JAMES A. PARKER, Senior District Judge.
In DEFENDANTS' MOTION FOR RECONSIDERATION AND TO VACATE TRIAL AND JUDGMENT IN FAVOR OF PERKINS AND MILLER (1) BECAUSE OF IRREGULARITIES; (2) FOR LACK OF JURISDICTION; (3) PURSUANT TO THE COURT'S INHERENT POWERS OR RULE 59 Or. 60, AND/OR FOR A NEW TRIAL PURSUANT TO RULE 59 (Doc. No. 164) (Motion), Defendants Federal Fruit and Produce Company, Inc. (FFP) and Defendant Michael Martelli (Martelli) ask the Court to vacate the Judgment
Prior to trial, Miller failed to reveal that he had been convicted for a crime involving fraud. Miller also failed to inform FFP that Miller knew that his CDL was suspended three days after Miller began working for FFP. And, Miller failed to explain his testimony that he had been married for 27 years while at the same time Miller owed child support to his wife. These three areas of evidence would have been admissible primarily to prove that Miller did not suffer emotional distress due to his discharge from FFP. The evidence would also have been admissible to attack Miller's credibility. Because this evidence is of most importance regarding the amount of compensatory and punitive damages that should be awarded for Miller's retaliation claim against FFP, the Court will grant a new trial on damages related to this claim. The Court had earlier determined that a new trial is necessary on the amount of compensatory and punitive damages that should be awarded for Miller's retaliation claim against Martelli. Because evidence other than Miller's testimony strongly supported FFP's and Martelli's liability for retaliation, the Court will not grant a new trial on FFP's and Martelli's liability to Miller for retaliatory discharge.
In a separate MEMORANDUM OPINION AND ORDER, the Court has denied DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO FED. R. CIV. P. 50(b) (Doc. No. 163).
From May 16-25, 2012, a jury trial was held on Perkins' claims for disparate treatment, discriminatory discharge, and retaliation under Title VII and § 1981 against FFP and Martelli and on Miller's retaliation claims under Title VII and § 1981 against FFP and Martelli. The jury returned a verdict in favor of Plaintiffs on all
Rule 59 provides several grounds for a new trial:
Fed.R.Civ.P. 59(a), (e).
Under Rule 59, a district court may reconsider a ruling when the district court has "misapprehended the facts, a party's position, or the controlling law." Barber ex rel. Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). "Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Under Rule 60(b) a district court may order relief from a judgment based on several grounds:
Fed.R.Civ.P. 60(b)(1)-(6), and (c).
According to Defendants, the entire Judgment is interlocutory because the Court granted a new trial on damages as to Miller's retaliation claim against Martelli. If the Judgment is interlocutory, the Court may, in its discretion, amend the Judgment at any time before the filing of the final judgment without adhering to the standards of Rules 59 and 60. See Raytheon Constructors Inc. v. Asarco Inc., 368 F.3d 1214, 1217 (10th Cir.2003). However, the Court may follow the standards of Rules 59 and 60 to determine whether to alter or vacate an interlocutory order and whether to order a new trial. See Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1224 n. 2 (10th Cir.2008) (stating, "[t]he District Court's partial summary judgment ruling was not a final judgment. Thus, [plaintiff's] motion for reconsideration is considered an interlocutory motion invoking the district court's general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment. . . . In such a case, the district court is not bound by the strict standards for altering or amending a judgment encompassed in Federal Rules of Civil Procedure 59(e) and 60(b).") (quotations and citations omitted). Hence, the Court will use the standards set forth in Rules 59 and 60, particularly the standards of Rule 60, as a guide to determine whether to set aside all or part of the Judgment.
FFP is a produce distributing company offering same-day delivery of produce to restaurants, grocery stores, military bases, and nursing homes. (Doc. No. 184-2.) FFP's warehouse is a fast-paced working environment that is operated seven days a week. (Id.) FFP employs a day shift and a night shift of warehouse and trucking employees. (Id.) In 2010, FFP employed 90 people at its Denver facility and maintained a fleet of approximately 40 trucks. (Id.)
Perkins began working for FFP on October 3, 2008 as a Class B truck driver. (Tr. 964:14-15.) Perkins was a member of Teamsters Local Union No. 455 (Union). During the period of Perkins' and Miller's employment at FFP, Jesse Medina (Medina) was the Union's business representative at FFP. A Collective Bargaining Agreement (CBA), effective from October 1, 2007 to October 1, 2011, governed the terms and conditions of employment at FFP with respect to its truck drivers. (Tr. 348:22-24; Ex. G.)
Article 13 of the CBA describes FFP's Progressive Discipline Policy:
(Ex. G at 9.) Article 16 of the CBA prohibits discrimination on the basis of race. (Ex. G at 12.) Under the CBA, all employees were to receive a copy of FFP's work rules and were required to sign an agreement to abide by the rules. (Id. at 8; Ex. O FFP 00861-00863.)
In response to an employee's unsatisfactory job performance, FFP management could issue a "warning notice" according to the CBA's progressive discipline policy. (Id.) Warning notices, known as write ups, were considered "current" for 15 months after issuance. (Id. at 9.) When issuing a write up, an FFP supervisor or manager would first present the write up to the employee to sign, but if the employee refused to sign the write up, the supervisor or manager would note "refused to sign" on the signature line. The Union received a copy of all write ups within 7 days, and all write ups were kept in an employee's "permanent file" at FFP. (Id.)
On February 10, 2009, Perkins and three other FFP employees became union stewards to "manage certain issues between management and the CBA members." (Tr. 969:20-21 Perkins testimony; Tr. 355:15 Medina testimony.) During his employment at FFP, Perkins received several disciplinary write ups. All but one of Perkins' write ups were for first level offenses under the CBA. (Trial Ex. D.) During his employment at FFP, Perkins filed several union grievances about working conditions and some in response to write ups Perkins received that Perkins claimed were unjust. (Id.) (Tr. 1028:12-21.) When an employee prepares a Union grievance, the grievance is presented to an FFP supervisor or manager, who can sign the grievance. If the supervisor or manager refuses to sign, a notation "refused to sign" is written in place of a signature. (Ex. D.) The grievance is then filed with the Union, and the Union can initiate arbitration proceedings to resolve a grievance.
On February 28, 2009, Mondragon issued the first write up to Perkins stating that Perkins and another African-American truck driver, Gary Moore (Moore), were sitting in a truck while paperwork was prepared for their routes. (Tr. Ex. D FFP 00167.) Mondragon wrote up Perkins and Moore because under FFP policy, after drivers inspect their trucks and wait for their delivery paperwork, drivers are expected to help load produce into trucks in the warehouse. On February 28, 2009, Perkins filed a union grievance challenging this write up as "unfounded and unjust." (Ex. D FFP 00166.)
On March 2, 2009, Perkins asked Mondragon to meet with him to discuss Union issues. Mondragon agreed and asked Chris Salazar, another FFP supervisor, to attend the meeting with him. Perkins, Moore and Jorge Morales, all Union stewards, attended the meeting. (Tr. 589:9-12.) Mondragon testified that racial discrimination was not discussed during this meeting. (Tr. 589:9-12.) However, Perkins testified that at the March 2, 2009 meeting, he complained to Mondragon that on February 28, 2009, Perkins and Moore, who are African-American, were written up, but other employees, who were Latinos, were not written up for the same conduct. Perkins testified that in response, Mondragon told Perkins and Moore they were written up because "they were black." (Tr. 983:2-6.) Moore also testified that he heard Mondragon say that Moore and Perkins were written up because
On March 4, 2009, Perkins filed a grievance stating that on February 28, 2009, Perkins observed FFP owner Martelli doing union work in violation of the CBA. (Tr. 975:19-976:14.) On March 5, 2009, Union representative Medina sent a letter to FFP complaining that management was "conducting bargaining unit work," and that management was "disrespecting employees." (Ex. NN FFP 0047.) FFP did not respond to this letter. (Tr. 361:2-10 Medina testimony; Tr. 496:22-25, 520:23-521:6; 523:2-8 Stan Kouba testimony.) Perkins' March 4, 2009 grievance and Medina's March 5, 2009 letter contained no allegations of race discrimination. (Id.)
On March 11, 2009, Perkins received a second write up. On that day at approximately 5:30 am, Perkins and another truck driver, Roberto Villa-Moreno (Moreno), were outside talking while doing the daily pre trip inspection of their trucks. (Tr. 1010:1-14 Perkins testimony.) After observing Perkins and Moreno, Martelli drove up to Perkins and Moreno and told them to "stop the bull-shit and get back to work." (Tr. 272:22-25 Martelli testimony.) Perkins and Moreno testified that after a verbal altercation with Moreno, Martelli yelled racial epithets at Perkins and Moreno. (Tr. 1011:14-16; 1013:23-25 Perkins testimony; Tr. 147:19-149:16 Moreno testimony.) Perkins, who had walked into the warehouse, and Miller, who was already inside the warehouse, testified that as Martelli walked into the office area of the FFP warehouse, Martelli yelled to Mondragon, "I am fucking tired of that nigger and Mexican[,]" and Martelli ordered Mondragon to "write up the nigger and fire the spick." (Tr. 1014:16-20; Tr. 147:19-149:16; Tr. 201:1-8.) Both Mondragon and Martelli testified that although Martelli was angry and was yelling, Martelli did not say the racial epithets. (Tr. 573:4-9 Mondragon testimony; Tr. 284:24-285:8 Martelli testimony.) Martelli had not instructed what level write up he wanted Perkins to receive. Mondragon issued to Perkins a first offense level write up.
