NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0037n.06 No. 10–5353 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT SANDRA M. CUL VER, Plaintiff-Appellant,

v. CCL L AB EL , I

NC., Def endant- Appellee

.

______________________________ ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE

O P I N I O N

Before: G RIF F IN and WH ITE, Circuit Jud ges; and WATSO N, District Judge. * MICHAEL H. WATSON, District Judge. Plaintiff-Appellant Sandra Culver (“Culver ”) appea ls the district court’s g rant of judgme nt as a matter of law to Def endant- Appellee CCL L abel, I nc. (“CCL ”), and the district court’s subsequent denial of Culver’s motion to alter o r am end judgme nt, for judg ment as a ma tter of law , and for a new trial. Culver s ued C CL for e mploy ment discrimination under T i t l e VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq . (“Title VI I ”) and the Tenne ssee Human Rights Ac t , Tenn. Code Ann. § 4-21-101, et seq . (“TH RA”), alleg ing that CCL wrong fully denied her a promotion to the position of quality control manag er beca use of he r sex and wrong fully reta liated ag ainst her. For the re asons that follow, we AF F IRM

.

The Honor able Micha el H. Watson, United States District Judge for the Souther n District * of Ohio, sitting by

desig nation.I.

This is an employ

ment discrimination case . San d ra C ulver (“Culver ”) beg an working for CCL L abel I nc. (“ CCL ”) on November 14, 1983. She quit on April 24, 2002 afte r she was passed

over for a promotion to the position of Quality Control Ma nag er one month ear lier. She then sued CCL fo r gen d er d iscrimination under Title VI I and the THRA. The dist rict court conclude d that 1 Culver also asser

ted claims under Tenne ssee law for intentional and neg lige nt inflict io n of emotional distress, althoug h those claims wer e not specific ally pleade d in the complain t o r i dentified in the J oint Pretrial Orde r. At trial, afte r Culver prese nted her case -in-chie f, CCL orally moved for judgme nt as a matter of l aw u n d er Fe d er al Rule of C ivil Procedur e 50(a). The dist rict court g rante d CCL ’s m otion the following day in a written order

. Wit h respe ct to Culver ’s Title VI I and THRA claims, the district court conclude d that she had not offe red sufficie nt evidenc e from which a jury could conclude that: (1) she was qualified for the promotion; and (2) her qualifications for the position wer e si milar to those of the man who rec eived the promotion. See, e.g., W hite v. Columbus Metro. Hous. Auth. , 429 F.3d 232, 240 ( 6th Cir. 2005) (citing Nguyen v. City of Cleveland , 229 F.3d 559, 562–63 ( 6th Cir. 2000)) ( setting f

orth the ele ments of a prima facie case of discrimination in the failure to promote context). Wit h respe ct to Culver’s state law emotional distress claims, the district court conclude d,

Analy sis of the THRA claim trac ks the analy sis of the Title VI I claim. See Lynch v. City of 1 Jellico , 205 S.W .3d 384, 399 (Tenn. 2006) (“The inten t o f t h e T HR A is to provide for execution within Tenne ssee of the policies embodied in the fede ral civil ri gh t s s tatutes. Acc ording ly , an analy sis of claims under the THRA is the same as under Title VI I of the Fe dera l Civil Rights Act.”) (interna l citations omit ted).

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. without analy sis, that she had “f ai l ed t o make out a case ” for either claim. Following the district court’s g rant of CCL ’s Rule 50(a) motion, Culver moved to alter or am en d the judgme nt, for judgme nt as a matter of law, and for a new trial pursuant to Rules 50 and 59. The district court denied those motions in a short orde r. Culver filed this timely appea l. The Court has j urisdiction over Culver ’s appe al pursuant to 28 U.S.C. § 1291. II. A. CCL’s Rule 50 M otion f or Judgm ent as a Mat ter of L aw This Court revie ws de novo a district court’s g rant of judgme nt as a matter of law under Rule 50(a)

