JOHN M. FACCIOLA, United States Magistrate Judge.
This case is before me for all purposes including trial. Currently pending and ready for resolution is Defendant's Notice of Refiling its Motion for Judgment as a Matter of Law or in the Alternative for New Trial, for Remittitur with References [sic] to the Trial Record [# 153]. For the reasons stated below, defendant's motion will be denied.
In 1997, plaintiff, a Hispanic police officer with the Washington, D.C. Metropolitan Police Department ("MPD"), sued the District of Columbia for employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
Defendant moves for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, which allows for a post-trial finding by the court that a reasonable jury did not have a legally sufficient evidentiary basis for its findings. See 9B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2521 (3d ed.2009). "Judgement as a matter of law should only be granted `if viewing the evidence in the light most favorable to the [non-moving party] and giving him the advantage of every fair and reasonable inference that the evidence may permit, there can be but one reasonable conclusion drawn.'" Fox v. District of Columbia, 990 F.Supp. 13, 19 (D.D.C.1997) (quoting Richardson by Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 827 (D.C.Cir.1988)). Finally, a Rule 50(b) motion is only permitted if the movant sought relief on the same grounds under Rule 50(a), before the case was sent to the jury. See id. at § 2537; Exxon Shipping Co. v. Baker, ___ U.S. ___, 128 S.Ct. 2605, 2617 n. 5, 171 L.Ed.2d 570 (2008).
Defendant contends that the District is entitled to judgment as a matter of law as to plaintiff's Section 1983 claim because there was insufficient evidence of a custom and policy within the MPD of retaliating against individuals who complained of discrimination on the basis of their national origin. Defendant's Memorandum of Points and Authorities in Support of its Motion for Judgment as a Matter of Law, or in the Alternative, for a New Trial or Remittitur ("Defs. Mem.") at 8. First, defendant argues that plaintiff's own testimony was insufficient in that he failed to provide any examples of other Hispanic officers who complained of national origin discrimination and were subsequently retaliated against. Id. at 10. Second, defendant argues that the testimony of Officer Hiram Rosario also lacked specificity in that even though Officer Rosario testified that, as President of the Hispanic Police Association, he had occasion to meet with all of the MPD Chiefs of Police to discuss the concerns of the Hispanic officers, he, like plaintiff, failed to provide any concrete examples of complaints made by other Hispanic officers. Id. Third, defendant argues that Judge Hennessy's testimony was even more generalized than Officer Rosario's. Id. at 11. According to defendant, while Judge Hennessy testified that officers who complained were not viewed as team players and were given less favorable assignments, he made no mention of Hispanic officers in this context. Id. Finally, defendant argues that plaintiff's introduction into evidence of only three pages of a one hundred and three page document, the MPD Affirmative Action Plan, was misleading because the Plan was created five years prior to the alleged retaliatory behavior in this case and because, while the data table plaintiff introduced contains the transfer rates of Blacks, Whites, and Hispanics, it gives no explanation for why the various groups received transfers. Id. In other words, defendant argues that the table does not show that Hispanics were denied transfers in retaliation for complaining of discrimination based on their national origin. Id.
Plaintiff offers two arguments in opposition. First, plaintiff notes that, although not common, "a municipality can be held liable under Section 1983 for a single bad act if the act was ordered or sanctioned by a municipal official with final policymaking authority." Memorandum in Opposition to Defendant's Motion for Judgment as a Matter of Law, or in the Alternative, for a New Trial, or for Remittitur ("Plains. Opp.") at 5. Plaintiff then argues that the case at bar is just such a case because the individual directly responsible for the illegal discrimination was the Chief of Police, the official with final policymaking authority for the MPD and the official who denied plaintiff's request to transfer back to the OIA in 1998. Id.