Perkins filed a grievance about the write up he received on March 11, 2009. This grievance mentioned Article 13, the progressive discipline policy of the CBA, but in this grievance, Perkins did not describe Martelli's use of racial epithets, particularly the term "nigger." (See Ex. D FFP 00171.)
Perkins and Union representative Medina testified that on March 11, 2009 Perkins prepared a second, additional written grievance that was presented to Mondragon, who refused to sign it. Perkins testified that he gave the additional March 11, 2009 grievance to Medina and did not see the grievance thereafter. Medina testified that he usually faxed grievances to FFP, but that the Union misplaced the additional March 11, 2009 grievance. (See Tr. 1088:9-17 Perkins testimony; Tr. 376:1-379:4 Medina testimony.) Defendants assert that they learned about this "missing" additional grievance for the first time at trial.
On March 19, 2009, Perkins was written up for delivering the wrong type of lettuce, but Perkins claimed another warehouse employee was responsible for the mistake. (Ex. D FFP 00174.) On March 23, 2009, Perkins, believing that he was unjustly disciplined for another employee's mistake, filed a grievance concerning this write up.
On March 24, 2009, Perkins received a write up for loading the wrong kind of bananas into his truck. (Ex. D FFP 00169.) Perkins testified that while his truck was still in the warehouse, Moore noticed the mistake, Perkins unloaded the wrong bananas, loaded the correct bananas, and delivered the correct bananas. (Tr. 1030:5-1031:5.) This write up was recorded as a "2nd Offense written warning." (Ex. D FFP 00169.) Perkins grieved this write up. (Ex. D FFP 00170.)
On March 31, 2009, Perkins was written up for not wearing his FFP badge. (Ex. D. FFP 00178.) Perkins grieved this write up stating that his FFP badge was in his truck, but Perkins was not allowed to retrieve it. (Ex. D FFP 00177.)
On April 9, 2009, Perkins was written up for wearing tennis shoes in the warehouse, instead of the required work boots. (Ex. D FFP 00179.) On April 10, 2009, Perkins grieved the write up as unjust and stated that CBA "Article 13 and any other that may apply" were violated. (Ex. D FFP 00180.)
On April 10, 2009, Perkins was written up for not checking in at the warehouse at the end of his shift. (Ex. D FFP 00181.) April 10, 2009 was Good Friday, and Perkins had twelve deliveries on that day. At 5:30 pm, Perkins returned to the warehouse after the deliveries and put his truck keys and paperwork in the outside mailbox at FFP. On April 21, 2009, Perkins grieved the write up. (Ex. D FFP 00182.) Perkins testified that he had been previously instructed, "if [he] got back and no one was at the warehouse," Perkins was to park his truck, lock his truck, and put the truck keys and his paperwork in the mailbox to be retrieved by the night shift supervisor. (Tr. 1038:24-1039:17.) Mondragon testified that on April 10, 2009, Perkins did not follow instructions correctly because Perkins had been instructed to leave his keys and paperwork with the night crew, not in the mailbox. (Tr. 583:19-584:14.) Mondragon and Angela Vigil, an FFP office employee, testified that employees were instructed to leave truck keys and paperwork in the mailbox only if no one was at the warehouse. (Tr. 585:5-9; 530:24-531:3.) Mondragon testified that on April 10, 2009, the night crew supervisor called him from an FFP phone to report that he saw Perkins park his truck, and leave the truck keys and delivery paperwork in the mailbox. (Tr. 585:1-16.) Mondragon testified that this call indicated that the night crew supervisor was at the warehouse when Perkins arrived at 5:30 pm. (Id.) Mondragon wrote up Perkins for failing to leave the truck keys and paperwork with the night crew supervisor. (Id.)
On April 21, 2009, Perkins was written up for lack of attendance. (Ex. D FFP 00183.) Perkins grieved this write up and claimed his absence on April 21 was excused. (Ex. D FFP 00184.) Perkins and Mondragon testified that Perkins called Mondragon on Monday evening, April 20 and told Mondragon he had to attend a court hearing on Tuesday, April 21 and would miss work. (Tr. 1051:14-25 Perkins testimony; Tr. 586:3-21 Mondragon testimony.) Mondragon recorded on the write up that he was disciplining Perkins not just for Perkins' April 21st absence, but also for a pattern of absences that averaged about one per week. (Ex. D. FFP
(Tr. 1055:6-16.)
On April 23, 2009, Perkins was written up by Supervisor Dennis Nakashima (Nakashima) for not responding to a page. (Ex. D FFP 00185.) In the write up, Nakashima stated that he tried to page Perkins several times while Perkins was out on a delivery, but Perkins did not call back. (Id.) Nakashima wrote that supervisor Alfonso Diera (Diera) had also tried to call Perkins who did not respond. (Id.) Perkins testified that he checked his radio, and determined he had received only one page "at 12:45 for about 14 seconds." (Tr. 1056:11.) Perkins reiterated, "[t]he only page I received that day came from Dennis, 12:45, and it lasted for 14 seconds. I was still written up for not answering a page." (Tr. 1056:23-25.) Perkins further testified that he had the windows open in the truck, which lacked air conditioning, and could not hear the page. (Tr. 1056:16-22.) Additionally, Perkins testified that he later determined Nakashima and Diera were calling the wrong number. (Id.)
On May 4, 2009, Perkins filed two grievances: one stating that he experienced "harassment since becoming a union steward," and one stating as an ongoing violation, "Retaliation for Discrimination grievance." (Ex. D FFP 00186-00187.) Perkins explained the second grievance at trial, "I filed it because I felt, once again, because I complained of racial discrimination I was being retaliated against." (Tr. 1057:13-15.)
On May 10, 2009, Mondragon issued the tenth and final write up to Perkins for "unknown whereabouts for 3+ hours." (Ex. D FFP 00189.) This write up was labeled as a 4th Offense write up, and Perkins' employment was terminated two days later on May 12, 2009. (Id.) On May 10, 2009, Perkins was assigned a delivery
Perkins testified that on May 10, 2009 at about 7:45 am, he arrived at Rancho Liborio # 7, he had to wait for two trucks to be unloaded, and he left Rancho Liborio # 7 sometime between 10:30 am and 11:00 am. (Tr. 592:10-18; 594:5-7.) On Perkins' trip ticket, the document that Perkins prepared after completing a delivery, Perkins recorded that he arrived at Rancho Liborio # 7 at 7:45 am and left Rancho Liborio #7 at 11:00 am because there were "2 Trucks b 4 me." (Ex. D FFP 00191; Tr. 1075:8-16.) Perkins explained that after leaving Rancho Liborio # 7 at about 10:30 or 11:00 am, he drove to Church's Chicken, located at 64th Street and Quebec in Commerce City, to buy lunch before returning to the FFP warehouse. (Tr. 1066:1-25.) After arriving at Church's Chicken, Perkins discovered he had left his wallet at his apartment. Perkins then drove 30 to 35 minutes to his apartment in Aurora, located in the area of Peoria and Iliff, to retrieve the wallet. (Tr. 1067:1-7.) Perkins testified that he felt he had to immediately retrieve his wallet because it contained his commercial driver's license (CDL), which he needed to drive. (Tr. 1067:11-19.) After getting his wallet, Perkins drove back to Church's Chicken to pick up his lunch, and returned to FFP just after noon. (Tr. 1071:4-11.)
Defendants claim that Perkins was discharged for "unknown whereabouts" and also for dishonesty because Mondragon believed Perkins misrepresented on his trip ticket that he left Rancho Liborio # 7 at 11:00 am, whereas the Rancho Liborio # 7 receiver Montenegro reported Perkins left Rancho Liborio # 7 at 8:30 am. (Tr. 591-19-20 Mondragon testimony.) Perkins' trip ticket also conflicted with Mr. and Mrs. Macias' statement that they saw an FFP truck at 64th and Quebec at 8:50 am, and the trip ticket did not match Mondragon's belief that he saw Perkins on I-70 at 10:30 am. (Tr. 712:1-714:11.) Dishonesty and being "off-route" are causes for immediate discharge under the CBA. (Ex. O at 8.) The termination write up, however, stated that Perkins was discharged for "unknown whereabouts" and did not specifically mention dishonesty as a reason for discharge. (Ex. D FFP 00189.)
Perkins presented evidence that several Latino and Caucasian drivers, who committed similar offenses, were not fired. (Tr. 595:19-600:15; Ex. T.) For example, Mondragon testified one employee pulled over his truck and slept without informing FFP:
(Tr. 600:22-602:4.)
Perkins grieved his termination of employment. (Ex. D FFP 00188.) An unemployment hearing was held regarding Perkins' discharge. On November 5, 2009, Perkins filed a CHARGE OF DISCRIMINATION (Ex. E) with the Equal Employment Opportunity Commission (EEOC) alleging race discrimination, discriminatory discharge, and retaliation by FFP and Martelli. On January 10, 2010, Perkins received a right to sue letter from the EEOC. (Am. Compl. Ex. A.)
On August 26, 2010, Perkins entered into a SETTLEMENT AGREEMENT with the Union and FFP resolving several of Perkins' union grievances. (Ex. P.) Perkins received $54,523.76 in the settlement, but the settlement did not resolve Perkins' Title VII and § 1981 claims. This case was initiated on March 4, 2011, and an Amended Complaint was filed on March 24, 2011. (Doc. Nos. 1 and 7.)
Miller began working for FFP as a Class A truck driver on November 19, 2008. (Tr. 198:4-5.) On March 5, 2009, Miller received a write up for not wearing his FFP ID badge. On that day, Miller also received a write up stating that Miller, while driving an FFP truck on a delivery, "accidentally hit a building at Buckley Air Force Base," causing minimal damage. (Tr. 198:11-200:7.)
