United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
Mica Saint-Jean and Guerline Bourciquot, who worked as a bus
driver and a bus attendant for the District of Columbia
Department of Transportation ("DOT") brought this
action against the District of Columbia under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 201 et
seq., the District of Columbia Whistleblower Protection
Act ("DC WPA"), D.C. Code § 1-615.51 et
seq, and Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e et seq 2d Am. Compl.[Dkt.# 88]
extensive pre-trial proceedings, the case was tried before a
jury beginning on May 22, 2017. At the close of
plaintiffs' case, the District moved for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure
50(a). May 24, 2017 Tr. [Dkt. # 256] at 16-33. The Court
deferred ruling on defendant's motion until after the
jury returned a verdict. Id. at 33:20-34:20. On May
31, 2017, the jury returned a verdict in favor of both
plaintiffs on all three counts. Verdict Form as to Mica
Saint-Jean [Dkt. # 245]; Verdict Form as to Guerline
Bourciquot [Dkt. # 247]. The question of the availability of
back pay or other equitable relief was left for the Court to
the verdict was returned, the District renewed its motion
under Federal Rule 50(b). DCs Renewed Mot. for J. as a Matter
of Law [Dkt. # 253]. In a bench ruling on November 27, 2017,
the Court granted the motion in part as to plaintiffs'
Title VII claims, and denied it in part as to the WPA and
FLSA claims. Nov. 27, 2017 Unofficial Tr. at 11:20-12:1;
id. at 30:20-25; id at
49;5-6; Min. Entry (Nov. 27, 2017). In a minute
order dated December 22, 2017, the Court noted that
"final judgment has not yet been entered because the
Court was awaiting the outcome of the Rule 50(b) motion and
the hearing on equitable relief, and it is correct that it is
the entry of judgment that starts the clock ticking for Rule
59 or 60." Min. Order (Dec. 22, 2017).
Court then set a date for the hearing on equitable relief,
which took place on February 8, 2018. Min. Entry (Feb. 8,
2018). On February 21, 2018, the Court issued its ruling on
equitable relief from the bench, and an order entering
judgment in favor of plaintiffs was docketed the following
day. See Min. Entry (Feb. 21, 2018); Order [Dkt. #
297]. Ultimately, the Court entered judgment in
favor of plaintiff Saint-Jean in the amount of $226, 948.00,
and in favor of plaintiff Bourciquot in the amount of $15,
416.28. Order [Dkt. # 308].
before the Court is defendant's motion for a new trial,
or in the alternative, to alter or amend the judgment, under
Federal Rule of Civil Procedure 59. See D.C.'s
Mot. for New Trial or, in the Alternative, to Alter or Amend
J. [Dkt. # 303] ("Def's Mot."). Defendant argues
that a new trial, or an amended judgment, is necessary
because "the verdict was against the weight of the
evidence on all claims" and "to correct a clear
error or prevent manifest injustice." Id. at 5.
District argues that: (1) the jury's finding that an
agency relationship existed between David Gilmore and the
Department of Transportation was against the weight of the
evidence; (2) the Court erred by admitting the Office of
Inspector General's report related to the investigation
of plaintiffs' allegations because it was hearsay; and
(3) there was insufficient evidence of causation and
retaliatory intent, and the Court erred by not instructing
the jury that temporal proximity alone is insufficient to
prove retaliation. See generally Def's
Court finds that there is no clear error to rectify in this
case and that the jury verdict that survived the Rule 50
motion comports with the law and the evidence. Because the
District has not made a showing that would warrant a new
trial or the amendment of the judgment, the motion will be
denied. The proceedings in the trial court in this case have
finally come to their conclusion, and the outcome was just.
Federal Rule of Civil Procedure 59(a)(1)(A), "[t]he
court may, on motion, grant a new trial on all or some of the
issues . . . after a jury trial, for any reason for which a
new trial has heretofore been granted in an action at law in
federal court." Fed.R.Civ.P. 59(a)(1)(A). "Such
reasons exist (1) where the verdict is against the weight of
the evidence, or (2) where 'the trial was not fair, or
substantial errors occurred in the admission or rejection of
evidence or the giving or refusal of instructions.'"
Lee v. District of Columbia, 19 F.Supp.3d 281,
285-86 (D.D.C. 2014), citing Gasperini v. Ctr. for
Humanities, 518 U.S. 415, 433 (1996) and quoting
Nyman v. FDIC, 967 F.Supp. 1562, 1569 (D.D.C. 1997).
"A new trial '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.'" Lee, 19 F.Supp.3d
at 286, quoting Martinez v. District of Columbia,
503 F.Supp.2d 353, 355 (D.D.C. 2007). While the
"standard for a new trial is less onerous than one
applicable to a Rule 50 motion" for judgment as a matter
of law, Nyman, 967 F.Supp. at 1569 (citation
omitted), the decision to grant a motion for a new trial lies
within "the sound discretion of the trial court."