Second, plaintiff argues that even if the Chief of Police was not the final policymaker, the evidence amply supported the jury's conclusion that there was a custom and practice of retaliation against Hispanic officers at the MPD who complained of discrimination. Plains. Opp. at 6-7. In support of his contention, plaintiff cites the following evidence: 1) Officer Rosario's testimony that he was demoted and subjected to adverse employment actions after he filed a claim of discrimination, 2) Judge Hennessy's testimony that Hispanic officers who challenged authority lost out on promotional opportunities, 3) Judge Hennessy's testimony that the MPD fostered a culture that negatively targeted those who were not team players, such as Hispanic officers who filed EEO claims, 4) Officer Cheryl Peacock's testimony that she was asked to apply for various positions and
Section 1983 of Title 42 of the United States Code states the following:
42 U.S.C. § 1983.
In the seminal case of Monell v. Dept. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that in order for liability to attach to a municipality for civil rights violations under section 1983, the municipality must have acted in accordance with a "government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Id. at 694, 98 S.Ct. 2018. The Court emphasized that the imposition of liability under section 1983 was not based on a theory of respondeat superior, but rather was imposed only where there was proof of a policy which itself violated the statute. Id. at 691, 98 S.Ct. 2018. Accord Moonblatt v. District of Columbia, 572 F.Supp.2d 15, 20 (D.D.C.2008). In other words, a plaintiff must "show a course deliberately pursued by the city, `as opposed to an action taken unilaterally by a nonpolicymaking municipal employee.'" Carter v. District of Columbia, 795 F.2d 116, 123 (D.C.Cir.1986) (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 829, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)).
In Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court held that a single decision by a policymaker may be the basis for the imposition of section 1983 municipal liability. Id. at 480, 106 S.Ct. 1292. The Court noted however that "municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered" and that "[t]he fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion." Id. at 481-82, 106 S.Ct. 1292. "With this understanding, it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Id. at 480, 106 S.Ct. 1292. Accord Mandel v. Doe, 888 F.2d 783, 792 (11th Cir.1989) ("Pembaur stands for the proposition that, under certain circumstances, municipal liability may be imposed for a single decision by a municipal policymaker.").
The determination of whether an individual has final policymaking authority
As the Supreme Court indicated, resort must be first be had to positive law but in this case it was not argued that there was a law or municipal regulation that granted the Chief of Police the authority to make transfers. It follows then that it appropriate to look as the District's custom or usage. Indeed, the federal courts have specifically concluded that they may look to a municipality's custom or usage to determine whether a municipal official has final policymaking authority. Gros v. Grand Prairie, 181 F.3d 613, 616 (5th Cir.1999); Feliciano v. Cleveland, 988 F.2d 649, 655 (6th Cir.), cert. denied, 510 U.S. 826, 114 S.Ct. 90, 126 L.Ed.2d 57 (1993); Mandel, 888 F.2d at 792-93.
In this case, plaintiff presented sufficient evidence at trial to permit me to conclude that the MPD lacked an official policy regarding the way in which transfers were to be carried out and that instead there was a distinct, well-established custom or practice that the Police Chief was the final policymaker with respect to these personnel actions.
First, the jury heard testimony about "general orders." The following excerpt is from plaintiff's testimony:
Tr. 7/22/08 at 33.
Judge William Lewis Hennessy, currently an Associate Judge with the District Court of Maryland and formerly a Captain with the MPD, also testified that "general orders dictate the policy of the agency." Tr. 7/22/08 at 133.
Next, the jury was informed that the MPD lacked any written policies or procedures governing transfers. The following excerpts are again from plaintiff's testimony:
Tr. 7/21/08 at 110.
Tr. 7/22/08 at 33-34.
The deposition testimony
Tr. 7/22/08 at 172-73.
Finally, several witnesses testified at trial that the Police Chief was the sole individual responsible for making transfer decisions. The following excerpt is from plaintiff's testimony:
Tr. 7/21/08 at 137.
Patricia Alexander, an executive officer at the MPD's Regional Operational Command, also addressed the role of the Police Chief with respect to transfers:
Tr. 7/22/08 at 163-64.
This was reiterated by Hoppert in his testimony, wherein he described the process he went through when trying to fill a vacancy within his unit:
Tr. 7/22/08 at 173-74.
