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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10162

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Plaintiff-Appellee

v.

BOBRICH ENTERPRISES, doing business as Subway

Defendant-Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:05-CV-01928

Before SMITH, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

This appeal stems from an Americans with Disabilities Act (ADA)

enforcement action filed against Bobrich Enterprises by the Equal Employment

Opportunity Commission (EEOC) on behalf of former Bobrich employee Tammy

Gitsham. See Americans with Disabilities Act of 1990 (Title I), 42 U.S.C. §§

12111-12117. In January 2008, pursuant to a jury verdict—and after

considering Bobrich’s post-trial renewed motion for judgment as a matter of law

United States Court of Appeals

Fifth Circuit

F I L E D

March 6, 2009

Charles R. Fulbruge III

Clerk
No. 08-10162

2

(JMOL)—the district court entered judgment, ordering Bobrich, inter alia, to pay

$50,000 in compensatory and $100,000 in punitive damages for ADA violations.

Bobrich urges: JMOL should have been granted because insufficient

evidence supported the jury’s finding Gitsham was disabled and subject to a

hostile-work environment; and the district court abused its discretion by

excluding certain impeachment evidence. AFFIRMED.

I.

Gitsham was employed by Bobrich from 2001 to 2003 as a Subway

restaurant store manager and, later, area supervisor. Gitsham has permanent

hearing loss in both ears; wears hearing aids; and, even with those hearing aids,

experiences difficulty comprehending speech and sounds in some situations. 

During her employment at Bobrich, Gitsham’s immediate supervisor,

Gilbert, repeatedly made statements about Gitsham’s hearing impairment that

Gitsham found embarrassing, including, inter alia, asking whether Gitsham had

her “ears on” at the start of staff meetings. There was also testimony that

Suarez, Bobrich’s president, made a similar remark to Gitsham at an office

Christmas party.

The pattern of remarks continued even after Gitsham’s complaints to

Gilbert and to Schuster, a supervisor. Gitsham consulted with the EEOC in

January 2003; that May, she resigned from Bobrich. The EEOC commenced this

ADA enforcement action against Bobrich in September 2005.

Trial was held in mid-2007. In January 2008, pursuant to a jury

verdict—and after considering Bobrich’s post-trial renewed JMOL motion—the

district court entered judgment, requiring Bobrich, inter alia, to pay $150,000

in compensatory and punitive damages for ADA violations. (The district court

did, however, grant Bobrich JMOL on the constructive-discharge claim.) 
No. 08-10162

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II.

Bobrich essentially raises two issues: whether the district court improperly

denied JMOL on the disability and hostile-work-environment claims; and

whether its exclusion of certain impeachment evidence was an abuse of

discretion. (The JMOL for Bobrich on constructive-discharge is not at issue.)

A.

Bobrich contests the denial of JMOL on the claims that Gitsham was:

disabled under the ADA; and subject to a hostile-work environment. A JMOL

denial is reviewed de novo. E.g., Arsement v. Spinnaker Exploration Co., 400

F.3d 238, 248 (5th Cir. 2005). “JMOL is proper when ‘the facts and inferences

point so strongly and overwhelmingly in favor of one party that the court

concludes that reasonable jurors could not arrive at a contrary verdict.’” Id. at

248-49 (quoting Bellows v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997)); see

also FED. R. CIV. P. 50(a). Restated, the JMOL denial must be upheld unless

“there is no legally sufficient evidentiary basis for the jury’s verdict”. Lane v.

R.A. Sims, Jr., Inc., 241 F.3d 439, 445 (5th Cir. 2001) (emphasis in original)

(internal quotation marks omitted); see FED. R. CIV. P. 50(a)(1). 

“For our de novo review of a JMOL-denial, we ‘review all of the evidence

in the record . . . [but] may not make credibility determinations or weigh

evidence’”. Arsement, 400 F.3d at 249 (quoting Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000)). Likewise, “the evidence, as well as all

reasonable inferences from it, are viewed in the light most favorable to the

verdict”. Lane, 241 F.3d at 445.