Miller testified that on the morning of March 11, 2009, he was standing about 25 to 30 feet away from the office area of the warehouse and heard Martelli yelling to Mondragon "fire the spick and write up the nigger" in reference to Moreno and Perkins. (Tr. 200:24-201:22.) Miller testified that in his thirty-year employment history he had never heard a manager use these types of racial slurs. (Tr. 201:24-202:1.)
On June 23, 2009, Miller was called as a witness in Moreno's Union arbitration hearing held in connection with Moreno's discharge. (Tr. 204-21-25.) Miller testified specifically about Martelli's use of racial epithets on March 11, 2009. (Tr. 205:8-10.) Martelli and another FFP owner, Stan Kouba, were present at the arbitration hearing during Miller's testimony. (Tr. 228:1-6.) Miller's employment was terminated on July 10, 2009, seventeen days after his testimony at Moreno's arbitration, for the stated reason that Miller had an accident in the FFP parking lot that damaged two FFP trucks. (Tr. 206:3-5.)
Miller testified about the events leading to his termination on the morning of July 10, 2009:
(Tr. 208:16-21.) In Miller's notes, written after the accident, Miller accepted 100% responsibility for the accident, but at trial, Miller testified that he believed he was 50% at fault for the accident. (Tr. 209:5-17.) The other driver involved in the accident, who was Latino, was not written up or disciplined after the accident. (Tr. 209:21-25; 301:25-302:1.) Mondragon fired Miller within a few hours of the accident, but no one from FFP interviewed Miller in connection with the accident and no estimate of the damage costs was obtained prior to firing Miller. (Tr. 211:5-13; 300:16-18.) Miller testified he believed he was fired "[b]ecause I testified at [Moreno's] arbitration. They were just out to get rid of me." (Tr. 211:17-18.)
Defendants presented evidence that in response to accidents involving FFP drivers, FFP management approached each circumstance differently. Some drivers who were in accidents were fired, some drivers were suspended, some drivers were written up, and some drivers were put on a probationary period. (Tr. 693:7-14 Mondragon testimony; Ex. Y.) Mondragon testified that Miller was fired because of the particular circumstances of his accident:
(Tr. 701:21-702:8.)
Miller presented evidence that some FFP drivers were involved in serious accidents, but were not fired. (Tr. 229:16-25 Miller testimony; Tr. 602:7:608:19 Mondragon testimony.) For example, Mondragon testified about accidents involving other FFP employees:
(Tr. 608:10-19.)
On November 5, 2009, Miller filed a CHARGE OF DISCRIMINATION with the EEOC complaining he was discharged in retaliation for his "complaint of race discrimination, [his] testimony against an owner of Federal in a legal proceeding and due to [his] association with former Federal African-American employee Richard Perkins, . . ." (Ex. F.) On January 10, 2010, Miller received a right to sue letter from the EEOC. (Am. Compl. Ex. A.)
On March 30, 2010, FFP settled with the Union and Miller, reinstated Miller's employment, and paid Miller $26,615.40 in lost wages. Miller resigned from employment at FFP on June 2, 2010. (Tr. 242:25-243:12.) Evidence was presented at trial that Miller's CDL was suspended on September 21, 2009, three days after Miller was initially hired by FFP, and Miller's CDL was reinstated on February 2, 2010. (Tr. 256:15-257:1.)
Defendants contend that the Court should set aside the jury's verdict or order a new trial on all claims because the presiding trial judge, Senior United States District Court Judge James A. Parker sitting by designation from the District of New Mexico, was absent from the bench during jury deliberations. When the jury was about to begin deliberating, after Judge Parker had instructed the jury, and counsel had made their closing arguments, Judge Parker informed the jury, the parties, and counsel for Plaintiffs and Defendants that he was leaving Denver to return to New Mexico. (Tr. 1379:5-10.) Judge Parker also told the attorneys that United States District Judge R. Brooke Jackson from the District of Colorado would preside over all proceedings that day, and if necessary, Chief United States District Judge Wiley Y. Daniel from the District of Colorado would preside the next day. Neither counsel for Plaintiffs nor counsel for Defendants objected to Judge Parker's departure, and neither side objected to the substitution of Judge Jackson and Chief Judge Daniel for the remainder of the trial proceedings. (See Tr. 1379:5-1383:3.)
In the Motion, however, Defendants allege that Judge Parker's absence during jury deliberations was a structural error requiring the Court to set aside the verdict or order a new trial. Defendants point to a fatal error in the jury's Special Interrogatories: the lack of a compensatory damage interrogatory on Miller's retaliation claim against Martelli. This first came to light while Judge Parker was absent. When reading the jury's verdict, Judge Jackson noted that the question regarding compensatory damages on Miller's retaliation claim against Martelli was missing. (Tr. 1413:15-16.) According to Defendants, Judge Jackson was not familiar with the case, and thus, Judge Jackson did not correct the error. However, at the time Judge Jackson read the verdict, neither Plaintiffs' counsel nor Defendants' counsel objected to the missing interrogatory. On
Courts have found that the absence of the trial judge during a "critical stage" of a trial can constitute structural error sufficient to nullify a verdict if the judge's absence affects the integrity of the trial. See, e.g., United States v. Mortimer, 161 F.3d 240, 241 (6th Cir.1998) (finding that trial judge's unexplained absence from the bench without warning prejudiced the defendant and that a new trial was warranted). In this analysis, the Tenth Circuit employs a fact-specific inquiry and has not established a bright-line rule regarding a trial judge's absence during a trial. United States v. Solon, 596 F.3d 1206, 1212 (10th Cir.2010) (stating, "[w]e do not decide today whether a judge's absence from the bench might constitute structural error in a case [other than the one presently under review]."). The Tenth Circuit noted, "[a]lthough most constitutional errors can be harmless, some are so offensive to our judicial system that they require automatic reversal." Id. at 1211 (citing Arizona v. Fulminante, 499 U.S. 279, 306-09, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). "These violations, termed `structural errors,' involve defects in the `trial mechanism' and affect `the framework within which the trial process proceeds' from beginning to end." Id. (quoting United States v. Lott, 433 F.3d 718, 722 (10th Cir.2006); and Fulminante, 499 U.S. at 309-10, 111 S.Ct. 1246). "A defining feature of structural error is that the resulting unfairness or prejudice is necessarily unquantifiable and indeterminate, such that any inquiry into its effect on the outcome of the case would be purely speculative." Id. (internal quotations omitted).
In Solon, the Tenth Circuit concluded there was no structural error even though the trial judge was absent for six minutes in the middle of defense counsel's closing argument because, "nothing occurred during his absence," 596 F.3d at 1212. Defendants distinguish this case from Solon. Defendants maintain that unlike the harmless error in Solon, the omission of the Special Interrogatory for compensatory damages on Miller's retaliation claim against Martelli, already deemed a fatal error by the Court, cannot be considered harmless. According to Defendants, this fatal error would not have occurred without Judge Parker's absence. However, this assertion is based on speculation of what might have occurred had Judge Parker, instead of Judge Jackson, presided over the jury deliberations.
Although this Court found the omission of the Special Interrogatory a fatal error as to the amount of damages awardable on Miller's retaliation claim against Martelli, the omission did not undermine the entire trial process and does not warrant a declaration that the whole verdict is "a nullity." Mortimer, 161 F.3d at 241 (citing, Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989)). Plaintiffs correctly point out that the cases cited by Defendants involved more egregious errors and a complete absence of a presiding judge. For example, in Mortimer,
What distinguishes this case from Mortimer and Solon is that Judge Parker's departure did not leave a judicial void. Judge Jackson presided after Judge Parker left Denver. Judge Parker clearly explained to both the jury and to counsel that he would be returning home, and counsel did not object at that time. See Mortimer, 161 F.3d at 241 (noting that a trial's "structure normally stands if the parties consent to excuse the presence of a judge."). Judge Jackson ably presided during jury deliberations and helped counsel for Plaintiffs and Defendants craft an answer to questions from the jury. (E.g. Tr. 1386:2-1394:19.)
The Court concludes that no judicial absence occurred during jury deliberations. Furthermore, Judge Parker's departure and the substitution of Judge Jackson were not structural errors requiring the Court to set aside the jury's verdict.
Rule 63 governs the substitution of judges:
Fed.R.Civ.P. 63. Defendants correctly assert that Judge Jackson did not certify he was familiar with the record when he stepped in as substitute judge during jury deliberations. However, this failure does not require the Court to set aside the jury's verdict because Defendants did not object to the substitution of Judge Jackson in place of Judge Parker. See Higginbotham v. Corner Stone Bank (In re Higginbotham), 917 F.2d 1130, 1132-33 (8th Cir.1990) (concluding that a litigant waived the right to new trial under Rule 63 because he failed to object to the procedure that the successor judge employed and stating that a litigant "`has no right to sit back and await a decision of the case before objecting to the procedure.'") (quoting Townsend v. Gray Line Bus Co., 767 F.2d 11, 18 (1st Cir.1985)); Milbrew, Inc. v. Commissioner, 710 F.2d 1302, 1308 (7th Cir. 1983) (concluding that litigant waived right to object to successor judge deciding case on the existing record by agreeing to reassignment). Therefore, any violation of Rule 63 was waived by Defendants.
In Perkins' EEOC charge (Ex. E), Perkins alleged he engaged in several protected activities:
On direct examination at trial, Perkins was questioned extensively about each paragraph in his EEOC charge. The four protected activities from Perkins' EEOC charge summarized above in paragraphs 1), 2), 6), and 7) were either affirmed by Perkins' testimony or affirmed through documentary evidence. As for paragraph 1), Perkins testified that he collected complaints from FFP employees about general working conditions and about race discrimination.