Through his own testimony as well as that of Judge Hennessy, Hoppert, and Alexander, plaintiff presented sufficient evidence that the MPD lacked any written policies or procedures regarding transfers and that the Police Chief had final policymaking authority in this area. Curiously, although plaintiff, in his opposition to defendant's post-trial motion, argues in that alternative that even if the Police Chief was not the final policymaker, liability still attaches, defendant did not attempt to refute plaintiff's evidence at trial that the Police Chief was the final policymaker. Therefore, based on the evidence presented, the Court concludes that plaintiff produced sufficient evidence that a well-established custom and usage made the Chief of Police the final decision maker of transfer decisions so that his decision may serve as the premise of municipal liability under § 1983.
Proof of causation may take several forms:
Lauren v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007) (internal citations omitted). Accord Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999) ("Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus."). See also Barry v. U.S. Capitol Guide Bd., 636 F.Supp.2d 95, 106-07 (D.D.C.2009) and cases cited therein (a plaintiff must show both that the final policymaker was aware of plaintiff's protected activity and that the final policymaker's actions occurred because of plaintiff's protected activity).
Plaintiff presented uncontroverted evidence that the Police Chief was aware of the filing of his complaint of discrimination with the Equal Employment Opportunity Commission ("EEOC"). At trial, plaintiff's Exhibit 23 was admitted. That exhibit is a letter dated May 12, 1993, from the Government of the District of Columbia Department of Human Rights and Minority Business Development to Chief Fred Thomas, in which the Chief is notified that plaintiff has filed a complaint against him. See Defendant's Motion for Judgment as a Matter of Law or in the Alternative for New Trial, for Remittitur ("Defs. First Mot.") [# 136] at Attachment 3; Tr. 7/21/08 at 122 ("THE COURT: . . . I'm going to admit this document only for the purpose of showing whether or not Mr. Thomas, as Chief of Police, learned of the
Both Judge Hennessy and Rosario provided explicit testimony regarding the pervasiveness of retaliatory behavior taken by the department against those officers who filed claims against it. Judge Hennessy testified as follows:
Tr. 7/22/08 at 135-38.
Rosario provided similar testimony:
Tr. 7/22/08 at 99-100.
It was therefore not unreasonable for the jury, based on the record before it at trial, to infer that the Police Chief's decision to deny plaintiff request for a transfer to OIA in 1998 was motived by retaliatory animus
A "§ 1983 plaintiff . . . may be able to recover from a municipality without adducing evidence of an affirmative decision by policy makers if able to prove that the challenged action was pursuant to a state `custom or usage'" Pembaur v. Cincinnati, 475 U.S. at 484 n. 10, 106 S.Ct. 1292. In other words, "[s]ome actions are so `permanent and well settled' that they may be considered governmental customs or practices even if they have not received formal approval through official state decision-making channels." Moonblatt, 572 F.Supp.2d at 20 (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). Furthermore, there
Before reviewing the evidence pertaining to this issue, it is crucial to recall that plaintiff was not obliged to prove that the Chief of Police was the final decision making authority and that there was a custom or usage in the MPD of retaliating against police officers who complained of discrimination. Plaintiff could prevail by proving either. In Singletary v. District of Columbia, 685 F.Supp.2d 81 (D.D.C.2010), the District insisted that the plaintiff, a parolee, had to show that the decision to deny him parole was pursuant to a "policy, practice or custom of revoking parole `based on unreliable multiple hearsay' and/or in violation of constitutional due process rights, or that such a policy was communicated to the Board." Id. at 90. Judge Kollar-Kotelly had to remind the District that since Singletary had contended and the District had conceded that the decision to revoke his parole "was made by the `final municipal decision maker and [is] therefore properly attributable to the municipality.'" Id. (quoting Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). Judge Kollar-Kotelly then stated: "This is a distinct and independent means of proving municipal liability and does not require Singletary to allege the existence of an explicit policy or practice by the District." Id. The District's contention that Singletary had to prove an unconstitutional custom or practice and that the Parole Board was the final decision making authority "misse[d] the mark." Id. In the case before me, any contention by the District that plaintiff had an obligation to prove that the Chief of Police was the final decision making authority and that there was a custom or practice of retaliating against police officers who filed discrimination complaints misses the same mark.
