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THOMAS v. MINETA

March 25, 2004.

LEON L. THOMAS, Plaintiff,
v.
NORMAN Y. MINETA, Secretary, United States Department of Transportation, Defendant



The opinion of the court was delivered by: DEBORAH ROBINSON, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Defendant's Renewed Motion for Judgment as a Matter of Law, Motion for a New Trial, or Remittitur of Verdict (Docket No. 41) is pending for determination by the undersigned. Upon consideration of the motion, the memoranda in support thereof and in opposition thereto and the entire record herein, Defendant's motion will be denied.

BACKGROUND

  Plaintiff, in a complaint filed on February 28, 2001, alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff alleged three claims: (1) hosfile work environment; (2) discriminatory non-selection for a GS-15 position ("Plaintiff's discrimination claim"); and (3) retaliatory non-selection for the same GS-15 position ("Plaintiff's retaliation claim"). Employment Discrimination Complaint ("Complaint") (Docket No. 1) ¶¶ 4-5. Plaintiff pled that he "had prior EEO activity at the time of his non-selection for the promotion[,]" see Complaint ¶ 4, and that he "ha[d] exhausted all administrative remedies prior to filing this complaint." Complaint ¶ 5. Defendant, in its answer, "[a]dmitted that Plaintiff had Page 2 prior EEO activity at the time of his non-selection." Answer (Docket No. 7) ¶ 4. With respect to Plaintiff's averment that he had exhausted his administrative remedies, Defendant pled that Plaintiff's statement "consists of conclusions of law to which no response is required[,]" and that "[t]o the extent that a response is deemed required, denies." Id. ¶ 5.

  After the close of discovery, Defendant filed a Motion to Dismiss and for Summary Judgment. Defendant advanced three grounds in support of its motion: (1) the agency had legitimate, non-discriminatory reasons for Plaintiffs non-selection; (2) the "individual identified incidents comprising plaintiff's allegations of hosfile work environment do not rise to the level of adverse actions, nor do they combine to create an environment permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of plaintiffs employment"; and (3) "this Court has no jurisdiction over the incidents [of alleged hosfile work environment] that occurred prior to August 1997 because they are untimely filed." Motion to Dismiss and for Summary Judgment (Docket No. 16) at 1; Memorandum in Support of Motion to Dismiss and for Summary Judgment at 22. By an order entered on November 1, 2002, the undersigned granted the motion in part and entered summary judgment in favor of Defendant with respect to Plaintiff's hosfile work environment claim. The undersigned denied the motion in all other respects. November 1, 2002 Memorandum Opinion and Order (Docket No. 34) at 15.

  Trial on Plaintiff's claims of discriminatory and retaliatory non-selection commenced on November 4, 2002. In its pretrial statement, Defendant included a single paragraph regarding Plaintiff's non-selection. In that paragraph, Defendant maintained only that "defendant has legitimate, nondiscriminatory explanations for its actions," and therefore "plaintiff's claim must Page 3 be dismissed." Defendant's Pretrial Statement (Docket No. 23) at 4 [unnumbered].

  Defendant moved for judgment as a matter of law at the close of Plaintiff's case on the ground that "there is not sufficient evidence for a reasonable trier of fact to determine there has been discrimination in this case." Excerpt of Transcript of Trial, November 5, 2002 ("Tr.") at 4 (emphasis supplied). Defendant never expressly moved for judgment as a matter of law with respect to Plaintiff's retaliation claim. After Plaintiff's counsel argued that "there is ample evidence for this case to go to the jury with respect to both discrimination and reprisal[,]" Defendant's counsel stated that "[t]he [P]laintiff made their [sic] prima facie case[,]" and argued that Plaintiff had not shown "that our explanation is a pretext." Id. at 6-7. Thereafter, in a further discussion of Plaintiff's retaliation claim, Defendant argued only that there was no evidence that Plaintiff had engaged in any "protected activity" within the meaning of the statute,*fn1 and that he offered no evidence that the alleged discriminating official "was aware of any previous EEO complaints." Id. at 8. The undersigned denied the motion. Id. at 9.