At trial, however, Perkins denied that he engaged in the protected activity set forth in Perkins' EEOC charge that is summarized above in paragraphs 3), 4), and 5). Concerning paragraph 3), Perkins testified that on March 4, 2009, he filed a grievance about being written up on February 28, 2009, but admitted that the grievance did not mention racial discrimination. (Ex. D FFP00166.) As for paragraphs 4) and 5), Perkins testified that he did not complain to Mondragon about Martelli's use of racial epithets on March 11, 2009.
In addition, two of Perkins' protected activities proven at trial were not mentioned in Perkins' EEOC charge. First, Perkins' EEOC charge failed to mention the March 23, 2009 grievance (Ex. D FFP 00176) complaining about race discrimination that allegedly occurred on March 19, 2009. The grievance specifically cited Article 16 of the CBD and Item C-7 of the FFP work rules, both of which prohibit race discrimination. Second, Perkins' EEOC charge failed to mention the controversial grievance brought up for the first time at trial in which Perkins specifically complained about Martelli's use of the term "nigger" on March 11, 2009. According to Perkins' and Medina's testimony, the Union misplaced this grievance. To explain the discrepancies between his EEOC charge and the trial evidence, Perkins testified that his attorney, Paula Greisen, drafted the EEOC charge, and Perkins signed it without reading it.
Defendants contend that since Perkins' EEOC charge contained allegations of protected activity that were so significantly different from the evidence of protected activity presented at trial, the Court should dismiss Perkins' retaliation claims against FFP and Martelli for failure to exhaust administrative remedies.
In determining administrative exhaustion, however, courts liberally construe EEOC charges. See id. (construing liberally a plaintiff's charge of discrimination based on the ADA); and Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1195 (10th Cir.2004) (noting that courts liberally construe charges based on the ADEA). The Court may consider allegations not expressly included in an EEOC charge if the conduct alleged would fall within the scope of the EEOC investigation which reasonably would have grown out of the allegations that a plaintiff actually made. Martin v. State of KS., 978 F.Supp. 992, 998 (D.Kan.1997) (quoting Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir.1993) overruled in part on other grounds as recognized by Davidson v. America Online, Inc., 337 F.3d 1179, 1183 (10th Cir.2003)).
In MacKenzie, the Tenth Circuit affirmed a district court's grant of summary judgment in favor of the employer. 414 F.3d 1266. The plaintiff had filed an EEOC charge alleging that her employer discriminated against her on the basis of her disability, which she indicated on her EEOC charge as coronary disease. Id. at 1274. For the first time on appeal, however, the plaintiff asserted she had a second disability: depression. Id. The Court refused to consider this as an actionable disability under the ADA because "[plaintiff's] second alleged disability plainly exceed[ed] the scope of her EEOC charge" and because the second disability was raised for the first time on appeal. Id. The Tenth Circuit further noted that the plaintiff raised for the first time in her summary judgment response that her employer failed to accommodate her disability; however, the Tenth Circuit dismissed this claim on appeal because the plaintiff, ". . . failed to exhaust her administrative remedies as to this claim. . . ." Id. n. 13. Hence, the court in MacKenzie determined that a plaintiff may not sue her employer for discrimination based on an additional disability not mentioned in the plaintiff's
As set forth in the supplemental briefing, in Manning v. Blue Cross and Blue Shield of Kansas City, No. 12-3190, 2013 WL 1490803 (10th Cir. Apr. 12, 2013) (unpublished opinion), the Tenth Circuit affirmed the dismissal of discrimination and retaliation claims for failure to exhaust because the EEOC charges at issue were "too vague to give defendants notice of the challenged conduct." Id. at *7. Three former employees had filed charges against Epoch Group, L.C., a subsidiary of Blue Cross and Blue Shield of Kansas City, for race discrimination and retaliation and for disability discrimination and retaliation. One plaintiff's charge, which was similar to the other two employees' charges, stated that she was treated "unequally and was denied employment opportunities due to her race, retaliated against in violation of her rights, and was not offered reasonable accommodation for her diabetes, carpal tunnel and blood clots." Id. at *6.
In contrast, the Tenth Circuit in Anderson v. Clovis Mun. Schools, reversed a district court's determination that the plaintiff had failed to exhaust a hostile work environment claim and a constructive discharge claim. 265 Fed.Appx. 699 (10th Cir.2008) (unpublished opinion). The Tenth Circuit concluded that the factual allegations in the plaintiff's EEOC charge would have led to an investigation of those claims:
Id. at 703 (citing Jones v. UPS, Inc., 502 F.3d at 1187).
Unlike the charges analyzed in MacKenzie and Manning, Perkins' EEOC charge sufficiently described Perkins' allegations that FFP and Martelli retaliated against him for opposing racial discrimination through a series of verbal and written complaints, plus union grievances, that occurred during a particular time period, from February 28, 2009 through May 10, 2009. Also, despite its omissions and inaccuracies, Perkins' charge, as the charge in Anderson, contained factual allegations that would have triggered an investigation into all of Perkins' alleged protected activity during the relevant time period.
Defendants assert that during pre-trial discovery, Plaintiffs provided incomplete or untruthful information that hindered Defendants' ability to defend against Plaintiffs' claims at trial. Defendants further contend that they were surprised and unfairly prejudiced at trial by Perkins' testimony that he had engaged in protected activity at FFP that Perkins had not disclosed to Defendants prior to trial. Defendants maintain that the cumulative effect of the new information at trial and the misleading or incomplete information given to Defendants prior to trial placed Defendants at an unfair disadvantage. Defendants ask the Court to vacate the Judgment or grant a new trial under the Court's inherent power to alter interlocutory judgments or under Fed.R.Civ.P. 59 or 60.
At Perkins' pretrial deposition, he testified that he had written down notes or "minutes" of the March 2, 2009 meeting with Mondragon. Perkins testified that at the meeting Perkins complained about the write up that Perkins and Moore received on February 28, 2009, and Perkins informed Mondragon that two drivers, who were Latinos, were not written up for the same conduct. Perkins alleged he recorded in his notes that Mondragon told Perkins and Moore they were written up "because they were black." At trial, Perkins testified that on the morning of his deposition, he discovered that he had not given copies of his notes about the March 2, 2009 meeting to Defendants. During a break, Perkins and his attorneys went to the attorneys' office and retrieved two pages of notes, and Perkins' deposition continued:
At trial, because the notes contained hearsay, the Court did not allow Plaintiffs to admit the three pages of notes as documentary evidence. However, Perkins referred to his notes during his testimony, and Perkins and Moore both testified that they heard Mondragon say that Perkins and Moore were written up "because they were black." (Tr. 983:1-13, 163:18-164:2.) Perkins was then questioned about producing the notes at his deposition:
(Tr. 985:11-986:23.)
Defendants contend that Perkins' late production of the third page of notes was one of several violations of the discovery rules, which cumulatively warrant a new trial.
In Perkins' answers to Defendants' interrogatories and requests for production, Perkins represented that "
Defendants contend that at trial, they were surprised when Union representative Medina and Perkins testified that on March 11, 2009, in addition to the grievance produced during discovery and admitted into evidence, Perkins prepared another grievance specifically complaining about Martelli's use of the term "nigger." Medina testified that this additional grievance was filed but misplaced:
(Tr. 375:19-379:4.)
On cross examination, Medina admitted that the Union misplaced the additional grievance:
(Tr. 418:18-419:17.)
On direct examination, Perkins described the grievance:
(Tr. 1019:15-25.)
Perkins testified on cross examination about the existing grievance and the missing grievance:
(Tr. 1173:24-1175:18.) Defendants' counsel continued cross-examining Perkins about other written grievances that Perkins had settled prior to trial:
(Tr. 1196:12-1198:1.)
In an effort to impeach Medina's and Perkins' testimony about the missing grievance, Defendants offered the testimony of Ted Kouba, FFP's Corporate Financial Officer:
(Tr. 915:4-916:8.)
Under Rule 60(b), the Court may order relief from a judgment based on "mistake, inadvertence, surprise, or excusable neglect . . . [due to] newly discovered
Defendants contend that they have met the three requirements under Rule 60(b)(1). Defendants assert that Perkins does not even dispute Defendants' allegation that they received no information about the missing grievance prior to trial. Defendants further assert that they have shown prejudice by illustrating the importance of the missing grievance to Perkins' claim that Martelli retaliated against Perkins because of the grievance. Defendants maintain that they attempted to cure the prejudice by cross-examining Perkins and Medina and by offering Ted Kouba's testimony that FFP did not receive the grievance. Defendants ask the Court to remedy this unfair use of surprise evidence by either vacating the judgment on the jury's verdict or ordering order a new trial.
Perkins denies any misconduct related to the testimony about the missing March 11, 2009 grievance. Perkins contends that once he submitted the additional March 11, 2009 grievance to Medina, the Union controlled the grievance and the document was no longer within Perkins' control. However, Perkins, did not explain in his response to Defendants' Motion or at the November 19, 2012 oral argument on the Motion why he failed to inform Defendants that Perkins would offer testimony about an additional, missing grievance at trial. Perkins further argues that the jury was entitled to believe Perkins' testimony, despite Defendants' cross examination, that he prepared the additional March 11, 2009 grievance but did not see it after he gave it to Medina. Perkins also asserts that the jury was entitled to believe Medina's testimony that he faxed the grievance to the company before the grievance was misplaced. However, the fact that the jury may have believed Perkins' and Medina's testimony about the grievance's existence actually supports Defendants' argument that they were prejudiced by this evidence.
