is to prove, by clear and convincing evidence, that its actions would have been the same regardless of any motive to retaliate. Relief from Judgment under Fed. R. Civ. P. 60 is not proper in this case, because the parties already litigated the issue of how the jury instructions should read. Rule 60 is not intended to allow reconsideration of questions already litigated and decided, but to provide correction of injustice in extraordinary circumstances. Tann v. Service Distributors, 56 F.R.D. 593, 600 (E.D.Pa. 1972), aff'd, 481 F.2d 1399 (3d Cir. 1973). Counsel for the Plaintiff in this case reviewed the proposed jury instructions line by line with the Defendant's counsel in this Court. Counsel then represented to the Court that the instructions were correct and that they were agreed to by the parties. Furthermore, after the jury was instructed, the Court asked both counsel if they were satisfied with the instructions as given, and the Plaintiff's counsel answered affirmatively.
In addition, the rule of law controlling the time for objections to jury instructions is set forth in Rule 51 of the Federal Rules of Civil Procedure. "No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict." Fed. R. Civ. P. 51. In the absence of objection, an error in the jury instructions may nevertheless be reviewed if the instruction is so clearly erroneous as to create manifest injustice. See United States v. Paxson, 274 U.S. App. D.C. 71, 861 F.2d 730 (D.C. Cir. 1988). Consequently, the Court must consider whether the instruction as to the standard of proof was given in error.
The Supreme Court articulated the standard in "mixed motive" discrimination claims such as this one in Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). "A defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the Plaintiff's gender into account." Id. at 258 (emphasis added). In Price Waterhouse, the Supreme Court held that a Defendant was free from all liability if it met that standard. Id. at 259.
The Civil Rights Act of 1991, 42 U.S.C. § 2000e5(g)(B), overturned that part of the holding in Price Waterhouse dealing with the defendant's liability. The relevant section now allows the Plaintiff to recover attorneys fees and costs and to receive declaratory and injunctive relief even if the Defendant made a showing of mixed motive.
The Plaintiff contends that the entire holding in Price Waterhouse was overruled by the 1991 Act and that the Court should require the Defendant to demonstrate the existence of a mixed motive by clear and convincing evidence. See Toney v. Block, 227 U.S. App. D.C. 273, 705 F.2d 1364 (D.C. Cir. 1983). Nevertheless, although the 1991 Act changes the effect of a defendant's showing of mixed motive, it does not change the standard of proof the defendant must satisfy. The relevant language of the 1991 Act provides only that a defendant must "demonstrate" that it would have taken the same action in the absence of the impermissible motive. 42 U.S.C. § 2000e-5(g)(B) (emphasis added).
There is no indication in the statute that Congress intended to alter the standard of proof set forth in Price Waterhouse of merely a preponderance of the evidence.
The Plaintiff argues, without supplying any support, that Congress adopted the decision of Bibbs v. Block, 778 F.2d 1318 (8th Cir. 1985), when it passed the 1991 Act. Regardless of whether Congress intended to adopt the holding of that case, Bibbs makes it perfectly clear that a "defendant may avoid an award of reinstatement or promotion and back pay if it can prove by a preponderance of the evidence that the plaintiff would not have been hired or promoted even in the absence of the proven discrimination." Id. at 1324 (emphasis added). The Court went on to say that "although several courts considering the weight of the employer's burden on the remedy question have imposed a 'clear and convincing' proof requirement, . . . we recently rejected that higher standard of proof." Id. at 1324 n.5 (citations omitted). This Court is unwilling to find that the language of the Civil Rights Act of 1991 overrules Price Waterhouse as to the defendant's standard of proof in mixed motive discrimination cases. The Court further concludes that there was no mistake in the verdict form, and consequently the Plaintiff's Motion for Relief from Judgment shall be denied. In addition, as the Plaintiff's Motion for Judgment as a Matter of Law is dependent upon a finding that the jury was incorrectly instructed, that Motion will also be denied.
V. THE PLAINTIFF IS ENTITLED TO CERTAIN EQUITABLE RELIEF AS A RESULT OF THE JURY FINDING THAT DEFENDANT RETALIATED AGAINST HER IN VIOLATION OF 42 U.S.C. § 1981
The Court turns now to the Defendant's Motion to Deny Equitable Relief and Attorneys Fees and Costs to the Plaintiff. As stated above, the jury found that the Defendant did retaliate against the Plaintiff, but that the Defendant's conduct would have been the same toward the Plaintiff in the absence of any retaliatory motive. As stated supra, under the old standard of Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), the Defendant would escape all liability for proving its conduct would have been the same without the discriminatory motive. The Civil Rights Act of 1991 modified the mixed motive doctrine and provides that if a defendant proves that it would have taken the same action in the absence of the discriminatory motive, the trial court "may grant declaratory relief, injunctive relief . . . and attorneys fees and costs . . . [but] shall not award damages or issue an order requiring any admission, reinstatement, hiring [or] promotion." 42 U.S.C. § 2000e-5(g)(2)(B) (emphasis added). Thus, the finding of a mixed motive now goes to the issue of remedies as well as liability.