. See Jack

son v. FedEx Corporate Servs., Inc. , 518 F.3d 388, 391–92 (6th Cir. 2008). J udg ment as a matter of law is appropr iate only when “a party has been fully hear d on an i ssue during a jury trial and the court finds that a rea sonable jury would no t h av e a l egally sufficie nt evidentiar y basis to find for the pa

rty on that issue.” Fe d. R. Civ. P. 50( a)( 1). This Court upholds a gra nt of judg ment as a ma

tter of law

wher e, “‘ when view ed in the lig ht of those i nfer ence s most favor able to the nonmovant, there is either complete absenc e of proof o n t h e i s s u es or no controve rted issues of fac t upon which rea sonable persons could differ .’” Spengler v. W orthington Cyclinders , 615 F.3d 481, 488– 89 (6th Cir. 2010) (quoting Monette v. AM-7- 7 Baking Co. , 929 F.2d 276, 280 (6th Cir. 1991) ). J udg ment as a ma tter of law should be g rante d only

when “ ‘re asonable minds could come to but one conclusion in favor of the moving party .’” Id

. (quoting Tisdal e v. Fed. Express Corp. , 415 F.3d 516, 527 ( 6th Cir. 2005)). 2

Wit h reg ard to the state-law claims, we apply the state-law standard for direc ted verdic ts. 2 Super Sulky, Inc. v. U.S. Trott ing Ass’n , 174 F.3d 733, 741 (6th Cir. 1999). The standard under

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. On appea l, Culver arg ues that in g ranting CCL ’s Rule 50(a) motion for judgme nt as a matter of law, the district court err ed by apply ing the wrong standard with r eg ard to the forth prong of her prima facie case of sex discrimination, and in dete rmining tha t Culver failed to produc e suff icient evidenc e to sa tisfy her prima facie burden. She also arg ues that the district c ourt err ed in g ranting CCL ’s Rule 50(a) motion with respect to her claim for ne g lige nt infliction of emotional distress. 1. The prima facie c ase I n W hite , this Court reiter ated the elements of a prima facie case of g ender discrimination in the fa ilure to promote conte x t: Under Nguyen [ v. City of Cleveland , 229 F.3d 559, 562–63 (6th Cir. 2000) ], which is the g overning prec edent, a plaintiff with a discrimination claim based on a failure to promote m ust demonstrate that (1) s h e i s a member of a protected class; (2) she applied for and was qualified for a promot i on; (3) she was considere d for and was denied the promotion; and (4) an individual of simil ar qualifica tions who was not a member of the protec ted class rec eived the job at the time pla intiff’s reque st for the promotion was denied. 429 F.3d a t 240. There is no dispute t hat C ulver, a woman, is a member of a protec ted class. Additionally , beca use C CL had no formal policy for noticing the job opening , Culver di d not have to show that she applied for and was considere d for the position. See Dews v. A.B. Dick Co. , 231 F.3d 1016, 1022 (6th Cir. 2000) (“We

. . . hold tha t in failure to pr omote case s a plaintiff does not ha ve to e stablish that h e ap p l ied for and was considere d for the promotion when the employ er does not notify its employ ees of the available pro m o t i on or does not provide a formal mecha nism for expressing

Tenne ssee law is in substance the same as the fede ral standard. See Merc er v. Vanderbilt Univ., Inc. , 134 S.W .3d 121, 130–31 (Tenn. 2004)

.

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. interest in the promotion.”). The dispute in this appeal thus cente rs on whether Culver’s evidenc e at trial would permit a jury to conclude that: (1) she was qualified for a promotion; and (2) she had simil ar qua lifications to J im Carter (“ Carter ”), the man who wa s promoted to the position. “To e stablish that she is qua lified for the position, a Title VI I plaintiff nee d only show that she satisfied an employ er’ s ‘objec tive’ qualifica tions.” Upshaw v

. Ford Motor Co. , 576 F.3d 576, 585 (6th Cir. 2009) (c iting W exle r v. W hite’s Fine Furniture, Inc