Perkins failed to inform Defendants that he prepared an additional March 11, 2009 grievance complaining about Martelli's use of a racial epithet on March 11, 2009, and that Perkins and Union representative Medina would testify that Perkins prepared the grievance and the Union misplaced it. This evidence should have been disclosed prior to trial. Perkins' sworn statement that "no written or recorded statements were taken other than those identified in Plaintiff's 26(a)(1) Disclosures, which have been provided previously, including the grievances filed . . ." was inaccurate and incomplete. Hence, Defendants have shown surprise.
At trial, testimony about the "missing" grievance was important evidence of protected activity that supported Perkins' retaliation claim against Martelli. The testimony about the grievance also bolstered Perkins' version of events that occurred on March 11, 2009, which were vigorously contested by Defendants. To illustrate the
Under 42 U.S.C. § 1981, Martelli's individual liability must be based on his individual discriminatory or retaliatory actions. Hull v. Colorado Bd. of Governors of Colorado State University System, 805 F.Supp.2d 1094, 1104-05 (D.Colo.2011) (stating, "[p]ersonal participation is an essential element of any individual liability claim under [§ 1981] claim."). The evidence at trial showed that Martelli was directly involved in two important events with respect to Perkins' employment at FFP: 1) the March 11, 2009 incident in which Martelli ordered Mondragon to write up the "nigger," and 2) Martelli's approval of Mondragon's May 10, 2009 decision to fire Perkins. Perkins' retaliation claims against FFP and Martelli were supported overall by evidence that Perkins engaged in these protected activities: 1) Perkins' gathering of complaints from employees about racial discrimination and work conditions; 2) Perkins' complaint to Mondragon during the March 2, 2009 meeting about disparate write ups; 3) Perkins' March 11, 2009 grievance about Martelli's use of racial epithets, which is now missing; 4) Perkins' March 23, 2009 grievance stating he had been discriminated against since becoming a union steward and citing Article 16 and FFP work rule C-7, both of which prohibit racial discrimination; 5) Perkins' April 14, 2009 letter to Stan Kouba complaining about a "pattern of racial discrimination"; and 6) Perkins' May 4, 2009 grievance stating as an ongoing violation, "Retaliation for Discrimination grievance." Significantly, only one of Perkins' protected activities was specifically directed at Martelli: the missing March 11, 2009 grievance complaining about Martelli's use of a racial epithet on March 11, 2009.
To prove that Martelli fired Perkins in retaliation for Perkins' complaints about racial discrimination, Perkins had to prove Martelli knew of and fired Perkins in reaction to one or more of Perkins' protected activities. The grievance complaining about Martelli's use of a racial epithet would naturally stand out as evidence supporting Perkins' retaliation claim against Martelli. Recognizing its importance, Plaintiffs' counsel highlighted the missing grievance as protected activity supporting Perkins' retaliation claim against Martelli in counsel's legal argument opposing Defendants' motion for directed verdict on that claim. In denying the motion, the Court commented that it was a close issue.
Under Rule 60(b)(1), "when a party requests a new trial on the basis of surprise testimony it must be able to show surprise, prejudice, and an attempt to cure the prejudice such as a motion for a continuance." Marino v. Otis Eng'g Corp., 839 F.2d 1404, 1411 (10th Cir.1988) (Timbers, J. dissenting). Perkins contends that Defendants have advanced only "naked assertions" that they were surprised by this evidence. However, Defendants have persuasively asserted that they did not know that Perkins and Medina would testify about the additional grievance; therefore, Defendants have shown surprise.
In addition, Defendants argue that they were materially prejudiced by this evidence and that Defendants' lack of knowledge about this evidence put Defendants at a disadvantage both prior to trial and at trial. Prior to trial, Defendants were unable to investigate the circumstances surrounding the grievance, and why the Union lost it. And Defendants were prejudiced at trial as illustrated by Defendants' attempt to counter the testimony with Ted Kouba's testimony that FFP never received this grievance, which actually may have supported Perkins' explanation that the grievance existed but was now missing. Thus, the Court concludes that Perkins' failure to inform Defendants about this significant piece of evidence caused Defendants to be unfairly prejudiced
Perkins further contends that Defendants failed to attempt to cure the prejudice because Defendants did not object to or move to strike the testimony about the grievance, and Defendants did not move for a continuance of the trial. The Court finds that Defendants sufficiently attempted to cure the prejudice during cross examination of Perkins and Medina and by offering the testimony of Ted Kouba. Ted Kouba's testimony that FFP received no grievance about racial epithets was an attempt to refute Medina's testimony that FFP must have known about the grievance because Medina faxed grievances to FFP as a matter of course. The Court finds that under Rule 60(b)(1), Defendants have shown that they were surprised, that they were prejudiced, and that they attempted, albeit unsuccessfully, to cure the prejudice caused by the testimony about the grievance.
Perkins asserts that he committed no discovery violation because he had no obligation to produce the grievance, since the document was not in Perkins' custody or control. However, Perkins misinterprets Defendants argument. Defendants contend they were not informed that the grievance existed. Perkins had a duty to inform Defendants that Perkins and Medina would testify that Perkins prepared the grievance and the Union lost it. Defendants were entitled to rely on Perkins' statement that "
Defendants also assert that the Court should grant a new trial under Rule 60(b)(3) for "misconduct by an opposing party." Fed.R.Civ.P. 60(b)(3). Defendants cite Madere v. Compass Bank, Case No. A-10-CV-812, 2012 WL 5208538 (W.D.Tex. Oct. 22, 2012), in which the court granted a new trial under Rule 60(b)(3) in an employment discrimination case. At the trial in Madere, the plaintiff alleged that Compass Bank terminated and failed to rehire her because she took leave under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA). Id. at *1. After the jury found in favor of the defendant on both claims, the plaintiff in a post trial motion, cited two instances of misconduct by Compass Bank that warranted a new trial under Rule 60(b)(3). First, after discovery had closed, Compass Bank disclosed the identity of its primary witness, human resources employee Bianca Ramos, who testified that Compass Bank did not rehire the plaintiff because she lacked the qualifications for branch manager. The plaintiff contended that Compass Bank prevented the plaintiff from contradicting Ramos' testimony by not disclosing Ramos as a witness until after discovery ended. Second and more importantly, the plaintiff contended that Compass Bank violated a discovery order by failing to inform
Id. at *4 (citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978) (citations omitted)).
Id. at *5 (footnote omitted). The court vacated its judgment and granted a new trial on the plaintiff's failure to rehire claim. Id.
Perkins argues that Defendants failed to meet the standard in this circuit for a new trial based on a party's misconduct. In Zurich North America v. Matrix Service, Inc., the Tenth Circuit affirmed the denial of a Rule 60(b)(3) motion and discussed the standard required to set aside a judgment for "fraud, . . . misrepresentation, or other misconduct of an adverse party." 426 F.3d 1281, 1290 (10th Cir.2005). "[T]he party relying on Rule 60(b)(3) must, by adequate proof, clearly substantiate the claim of fraud, misconduct or misrepresentation." Id. Moreover, "the challenged behavior must substantially have interfered with the aggrieved party's ability fully and fairly to prepare for and proceed to trial." Id. (quoting Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999) (emphasis in original)). Applying this standard, the Tenth Circuit found that Zurich had failed to establish fraud by clear and convincing evidence because its proof of misconduct consisted only of the opposing party's "failure to produce documents." Id. at 1292. The Tenth Circuit explained that even though "a failure to disclose requested information during discovery may constitute misconduct under Rule 60(b)(3)[,]" this type of violation "usually requires the violation of a specific discovery request or order." Id. The Tenth Circuit agreed with the district court's conclusion that the defendant's obligation to disclose the documents at issue, was "less than clear[,]" and the "proper remedy for any perceived violation of discovery is to seek redress under Rule 37(a)(2), not to wait until after summary judgment and file a Rule 60(b)(3) motion." Id. Finally, the Tenth Circuit expressed doubt as to whether the defendant's failure to produce
The situation presented here is more similar to the situation in Madere and less like the situation Zurich. Perkins did not merely fail to produce a document, he failed to inform Defendants of the existence of a critical document about which he intended to present testimony. Moreover, since the document existed but is now missing, Defendants' only recourse would have been to impeach the circumstances surrounding the Union's loss of the document, which Defendants were unable to attempt without knowledge of the document's existence. Unlike the situation in Zurich, Defendants could not have sought redress prior to trial under Rule 37 because before trial Defendants lacked knowledge that the missing grievance existed. Finally, as in Madere, the grievance was significant proof of Perkins' protected activity, and as such, the evidence was relevant to a pivotal issue: that Martelli agreed with Mondragon's decision to fire Perkins because Perkins reported racially offensive conduct by Martelli.
The Court concludes that Defendants were prejudiced by Perkins' failure to inform them about the missing grievance, and this failure resulted in a judgment "unfairly obtained." Madere, 2012 WL 5208538 at *4. Perkins' failure to disclose his intent to offer testimony about a missing grievance substantially interfered with Defendants ability to prepare for and proceed to trial. Zurich, 426 F.3d at 1290-92; Madere, 2012 WL 5208538 at *5. Defendants were prejudiced by Perkins' failure to inform Defendants that Medina and Perkins would testify about a missing grievance that complained about Martelli's use of a racial epithet, which was important protected activity supporting Perkins' retaliation claim against Martelli. Hence, the Court will vacate the judgment against Martelli on Perkins' retaliation claim and will grant a new trial on that claim under Rule 60(b)(1) and Rule 60(b)(3).