I will nevertheless review the evidence presented to the jury tending to establish a custom or practice of retaliation because I believe that the plaintiff is entitled to the benefit of all the evidence he presented and to provide the court of appeals with the most complete record of my view of the evidence to obviate the need of a remand if it reverses my decision as to the sufficiency of the evidence that the Chief of Police was the final decision maker. In a case that has already gone on for too long, I owe the parties and the court of appeals at least that.
Although plaintiff failed to provide concrete examples of other Hispanic police officers who, after complaining of discrimination based on their Hispanic heritage, were retaliated against, he did present sufficient evidence from which a reasonable jury could conclude that the MPD was deliberately indifferent to the many complaints of discrimination and retaliation
Tr. 7/22/08 at 93-95.
Rosario also testified about the MPD's failings with respect to the Hispanic Program Coordinator's position, a position mandated by one of the MPD's General Orders:
Tr. 7/22/08 at 95-99.
Defendant also contends that the District is entitled to judgment as a matter of
In response to this argument, plaintiff counters that the issue of whether or not a transfer is an adverse action is a question of fact for the jury and was properly resolved by the jury in this case. Plains. Opp. at 8-9. In support of his argument, plaintiff points to his own testimony that had he stayed at OIA, he would have benefitted from specialized training and experience. Id. at 9. Plaintiff also cites to the testimony of Stanley Wiggenton, who retired as an Inspector with the MPD, and that of Sonya Proctor, who became acting Chief of Police in 1998, both of whom worked at OIA before they were promoted, as further proof of the career enhancing benefits of working at OIA. Id.
In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the Supreme Court held that "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse," id. at 68, 126 S.Ct. 2405, in that it would have "`dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir. 2006) (quoting Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 662 (7th Cir.2005)). While not stating so overtly, the Court also confirmed that the issue of whether or not an action was materially adverse was one for the jury: "Based on this record, a jury could reasonably conclude that the reassignment of responsibilities would have been materially adverse to a reasonable employee." Burlington N. & Santa Fe Railway Co., 548 U.S. at 71, 126 S.Ct. 2405. Accord Czekalski v. LaHood, 589 F.3d 449, 454 (D.Cir.2009) ("This circuit's standard for an adverse employment action is well-established: `[A]n employee suffers an adverse employment action if he experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.'") (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002) (emphasis added)); Kelly v. Mills, 677 F.Supp.2d 206, 221 (D.D.C.2010) ("[A]t trial the factfinder `still first must determine whether plaintiff has suffered an adverse employment action.'") (quoting Adesalu v. Copps, 606 F.Supp.2d 97, 103 (D.D.C.2009) (emphasis added)).
In this case, the jury heard uncontroverted testimony regarding the importance of transfers generally to an officer's career. Rosario stated the following:
Tr. 7/22/08 at 100-01.
Hoppert also testified regarding the importance of transfers to an officer's career:
Tr. 7/22/08 at 176-77.
The jury's conclusion, based on the testimony of Rosario and Hopper regarding the importance of transfers to an officer's career, that the MPD's decision to deny plaintiff's request for a transfer back to the OIA was materially adverse to his career was reasonable. So too was the jury's implicit conclusion that such an action would also have dissuaded other MPD officers from filing their own claims of discrimination because they would fear that such an action might jeopardize their careers within the department.
In the alternative to judgment as a matter of law, defendant moves for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure, which allows for a new trial "after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1)(A). At the trial court's discretion,
In support of its argument, defendant cites three reasons why a new trial is necessary to avoid "a clear miscarriage of justice." Defs. Mem. at 19. First, defendant argues that the court should not have admitted plaintiff's Exhibit 61, a Department of Human Rights and Local Business Development Letter of Determination, because its prejudicial value far outweighed its probative value. Id. at 19. In the document, the agency concluded that there was probable cause to believe that the MPD had violated the D.C. Human Rights Act with respect to its treatment of Hispanic
Next, defendant argues that the court should not have admitted into evidence a Resolution Agreement between the Department of Justice and the MPD because Judge Sullivan had previously excluded the agreement. Defs. Mem. at 22. Citing the law of the case doctrine, defendant argues that the court's admission of the agreement "amounts to a manifest error of law for which a new trial should be granted." Id.