. , 317 F.3d 564, 575–76 ( 6th Cir. 2003)). The Court is mindful that the plaintiff’s burden of establishing the elements of a prima facie

case is not onerous. See J ackson , 518 F.3d a t 396. To defe at a Rule 50(a) motion, a plaintiff need only prese nt suf ficient evidenc e to pe rmit a jury to r ule in its favor. As noted, “ ‘suffic ient evidenc e’ will be found unless, when viewed in the light of those infere nces most favor able to the nonmovant, there is either a complete absenc e of proof

on the issues or no controve rted issues of fa ct u p on which rea sonable persons could differ .” Monette , 929 F.2d a t 280. The dist rict court conclude d that Culver could not show she was qualified for the pos ition beca use she did not establish the “complete portfolio of duties and responsibilities for the quality control manag er.” Order 6 , R

. 7 1

. I t also ag ree d with CCL that “filling in as the quality control manag er for small periods of time does not establish that Plaintiff was in fac t capa ble of perf

orming all of the duties for

which the qua lity

control mana g er w as re sponsible.” Id . at 5–6. At trial, however, Culver testified that she was second in command to Geor g e Casebee r (“Case beer ”), the former quality control m an age r. T ri al Tr. Vol. 1, 70–71, J an. 26, 2010, R. 91. When Casebee r took vaca tion time or trave led for business, Culver perf ormed his d u t i es. Id

. at

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. 72–73. She also perf

ormed Casebee r’s duties when he was absent for medical rea sons, sometimes for up to two months at a t i m e. Id

. at 73. Culver had signa ture authority for Casebee r and made quality rela ted dec isions in hi s absenc e. Pl.’s Trial Ex. 4, R. 76. We assume, without deciding , that a jury could have conclude d from the above evidenc e that Culver was qualified for a promotion to Quality Control Manag er. The jury could have inferr ed that CCL would not permit Culver to fill in for Casebee r—for up to two months at a time—if Culver

wer e no t q u al i fi ed to perf orm the duties of that position. Whil e CCL might have had subjective

rea sons for concluding that Culver was not qualified for the position, only Plaintiff’s objective qualifica tions may be considere d at the prima facie stag e. See Upshaw , 576 F.3d at 585; W exle r , 317 F. 3 d at 575. Acc ording ly , g iven the rela tively light burdens of establishing a prima facie ca s e o f discrimination and defea ting a Rule 50(a) motion, as well as t he absence o f au t h o rity cited by the district court or CCL for the proposition that a plainti ff must introduce “evidenc e of the complete portfolio of duties and responsibilities” for the position to which the plaintiff seeks promotion, w e assume that Culver sa tisfied her bur den to demonstrate that she wa s qualified for the promotion. Even assuming that Culver demonstrated that she was qualified for the promotion , howeve r, her Title VI I and THRA claims nonetheless fail beca use she failed to meet her burden on the fourth prong of her prima facie case . That is, Culver failed to demonstrate that she and Carter had simil ar qualifica tions for the position at issue. The g overning standard w ith reg ard to the fourth prong of t he prima facie case in a fa ilure to promote ca se is set forth in Nguyen . Specifica lly , under Nguyen , Culver must demonstrate that “other employ ees of simil ar qualifica tions who wer e not members of the protec ted cl as s rec eived

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. promotions at the time the plaintiff’s reque st for promotion was denied.” Nguyen , 229 F.3d at 563. Culver’s relianc e on the formulation stated in Vincent v. Brewer Co. , 514 F.3d 489, 494 (6th Cir. 2007)—that s h e n ee d only show “she was repla ced by a person outside the protec ted class, or simil arly situated non-protec ted employ ees were trea ted m ore favora bly ”—is misplaced

. Vincent

was not a failure to promote case . I t was a discharg e case . I n reje cting the employ er’ s arg ument that

a plaintiff must show that his repla ceme nt was simil arly qualified, none of the case s the Vincent court cited was a failure to promote case . S ee i d