In Defendants' interrogatories and requests for production, Defendants asked Plaintiffs to describe "for the last ten (10) years each and every civil and criminal case, charge, and proceeding to which you have been a party, including but not limited to administrative proceedings, judicial proceedings, and bankruptcy proceedings." (Mot. Ex. A-3.) At Perkins' deposition, Defendants' counsel asked Perkins whether he had ever been arrested without mentioning the ten-year time limitation. Perkins informed Defendants in written answers to interrogatories, in responses to requests for production, and at his deposition that he had been arrested twice: 1) in 2004 on a charge of criminal damage to property, which was later dismissed; and 2) in 2008 for "misdemeanor charge in relation to a domestic dispute. . ." (Mot. Exs. A-1, A-3.)
Following trial, Defendants discovered that Perkins had been arrested more than twice: 1) in 1997, Perkins was arrested for domestic battery, and after Perkins pleaded guilty, he was ordered to participate in a treatment program (Mot. Ex. D)
Also following trial, Defendants discovered that Perkins was involved in other legal proceedings: 1) between March 1984 and October 2005, Perkins was involved in several paternity suits (Mot. Ex. E); 2) in 2000, Perkins was in divorce proceedings (Mot. Ex. D); 3) in October 2003, Perkins was sued in small claims court (Id.); 4) in December 2003, a complaint for forcible entry and detainer was filed against Perkins, and Perkins was ordered to pay damages (Id.)
Perkins responds that on the date of his deposition, September 29, 2011, he properly disclosed his arrests and legal proceedings for the previous ten years, which would not have included the 1997 arrest and the 2000 arrest. Perkins further contends that even if he had disclosed the additional information about criminal activity that Defendants discovered post trial, the evidence would not have been admissible because it is irrelevant under Fed. R.Evid. 401,
Under Fed.R.Evid. 609, evidence that a witness has been convicted of a crime is admissible if the crime is a felony or if the crime involved dishonesty or fraud, and the Court must perform the Rule 403 analysis if the conviction occurred more than ten years prior to the date the information is requested:
Fed.R.Evid. 609.
Because Perkins' convictions did not involve crimes of fraud or dishonesty, and the convictions were not for felonies, the Court would not have allowed Defendants to present evidence of the convictions under Rule 609(a). But even if the crimes were felonies or crimes involving fraud or dishonesty, the Court would not have admitted them as evidence under Rule 403. All but one of the crimes for which Perkins was convicted involved domestic violence, a reprehensible subject that might evoke an overly emotional response among jurors. This evidence may also have caused the jury to consider Perkins a person of questionable character, and this type of character evidence has no relevance to the issues before the jury: discrimination and retaliation. More importantly, even though this evidence would have been technically relevant to Perkins' credibility by showing prior inconsistent testimony, the Court would have excluded it because its relevance is far outweighed by the danger of unfair prejudice. With regard to the civil proceedings, especially the paternity suits, these have no relevance to any of the claims in this case, but even if minimally relevant to Perkins' credibility as prior inconsistent testimony, the Court would have excluded this evidence under Rule 403.
At his pretrial deposition, Perkins testified that he had four children. (Ex. A-1 at 13:9-12.) Before beginning cross examination of Perkins at trial, Defendants requested a side-bar conference and asked the Court to allow them to present evidence that Perkins' FFP wages were garnished for eight children to rebut Perkins' contention that after he was fired from FFP he suffered emotional distress due to financial hardship. (Tr. 1103:4-25.) Defendants wanted to present evidence that during Perkins' employment with FFP, his paychecks, which were subject to the garnishment orders, were significantly lower than his post discharge take-home pay from GT Express, which was not garnished. The Court allowed Defendants to question Perkins about mandatory deductions from his paychecks at FFP, but the Court did not allow Defendants to identify those deductions as child support payments.
In the Motion, Defendants assert that after trial they discovered that, contrary to Perkins' counsel's statements, Perkins had been legally determined to be the father of the additional children in paternity cases. (Mot. Ex. E.) However, Perkins submitted an affidavit attached to Plaintiffs' Response to the Motion, in which he testifies that he believed he was not the father of the additional children based on information from the children's mothers. (Resp. Ex. 2.)
Defendants also assert that prior to trial Perkins made misrepresentations as to other personal information. At his deposition, Perkins testified that Christina Mannon, the person who accused Perkins of domestic abuse in 2001, was unrelated to Dorothy Mannon, the mother of one of Perkins' children, Linda Mannon. (Mot. Ex A-1 at 14: 9-13.) Defendants determined after trial that Christina Mannon is Linda Mannon's aunt, and Christina Mannon was granted custody of Linda in 1998. (Ex. F.) Defendants claim that Perkins' misrepresentations about his relationship to the Mannons and about his children would have been relevant to impeach Perkins' credibility. Defendants maintain that without this information, Defendants' were unable to adequately impeach Perkins' veracity, an issue vital to their defense.
As the Court ruled at trial, Perkins' paternity issues and Perkins' statements about the Mannons are inadmissible, and the Court would exclude this new evidence even as impeachment evidence. The inaccuracy of Perkins' deposition testimony about the Mannons and the number of children he has might be minimally relevant to Perkins' credibility; however, the
At oral argument on the Motion, Defendants' counsel contended that if a person will lie about his children, he will lie about anything. (Tr. Hrg. Nov. 19, 2012 at 51:2-4.) This argument is purely speculative. Perkins testified by affidavit attached to his Response to the Motion that he had a good faith belief that he was not the father of the additional children, but that he had not sought to overturn child support orders because he could not afford the cost of paternity testing. (Resp. Ex. 2.) The information, even as explained by Perkins, would have been confusing to the jury and would have turned the trial about discrimination and retaliation at FFP into a mini trial concerning Perkins' paternity issues. In sum, despite Defendants' post trial discovery of information about Perkins' paternity suits and the Mannons that is inconsistent with Perkins' deposition testimony, this evidence is inadmissible even as impeachment evidence. Thus, no new trial can be ordered on the basis of this new evidence.
The jury awarded Perkins $26,697 in net lost wages and benefits against both FFP and Martelli on Perkins' retaliation claims.
At trial, Perkins, through Dr. Pacey, asked the jury to award $67,894 in lost wages and benefits. (Tr. 853:20-21.) The date Perkins began employment after he was fired by FFP and the amount of wages he earned from that later employment were crucial facts for determining whether Perkins should be awarded this amount. Defendants argue that, as indicated by her testimony, Dr. Pacey arrived at $67,894 based on materially inaccurate information. Defendants also point out that Perkins' testimony at trial conflicted with his pre-trial disclosures about when he started his post discharge employment and how much he earned. Defendants maintain that when viewed in conjunction with the other discovery violations and surprise evidence at trial, this conflicting
In Perkins' supplemental answers to Defendants' interrogatories, Perkins stated that after he was fired from FFP, he started driving as an independent contractor for GT Express in May 2011. (Mot. Ex. A-7 at 3.) At Perkins' deposition, he testified that in May 2011 he began working full time for GT Express and received $500 per week.
(Tr. 874:6-14.) Dr. Pacey testified that she estimated Perkins' actual earnings for 2011 from information she received from Perkins and his counsel because Perkins provided her no documentation to support his earnings. (Tr. 872:6-873:16.)
At trial, Perkins contradicted both Dr. Pacey and his own discovery responses and testified that he began working part time for GT Express in October 2010.
Defendants attached to the Motion an affidavit of Richard Carroll, a hearing officer for the State of Colorado Department of Motor Vehicles, that Defendants acquired after trial. (Mot. Ex. C.) Mr. Carroll stated that he held a hearing on the issue of Perkins' CDL suspension and at the hearing, Mr. Carroll determined Perkins incurred 12 points against his driver's license during the period between October 27, 2010 and August 24, 2011. Under Colorado law, if a person incurs 12 points against his driver's license, his license can be suspended. (Aff. of Richard T. Carroll, ¶ 4.) Mr. Carroll stated that Perkins informed him at the hearing that Perkins incurred the infractions or points "as a delivery driver to King Soopers Pharmacies." (Id. at ¶ 8.) Therefore, Perkins was able to keep his license under a "chauffeurs" exception under Colorado law.
Defendants raise another problem related to Dr. Pacey's calculation of Perkins' lost wages and benefits. As mentioned above, on August 26, 2010, Perkins entered into a settlement agreement with FFP and the Union concerning some of Perkins' grievances, other than Perkins' grievances about racial discrimination and retaliation. According to the settlement agreement, Perkins was to receive $54,523.76 for lost wages and benefits from the date he was fired, May 12, 2009 to August 26, 2010. (Ex. P.) In other words, the amount of $54,523.76 represented Perkins' lost wages and benefits that he would have earned working at FFP from May 12, 2009 to August 26, 2010. Dr. Pacey testified that she was informed of the settlement agreement and the settlement amount. However, Dr. Pacey was apparently given the wrong date of the settlement because Dr. Pacey testified that her calculation of Perkins' lost wages and benefits assumed Perkins had been compensated from the date he was fired to June 7, 2010. Consequently, Dr. Pacey's calculation of Perkins' total lost wages and benefits included wages and benefits for one and one half months for which Perkins had already been compensated under the settlement agreement.
At trial, Dr. Pacey gave confusing testimony that she calculated lost wages and benefits from June 7, 2010 forward, but she also determined the total amount of wages and benefits lost from the date Perkins was fired, May 12, 2009, to the date of trial, and from that total, she subtracted most, but not all, of the settlement agreement amount of $54,523.76. Dr. Pacey explained that she removed from her calculation $10,000 to $12,000 of the settlement amount because she did not want to count monies that Perkins received for "out-of-pocket medical expenses because of [Perkins] motorcycle accident . . ." (Tr. 855:2-9.) Dr. Pacey was also under the impression that the settlement agreement ". . . covered the loss or the value of [Perkins'] automobile for reasons that were related to the grievances in that settlement." (Tr. 855:10-12.) In sum, Dr. Pacey concluded that the settlement agreement amount of $54,523.76 included $10,000 to $12,000 that should not be subtracted from the calculation of Perkins' total lost wages and benefits: "So all that difference, it's about 10- or $12,000, is related to those . . . items." (Tr. 855:13-15.)