  Defendant "renew[ed]" the motion for judgment as a matter of law at the close of all the evidence on the ground that "[t]here's not sufficient evidence in this record for a reasonable trier of fact to determine that the plaintiff was discriminated against in this case." Tr. at 85 (emphasis supplied). In response to a question posed by the court, counsel for Defendant argued that "I don't believe that the reprisal that was referenced in the complaint [filed in this action] . . . was part of the [non-selection] argument in the earlier complaint." Id. at 90; see also Id. at 91. 94. Defendant's counsel then said that "[a]t this point, I'd like to move to dismiss [Plaintiff's claim Page 4 of retaliatory non-selection] from consideration on the basis that it was not addressed in the administrative process as reprisal." Id. at 91. The undersigned again found that Plaintiff had engaged in "protected activity" within the meaning of the statute,*fn2 and also determined that Defendant's arguments regarding Plaintiff's administrative complaint were misplaced. Id. at 95. The court denied the motion except with respect to one activity which the court found was not "protected activity" within the meaning of the statute.

  The jury found for Defendant with respect to Plaintiff's discrimination claim, and for the Plaintiff with respect to his retaliation claim. The jury awarded Plaintiff compensatory damages in the amount of $86,750. Verdict Form (Docket No. 39).

  Defendant now renews its motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, and in the alternative, moves for a new trial pursuant to Rule 59(a), or for remittitur of the verdict. Defendant asserts that "[b]ased upon the evidence presented at trial, defendant is entitled to a judgment as a matter of law with regard to plaintiff's non-selection not being casually related to his prior alleged EEO activities." Memorandum of Points and Authorities in Support of Defendant's Renewed Motion for Judgment as a Matter of Law, Motion for a New Trial, or Remittitur of Verdict ("Defendant's Memorandum") (Docket No. 41) at 3. More specifically, Defendant argues that Plaintiff "has failed to allege facts sufficient to legally support the causation element of a prima facie case of retaliation for a failure to promote that happened eleven months after the activity triggering the retaliation." Id. at 7. Defendant "also renews its objections to the inclusion of the element of retaliation with regard to the claim of non-selection." Id. at 12. Additionally, Defendant asserts that "plaintiff never Page 5 exhausted his administrative remedies" with regard to the claim of retaliatory non-selection. Id.

  Alternatively, Defendant submits that it is entitled to a new trial pursuant to Rule 59(a), or, to remittitur of the verdict, because the verdict was "against the clear weight of the evidence[,]" and that "plaintiffs evidence fell far short of establishing proof of injury regarding his specific claim of retaliation to warrant such a large damages award." Id. at 14-15.*fn3

  Plaintiff, in his opposition, submits that Defendant has not met the "very high standard" of Rule 50(b), and that Defendant's renewed motion for judgment as a matter of law therefore should be denied. Plaintiff's Memorandum of Points and Authorities in Opposition To Defendant's Motion For Judgment as a Matter of Law, New Trial or Remittitur ("Plaintiff's Opposition") at 6-7. With respect to Defendant's argument that Plaintiff failed to exhaust his administrative remedies for his retaliation claim, Plaintiff contends that "Defendant never pled this specific affirmative defense in [its] answer and failed to raise it in [its] motion for summary judgment[,]" and "offered no evidence by any witness or exhibit to support this argument at trial." Id. at 10. With respect to Defendant's motion for a new trial, Plaintiff contends that the verdict was not against the clear weight of the evidence, and that he presented evidence which was "more than ample" to support the award of compensatory damages. Id. at 12-15.

  Defendant, in its reply, fails to address Plaintiff's contention that Defendant did not plead failure to exhaust his administrative remedies as an affirmative defense, move for summary Page 6 judgment on that ground, or offer any evidence at trial regarding Plaintiff's supposed failure to exhaust.

  The undersigned heard the oral arguments of counsel with respect to Defendant's post-trial motion, and ordered the parties to submit post-hearing memoranda, in part to further address the merits of Defendant's post-trial argument that Plaintiff failed to ...


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