. at 495–96. Culver cites no authority for her contra ry position. Under the Nguyen standard, Culver’s proof at trial with respe ct to the fourth prong came up short. There was insufficient evidenc e of Carter ’s experience to permit a threshold weig hing of his qualifica tions ag ainst Culver’s qualifica tions. See W hite , 429 F.3d at 243 (noting that a court must “conduc t an independe nt revie w of the rela tive qualifica tions of the plaintiff and the person selec ted for the position based on the evidenc e prese nted i n o rd er to deter mine whether the plaintiff has satisfied the fourth prong of her prima facie burden” ); id

. (“Some compar ison betwee n Walker and Whit e is there fore nece ssary in considering the fourth prong of the prima facie case. ”). At trial, Culver introduced only t h e y ear s of seniority and respe ctive titles she and Carter held at the time Carter was promoted. This is far less than the amount of rele vant criter ia that was compar ed in W hite

. See id

. at 243–44 (dete rmining that two candida tes for the position of manag er of safe ty and crime preve ntion wer e n o t simil arly qualified for purposes of the prima facie test wher e one had sevente en y ear s of experience in secur ity , investiga tion, safe ty and crime preve ntion, and extensive investiga tion and manag eria l experience , and t h e o t h er had seven y ear s of experience in secur ity ,

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. investiga tion, safe ty and crime preve ntion, and minimal investiga tion and manag eria l experience ). Culver’s per sonal belief tha t she was a t least as qualifie d as Carte r for the pos ition is not enoug h. Moreove r, t here was no foundation for this statement si nce Culver admi tted at t rial t hat s he knew nothing a bout Carter’ s qualifications to be a manag er. Tr ial Tr. Vol. I , 103, R. 91. To hold tha t Culver met her burden as to the fourth prong would undermine the distinction this Court has draw n betwee n the prima facie burden require d of a plaintiff alleg ing discrimination in the failure to promote context versus in the termination context. Ac co rd i n gl y , we aff irm the district c ourt’s g ranting of CCL ’s Rule 50(a) motion with respe ct to Culver’s Title VI I and THRA claims. 2. Negligent infl iction of em otional d istress On appeal, C ulver also challeng es t he dis trict court’s gr ant of judgme nt as a matter of law to CCL with re s p ect to her claim of neg lige nt infliction of emotional distress. To defe at a Rule 3 50(a) motion on a claim of neg lige nt infliction of emotional distress, a plaintiff must establish eac h

o f t he five elements of neg lige nce and, if the only harm from the neg lige nce is sever e emot i o n al distress, must proff

er “expert proof establishing that the plaintiff’s emotional distress is ‘ser ious’ or ‘seve re.’ ” Eskin v. Bartee , 262 S.W .3d 727, 735 (Tenn. 2008); see also Estate of Amos v. Vanderbilt Univ ., 62 S.W .3d 133, 136–37 (Tenn. 2001) (noting that expert medical or scientific proof is not require d wher e “a

claim for e motional injury damag es is one of multiple claims for da mag es”)

.

Culver’s opening brief did not addre ss the district court’s ruling on her claim of intentional 3 infliction of emotional distress. Any appea l of that ruling is theref ore w aived.

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. The five elements of neg lige nce include: (1) a duty of car e owed by the [defendant] to the [pl aintiff], (2) conduc t by the def endant that br eac hes this duty , (3) a n injury or l oss, (4) a cause -in-fa ct connection betwee n the plaintiff’s injury or l oss and the defe ndant’s conduc t, and (5) the exis tence of proximate or leg al ca use. Eskin , 262 S.W .3d at 735 n.19. Her e, even assuming that CCL had a duty under Tenne ssee’ s tort law to consider Culver for the promotion to Quality Control Manag er, there is no evidenc e that CCL brea ched that duty by not 4 considering her. Rather, Culver’s brief states in a conclusory manner that CCL “bre ache d that duty proxi mately causing [her] injury and loss,” and includes no citation to the trial rec ord. See Fe d. R. App. P. 28(a) (9)( A) (noting that arg ument s ec t i o n of appellant’ s brief must include “appe llant’s contentions and the rea sons for them, with citations to the authorities and parts of the rec ord on which the appellant relies” ). The district court thus proper ly g rante d judgme nt as a matter of law to CCL on this claim. B. Culver’s post-tr ial m otions Culver also appea ls the district court’s denial of her Rule 50 and 59 motions to alter or amend the judg ment on CCL ’s Rule 50(a) motion, for judgme nt as a matter of law, a nd for a new tria l. This Court revie ws the district court’s denial of a party ’s Rule 50(b) motion for judgme nt as a matter of law de novo