Finally, defendant argues that it was clear error for the court to have admitted into evidence the testimony of Hiram Rosario, the testimony of Judge Lou Hennessy, and the MPD's Affirmative Action Plan. Id. at 22. With respect to Rosario and Hennessy, defendant claims that they both failed to provide any concrete examples of acts of retaliation by the MPD based on either national origin or pattern or practice of discrimination. Id. at 22-23. With respect to the MPD's Affirmative Action Plan, defendant argues that because it predates plaintiff's claims of discrimination and retaliation by five years, it is irrelevant and should not have been admitted into evidence. Id. at 23.
With respect to defendant's arguments regarding the court's admission of Exhibit 61, plaintiff first argues that the exhibit was properly admitted because defendant failed to object to the document when identified by the parties as Joint Exhibit No. 9 in their Joint Pretrial Statement and, although defendant did object to the same document when identified by plaintiff as Exhibit 64 in the Joint Pretrial Statement, defendant failed to include further argument regarding the exhibit in its Motion in Limine. Plains. Opp. at 10-11.
With respect to the Resolution Agreement, plaintiff argues that not only did defendant fail to object to this portion of the document at trial but because the document constitutes an admission against interest, it was properly admitted as probative and relevant. Id. at 12-13.
With respect to defendant's argument that the court improperly admitted the testimony of Rosario and Hennessy, plaintiff argues that their testimony was appropriately admitted as lay witness testimony because it was based on their own personal observations regarding the customs and practices of the MPD vis a vis MPD Officers, including Hispanic Officers, who filed complaints against the Department. Id. at 13-14.
Finally, plaintiff argues that the court properly admitted the MPD's 1993 Affirmative Action Plan as proof that Chief Fred Thomas was aware of the contents of the document, namely that in that year, only Black and White Officers received transfers for the positions of Lieutenant and Captain. Id. at 15. According to plaintiff, the document is relevant to plaintiff's claim that he was discriminated and retaliated against in 1994 when his request to remain at OIA was denied even though the same request from Sergeant Bailey, a Black Officer promoted on the same day, was granted. Id. Plaintiff also argues that the document is relevant to his 1998 claim that he was discriminated and retaliated against when, according to plaintiff, his request to transfer back to OIA was denied. Id.
The District's motion conveys the notion that plaintiff that plaintiff offered Exhibit 61 into evidence, the District objected, and the court overruled the objection and admitted
First, the exhibit identified at trial as Plaintiff's Exhibit 61 was listed as Joint Exhibit 9 in the pre-trial statement filed by the parties. Under the court's pre-trial order the parties were to list as joint exhibits "all the exhibits to which neither party has any objection." Pretrial Procedures Order [# 108] (12/19/07) at 2. Since the District listed what became Plaintiff's Exhibit 61 at trial as an exhibit to which it had no objection, it should be bound by that statement; it provided no reason at trial and provides none now as to why is should be relieved of its indication that it had no objection to the exhibit.
As the District concedes that it offered that document as a joint exhibit, it also noted, in the pretrial statement, its objection to the document on the grounds of relevance after plaintiff mistakenly listed it as a plaintiff's exhibit, even though it was already a joint exhibit. Plains. Opp. at 11. Thus, the District offered as a joint exhibit the very exhibit it objected to on the grounds of relevance and it never withdrew from the position it took in an earlier part of the joint pretrial statement, that this exhibit should be a joint exhibit.
Second, when the exhibit was offered at trial, the District did not object to its admission. Tr. 7/21/08 at 163. It must be recalled that at the trial the exhibits were projected onto a screen. When plaintiff's counsel caused Exhibit 61 to be projected onto the screen, the court specifically inquired of defendant's counsel whether he had any objection and he indicated that he did not. Id. When a juror indicated that he or she wanted to "go back", i.e., go to a prior page, defendant's counsel then stated: "Your honor, I object to the legal analysis." Id. When one looks at the document itself, it is clear that the objection was not to the document in its entirety but to the section of it captioned "Analysis," for the court immediately said: "All right. I'll talk to the jury about it. Ladies and gentlemen of the jury, that section on analysis—let's skip over that right now. That's a legal analysis. We'll talk about the legal issues pertinent to this case later on. Please go to page 5." Id. In addition, when one again looks at Plaintiff's Exhibit 61, it is clear that the court's last direction to the person who was projecting the exhibit was to go to the next page, after the analysis section. There was no further reference to this exhibit, for the next question to plaintiff was: "Now, since this letter was issued, have you ever returned to the Office of Internal Affairs." Id. at 164.
Thus, the District first stipulated to the joint admission of a document while simultaneously objecting to it on the grounds of relevance, then indicated no objection to its admission when first offered, then changed its mind and objected only to a section of it, which was sustained in the sense that the court directed that the analysis section not be shown to the jury. Most significantly, the District never objected to paragraph six of Exhibit 61, which speaks to a resolution agreement between MPD and the Department of Justice; it objected only to the analysis section, which is on a different page. The District's argument—that the exhibit was admitted over its objection
Even if the District had, in fact, objected to the admission of Plaintiff's
Second, and independently, the federal courts have admitted findings of fact by the Equal Employment Opportunity Commission, relying on the exception to the hearsay rule for public reports and records. Fed.R.Evid. 803(8); Chandler v. Roudebush, 425 U.S. 840, 863 n. 39, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) ("Prior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal-sector trial de novo. See Fed. Rule Evid. 803(8)(c)."). While the Ninth and Fifth Circuits require their admission, see Bradshaw v. Zoological Soc., 569 F.2d 1066, 1069 (9th Cir.1978); McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 399-400 (5th Cir.1985), other Circuits indicate that the decision to admit them lies within the discretion of the trial judge, who must weigh their probative value against the other considerations listed in Rule 404 of the Federal Rules of Evidence. See, e.g., Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir.), cert. denied, 469 U.S. 1041, 105 S.Ct. 525, 83 L.Ed.2d 413 (1984); Walton v. Eaton Corp., 563 F.2d 66, 74-75 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972). The Eighth Circuit has indicated that such probable cause determinations are entitled to deference, Bell v. Bolger, 708 F.2d 1312, 1321 (8th Cir.1983), while the Fifth Circuit has indicated that an EEOC investigator's finding that an unlawful discriminatory practice has occurred was highly probative of the ultimate issue involved in discrimination cases. Smith v. Universal Servs., 454 F.2d 154, 157 (5th Cir.1972). Surely, the District is not going to argue that the findings of its own agency are so unfair, biased, and inaccurate that they lack any probative value.
Finally, the District ignores the extraordinary care that was taken to make sure that the jury gave the most specific answers possible to questions that were designed
1. Did plaintiff establish by a preponderance of evidence that his being transferred out of the Office of Internal Affairs upon his promotion to Lieutenant denied him equal protection of the laws because it was based on his national origin?
2. Did plaintiff ALSO establish by a preponderance of evidence that his being transferred out of the Office of Internal Affairs upon his promotion to Lieutenant denied him equal protection of the laws because it was based on a custom or practice of discrimination against Hispanics of the District of Columbia?
3. If the answers to questions 1 and 2 were "Yes" what damages do you award plaintiff?
4. Did plaintiff establish by a preponderance of evidence that his being transferred out of the Office of Internal Affairs upon his promotion to Lieutenant was an adverse employment action?
5. Did plaintiff ALSO establish by a preponderance of evidence that his being transferred out of the Office of Internal Affairs upon his promotion to Lieutenant was substantially motivated by his national origin?
6. If the answers to questions 4 and 5 were "Yes" what damages do you award plaintiff?
7. Did plaintiff establish by a preponderance of the evidence that the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer for the position was based on his national origin?
8. Did plaintiff ALSO establish by a preponderance of the evidence that the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer for the position was based on a custom or practice of discrimination against Hispanics of the District of Columbia?
9. If the answers to questions 7 and 8 were "Yes" what damages do you award plaintiff?
10. Did plaintiff establish by a preponderance of the evidence that the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer for the position was an adverse employment action?
11. Did plaintiff ALSO establish by a preponderance of evidence that the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer for the position was substantially motivated by his national origin?
12. If the answers to questions 10 and 11 were "Yes" what damages do you award plaintiff?
13. Did plaintiff establish by a preponderance of the evidence that the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer denied him equal protection of the laws by retaliating against him for having filed complaints complaining of discrimination on the basis of his national origin?
14. Did plaintiff ALSO establish by a preponderance of evidence that the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer was based on a custom or practice of retaliation against persons who complain of discrimination on the basis of national origin?
15. If the answers to questions 13 and 14 were "Yes" what damages do you award plaintiff?
16. Did plaintiff establish by a preponderance of the evidence that a reasonable employee would have found the MPD's denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer a materially adverse action?
17. Did plaintiff ALSO establish by a preponderance of evidence that the MPD's denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer was done in retaliation for his making complaints of discrimination?
18. If the answer to question 16 was "Yes" what damages do you award plaintiff?
19. Did plaintiff establish by a preponderance of the evidence that the MPD's delay in restoring plaintiff to his police powers denied him equal protection of the laws because it was done in retaliation for his having filed complaints of discrimination?
21. If the answer to questions 16 and 17 were "Yes" what damages do you award plaintiff?
It is impossible for the jury to have made it any clearer that it rejected all of plaintiff's claims of discrimination, meaning, of course, that while the District's Department of Human Rights concluded that the MPD discriminated against plaintiff when it denied his request to transfer back to OIA in 1998, the jury disagreed and answered "no" to question 7 on the verdict form. It is equally impossible, therefore, for the District of Columbia to establish that it was prejudiced in any way by the admission of the entire exhibit, let alone the only part to which it objected. Given that the entire report, including the only part to which the District objected, could have been properly admitted as the admission of a party opponent and as a report of a public agency, and that, in any event, the report could not possibly have affected the jury's verdict, its admission cannot be grounds for a new trial.
On July 7, 2008, this Court granted in part and denied in part defendant's motion in limine with respect to the admission of the March 31, 1998 Resolution Agreement. See Memorandum Order [#118] (7/7/08). Specifically, the Court concluded that under Rule 407 of the Federal Rules of Evidence, it was proof of a subsequent remedial measure and therefore inadmissible. Id. at 10. Although defendant argues that the Court should not have admitted the Resolution Agreement into evidence, the Court never did. What was admitted was plaintiff's Exhibit 61, which, as just explained, contained a summary of the Resolution Agreement in the section captioned "Findings of Fact":
Defs. First Mot., Attachment 11 at 4.
Thus, the Resolution Agreement itself was not admitted at trial; only the section of the letter of determination, exhibit 61, that referred to it was admitted and, in any event, the section that was admitted speaks to plaintiff's claim of discrimination. Since the jury did not conclude that plaintiff had been discriminated against, the admission of this summary did not prejudice plaintiff in any way.
Plaintiff offered into evidence a page of the District of Columbia Metropolitan Police Department Affirmative Action Program as Exhibit 28. Tr. 7/22/08 at 67.
Tr. 7/23/08 at 7.
Shortly thereafter, the court sustained the only objection made:
Id. at 11.
The court then caused the exhibit to be projected on the screen and stated to the jurors:
Id. at 17.
Thus, the District's assertion that Exhibit 28 was admitted over its objection is also incorrect. The court sustained the only objection the District made by instructing the jury to disregard the only section of the document to which the District objected. Its doing so cannot possibly be the basis for a new trial.
Furthermore, like Exhibit 61, exhibit was properly admitted as an admissions by a party opponent and, again like Exhibit 61, it dealt with discrimination and not retaliation. Since the jury exonerated the District of all claims of discrimination, its admission could not have possibly have prejudiced the District.