1.

The jury found that Gitsham “suffered from a ‘disability’ while she was

employed by Bobrich”. In denying Bobrich’s renewed JMOL motion, the district

court held “legally sufficient evidence supports the finding that Ms. Gitsham was

disabled as a matter of law”.
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“A ‘disability’ under the ADA is defined as ‘a physical or mental

impairment that substantially limits one or more of the major life activities of

[an] individual; a record of such impairment; or being regarded as having such

an impairment’”. McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 280 (5th Cir.

2000) (quoting 42 U.S.C. § 12102) (emphasis added). Hearing is a “major life

activity”. E.g., Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999). That major life

activity is “substantially limited” when the individual is:

(i) [u]nable to perform a major life activity that the average person

in the general population can perform; or

(ii) [s]ignificantly restricted as to the condition, manner, or duration

under which an individual can perform a particular major life

activity as compared to the condition, manner, or duration under

which the average person in the general population can perform

that same major life activity.

McInnis, 207 F.3d at 280 (quoting 29 C.F.R. § 1630.2).

A reasonable juror could find Gitsham was disabled under the ADA.

Among other things, Gitsham has worn hearing aids since 1995; an audiologist

testified regarding Gitsham’s impairment; and another witness, Massey,

testified about the limitations Gitsham experiences even while wearing her

corrective hearing aids. 

2.

The jury found “that . . . Suarez and/or . . . Gilbert subjected Tammy

Gitsham to a hostile work environment because she [is disabled under the

ADA]”. In denying Bobrich’s renewed JMOL motion, the district court held:

“[T]he Bobrich managers’ conduct was sufficiently severe to . . . create a hostile

work environment”.

a.

Bobrich failed to raise this hostile-work-environment challenge in its

JMOL motions at the close of the EEOC’s case and at the close of its own case.

See FED. R. CIV.P. 50(a). Instead, Bobrich’s hostile-work-environment challenge
No. 08-10162

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was raised, for the first time, in its post-trial renewed JMOL motion. See FED.

R. CIV. P. 50(b). 

Generally, “[i]f a party fails to raise an issue in its Rule 50(a)(1) [JMOL]

motions at trial, it may not do so in its post-trial Rule 50(b) [JMOL] motion”.

Arsement, 400 F.3d at 247. However, “[a]n exception occurs if the nonmovant

. . . fails to [object] to the Rule 50(b) motion”. Id.

The EEOC did not object to the inclusion of the new hostile-workenvironment challenge in Bobrich’s Rule 50(b) motion. Because of this failure,

this issue is not forfeited, and is reviewed under the same de novo standard

applied to Bobrich’s disability challenge, supra. E.g., Thompson & Wallace of

Memphis, Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996) (discussing

failure to object); Arsement, 400 F.3d at 248-49 (discussing the applicable de novo

standard of review). 

Along this line, Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546

U.S. 394 (2006) (involving the interplay of Federal Rules of Civil Procedure 50(a)

and 50(b)) does not require reconsideration of our court’s above-stated failure-toobject rule. 

b.

A hostile-work environment, sufficient to give rise to an action under the

ADA, exists when “the disability-based harassment [is] ‘. . . sufficiently pervasive

or severe to alter the conditions of employment and create an abusive working

environment’”. Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 236 (5th

Cir. 2001) (quoting McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563

(5th Cir. 1998)). For determining whether a working environment is abusive,

this court must consider the entirety of the evidence presented at

trial, including the frequency of the discriminatory conduct, its

severity, whether it is physically threatening or humiliating, or a

mere offensive utterance, and whether it unreasonably interferes

with an employee’s work performance. Even under this circuit’s
No. 08-10162

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fairly high standard for severe or pervasive conduct, this court can

reverse a jury verdict only when reasonable minds in the exercise of

impartial judgment could not have arrived at that verdict.

Id. (internal quotations and citations omitted); see also Soledad v. U.S. Dep’t of

Treasury, 304 F.3d 500, 506 (5th Cir. 2002).