The Defendant argues that because the 1991 Act applies on its face only to Title VII claims, it should not apply to section 1981 claims, and the standard of Price Waterhouse should control. The Defendant's argument is not logical, because Price Waterhouse itself was a Title VII case, and it has been applied to retaliation claims. See Griffiths v. Cigna Corp., 988 F.2d 457, 1993 WL 72325 (3rd Cir. 1993); Kenworthy v. Conoco, Inc., 979 F.2d 1462 (10th Cir. 1992). The analysis of claims brought pursuant to 42 U.S.C. § 1981 mirrors the analysis of Title VII actions. See Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 727 F.2d 1225, 1232 (D.C. Cir. 1984); Dougherty v. Barry, 276 U.S. App. D.C. 167, 869 F.2d 605, 614 n.8 (D.C. Cir. 1989). Therefore, the Court deems it proper to apply the Civil Rights Act of 1991, 42 U.S.C. § 2000e-5(g)(2), insofar as it addresses the granting of relief in mixed motive cases, to retaliation claims.
Having decided that the Act's provision on equitable relief applies to this case, the Court notes that whether it grants equitable relief is within the Court's discretion. As discussed above, the Plaintiff in this case is not entitled to reinstatement or back pay, because the jury found that the Defendant would have terminated her regardless of the unlawful motive. However, based upon the jury's finding that the Plaintiff did suffer some retaliation, it is proper to grant the Plaintiff declaratory and injunctive relief as allowed by the Act. Id.
The Judgment accompanying this Memorandum Opinion declares that the Defendant retaliated against the Plaintiff for filing her employment discrimination charge with the EEOC and the D.C. Office of Human Rights, in violation of 42 U.S.C. § 1981. The Judgment goes on to direct the Defendant to refrain from retaliating against any employee who might file a discrimination charge against the Defendant in the future. Finally, the Judgment directs the Defendant to inform its employees, officers, and board members that employees have the right to file such charges without fear of being subjected to retaliation by fellow employees or officials of the Defendant. This information, passed along in the employee Handbook and in all new employee orientation programs, should make "abundantly clear . . . what conduct is appropriate to a workplace and what conduct is inappropriate." Harris v. International Paper Co., 765 F. Supp. 1509, 1527 (D. Me. 1991). The information should make clear that the Defendant will not condone retaliatory conduct of any kind.
The question remains of whether to grant attorney fees and costs, and the proper amount. Nothing in the Civil Rights Act of 1991 requires the Court to grant attorneys fees and costs.
The Plaintiff in this case admitted taking and copying confidential documents with the knowledge that proper subpoena procedures would have protected her interests. The Defendant also demonstrated to the jury and the Court that it could no longer trust its General Counsel when it terminated the Plaintiff. As General Counsel, the Plaintiff should have known that the Defendants had a legitimate reason to terminate her employment. Therefore, the Court sees no justification for the award of fees. See also Farrar v. Hobby, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992).
Upon consideration of the jury verdict in this action and all the papers submitted to the Court, the Court finds that Judgment as a Matter of Law is not warranted in favor of either party. Both the Plaintiff and the Defendant presented evidence to the jury that could reasonably support its verdict. The Court is satisfied that the instructions given to the jury regarding the defendant's burden in mixed motive cases accurately represent the rule of law. It is also apparent to the Court that the language of the Civil Rights Act of 1991 addressing the availability of equitable relief and attorney's fees in Title VII cases is applicable to retaliation claims brought under 42 U.S.C. § 1981. Accordingly, the Court denies both Judgments as a Matter of Law, and the Motion to Alter or Amend the jury verdict. The Court, in the exercise of its discretion, denies the award of attorney's fees to the Plaintiff and grants declaratory and injunctive relief to the Plaintiff as set out in the Judgment of even date herewith.
April 12, 1993
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Upon consideration of the claims of the parties at the bench trial held on March 5 and 10, 1993, in the above-entitled action, the record herein, the applicable law, and for the reasons set forth in the Memorandum Opinion of the Court issued of even date herewith relating to the claim by the Plaintiff under Title VII of the Civil Rights Act of 1964, as amended, it is, by the Court, this 12 day of April, 1993,
ORDERED that the Plaintiff's request for relief under Title VII shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that judgment in the above-entitled case, insofar as to the claim of discrimination brought pursuant to Title VII, shall be, and hereby is, entered for the DEFENDANT.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Following the jury verdict in the trial held on March 3-5, 1993, in the above-entitled action, with respect to the claim raised by the Plaintiff pursuant to 42 U.S.C. § 1981, the parties filed a number of post-trial motions seeking judgment as a matter of law and outlining the relief to which the Plaintiff is entitled. Upon consideration of the record herein, the applicable law, and for the reasons set forth in the Memorandum Opinion of the Court issued of even date herewith relating to the claim by the Plaintiff under 42 U.S.C. § 1981, it is, by the Court, this 12 day of April, 1993.
ORDERED that the Defendant's Motion for Judgment as a Matter of Law with respect to the § 1981 claim shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the Plaintiff's Motion to Alter or Amend the jury verdict shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the Plaintiff's Motion for Judgment as be, and hereby is, DENIED; and it is FURTHER ORDERED that the above-mentioned case shall be, and hereby is, DISMISSED from the dockets of this Court.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE