 (5th Cir. 1983) ( It is wellestablished that there can be no appellate review of allegedly excessive or inadequate damages if the trial court was not given the opportunity to exercise its discretion on a motion for a new trial. (citations omitted)). AFFIRMED. 3

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