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ELAM v. C & P TEL. CO.

March 2, 1984

OTIS ELAM, Plaintiff
v.
C & P TELEPHONE COMPANY, et al., Defendants


Robinson, Jr., Chief Judge


The opinion of the court was delivered by: ROBINSON, JR.

This is an action brought by Plaintiff, Otis Elam, against the Chesapeake & Potomac Telephone Company (hereinafter "C & P") and seven individually named C & P employees who were Plaintiff's supervisors. Until August 1981, Elam was employed as a telephone repair supervisor and was responsible for supervising an eight member craft crew. Plaintiff's position was considered a first-level management position within C & P. Plaintiff's complaint contains various allegations of racial and retaliatory discrimination under 42 U.S.C. §§ 1981, 1985(3) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a).

 Plaintiff's claims under 42 U.S.C. §§ 1981, 1985(3) were tried to a jury, which rendered a verdict in favor of Plaintiff and awarded him $ 44,927.03 in compensatory damages. Plaintiff's claims of employment discrimination under Title VII were simultaneously tried to the Court. Currently pending before the Court is Defendants' Motion for Entry of Judgment in their Favor Notwithstanding the Verdict, or, in the Alternative for a New Trial and the Court's ruling on the Title VII claims. For the reasons set forth below, Defendants' Motion for Entry of Judgment in their Favor Notwithstanding the Verdict is granted and Plaintiff's claims under Title VII are dismissed.

 DEFENDANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

 Background

 The complaint in this action contains numerous allegations of violations of 42 U.S.C. §§ 1981, 1985(3). At the conclusion of Plaintiff's case in chief, Defendants sought dismissal of the action for Plaintiff's failure to have made out a prima facie case. After all the evidence had been presented, Defendants requested a directed verdict. On each occasion, the Court eliminated some of the issues and contentions Plaintiff had asserted in his complaint.

 In response to Defendants' initial request for dismissal, the Court eliminated the allegation of conspiracy under 42 U.S.C. § 1985(3), as well as Plaintiff's allegations of harassment relating to tampering with his company car and obscene and annoying phone calls to Plaintiff's home, supposedly made at the direction of Defendants. In response to Defendants' request for a directed verdict at the close of all the evidence, the Court directed a finding of no discrimination or retaliation with respect to the remaining aspects of Plaintiff's claim of harassment, specifically related to Plaintiff's geographic work assignment, the crew persons assigned to him and his work performance and scheduling difficulties arising out of his participation in the Army Reserves. The Court also rejected Plaintiff's claims that discrimination and retaliation were behind his failure to be transferred or promoted.

 Having removed those many issues from jury consideration, the Court allowed only the two remaining ones -- Plaintiff's 1981 performance evaluation and his 1981 discharge -- to go to the jury to be considered separately as to discrimination and as to retaliation. The jury was asked to consider four issues in its deliberations: (1) whether Plaintiff's 1981 performance appraisal rating of "good" was lower then his actual performance warranted and was given to him because of racial discrimination; (2) whether Plaintiff's 1981 performance appraisal rating of "good" was lower than his actual performance warranted and was given to him because of retaliation for having filed prior discrimination charges; (3) whether Plaintiff's discharge in August 1981 was motivated by racial discrimination and not, as Defendants asserted, because of Plaintiff's falsification of records; and (4) whether the discharge was in fact in retaliation for Plaintiff having filed prior discrimination charges. The jury found for Plaintiff on all four issues. Defendants now move for judgment notwithstanding the verdict contending that the verdict cannot reasonably be derived from the evidence presented at trial.

 Analytical Framework

 It is well-settled that a motion for judgment notwithstanding the verdict, pursuant to Fed. R. Civ. P. 50(b), is only a renewal of the moving party's motion for a directed verdict made at the close of all the evidence pursuant to Fed. R. Civ. P. 50(a). The standard for granting a motion under Rule 50(b) is precisely identical to that for granting a motion under Rule 50(a), and the motion for judgment notwithstanding the verdict can be granted only if the directed verdict should have been granted. It follows, therefore, that a party cannot assert in its motion for judgment notwithstanding the verdict a ground not asserted in its directed verdict motion. 5A J. Moore, Moore's Federal Practice, para. 50.08 (2d. ed. 1981). In this action, there are no procedural impediments to Defendants' motion for judgment notwithstanding the verdict.

 The law concerning the standard to be used by the Court in deciding upon a motion for judgment notwithstanding the verdict is clear and settled in this jurisdiction. The motion should not be granted unless the evidence, together with all inferences that can reasonably be drawn therefrom, is so one-sided that reasonable jurors could not disagree on the verdict. Vander Zee v. Karabatsos, 191 U.S. App. D.C. 200, 589 F.2d 723, 726 (D.C. Cir. 1978), cert. denied, 441 U.S. 962, 60 L. Ed. 2d 1066, 99 S. Ct. 2407 (1979). In the context of an employment discrimination case, the question is whether reasonable persons could have concluded on the basis of the evidence at trial that Defendants discriminated against the Plaintiff. Coburn v. Pan American World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 342 (D.C. Cir. 1983).

