The opinion of the court was delivered by: CHARLES R. RICHEY
The Court now has before it cross-motions for Judgment as a Matter of Law pursuant to Rule 50 of the Federal Rules of Civil Procedure, the Plaintiff's Motion to Alter or Amend the Jury Verdict pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, and Defendant's Motion for Denial of Equitable Relief based upon the jury verdict. The Defendant moved for Judgment as a Matter of Law at the close of the Plaintiff's case-in-chief, after the close of all evidence, and again after the verdict was returned. The Plaintiff filed its Motion to Alter or Amend the jury verdict on March 22, 1993, claiming that the verdict form stated the incorrect standard of proof. The Plaintiff asks the Court to apply a different standard of proof and enter Judgment as a Matter of Law for the Plaintiff. For the reasons stated herein, the Court shall deny both Motions for Judgment as a Matter of Law, the Plaintiff's Motion to Alter or Amend the jury verdict, and the Defendant's Motion to Deny Equitable Relief.
The Plaintiff was General Counsel for AFSA from April 1990 to April 1992. Her duties as General Counsel included advising AFSA on all legal matters and representing foreign service employees in grievance procedures. In July 1991, Lewis filed a race discrimination claim against AFSA with the Equal Employment Opportunity Commission (EEOC) and the District of Columbia Office of Human Rights.
She claims that the Defendant harassed her and terminated her employment because she filed the claim. The Defendant presented evidence at trial, to which the Plaintiff admitted, that the Plaintiff took confidential documents regarding individual cases and employee salaries to her home and supplied them to the D.C. Office of Human Rights, in support of her claim, without permission or subpoena. When AFSA learned of this, its board asked the Plaintiff to sign a letter admitting she had taken the documents wrongfully and promising that it would not happen again. The Plaintiff refused to sign the letter, and the AFSA board then terminated her.
The jury found that the Plaintiff did suffer retaliation as a result of her filing the discrimination claim. However, they also found that the Defendant would have terminated the Plaintiff regardless of the motive to retaliate and did not award damages to the Plaintiff.
III. THE DEFENDANT IS NOT ENTITLED TO A JUDGMENT AS A MATTER OF LAW, BECAUSE A REASONABLE JURY COULD HAVE FOUND THAT THE DEFENDANT RETALIATED AGAINST THE PLAINTIFF IN VIOLATION OF 42 U.S.C. § 1981
The Defendant argues that it is entitled to a judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure because the Plaintiff failed to present at trial sufficient evidence to prove unlawful retaliation.
A judgment as a matter of law should be granted only if the evidence, together with all the inferences that can be drawn reasonably therefrom, is so one-sided that reasonable men and women could not disagree with the verdict. Coburn v. Pan American World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339 (D.C. Cir. 1983). Contrary to the Defendant's assertions, the Plaintiff did offer testimony and exhibits sufficient for a reasonable jury to find that the Plaintiff suffered negative treatment as a direct result of filing her claim with the EEOC.
In order to establish a claim of unlawful retaliation under 42 U.S.C. § 1981, a plaintiff must prove: 1) that she engaged in protected activity; 2) that her employer was aware of her protected activity; 3) that her employer took adverse action against her; and 4) that a causal connection existed between the protected activity and the adverse action. Gonzalez v. Bolger, 486 F. Supp. 595 (D.D.C. 1980), aff'd, 211 U.S. App. D.C. 310, 656 F.2d 899 (D.C. Cir. 1981). In the instant case, it is agreed that the Plaintiff filed her claim with the EEOC and that the Defendant was aware that the claim constituted protected activity. The Plaintiff testified about several situations which occurred after she filed her claim with the EEOC. She testified that: 1) after she filed her claim with the EEOC, the AFSA President excluded her from board meetings; 2) her supervisor, Mr. Kirby, knowingly inserted false, negative information in her performance evaluation; 3)Kirby made a practice of stopping by her office and staring at her; and 4) that the Board cut her staff development budget. She also testified that she received more criticism about her work and that she was terminated when she provided documents in support of her discrimination claim. Although the defendant supplied evidence to rebut the Plaintiff's claims, a reasonable jury, after weighing all the evidence, could have reached the conclusion that the Defendant retaliated against the Plaintiff.
The Defendant argues alternatively that the Plaintiff did not provide any evidence to indicate that the Defendant's legitimate reasons for terminating her employment were pretextual. The Defendant has cited ample authority that supports an employer's right to terminate employees whose behavior was unlawful or disloyal. See Pendleton v. Rumsfeld, 202 U.S. App. D.C. 102, 628 F.2d 102 (D.C. Cir. 1980); Jefferies v. Harris City Community Action Ass'n, 615 F.2d 1025, 1036 (5th Cir. 1980). The Court agrees with the Defendant that the taking and revealing by an attorney of a client's confidential documents is completely reprehensible, a violation of professional ethics, and a legitimate reason to terminate that attorney. Nevertheless, the jury found that this legitimate reason was not the sole motive for the Defendant's actions. The parties agree that this case is a "mixed motive" discrimination action. See Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989); National Labor Relations Board v. Transportation Management Corp., 462 U.S. 393, 76 L. Ed. 2d 667, 103 S. Ct. 2469 (1983). In mixed motive cases, even if a defendant proves that it would have taken the same action for legitimate reasons, a plaintiff may be entitled to some equitable relief if the jury finds that unlawful discrimination was a motivating factor. 42 U.S.C. § 2000e5(g)(2)(B).
As stated above, the jury found that the Defendant was motivated in part by unlawful discrimination, so the Defendant is not entitled to a Judgment as a Matter of Law.
IV. BECAUSE THE PLAINTIFF'S OBJECTION TO THE JURY INSTRUCTION IS UNTIMELY AND THE JURY WAS INSTRUCTED AS TO THE CORRECT STANDARD OF PROOF, THE COURT MUST DENY THE PLAINTIFF'S MOTION FOR RELIEF FROM THE JURY VERDICT AND THE NOTION FOR JUDGMENT AS A MATTER OF LAW
The Plaintiff asks the Court for relief from the jury verdict, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, claiming that the agreed-upon jury instructions stated incorrectly the standard of proof borne by the Defendant.
Moreover, the Plaintiff asks that the Court consider all the evidence in light of her proposed standard of proof and enter judgment for the Plaintiff as a Matter of Law.
After finding that the Plaintiff had suffered retaliation, the jury was asked if "the Defendant has proved, by a preponderance of the evidence, that the Defendant's conduct would have been the same toward the Plaintiff in the absence of any retaliatory motive." (Verdict Form at P 2). The Plaintiff now claims that the Defendant's burden 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 ...