First, although neither Judge Hennessy or Rosario provided concrete examples of retaliation by the MPD, they did both provide testimony that supports the jury's finding that the MPD had a custom or policy of retaliation. Upon that theory, their testimony was properly admitted. They recounted their observations of the practices and customs of the MPD based on their observations. Their opinions as to those practices and customs, based on those observations, were certainly admissible under Rule 701 of the Federal Rules of Evidence.
Finally, defendant moves the court to either order a new trial limited to the issue of damages or grant the motion for a remittitur conditioned on plaintiff's acceptance of a reduced damage award. Defs. Mem. at 24.
"A jury award must stand unless it is `beyond all reason' or `so great as to shock the conscience.'" Daskalea v. District of Columbia, 227 F.3d 433, 443 (D.C.Cir.2000) (quoting Williams v. Steuart Motor Co., 494 F.2d 1074, 1085 (D.C.Cir.1974)). Furthermore, "`[c]ourts may not set aside a jury verdict merely deemed generous; rather, the verdict must be so unreasonably high as to result in a miscarriage of justice.'" Id. (quoting Langevine v. District of Columbia, 106 F.3d 1018, 1024 (D.C.Cir.1997)) (internal quotations omitted). Finally, remittitur "is appropriate only if the verdict `is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.'" Id.
Defendant argues that the jury award of $180,000.00 was excessive in light of the evidence presented at trial in that 1) plaintiff failed to put forth any evidence of actual damage to him, and 2) the jury awarded plaintiff double recovery for his retaliation claim by awarding him $90,000.00 for having proven an element of retaliation and then $90,000.00 for having proven retaliation. Defs. Mem. at 26-27.
Plaintiff counters that his recovery was for one count of discrimination and one count of retaliation and that a claimant is permitted to "recover under more than one theory arising out of the same circumstances." Plains. Opp. at 16-17. Plaintiff also notes the presumption against disturbing jury awards unless "so unreasonably high as to result in a miscarriage of justice." Id. at 18 (quoting Langevine, 106 F.3d at 1024.).
Although defendant contends that plaintiff failed to put forth any evidence of actual damages, the record proves otherwise:
Tr. 7/21/08 at 180-83.
The jury awarded plaintiff a total of $180,000 in damages. First, the jury awarded plaintiff $90,000 upon their conclusion that plaintiff had proven that defendant had violated Title VII of the Civil Rights Act. As indicated in the verdict form reproduced above, the jury concluded that: 1) plaintiff had established "by a preponderance of the evidence that the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer denied him equal protection of the law by retaliating against him for having filed complaints complaining of discrimination on the basis of his national origin," and that 2) plaintiff had established "by a preponderance of evidence that the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer was based on a custom or practice of retaliation against persons who complain of discrimination on the basis of national origin." See Verdict Form, Question # 13. This question was based on plaintiff's claim under the federal statute, 42 U.S.C. § 1983.
Second, the jury concluded that: 1) plaintiff had established "by a preponderance of the evidence that a reasonable employee would have found the MPD's denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer a materially adverse action," and that 2) plaintiff had established "by a preponderance of evidence that the MPD's denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer was done in retaliation for his making complaints of discrimination." Verdict Form, Questions 16-18. These questions were based on the D.C. Human Rights Act and spoke not to plaintiff's right under the United States Constitution to equal protection under the law, as did Question 13, but to his rights under District of Columbia Human Rights Act not be subjected to retaliation for making complaints of discrimination. Thus, contrary to defendant's claim that plaintiff recovered twice upon the same theory of retaliation, plaintiff actually recovered once under a federal statute and once under a District of Columbia statute. The District must recall that Congress has specifically indicated that nothing in federal civil rights statutes "shall be deemed to exempt or relieve any person from any liability, duty, penalty or punishment provided by any present or future law or any State or political subdivision of a State." 42 U.S.C. § 2000e-7.
Defendant has failed to prove that it is entitled to judgment as a matter of law, or in the alternative, to a new trial or to remittitur. Defendant's motion will therefore be denied. An Order accompanies this Memorandum Opinion.