Grogan v. Gen. Maint. Serv. Co., 763 F.2d 444, 447
(D.C. Cir. 1985), citing Allied Chem. Corp. v. Daiflon,
Inc., 449 U.S. 33, 36 (1980).
under Fed.R.Civ.P. 59(e) are disfavored and relief from
judgment is granted only when the moving party establishes
extraordinary circumstances." Niedermeier v. Office
of Max S. Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001),
citing Anyanwutaku v. Moore, 151 F.3d 1053, 1057
(D.C. Cir. 1998). "A Rule 59(e) motion is discretionary
and need not be granted unless the district court finds that
there is an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice." Ciralsky v.
CIA, 355 F.3d 661, 671 (D.C. Cir. 2004), quating
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.
motion to alter or amend the judgment under Rule 59(e)
"may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised
prior to the entry of judgment." Exxon Shipping Co.
v. Baker, 554 U.S. 471, 485 n.5 (2008), quoting 11
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 2810.1 (2d ed. 1995).
Rather, motions to alter or amend a judgment "are
intended to permit the court to correct errors of fact
appearing on the face of the record, or errors of law."
Hammond v. Kempthorne, 448 F.Supp.2d 114, 118
(D.D.C. 2006), quoting Indep. Petroleum Ass'n of Am.
v. Babbit, 178 F.R.D. 323, 324 (D.D.C. 1998).
argues - once again - that there was insufficient evidence
that David Gilmore was the District's agent. But the
District has presented nothing new that would change the
Court's consistent rulings on this issue.
District contends that plaintiffs' only evidence of an
agency relationship was the consent decree from the
Petties litigation. Def's Mot. at 6. It
maintains that language in an agreement "is not
conclusive" and is only "properly considered in the
overall calculus." Id. Thus, it argues,
"[b]y offering the language of the agreement and failing
to offer any evidence of the actual working relationship
between Gilmore and the District, [p]laintiffs offered
insufficient evidence." Id. Second, the
District contends that even if the jury could rely on the
agreement alone, the agreement alone does not support a jury
verdict in their favor. Id. So the verdict is
"against the weight of the evidence, and should be
made an almost identical argument in its Rule 50(b) motion,
and the Court rejected it for a number of reasons, all of
which pertain again.
Plaintiffs' presented, and the jury relied upon, more
than just the Petties Consent Order in concluding
that Gilmore was the District's agent.
issue of Gilmore's status was first raised in a motion to
dismiss in which the District argued that "because DOT
was under a receivership during the relevant time, the
District cannot be held liable - either directly or
vicariously - for actions taken by the receiver."
Saint-Jean v. District of Columbia, 74 F.Supp.3d
274, 278 (D.D.C. 2014). But the Court then assigned to the
matter concluded that "[i]t is not readily apparent from
the consent order [appointing Gilmore] . . . that [his]
position of Transportation Administrator was intended to be
identical to that of a receiver," id. at 279,
and it went on to describe, in great detail, all the ways in
which Gilmore's appointment as an official of DOT
differed from that of a traditional receiver. Id. at
279-80. The Court then suggested that the question would be
better addressed by "analyzing whether agency principles
justify insulating the District from liability."
Id. at 281.
close of discovery, then, the District moved for summary
judgment on the grounds that "the District cannot be
held vicariously liable for employment measures taken by
Transportation Administrator ("TA") David Gilmore
("Gilmore") because he was not the District's
agent or employee," and it based that motion on agency
principles. D.C.'s Mot. for Summ. J on Counts I, II, III,
VI, VII of the Second Am. Compl. [Dkt. # 167] at 1;
see Mem. of P. & A. in Supp. of D.C.'s Mot.
for Summ. J. [Dkt. # 167] at 7-12. In denying the motion, the
Court laid out the law governing agency relationships, and it
noted that under District of Columbia law, "[w]hether an
agency relationship exists is a question of fact for which
the person asserting it carries the burden of proof."
Mem. Op. & Order [Dkt. # 192] at 8, quoting Smith v.
Jenkins, 452 A.2d 333, 335 (D.C. 1982). The Court went
"First, the court must look for evidence of the
parties' consent to establish a principal-agent
relationship. Second, the court must look for evidence that
the activities of the agent are subject to the
principal's control" Henderson v. Charles E.
Smith Mgmt., Inc., 567 A.2d 59, 62 (D.C. 1989) (emphasis
in original). The factors to be considered in determining
whether an agency relationship exists "include '(1)
the selection and engagement of the servant, (2) the payment
of wages, (3) the power to discharge, (4) the power to
control the servant's conduct, (5) and whether the work
is part of the regular business of the employer.'"
Judah v. Reiner, 744 A.2d 1037, 1040 (D.C. Cir.
