United States District Court for the District of Columbia
March 25, 2004.
LEON L. THOMAS, Plaintiff,
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.
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
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
be dismissed." Defendant's Pretrial Statement (Docket No. 23) at 4
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
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
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
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
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 exhaust his
administrative remedies with respect to his retaliation claim.
Defendant, in its post-hearing memorandum, submits that "Plaintiff did
not allege anywhere in the administrative complaint, that retaliation was
the basis for his non-selection." Defendant's Post Hearing Memorandum
(Docket No. 56) at 4. Further, Defendant submits that it "actually pled
[the] defense when he [sic] specifically denied plaintiff's
allegation that he `exhausted all administrative remedies.'"
Id. (quoting Complaint ¶ 4, Answer ¶ 4).
Plaintiff, in his response to Defendant's post-hearing memorandum,
contends that "the administrative record indicates the agency was on
notice of plaintiff's reprisal claim concerning his non-selection for
promotion and the defendant was on notice in this action." Plaintiff's
Response to Defendant's Post Hearing Memorandum (Docket No. 57) at 2.
Plaintiff further contends that he "checked the reprisal box on the
formal complaint"; that he was not represented by counsel when he filed
the administrative complaint; and that he "did not intend to restrict his
reprisal claim to the reassignment issue." Id. Plaintiff relies
upon Loe v. Heckler for the proposition that the exhaustion
requirement "should not be construed to place a heavy technical burden on
`individuals untrained in negotiation procedural labyrinths.'"
Id. at 3 (quoting Loe v. Heckler, 768 F.2d 409, 417
(D.C. Cir. 1985)). Plaintiff submits that Defendant has "forfeited the
defense" of failure to exhaust administrative remedies by "fail[ing] to
raise the specific
affirmative defense of failure to exhaust administrative remedies
when [it] filed [its] answer to the complaint." Id. at 4.
Additionally, Plaintiff observed that "[i]n [its] answer, paragraph 5,
defendant did not unequivocally deny the allegation in paragraph 5 of
plaintiffs pro se complaint that plaintiff had exhausted all
administrative remedies." Id.
Defendant's Motion for Judgment as a Matter of Law
Rule 50 of the Federal Rules of Civil Procedure provides, in pertinent
part, that a motion for judgment as a matter of law made at the close of
all the evidence may be renewed "by filing a motion no later than [ten]
days after entry of judgment[.]" FED. R. Civ. P. 50(b).*fn4 "Under
Rule 50, a court should render judgment as a matter of law when `a party has
been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that
issue.'" Reeves v. Sanderson Plumbing Products. Inc.,
530 U.S. 133, 149 (2000) (quoting FED. R. CIV. P. 50(a)) (citing Weisgram v.
Marley Co., 528 U.S. 440, 447-448 (2000)). The court "should review
all of the evidence in the record[,]" and "must draw all reasonable
inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence." Id. at 150
(citations omitted). Accordingly, the court "must disregard all evidence
favorable to the moving party that the jury is not required to believe."
Id. at 151 (citation omitted); Teneyck v. Omni Shoreham
Hotel, 254 F. Supp.2d 17, 19 (D.D.C. 2003); Lloyd v.
Ashcroft, 208 F. Supp.2d 8, 10 (D.D.C. 2002); Liberatore v.
CVS New York. Inc., 160 F. Supp.2d 114, 116 (D.D.C. 2001).
Finally, because Rule 50(b) allows a party to "renew" a motion for
judgment as a matter of law made at the close of all the evidence, "[t]he
posttrial motion is limited to those grounds that were `specifically
raised in the prior motion for [judgment as a matter of law][,] . . .
[and] the movant is not permitted to add new grounds after trial."
Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir. 2001)
(citations omitted). This circuit has held that a movant who omits a
theory from a pre-verdict Rule 50 motion waives the theory as a basis of
a post-verdict motion for judgment as a matter of law. Whelan v.
Abell, 48 F.3d 1247, 1251 (D.C. Cir. 1995). See also Fox v.
Dist. of Columbia, 990 F. Supp. 13, 19 (D.D.C. 1997) ("In moving for
post-verdict judgment as a matter of law, defendants are limited to those
grounds previously raised in their motions for a directed verdict.").