A reasonable juror could find a hostile-work environment. Among other

things, the testimony of witnesses Massey and Shuster, as well as Gitsham’s

own testimony, is probative of a repeated pattern of harassing statements;

Gitsham voiced her objection to these statements; and the harassment

continued. 

In sum, and essentially for the reasons stated by the district court in its

detailed opinion concerning the renewed JMOL motion, JMOL was properly

denied for the disability and hostile-work-environment issues. See Equal

Employment Opportunity Comm’n v. Bobrich Enters., No. 3:05-CV-1928-M (N.D.

Tex. 8 Jan. 2008) (order addressing Bobrich’s renewed JMOL motion). 

B.

The last issue concerns the exclusion of certain impeachment evidence.

At trial, Bobrich sought to elicit testimony that, inter alia, Gitsham, on her

Bobrich job application, failed to honestly disclose past job experience, felony

convictions, and use of other names. The district court did not allow Bobrich to

cross examine Gitsham about these matters, ruling: “The prejudicial impact of

this [evidence] is extremely significant”; and “the probative value is not

sufficient to outweigh that prejudicial effect”. 

Evidentiary rulings are reviewed for abuse of discretion. E.g., DeCorte v.

Jordan, 497 F.3d 433, 440 (5th Cir. 2007). Moreover, “[e]ven if an abuse of

discretion is found, the error will be considered harmless unless a substantial

right of the complaining party was affected”. Id. (citing Compaq Computer Corp.

v. Ergonome Inc., 387 F.3d 403, 408 (5th Cir. 2004)); see FED. R. EVID. 103(a). 
No. 08-10162

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Because the felony convictions at issue were more than ten years old,

Bobrich did not seek to introduce them under Federal Rule of Evidence 609

(pertaining to impeachment using conviction evidence for “the purpose of

attacking the character for truthfulness of a witness”). See FED. R. EVID. 609(b)

(generally prohibiting admission of convictions more than ten years old).

Instead, Bobrich sought to introduce Gitsham’s job-application

misrepresentations about the convictions, along with other job-application

misrepresentations, under Federal Rule of Evidence 608(b) (permitting specific

instances of conduct to “be inquired into on cross-examination of the witness

. . . concerning the witness’ character for truthfulness or untruthfulness”). 

The district court excluded this job-application-misrepresentation evidence

pursuant to Federal Rule of Evidence 403, determining its probative value was

outweighed by its prejudicial effect. Consistent with that determination, our

court has recognized,

[s]pecific instances of the conduct of a witness, for the purpose of

attacking or supporting the witness’ character for truthfulness,

other than conviction of crime as provided in [R]ule 609, may not be

proved by extrinsic evidence. They may, however, in the discretion

of the court, if probative of truthfulness or untruthfulness, be

inquired into on cross-examination of the witness . . . . FED. R. EVID.

608(b). . . . The district court has substantial discretion in

determining the admissibility of impeachment evidence under Rule

608(b). United States v. Farias-Farias, 925 F.2d 805, 809 (5th Cir.

1995). Finally, even if character evidence is deemed admissible

under Rule 608(b), its admissibility is subject to Rule 403. Id.; see

also United States v. Williams, 822 F.2d 512, 517 (5th Cir. 1987)

(“The district court may under Rule 608(b) determine if evidence is

probative of truthfulness, and under Rule 403 exclude even probative

evidence if the prejudicial effect outweighs the probative value.”).

United States v. Skelton, 514 F.3d 433, 443-44 (5th Cir.), cert. denied, 129 S.Ct.

102 (2008) (emphasis added).
No. 08-10162

8

Evidence provided by witnesses other than Gitsham showed, inter alia, the

existence of a disability and a hostile-work environment; the jury did not depend

solely upon Gitsham’s testimony. The district court did not abuse its discretion

when it determined the probative value of the impeachment evidence at issue

would be outweighed by, inter alia, the prejudicial effect of referencing

Gitsham’s prior felonies. 

III.

For the foregoing reasons, the judgment is AFFIRMED.