There was no evidence that any part of the settlement agreement covered the loss of a vehicle. And, Perkins' motorcycle accident occurred after the settlement agreement. Hence, Dr. Pacey incorrectly deducted $10,000 to $12,000 from the settlement agreement amount. Instead, Dr. Pacey should have subtracted the entire amount of the settlement, $54,523.76, from the amount Perkins' would have earned from FFP had he not been fired.
In Perkins' July 1, 2011 discovery responses, Perkins stated that he had been unable to work because he had broken his femur in a motorcycle accident on March 12, 2011, he was in a "full cast." (Mot. Ex. A-3 at 5.) At trial, Perkins testified that he had broken his "shin" bone, and he had been in a cast covering only his lower leg for five weeks after he had surgery to
In Dr. Pacey's calculation of the total amount of wages Perkins would have earned from FFP, Dr. Pacey mistakenly assumed Perkins would have earned 5-10 hours of overtime pay per week. However, the evidence showed that Perkins worked no overtime while he was at FFP. Dr. Pacey stated she was not given Perkins' actual pay stubs from FFP but relied on information from Perkins and his counsel:
(Tr. 883:13-17.)
Defendants contend that the Court should set aside the jury's entire verdict under Rule 60(b)(1) because Defendants were unfairly surprised and prejudiced at trial by Perkins' new allegations about his
Perkins argues that his employment with GT Express was thoroughly explored at trial by Defendants; therefore, the jury was able to account for the conflicting evidence and calculate the amount of lost wages and benefits. Perkins further contends that since the jury awarded, $26,697, much less than the $67,894 requested by Perkins, the jury ably determined the correct award despite the conflicting evidence at trial. However, Perkins' argument fails to address the Defendants' contention that they were surprised and prejudiced at trial on this issue when the new allegations surfaced at trial. Defendants further argue that Perkins' lack of pretrial disclosure on this issue must be considered with the other surprise evidence, particularly the additional March 11, 2009 grievance, that in combination left Defendants at an unfair disadvantage at trial. In addition, despite its efforts, the jury was not able to accurately account for the discrepancies. The award simply seems to have been the jury's best guess based on the evidence at trial. Schwab v. Martino, No. 05-cv-1456, 2007 WL 4522714, *7-9 (D.Colo. Dec. 17, 2007) (granting motion for new trial and setting aside award of future medical expenses as economic damages because the plaintiff failed to give the jury an estimate for the cost of future medical expenses beyond a general description) (unpublished decision).
The inaccurate information given to Defendants prior to trial, on which Dr. Pacey based her calculations, justifies setting aside not only the jury's award of damages for Perkins' lost wages and benefits but also the Court's Judgment imposing joint and several liability on FFP and Martelli for those damages. The Court has set aside the jury's verdict on Perkins' retaliation claim against Martelli, and the Court has ordered a new trial on that claim. Therefore, due to the surprise evidence and incorrect information incorporated into Dr. Pacey's opinion, the Court will require Perkins to prove his lost wages and benefits at the retrial of Perkins' retaliation claim against Martelli. Although it appears that the jury attempted to determine the correct amount of Perkins' lost wages and benefits, the Court finds that the jury could not have accurately decided how much to award Perkins for lost wages and benefits, and the Defendants could not defend against allegations as to lost wages that changed at trial.
In Defendants' interrogatories and requests for production, Defendants asked
Miller testified at his deposition that his wife is Debra Healey. (Mot. Ex. A-25:25-8:2; 36:15-37:16.) He testified that he and Ms. Healey have three children together and that they adopted two additional children. (Id.) In Miller's answer to Defendants' interrogatory asking about documents relating to his marriage to Debra Healey, Miller stated that he and Debra Healey had been together for approximately 28 years; however, they had "never co-mingled funds, joint bank accounts or any other type of account, agreement, or contract together; therefore, Mr. Miller has no such documentation." (Mot. Ex. A-9 at 5.) At trial, Miller testified that he had been married for 27 years. (Tr. 196:10-13.)
To prove his claim that he was entitled to compensatory damages for emotional distress and mental anguish, Miller testified that he experienced emotional distress after being discharged from FFP because for the first time he could not provide for his wife and children and he had financial difficulties that led to fights between him and his wife:
(Tr. 244:4-20.)
(Tr. 245:15-246:4.)
In the Motion, Defendants assert that after trial, Defendants learned that Miller represented himself as single in 1995-96 court records, and these records are important for two reasons: Miller's representation as to his marital status and Miller's failure to inform Defendants about the criminal cases associated with these records. Miller was arrested in 1995 for failure to appear in court on a shoplifting charge, and on the Custody Report prepared in that case Miller's marital status is listed as "single" indicating that Miller told the officer filling out the Custody Report that he was not married. (Mot. Ex. H.) This representation was made during the 27-year period that Miller claimed he was married according to his deposition and trial testimony. After trial, Defendants also discovered that in 1996, Miller was arrested and charged with two counts of felony criminal impersonation because Miller had used his brother's identity during two traffic stops. (Id.) Miller pleaded guilty to two counts of misdemeanor criminal simulation. (Id.) On the Custody Report dated March 2, 1996, in connection with Miller's 1996 arrest, Miller's marital status is listed as "single" indicating that Miller told the officer filling out the Custody Report that he was not married. (Id.) This representation was made during the 27-year period that Miller claimed he was married according to his deposition and trial testimony. (Id.)
In response to the Motion, Miller argues that he was not required to disclose the information about his 1995 arrest and 1996 conviction because these cases occurred more than ten years ago. However, in response to Defendants' question at Miller's deposition regarding whether Miller had even been arrested, without the ten-year limitation, Miller should have informed Defendants about these cases. Miller further responds that his representations regarding his marital status and information related to his marriage would not have been admissible under Rule 403 as impeachment evidence or as rebuttal evidence concerning Miller's claim of emotional distress.
At trial, Miller's testimony that he experienced emotional distress after he was fired from FFP was the only evidence offered supporting Miller's claim for compensatory damages. Miller testified that his emotional distress stemmed primarily from the stress on Miller's marriage and stress due to Miller's inability to support his children. However, Miller also testified that he suffered from low self-esteem. (Tr. 244:21-245:3)
At trial, Defendants sought to admit evidence, that Miller's CDL was suspended three days after he began working for FFP because Miller had failed to pay child support obligations, to rebut Miller's testimony about the stress on his marriage and that he had always supported his children prior to his discharge. This caused some confusion during a side-bar conference at trial because Miller would owe child support only if he were not married:
(Tr. 247:3-248:5) (emphasis added). Defendants point out that the statement by Miller's counsel, that Miller did not owe child support to his wife, contradicts Miller's deposition testimony that he owed child support obligations to his wife, Debra.
At trial, Defendants were allowed to ask Miller about specific dates that his CDL was suspended, but Defendants were not allowed to disclose that the suspension was due to unpaid child support obligations. During Miller's testimony, Defendants showed Exhibit HH, a copy of Miller's Colorado Motor Vehicle Record, to Miller to refresh his memory. Defendants further
(Tr. 256:23-257:1.)
After Miller's testimony, Defendants again sought to offer, through the testimony of Ted Kouba, the evidence that Miller's license was suspended soon after he began working at FFP to impeach Miller's credibility. The Court excused the jury and held another bench conference during which Miller's attorney represented that when Miller worked for FFP, Miller was unaware that his license had been suspended:
(Tr. 814:9-818:18) (emphasis added).
Following trial, Defendants discovered evidence showing that, contrary to Miller's counsel's representation, one month prior to each suspension of his CDL, Miller was warned by correspondence from the Colorado Department of Revenue's Division of Motor Vehicles that his CDL would be suspended unless he paid the outstanding child support obligation. (Mot. Ex. G.) Defendants attach the three such letters to their Motion: one dated August 20, 2007, one dated October 20, 2008, and one dated August 19, 2009. (Id.) The letter dated October 20, 2008 addressed to Miller warned that if Miller did not pay an outstanding child support obligation, his CDL would be suspended on November 22, 2008. The October 20, 2008 letter shows that when Miller began work as a truck driver for FFP on November 19, 2008, Miller was aware that his CDL would be suspended on November 22, 2008 unless
Defendants maintain that the Court would have allowed the admission of the evidence that Miller's license was suspended on November 22, 2008 as impeachment evidence and to rebut Miller's claim of emotional distress if the Court had been informed that Miller had been given a month's notice of the suspension. Defendants maintain they also should have been able to ask Miller about the warning letters and the CDL suspension as evidence that Miller presented a false job application to FFP and that Miller worked for FFP under the false pretense that he was legally able to drive FFP delivery trucks. According to Defendants, if this strong evidence of Miller's lack of credibility had been presented to the jury, the jury may have disregarded or disbelieved Miller's testimony about his emotional distress, and the jury may not have awarded $50,000 in compensatory damages on Miller's retaliation claim against FFP.
Plaintiffs respond that all of the information regarding Miller's marriage, child support obligations, CDL suspension, and Miller's convictions would have been inadmissible at trial because the information is irrelevant under Fed.R.Evid. 401, but even if relevant, the Court would have excluded the evidence as overly prejudicial or confusing to the jury under Fed.R.Evid. 403.