Causal Connection Between Protected Activity and
Defendant timely moved for judgment as a matter of law during the
trial, both at the end of Plaintiffs case and at the close of all
evidence. However, Defendant moved for judgment as a matter of law only
with respect to Plaintiff's discrimination claim. Tr. at 4, 85.
Plaintiff's counsel, in his response to Defendant's pre-verdict
Rule 50 motions, addressed both the discrimination claim and the retaliation
claim, and Defendant's counsel, in her response to the arguments of
Plaintiff's counsel and the questions of the Court, addressed some
aspects of Plaintiff's retaliation claim. In so doing, however,
Defendant's counsel confined her argument regarding Plaintiff's prima
facie case of retaliation to the first element, i.e., that
Plaintiff had not engaged in protected activity. Id. at 8-9,
86-90. At no time did Defendant's counsel argue that Plaintiff failed to
offer evidence sufficient to demonstrate a casual connection between any
protected activity and the non-selection.*fn5
Defendant is precluded from moving for judgment as a matter of law on
that ground in its renewed motion. See Whelan, 48
F.3d at 1251 (Rule 50(b) "limits a post-verdict motion for judgment as a
matter of law to a `renewal' of the pre-verdict motion[.]");
Fox, 900 F. Supp. at 19 ("In moving for post-verdict judgment
as a matter of law, defendants are limited to those grounds previously
raised in their motions for a directed verdict.").
Exhaustion of Administrative Remedies
Defendant did not move for judgment as a matter of law on the ground of
failure to exhaust administrative remedies in either pre-verdict
Rule 50 motion.*fn6 The undersigned accordingly holds that Defendant is
precluded from doing so in its post-verdict Rule 50 motion. See
Whelan, 48 F.3d at 1251; Fox, 900 F. Supp. at 19.
This circuit has held that a theory a party failed to raise in a
pre-verdict Rule 50 motion is "waived" as a basis of a renewed,
post-verdict Rule 50 motion. Whelan, 48 F.3d at 1251. No
published opinion of any judge of this court, nor any panel of this
circuit, provides direct authority for the proposition that such a waiver
extends to a post-verdict claim of lack of subject matter jurisdiction
predicated upon a plaintiff's supposed failure to exhaust his
administrative remedies in a Title VII case.*fn7 However, in a Title VII
action in a procedural posture virtually identical to the instant action,
a judge of another district denied a post-verdict Rule 50 motion in which
the same argument was made. There, the court broadly construed the
concept of waiver, and held that
the [Defendant] has waived its right to complain
of failure to exhaust administrative remedies, by
not claiming it at a much earlier time in this
litigation, whether in front of the
[administrative tribunal], in a motion to dismiss,
or even, finally, in the motion for summary
judgment. After a nine-day trial and a jury
verdict, this Court will not send Plaintiff back
to "square one."
O'Bar v. Borough of Naugatuck, 260 F. Supp.2d 514, 517 (D.
Even if the court disregarded the preclusion of review of Defendant's
post-verdict claim that Plaintiff failed to exhaust his administrative
remedies which is imposed by the operation of Rule 50(b), Defendant's
argument would remain meritless. This circuit has held that "adequacy of
notice is the core of Title VII's administrative exhaustion requirements
[.]" Brown, 777 F.2d at 14 (citation omitted). The circuit has
observed that "Title VII was devised as a measure that would be kept
accessible to individuals untrained in negotiating procedural
labyrinths." Loe, 768
F.2d at 417 (citations omitted). Title VII's exhaustion and
timeliness requirements are intended to "ensure that the agency had
notice of [a plaintiff's] grievance and a fair opportunity to provide
full redress or to attempt an informal accommodation. Title VII requires
no more." Loe, 768 F.2d at 417-18. The court finds that the
record is replete with evidence that the Defendant was on notice of
Plaintiff's claim of retaliatory non-selection. See, e.g.,
Plaintiff's Response to Defendant's Post Hearing Memorandum, Transcript
of June 14, 1999 hearing (Exhibit E) at 7; Id. Affidavit of
Susan Kurland (Exhibit C) at 2; Id. Exhibit D.