2000), quoting LeGrand v. Ins. Co. of N. Am., 241
A.2d 734, 735 (D.C. 1968).
Id. The Court denied defendant's motion because
there was a genuine dispute over the extent of Gilmore's
independence and authority under the Petties Consent
Order. Id. at 11.
District sought reconsideration of the Court's decision,
see Mot. for Recons. of Ct.'s Sept. 12, 2016
Order Den. Summ. J. in Def's Favor [Dkt. # 194], but that
motion was also denied. Mem. Op. & Order [Dkt. # 199]. In
concluding that "a question remain[ed] with regard to
the extent of Gilmore's authority and independence under
the Petties Consent Order that precludes the Court
from making a finding on the agency question as a matter of
law," the Court observed:
Gilmore's role as Transportation Administrator was a
unique, specialized, and somewhat hybrid position that was
neither the same as a receiver or a special master, who is
the agent of the appointing court. For example, the record
reflects that Gilmore was appointed specifically to
"avert[ ] the substantial possibility that the [c]ourt
would grant plaintiffs' motion to put DOT into
receivership," which would have "stripp[ed] [D.C.
Public Schools] entirely of its authority to manage the
transportation function." Saint-Jean, 74
F.Supp.3d at 279, quoting Petties v. District of
Columbia, No. 95-0148 (PLF), 2006 WL 1046943 at *5
(D.D.C. Apr 21, 2006). Gilmore's appointment was designed
so that he "was not granted complete authority or
control over DOT," and instead, his power and authority
was subject to "consultation with the
Superintendent." Id; see also Petties Consent
Order at 6. The Petties Consent Order also provided
that Gilmore's appointment was designed to meet the dual
purposes of "resolv[ing] the issues raised in [the
Petties plaintiffs'] Motion to Appoint a
Receiver while permitting the government of the District of
Columbia to remain intimately involved and responsible
for its obligations under the Orders in this case and
other requirements of law." Petties Consent
Order at 1-2 (emphasis added).
Mem. Op. & Order [Dkt. #199] at 6-7.
question of whether Gilmore was the District's agent was
put to the jury with the following instruction:
Plaintiffs claim that David Gilmore was an agent of the
District of Columbia-that is, that he was acting on the
District's behalf - when plaintiffs' employment was
terminated at the Department of Transportation. The District
maintains that he was not its agent. This issue is being
submitted to you to decide, and you will be asked for your
answer on the verdict form.
Plaintiffs must establish the existence of an agency
relationship and that Mr. Gilmore acted within the scope of
that relationship if and when he took any materially adverse
action that is the basis for plaintiffs' retaliation
claims. Plaintiffs have the burden of proving those facts by
a preponderance of the evidence.
The question to be decided is whether Mr. Gilmore was an
agent of the District of Columbia in connection with the
termination of DCPS DOT employees; you need not decide if he
was an agent for all purposes.
Generally, an agency relationship exists when one person or
entity authorizes another to act on its behalf, subject to
its control, and the other agrees to do so. Control is
generally an important factor to consider.
But, whether an agency relationship exists in a given
situation, though, depends upon the particular facts of each
case. In determining whether each plaintiff has proved that
such a relationship exists here, you may consider all of the
1. The selection and engagement of Mr. Gilmore;
2. The payment of Mr. Gilmore's wages;
3. The power of the District to discharge Mr. Gilmore;
4. The power of the District to control Mr. Gilmore's
5. Whether Mr. Gilmore's work was part of the regular
business of the District.
In analyzing the right to control, you may consider the
actual relationship between the parties and the language of
any agreement between them.
Jury Instrs. [Dkt. # 249] at 38-40. The jury was asked to
respond to a special interrogatory on the subject, and it
found that Gilmore was the District's agent. See
PI. Saint-Jean Verdict Form [Dkt. # 245] at 3; PI. Bourciquot
Verdict Form [Dkt. # 247] at 3.
the District made its Rule 50 motion at the close of
plaintiffs' case, it seemed to be operating under the
misimpression that only the testimony of the witnesses could
be considered when weighing the sufficiency of the
"evidence" on the issue. See May 24, 2017
Tr. [Dkt. # 265] at 120:12-21:8. That was plainly incorrect.
Not only does the jury instruction make it clear that both
the parties' actual conduct and the language of any
agreement may be considered, but the jury received the
standard and the unobjectionable instruction that:
"[t]he evidence consists of the sworn testimony of
witnesses, exhibits admitted into evidence, and facts
stipulated by the parties." JuryInstrs.[Dkt.#249]atll.
denying the District's Rule 50(b) motion, the Court
reviewed all of the evidence in the record that related to
the five factors, and some of that evidence included:
. The Petties Order, which supplied evidence that
(1) the District, because it wanted to avoid the appointment
of a receiver, specifically consented to the appointment of
Gilmore to run its agency; (2) Gilmore was acting on the
District's behalf when he hired and fired employees,
which the District specifically granted him authority and
paid him to do; and (3) there was supposed to be some level
of control in the form of continuing involvement and
oversight by District personnel.