. See J ackson , 518 F.3d at 391–92. We revie w a district court’s denial of

a m o t i o n for a new trial for abuse of discretion, “re versing only if we have a ‘def inite and fi rm Culver attemp t s to use l ang uag e from a federa l employ ment discrimination case to cre ate 4 a duty under Tenne ssee tort law. See Dews , 231 F.3d at 1022 (“[T]he company is held to a duty to consider all those who might rea sonably be interested in a promoti o n we re i t s availability made g ener ally known.” (emphasis adde d)). She c ites no authority in support of t he propositi on that an employ er ha s any

duty under Te nnessee tort law to promote employ ees.

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. conviction that the trial court committed a clea r err or of judgme nt.’” Radvansky v. City of Olmsted Falls , 496 F.3d 609, 614 (6th Cir. 2007) (quoting Barnes v. Owens-Corning Fiberglas Corp. , 201 F.3d 815, 820 (6th Cir. 2000). L astly , althoug h the Court g ener ally revie ws a denial of a motion to alter or amend a judgme nt under Rule 59(e) for abuse of discretion, when the motion see ks revie w of a g rant of summary judgme nt, the standard of revie w is de novo . See Shelby Cnty. Health Care Corp. v. Majestic Star Casino , 581 F.3d 355, 375 (6t h Cir. 2009) (quoting W ilkins v. Baptist Healthcare Sys., Inc. , 150 F.3d 609, 613 (6th Cir. 1998)). Be cause Culver’s Rule 59 motion soug ht revie w of the district court’s decision on CCL ’s m otion for judg ment as a ma tter of law , a motion analy zed under the same standard as one for summary judgme nt, this Court revie ws the ruling de

novo . Be cause Culver failed to car ry her prima

facie burden with reg ard to her Title VI I and THRA claims, she i s not entitled to judgme nt as a matter of law on those claims. L ikewise, beca use she failed to establish a prima facie case of discrimination, the district court did not abuse its discretion in deny ing her motion for a new trial. The d i s t ri ct co u rt proper ly denied Culver’s motions for judgme nt as a matter

of law a nd for a new tria l. Wit h reg ard to Culver’s Rule 59 motion to alter or amend, such a motion may be g rante d if there was “(1) a clea

r err or of l aw ; (2 ) newly discovere d evidenc e; (3) an intervening chang e in controlling law; or (4) a nee d to preve nt manifest injustice.” Intera Corp. v

. Hende rson , 428 F.3d 605, 620 (6th Cir. 2005)

. Culver does not de monstrate any basis for relief under Rule 59. Rather,

as the district court observe d, her motion was “mer ely an eff ort to relitig ate old matters without new evid en ce ” an d “simply rais[ed] the same arg uments prese nted in opposition to CCL ’s ore tenus

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. motion for judgme nt as a matter of law and which the Court considere d and reje cted befor e g ranting CCL ’s motion.” Orde r 2, R. 78. The district court there fore also proper ly denied Culver’s motion to alter or a

mend the judg ment on CCL ’s Rule 50(a) motion. III. Acc ording ly , we a ffirm the district c ourt’s g rant of CCL ’s Rule 50(a) motion for judgme nt as a matter

of law, a nd its denial of Culver’s Rule 50 a nd 59 motions t o alter or

amend judgme nt, for judg ment as a ma tter of law , and for a new trial.

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