The undersigned finds that the relief Defendant requests would
effectively vitiate the "lenient standard [which] applies in evaluating
whether an aggrieved party's actions met his or her administrative
exhaustion responsibilities." Brodetski v. Duffey,
199 F.R.D. 14, 18 (D.D.C. 2001) (citations omitted). Indeed, this circuit
has held that
because Title VII is remedial legislation
dependent for its enforcement on laymen, we must
seek in every case "an interpretation animated by
the broad humanitarian and remedial purposes
underlying the federal proscription of employment
discrimination," and resultantly that resort to
technicalities to foreclose recourse to
administrative or judicial processes is
Bethel v. Jefferson, 589 F.2d 631, 642 (D.C. Cir.
1978)(citations omitted). This court would therefore be required to
resolve the "procedural ambiguities" of which Defendant complains in
favor of Plaintiff. See Brodetski, 199 F.R.D. at 18.
Defendant's Motion for a New Trial
Rule 59 of the Federal Rules of Civil Procedure provides, in pertinent
[a] new trial may be granted to all or any of the
parties and on all or part of the issues (1) in an
action in which there has been a trial by jury,
for any of the reasons for which
new trials have heretofore been granted in
actions at law in the courts of the United
FED. R. CIV. P. 59(a). This court has held that in "order to preserve
the function of the jury in our system of jurisprudence, `courts should
not grant new trials without a solid basis for doing so.'"
Manion, 217 F.R.D. at 278 (quoting Webb v. Hyman,
861 F. Supp. 1094, 1109 (D.D.C. 1994)). Accordingly, when a new trial is
ordered on the ground that the verdict is against the weight of the
evidence, the trial court "takes over, if he does not usurp, the prime
function of the jury as the trier of the facts." Langevine v.
District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir 1997) (citation
and internal quotations omitted). Thus,
as a general practice, "a Rule 59(a) motion should
be granted only where the court is convinced that
the jury verdict was a `seriously erroneous
result' and where denial of the motion will result
in a `clear miscarriage of justice.'"
Id. at 1109-1110 (quoting Sedgwick v. Giant Food.
Inc., 110 F.R.D. 175, 176 (D.D.C. 1986)) (citations omitted). "The
burden of showing that a new trial is warranted in accordance with this
rigorous standard rests with the moving party." Manion,
217 F.R.D. at 279 (citing 11 C. Wright, A. Miller & E. Cooper,
Federal Practice and Procedure § 2803 (2d ed. 1995));
cf. Webb, 861 F. Supp. at 1109 (motion for new trial denied
where movants failed to discharge their "heavy burden" of showing "that
significantly prejudicial or improper errors were made[.]"). The
determination of a motion for new trial pursuant to Rule 59 rests in the
sound discretion of the trial court, and may be reviewed only for abuse
of discretion. E.g., Langvine, 106 F.3d at 1023 (citations
omitted); 11 C. Wright, A. Miller & E. Cooper, Federal Practice
and Procedure § 2803 (2d ed. 1995).
As grounds for its motion for a new trial, Defendant principally
asserts that the jury
verdict in this case was "an inordinately large sum of money . . .
[that] was far in excess of the minimal amount of damages that would
fairly compensate Plaintiff for actual, proven compensatory damages that
he sustained as a result of any illegal discrimination or retaliation he
suffered." Defendant's Memorandum at 14. However, the undersigned finds
that Plaintiff presented ample evidence to support the jury award.
Plaintiff himself testified that he was "devastated" after he learned
that a white male was selected for the position, and that as a result, he
sought counseling for depression and anxiety. Excerpt of Transcript of
Trial, November 4, 2002 at 79, 84-85. He also testified that after the
non-selection, he was treated by both a physician and a social worker,
that medication was prescribed for him and that he experienced a
"drinking problem." Id. at 85-86, 89-90, 103. Plaintiff also
called his partner, Dewitt King, as a witness on the issue of damages.
Mr. King testified that after the non-selection, Plaintiff became very
"depressed" and "withdrawn"; "communicated very little"; developed
sleeping difficulties and loss of appetite, and "shut out from his family
and friends." Id. at 64. Mr. King further testified that
Plaintiff began experiencing those symptoms in June, 1997. Id.
