The Fifth Circuit is a risky place to do business. Sometimes, it just reaches some strange conclusions. The case of Allen v. Radio One of Texas II, LLC, No. 11-20781, 2013 WL 703832 (5th Cir. 2/26/2013) illustrates the lack of predictability at the Fifth Circuit. In that case, Corina Allen worked at a radio station as general sales manager.  After complaints about her from subordinates and co-workers, she was warned and then fired. Three weeks after her termination, she sent a letter threatening the station with a lawsuit and suggesting they settle. The Fifth Circuit seemed to be troubled by this letter. The letter did not mention sex discrimination. The opinion does not say who wrote the letter. But, I would expect her lawyer sent the letter.

A few months later, Ms. Allen filed an EEOC charge alleging sex discrimination. Ms. Allen briefly worked for CBS radio, a competitor to Radio One. About the time of her EEOC charge, she called Radio One seeking business. Ms. Allen had left CBS Radio and was now working for herself. The plaintiff sold radio advertising. Ms. Allen was seeking to do business with her former employer. But, Radio One said they could not do business with her because of her EEOC charge.

It is curious that the appellate decision mentions her brief employment with CBS Radio. She was terminated from that position before her call to Radio One. There is no apparent reason why that brief employment would be relevant. So, it is curious that the higher court mentioned it.

The court’s description that she called Radio One “about” the time of she filed her EEOC charge is also confusing. She must have filed her charge before she called Radio One. Since, Radio One referred to her charge as the reason for not doing business with her. She recorded that phone call. One would think that is pretty clear evidence of retaliatory motive. Radio One refused to do business with her because she had opposed their discriminatory conduct. Or, at least, a jury could see it that way

And, that is how the jury did see it. The issue of whether that refusal to do business with her amounted to retaliation went to the jury. The jury found that refusal did indeed constitute reprisal for filing her EEOC charge. The jury awarded $6,100 in lost income, $10,000 for emotional pain and suffering, and $750,000 in punitive damages. The district court would reform the punitive damages down to the cap of $300,000. But, it still remains a large verdict.

But, as in all trials, the defendant moved for judgment as a matter of law (JMOL) at the close of the plaintiff’s case. The district court denied the motion, saying there was sufficient evidence upon which a jury could find for the plaintiff. As the Fifth Circuit noted, the judgment as a matter of law is a device by which federal courts ensure no jury will reach crazy verdicts. A judge can stop the trial in its tracks by finding, after the plaintiff has presented all her evidence, that not enough evidence has been presented. Or, the defendant can re-new its JMOL motion at the close of the entire trial. At that point again, the judge can take the decision away from the jury. It can rule that the plaintiff does not have sufficient evidence upon which a reasonable jury can find in her favor.

The trial judge in the Allen case denied the motion at the time. But, the defendant appealed the denial of a JMOL. And, that is what the Fifth Circuit looked at.

The higher court said no, the plaintiff had not presented adequate evidence. The higher court simply found that the refusal to do business with Ms. Allen came too long after her termination. It was 18 months after her termination and a year after she filed her EEOC charge. It was not reasonable, said the court, that an employee would contemplate just before filing her EEOC charge that she might not be able to do business in the future because of her complaint. See the court’s decision here.

The court offered no actual analysis other than its own opinion that this fear would not occur to the average employee. The experience of the panel is apparently far different than mine. Because, I can attest that most plaintiffs contemplate just about every possible contingency before they take even the smallest legal action against her employer. Most, perhaps all employees, fret about such a thing until the cows come home.

So, the higher court found there was insufficient evidence for the verdict. That means Ms. Allen gets nothing. She loses her trial. All because one panel of three judges substituted their experience for that of the jury.