 The allocation and order of proof in discrimination cases under Title VII is well-established. The same analysis is applicable in employment discrimination cases brought under 42 U.S.C. § 1981. See, e.g., Baldwin v. Birmingham Board of Education, 648 F.2d 950, 955 (5th Cir. 1981); Tagupa v. Board of Directors, 633 F.2d 1309, 1312 (9th Cir. 1980). Plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. If Plaintiff establishes a prima facie case of discrimination, the burden of production shifts to Defendants to articulate a legitimate, non-discriminatory reason for their action. If Defendants meet that burden, the Plaintiff has the opportunity to prove by a preponderance of the evidence that the reasons offered by Defendants are not the true reasons but pretexts for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). It is within this analytical framework that the Court must determine whether reasonable persons could have concluded on the basis of the evidence at trial that Defendants discriminated against Plaintiff. Coburn v. Pan American World Airways, Inc., supra.

 Plaintiff's 1981 Performance Evaluation

 Plaintiff contends that because of race discrimination and retaliation, he received a "G" (good) performance appraisal instead of a "VG" (very good) or "O" (outstanding) performance rating. In support of his contention, Plaintiff offered his own testimony and two charts that compared certain first-level supervisors in terms of selected numerical objectives and results and the performance evaluations of such supervisors with Plaintiff's performance. The Court assumes, without finding, that Plaintiff established a prima facie case of race discrimination and retaliation with respect to his 1981 performance evaluation.

 To rebut Elam's prima facie showing, Defendants presented an abundance of evidence which showed that Plaintiff's evaluation was based on a legitimate non-discriminatory reason, that is, the quality of his performance. Defendants presented the testimony of Defendant Braxton Carr, who as Plaintiff's second-level supervisor prepared the performance evaluation at issue. He testified that his assessment of the Plaintiff's performance was not affected by a racial or retaliatory motive. While he gave Plaintiff a "G" -- which was the only increased rating that Carr gave that year -- Carr said that the evaluation was, if anything, overly generous because the Plaintiff was in the low range of "good" performers.

 In addition, Mr. Carr characterized himself as a tough supervisor, who was results oriented and a low grader on evaluations. Carr's self-assessment was confirmed by the testimony of all of the first-level supervisors, with the exception of Plaintiff, under Carr's authority during 1980 -- Grant Berry, Galt Griesbauer, Jeffrey Norris, Jack Schuenenman and Larry Brady. Of these five supervisors, two believed, like Plaintiff, that Mr. Carr had underevaluated their performance. The two were Griesbauer and Schuenenman, both white. In fact, Carr rated Griesbauer "U" (unsatisfactory) -- two steps lower than his previous evaluation by another supervisor -- and was responsible for Griesbauer's forced demotion to a craft position. Griesbauer's evaluation was not only lower then the Plaintiff's evaluation, but was two steps lower than anyone else. Schuenenman, who received a "VG" (very good) evaluation was dissatisfied with the rating given by Carr because his previous supervisor had rated him "O" (outstanding) the previous year. The only other Black first-level supervisor besides Plaintiff, Jeffrey Norris, and the remaining white supervisors, Berry and Brady, believe that Carr had fairly and accurately evaluated their performances.

 During 1981, then, the year Plaintiff believes his increased evaluation was not high enough due solely to his race and retaliation, and the first year Plaintiff and the other supervisors were evaluated by Carr, the following ratings were given in the peer group: one Black supervisor (Norris) was given his first evaluation -- a "G" -- after being promoted from craft to management; two white supervisors (Berry and Brady) retained their previous ratings of "VG"; one white supervisor (Schuenenman) was lowered from "O" to "VG"; one white supervisor (Griesbauer) was downgraded from "G" to "U" and demoted to non-management; and one Black supervisor (Plaintiff) was raised one grade to "G". Only a white supervisor received a "U" and a demotion. Only white supervisors received lower ratings than they had received the previous year under a different supervisor.

 Carr's testimony also rebutted the charts submitted by Plaintiff which compared his performance and evaluation with the performance and evaluation of some of Carr's other first-level supervisors. He testified that although the underlying statistics of Plaintiff's chart might show whether or not a supervisor met certain pre-established numerical objectives, only the evaluator can interpret and flesh out the underlying data. For example, in reviewing a supervisor's performance, the evaluator may determine that the underlying objectives may have been too high or too low. The evaluator also knows and takes into account the external factors beyond the rated supervisor's control that aid or hinder in reaching the set objectives. These external factors, such as customer demand for fastidiousness, travel time through traffic, variances in crew, equipment and maintenance of C & P cable systems are all known and taken into account by the second-level supervisor in evaluating the first-levels. None of these factors, however, is contained on Plaintiff's chart.

 Similarly, Carr also explained that the experience level of the first-level supervisor is considered, since improvement over the course of time was a factor in the evaluations. He testified that he discerned little improvement in the Plaintiff's performance during the year 1980, and included that factor in evaluating Plaintiff. Consideration of such a factor is a legitimate criterion under C & P's ...


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