. Bourciquot's recommendation for suspension (Exhibit 4);
Bourciquot's recommendation for termination (Exhibit 5);
proposed termination letter to Bourciquot (Exhibit 7); letter
notifying Bourciquot of termination (Exhibit 9); proposed
termination letter to Saint-Jean (Exhibit 10); and
Bourciquot's suspension paperwork (Exhibit 56), all of
which were printed on letterhead containing the District of
Columbia Public School seal and the phrase "Division of
Transportation/Office of Transportation Administration,"
and the Penn Center address on the bottom of the page.
. "Request for Employment Action" paperwork that
terminated Bourciquot's employment and stopped her
paychecks (Exhibit 62), which was signed by the Assistant
Transportation Administrator and the Transportation
Administrator (Gilmore), as well as the Budget Director and
Chief Operations Officer. This form says D.C. Public Schools
on the upper left hand corner, and Office of Human Resources
in the upper right hand comer.
District takes the position now that plaintiffs' only
evidence of an agency relationship was the consent decree
from the Petties litigation. Def's Mot. at 6.
Just based on a review of the above-cited evidence alone, it
is clear that defendant's renewed argument has no merit.
Contrary to defendant's contentions, plaintiff did not
merely rely on the Petties Order; there were a
number of exhibits. Moreover, the jurors heard testimony from
. Gilmore testified that DOT operated out of Penn Center
before he got there and that his office was located there.
May 25, 2017 Tr. [Dkt. # 266] at 40:15-41:11.
. Gilmore testified that he oversaw the DOT; he "was
totally responsible for the personnel, hiring, firing,
supervising, assigning them to bus routes, and so on and so
forth"; he was the "final authority"; that
"whoever did the payroll for DCPS" was who stopped
paying employees when they were terminated. May 25, 2017 Tr.
[Dkt.# 266] at 20:20-25;id. at 56:12-17;
id. at 30:22-31:1.
this was put to the jury to consider. As the Court already
stated in its ruling on the District's Rule 50(b) motion,
the jury was presented with evidence - some of which the
Court has not discussed again, and some of which did indeed
favor the District's position - and it was up to the jury
to resolve disputed questions of fact and to weigh witness
credibility. Based on the evidence presented to the jury,
which consisted of far more than merely the Petties
Order, the Court cannot find that the jury's decision was
"seriously erroneous." Lee, 19 F.Supp.3d
reply brief, the District raised two more arguments that fare
no better. First, the District argues that at trial,
"the Court severely limited evidence about the purpose
for which a federal judge appointed Gilmore and foreclosed
testimony related to his understanding of the
Petties* Consent Order or, its similarities with
other remedial orders he had helped the courts implement,
despite the fact that the consent order was plaintiffs key
evidence." Def's Reply at 9. Second, defendant
maintains that the Court "exacerbated this error when it
refused to instruct the jury that 'control' was a key
factor and 'the decisive test' for determining the
principal-agent relationship." Id.
The Court did not improperly limit evidence related to the
Petties Consent Order.
making its argument that the Court improperly limited
evidence about the Petties Consent Order, the
District points to one small section of testimony elicited by
the defense in its case in chief from its witness, Michael
Zuerblis, on May 23, 2017. The witness testified about his
role at DOT under Gilmore, as well as his general
understanding of the Petties Order and why the
department was under court supervision. See May 23,
2017 Tr. [Dkt. # 261] at 194:24-96:11.
when Zuerblis began testifying about how disabled students
could be negatively affected by late buses, the Court stopped
his testimony and called counsel to the bench. May 23, 2017
Tr. [Dkt. # 261] at 195:13-96:13. After a lengthy discussion
with defense counsel, the Court precluded Zuerblis from
giving any sort of expert opinion on the topic of the consent
decree, as well as from giving his opinion about the impact
an employee's absence without official leave could have
on the students riding the buses. May 23, 2017 Tr. [Dkt. #
261] at 196:15-200:11. The Court explained the basis for its
ruling: there was no allegation that plaintiffs were fired
for being AWOL, and Zuerblis had no personal knowledge of why
plaintiffs were fired. Id. at 198:18-99:8. When the
Court made that point, defense counsel said, "That's
true." Id. at 200:4.
Court then said to defense counsel: "I think you've
laid enough background. Now you need to go to something that
leads to this case directly, that he has personal knowledge
about, otherwise he doesn't have anything to say.
He's not an expert." May 23, 2017 Tr. [Dkt. # 261]
at 200:5-9. Defense counsel "agree[d] with that,"
id. at 200:10-11, and moved on without noting any
objection for the record. So there is a serious ...