In Murray v. Cars Collision Center of Colorado, after a jury verdict in favor of the plaintiff on his claims under Title VII and § 1981 for a hostile work environment, the plaintiff filed a document disclosing to the court that some of his deposition testimony was "factually inaccurate." Case No. 04 CV 1456, 2007 WL 685843, *3 (D.Colo. Feb. 2, 2007) (unpublished decision). At a pre-trial deposition, the plaintiff testified that he had been convicted of only one crime, driving with a suspended driver's license in 2000. Id. In his post trial disclosure, the plaintiff admitted that in the previous ten years he had been convicted of seven crimes in Oklahoma including illegal distribution of narcotics, driving with a suspended license, driving without a license, resisting arrest and speeding, driving under the influence, and check fraud. The defendant moved to vacate the judgment and to dismiss the claims or order a new trial under Rule 60(b)(2), (3) or (6) based on the plaintiff's failure to divulge his criminal history.
The court first analyzed five factors to determine whether to grant a new trial under Rule 60(b)(2): 1) the evidence was newly discovered; 2) diligence in discovering the evidence; 3) the evidence is not merely cumulative or impeaching; 4) the evidence is material; and 5) admitting the evidence would produce a different result. Id. The court emphasized that the plaintiff relied primarily on testimony to support his claims; therefore, witness credibility was very important to the plaintiff's claims of racial discrimination and hostile work environment. Id. at *6. The court further determined that the plaintiff's conviction for check fraud would have been admitted as relevant to the plaintiff's credibility. Id. The court found that even though the plaintiff's criminal history was available prior to trial, the evidence was "newly discovered evidence," and the defendant did not lack diligence because the information was not disclosed by the plaintiff: "[w]hile Defendant would have been wise to perform a criminal background check, Defendant was not obligated by law or circumstances to do so." Id. at *3. However, the court found that the evidence was not directly relevant to the plaintiff's harassment or hostile work environment
The court then analyzed the motion under Rule 60(b)(3) and found that the defendant had failed to meet the Tenth Circuit's heightened standard, which required, ". . . clear and convincing evidence to substantiate the claim of Plaintiff's fraud, misconduct, or misrepresentation . . . that Plaintiff acted with `an intent to deceive or defraud the court,' by means of a `deliberately planned and carefully executed scheme.'" Id. at *7 (quoting Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999)).
Under Rule 60(b)(6), the defendant argued that the plaintiff unfairly obtained a favorable judgment by "intentionally withholding material evidence," and it was not in the interest of justice to allow the judgment to stand. Id. at *8. The court concluded that the plaintiff's omission "unfairly hindered [d]efendant from being able to develop and mount its defense." Id. "To allow the judgment to stand offends justice and strikes this court as unequivocally inequitable." Id. The court ordered a new trial to rectify the inequity, and to provide the defendant the opportunity to use the evidence ". . . while preserving Plaintiff's opportunity to have his case resolved on the merits." Id. at *9.
For newly discovered evidence to provide a basis for a new trial, the moving party must show: (1) the evidence was newly discovered since the trial; (2) the moving party was diligent in discovering the new evidence; (3) the newly discovered evidence is not merely cumulative or impeaching; (4) the newly discovered evidence is material; and (5) a new trial with the newly discovered evidence would probably produce a different result. Fed. R.Civ.P. 60(b)(2). See also, Zurich, 426 F.3d at 1289-90 (finding that evidence did not meet the second requirement because Zurich's counsel knew the documentation was missing almost a year prior to the start of trial).
The Court finds that under Rule 60(b)(2), the new evidence regarding Miller's criminal history and about Miller's knowledge that his CDL was suspended four days after he began work for FFP warrants a new trial on damages with respect to Miller's retaliation claim against
Under Rule 607, "[a]ny party, including the party that called the witness, may attack the witness's credibility." Fed. R.Evid. 607. Under Rule 608, a party may impeach a witness "by cross-examining him about specific instances of conduct . . . if such conduct is probative of the witness' character for truthfulness or untruthfulness. Such inquiry is within the discretion of the trial court subject to Rule 403." United States v. Morales-Quinones, 812 F.2d 604, 613 (10th Cir.1987). Defendants should have been able to question Miller on cross examination about the October 2008 letter he received from the Colorado Division of Motor Vehicles warning Miller about his CDL suspension scheduled for November 22, 2008, and Miller's failure to inform FFP that his CDL was scheduled to be suspended. This evidence is relevant to Miller's overall credibility and specifically relevant to Miller's testimony that he was entitled to damages for emotional distress. Significantly, Miller was the sole witness on his compensatory damages for emotional distress.
The Court would also have allowed Defendants to present evidence about Miller's conviction for criminal simulation, because it is relevant to Miller's credibility. Under Fed.R.Evid. 609, evidence that a witness has been convicted of a crime is admissible if the crime involved dishonesty or false statement. Fed.R.Evid. 609(a). Miller's 1996 conviction for criminal simulation involved a crime of dishonesty. The Court would not have excluded under Rule 403 the evidence about Miller's 1996 conviction even though the conviction is more than ten years old. The probative value of this evidence is bolstered by the fact that it involved misrepresentations made about Miller's identity to avoid tickets for driving infractions and to avoid having his license suspended. The relevance and probative value of this evidence to Miller's credibility would have outweighed the danger of unfair prejudice.
In conclusion, the jury was given an incomplete picture on which to find that Miller suffered emotional distress damages. The evidence about Miller's conviction for criminal simulation and the evidence that Miller received a warning letter prior to his employment with FFP that his CDL was scheduled to be suspended could have affected the jury's award of compensatory damages for emotional pain and mental anguish. Evidence that in 1995 and 1996 Miller claimed to be single, but in 2012 Miller claimed to have been married for 27 years, whether by common law or statutorily, is important evidence regarding both Miller's credibility and Miller's claim that after he was fired from FFP he experienced emotional distress because he was unable to support his wife and children. Even the evidence that Miller had an obligation for child support, either to his wife or to the state, might be admissible at a new trial if Miller's marriage status is not fully explained.
At a new trial, in addition to allowing a jury to decide the amount of
The Court is limiting the new trial to Miller's compensatory and punitive damages because, while the credibility of Miller's testimony was crucial to Miller's claim of damages, Miller's testimony was not vital proof of liability for retaliation. See Firestone Tire and Rubber Co. v. Pearson, 769 F.2d 1471, 1480 (10th Cir.1985) (upholding new trial on damages only because "[t]he confusion concerning the proper measure of damages . . . did not affect the determination of liability."). It was undisputed that Miller engaged in protected activity by testifying about Martelli's use of racial epithets at Moreno's union arbitration hearing. It was also undisputed that Miller was fired seventeen days after giving that testimony. And, although FFP claimed that Miller's accident in FFP's parking lot was the reason for Miller's discharge, Miller's allegation that this reason was a pretext for retaliation was supported at trial by documentary and testimonial evidence showing that several other FFP employees had serious accidents but were not discharged. Consequently, the newly discovered evidence concerning Miller's credibility would not have altered the outcome on liability. But, Miller's credibility was crucial to his claim of compensatory damages for emotional distress because Miller's testimony was the only evidence offered to show that Miller suffered emotional distress after he was fired from FFP. Furthermore, a new trial on compensatory damages requires a new trial on punitive damages. Accordingly, the Court will order a new trial on the amount of compensatory and punitive damages awardable on Miller's retaliation claim against FFP in addition to the new trial already granted on compensatory and punitive damages for Miller's retaliation claim against Martelli.
IT IS ORDERED that DEFENDANTS' MOTION FOR RECONSIDERATION
On Perkins' claim against FFP for discriminatory discharge, the Court entered judgment on the jury's verdict and awarded Perkins $5,000 in compensatory damages for emotional pain and mental anguish and $65,000 in punitive damages. On Perkins' claim against Martelli for discriminatory discharge, the Court entered judgment on the jury's verdict and awarded Perkins $15,000 in compensatory damages for emotional pain and mental anguish and $65,000 in punitive damages. On Perkins' retaliation claim against FFP, the Court entered judgment on the jury's verdict and awarded Perkins $50,000 in compensatory damages for emotional pain and mental anguish and $350,000 in punitive damages. On Perkins' retaliation claim against Martelli, the Court entered judgment on the jury's verdict and awarded Perkins $50,000 in compensatory damages for emotional pain and mental anguish and $150,000 in punitive damages.
For Perkins' retaliation claims against both FFP and Martelli, the jury awarded to Perkins $26,697 in lost wages and benefits against both FFP and Martelli, and the Court entered judgment against FFP and Martelli jointly and severally for these damages because Perkins can recover only once for his lost wages and benefits.
On Miller's retaliation claim against FFP, the Court entered judgment on the jury's verdict and awarded to Miller $50,000 in compensatory damages for emotional distress and $50,000 in punitive damages.
(Tr. 1082:24-1084:1.)
(Tr. 1087:14-1088:3.)
(Tr. 1097:1-7.)
Fed.R.Civ.P. 26(b)(1) (emphasis added).
Rule 26 requires a party to supplement incomplete disclosures:
Fed.R.Civ.P. 26(e)(1).
Fed.R.Civ.P. 33(b)(3).
Fed.R.Civ.P. 37(a)(4).
(Tr. 1250:6-1253:13.)
Fed.R.Evid. 401.
Fed.R.Evid. 403.
(Tr. 1104:17-1105:6.)
(Tr. 1106:22-1109:21) (emphasis added).
(Jury Instructions Doc. No. 143-6 at p. 30.)
(Perkins Dep. 40:19-41:21 Mot. Ex. A-1.)
(Tr. 868:20-869:9.)
(Tr. 1135:1-1137:1.)
(Tr. 1225:5-1227:12.)
(Tr. 1202:25-1206:5.)
(Tr. 1202:12-21.)
(Reply Ex. B at 36:2-37:3.)
