Jenkins et al v. City of Richmond

Filing 517

ORDER (1) Denying Motion to Sever, and (2) Bifurcating Trial. Signed by Judge Edward M. Chen on 11/5/2012. (emcsec, COURT STAFF) (Filed on 11/5/2012) (Additional attachment(s) added on 11/5/2012: # 1 Certificate of Service) (emcsec, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES JENKINS, et al.,

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Plaintiffs,
v.

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For the Northern District of California

United States District Court

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ORDER (1) DENYING MOTION TO
SEVER, AND (2) BIFURCATING TRIAL

CITY OF RICHMOND,

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No. C-08-3401 EMC

Defendant.
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The claims of Plaintiff Pickett and Plaintiff Threets are currently set for a jury trial to begin

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January 14, 2013. In a joint case management statement filed October 31, 2012, Plaintiff Threets

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renewed a motion to sever trial for his claims from the trial for Plaintiff Pickett’s claims. Plaintiff

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Threets argues that a joint trial would cause substantial prejudice, and that the only factual overlap

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between the two cases is a 2008 incident where both Plaintiffs allege that they should have gotten a

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promotion to Captain.

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Defendant objects, arguing that there is extensive overlap in the evidence to be presented in

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the two cases, and that severing the trial would create a risk of inconsistent verdicts with respect to

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the promotion to Captain, as both Plaintiffs are alleging that they would have gotten the same job

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absent retaliation.

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Where the number of plaintiffs alleging discrimination exceeds the number of actual job

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openings, the court must fashion any remedy in a way that does not overcompensate the

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discriminated against group as a whole. See U.S. v. City of Miami, 195 F.3d 1292, 1300 (11th Cir.

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1999) (rejecting remedy in class action that assumed each discriminated against plaintiff would have

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received the job, when in fact the number of plaintiffs far exceeded the number of openings). When

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possible, courts finding discrimination against a group of employees should do an individualized

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determination of the position each plaintiff would have been in absent the discrimination. See

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International Brotherhood of Teamsters, 431 U.S. 324, 371-72 (1977) (rejecting remedy that would

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have provided a remedy to all plaintiffs regardless of whether they could show actual harm, and

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remanding the case with directions “to make . . . individual determinations in deciding which of the

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minority employees were actual victims of the company’s discriminatory practices.”); Shipes v.

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Trinity Industries, 987 F.2d 311, 318, 319 (5th Cir. 1993) (“If the class is small, the time period

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short, or if the effect of the discrimination is straightforward, [a court should generally make] an
individual-by-individual determination of what each claimant’s position would have been but for the

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For the Northern District of California

United States District Court

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discrimination”). As Defendant points out, in cases where two employees alleging discrimination

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were passed over for the same promotion, the court should deny requests to sever trial in order “to

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avoid the potential problem of inconsistent verdicts.” Lutz v. Buono, 05 CIV. 4879 (GAY), 2009

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WL 3364032 (S.D.N.Y. Oct. 16, 2009).

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Plaintiff Threets points to the possible prejudice and conflict of interest from trying the cases

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together, as counsel for both Plaintiffs used to represent the other. When each Plaintiff is called

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upon to show that he would have received the promotion to Captain rather than the other, there may

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be danger that counsel would use confidential information obtained during the representation of the

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other Plaintiff.

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Given the danger of inconsistent verdicts, however, this Court declines to sever the trials of

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Plaintiff Threets and Plaintiff Picket. Instead, to avoid the potential conflict, this Court will hold a

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joint trial for both Plaintiffs, but bifurcate the trial. Phase one will address all claims including the

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question of whether either or both of the Plaintiffs were subjected to retaliation in regard to the

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Captain promotion and whether either Plaintiff (without specifying which) would have received the

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promotion absent the complained of retaliation. Thus, on the question of the Captain promotion, the

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Court intends to ask the jury to return special verdicts on the following questions:

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Has Plaintiff Threets proved by a preponderance of the evidence that he engaged in
or was engaging in an activity protected under federal law?

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2.

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Has Plaintiff Pickett proved by a preponderance of the evidence that he engaged in or
was engaging in an activity protected under federal law?

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Has Plaintiff Threets proved by a preponderance of the evidence that the protected

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activity was a motivating factor for the Defendant’s decision not to promote him to

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Captain?

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4.

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activity was a motivating factor for the Defendant’s decision not to promote him to

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Captain?

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For the Northern District of California

United States District Court

Has Plaintiff Pickett proved by a preponderance of the evidence that the protected

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Has the Defendant proved, by a preponderance of the evidence, that the Defendant

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would not have promoted neither Plaintiff Pickett nor Plaintiff Threets even if the

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Plaintiffs’ protected activity had played no role in the Defendant’s selection of who

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would be promoted to Captain?

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See Ninth Circuit Model Jury Instruction 10.3.

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If, at the close of phase one, the jury finds that both Plaintiffs have demonstrated that they

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engaged in protected activity, that this protected activity was a motivating factor in Defendant’s

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decision not to promote them, and that Defendant has failed to show that it would not have promoted

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either Plaintiff even absent the alleged discrimination and retaliation, the trial would then continue

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to phase two. This second phase would address which of the Plaintiffs would have received the

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promotion. The conflicts raised by Plaintiff Threets may arise in phase two of the trial, and this

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Court will entertain appropriate motions to address these conflicts at that time.

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For the foregoing reasons, the Court DENIES Plaintiff Threets’s motion to sever, and orders
the trial bifurcated in the manner described above.

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IT IS SO ORDERED.

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Dated: November 5, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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