The undersigned finds that Defendant has failed to show that the
verdict is against the clear weight of the evidence and that no evidence
was offered to support it. Additionally, the undersigned finds that the
evidence offered by Plaintiff at trial is more than sufficient support
for the jury award. See Peyton v. DiMario, 287 F.3d 1121, 1126
(D.C. Cir. 2002) (plaintiff's testimony that she "became depressed,
angry, and suffered a loss of self-esteem" sufficient to support a
compensatory damages award of $300,000); Ramseur v. Barreto,
213 F.R.D. 79, 83 (D.D.C. 2003) (plaintiff's testimony regarding her
nonpecuniary losses sufficient to support award of $300,000).
Remittitur of Verdict
The law in this circuit is that "remittitur of jury verdicts is only
allowed if the reduction `permit[s] recovery of the highest amount the
jury tolerably could have awarded.'" Ramseur, 213 F.R.D. at 83
(quoting Langevine, 106 F.3d at 1024). More recently, this
circuit has held that it will require remittitur only when
(1) the verdict is beyond all reason, so as to
shock the conscience, or (2) the verdict is so in
ordinarily large as to obviously exceed the
maximum limit of a reasonable range within which
the jury may properly operate.
Peyton v. DiMario, 287 F.3d at 1126 (citations omitted);
see also Langevine, 106 F.3d at 1024 (citation omitted).
Furthermore this circuit has cautioned that "[a] court must be especially
hesitant to disturb a jury's determination of damages in cases involving
intangible and non-economic injuries." Langevine, 106 F.3d at
1024 (citation omitted).
Defendant's request for "a remittitur of all damages awarded by the
jury in excess of $6,000[,]" see Defendant's Memorandum at 22,
is tantamount to a request that Plaintiff's award of compensatory damages
be limited to his out-of-pocket expenses.*fn8 Such a result would
effectively eliminate the amendment of Title VII which expressly provides
that a plaintiff can recover for the non-pecuniary injuries proximately
caused by a defendant's violation of Title VII. Peyton, 287
F.3d at 1126; Ramseur, 213 F.R.D. at 84 (reduction of an award
in excess of the statutory maximum to $5,000 "[would be] tantamount to no
award at all, and would constitute an arbitrary invasion by the court
into the province of the jury.").
Defendant's assertion that "[t]he reasonableness of a damages award can
be assessed by comparing it to the awards made in similar cases[,]"
Defendant's Memorandum at 19-20, is erroneous. This Court has observed
that the District of Columbia Circuit "has . . . rejected such
comparisons as a basis upon which to determine whether remittitur should
be ordered[.]" Ramseur, 213 F.R.D. at 84. In rejecting such
comparisons, the circuit held that
[t]he cases appellant offers for purposes of
comparison in which lesser damages were awarded or
approved do not convince us [that the award should
be reduced]. In rejecting that line of argument,
we find useful the reasoning of a state court
considering a similar question in a different
context. . . . Because of the unique circumstances
of each case as well as the adjustments which
would necessarily have to be made for inflation,
it is awkward to discuss the size of an award
through comparison with past decisions.
Peyton, 287 F.3d at 1127 (internal quotations omitted).
Finally, Defendant's reliance on the absence of "expert medical or
psychological testimony" (see Defendant's Memorandum at 16) is
entirely misplaced. No authority supports the proposition that expert
testimony is required in order for a plaintiff to recover compensatory
damages in a Title VII case. "Indeed, this court has expressly held that
a plaintiff may recover compensatory damages in a Title VII case absent
expert testimony." Ramseur, 213 F.R.D. at 84 (citing
Jefferson v. Milvets Sys. Tech., Inc., 986 F. Supp. 6, 8
In sum, the court finds that Defendant has failed to demonstrate that
the jury's award of compensatory damages was "excessive," "against the
clear weight of the evidence," or "shock[ing] [to] the conscience."
Accordingly, Defendant's request for remittitur of the verdict will be
For the forgoing reasons, it is, this 25th day of March, 2004,
ORDERED that Defendant's Renewed Motion for Judgement as a
Matter of Law, Motion for a New Trial, or Remittitur of Verdict (Docket
No. 41) is DENIED.