Williams v. Sysco San Francisco, Inc. et al

Filing 156

ORDER by Judge Maria-Elena James denying 146 Motion for New Trial (mejlc2, COURT STAFF) (Filed on 12/16/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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DIWAN WILLIAMS,

No. C 10-03760 MEJ
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION FOR NEW TRIAL [Dkt. No.
146]

v.
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SYSCO SAN FRANCISCO, INC.,
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Defendant.
_____________________________________/

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For the Northern District of California

UNITED STATES DISTRICT COURT

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I. INTRODUCTION

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Plaintiff Diwan Williams filed this lawsuit against Defendant Sysco San Francisco, Inc. on

15 August 24, 2010, alleging that he was wrongfully terminated in violation of federal and state law
16 based on his status as a member of the military and his military service. Compl., Dkt. No. 1. In his
17 Complaint, Plaintiff asserted claims for: discrimination in violation of the Uniform Services
18 Employment and Reemployment Rights Act (“USERRA”), 42 U.S.C. § 4301 et seq.; (2)
19 discrimination in violation of California Military & Veterans Code section 394 et seq.; (3) wrongful
20 termination in violation of public policy; and (4) breach of contract. Id. The case proceeded to jury
21 trial on April 8 -11, and 15, 2013. On April 15, 2013, the jury returned its verdict, finding for
22 Defendant on Plaintiff’s discrimination claims under USERRA and section 394, as well as his claim
23 for wrongful termination in violation of public policy. Dkt. No. 140. The Court therefore entered
24 judgment for Defendant.
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Plaintiff now brings a Motion for New Trial pursuant to Federal Rule of Civil Procedure

26 59(a)(1). Dkt. No. 146. Plaintiff asserts that a new trial is warranted because: (1) the jury’s verdict
27 was against the great weight of evidence; (2) after-acquired evidence was improperly admitted and
28 permeated the trial in spite of the Court’s order bifurcating liability and damages phases of trial; (3)

1 the jury engaged in misconduct that was prejudicial to Plaintiff’s case; and (4) opposing counsel
2 engaged in misconduct that was prejudicial to Plaintiff’s case. Mot. at 12-18. Defendant opposes the
3 Motion, arguing that Plaintiff is misconstruing the trial record, relies on inadmissible evidence in
4 support of his arguments, and fails to set forth any reasoning justifying a new trial. Opp. at 1, Dkt.
5 No. 46.
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Because the parties’ briefs sufficiently set forth the issues and supporting authorities, and oral

7 argument is unnecessary to clarify any points raised, this matter is suitable for disposition without
8 oral argument. Fed. R. Civ. P. 78(b); Civ. L.R. 7-(1)(b). Having carefully considered the parties’
9 arguments, the Court DENIES Plaintiff’s Motion.
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Pursuant to Rule 59(b), within 28 days after entry of judgment, a party may move for a new

12 trial. Rule 59(a) authorizes the Court to grant a new trial on any or all issues “for any reason for
For the Northern District of California

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II. LEGAL STANDARD

13 which a new trial has heretofore been granted in an action at law in federal court . . . .” Fed. R. Civ.
14 P. 59(a)(1)(a). Because “Rule 59 does not specify the grounds on which a motion for a new trial may
15 be granted,” courts are “bound by those grounds that have been historically recognized.” Zhang v.
16 Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). The Ninth Circuit has held that the
17 grounds on which a new trial may be granted include, but are not limited to: (1) a verdict that is
18 contrary to the weight of the evidence; (2) a verdict that is based on false or perjurious evidence; or
19 (3) to prevent a miscarriage of justice. Molski v. M .J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)
20 (citation and quotation omitted).
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III. DISCUSSION
As indicated above, Plaintiff asserts that a new trial is warranted on four bases. First, Plaintiff

23 argues that the verdict was against the clear weight of the evidence. Mot. at 12. Second, Plaintiff
24 argues that after-acquired evidence was improperly admitted despite the Court’s order bifurcating the
25 liability and damages phases of trial. Id. at 14. Third, Plaintiff charges that the jury engaged in
26 misconduct that was prejudicial to Plaintiff’s case. Id. at 16-17. Fourth, Plaintiff advances that
27 opposing counsel engaged in misconduct that was prejudicial to Plaintiff’s case. Id. at 15. The Court
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1 will address each argument in turn.
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The Verdict Was Not Contrary to the Weight of Evidence

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Plaintiff first contends that “the jury’s conclusion that Plaintiff’s military service was not a

4 motivating factor in Defendant’s adverse employment actions against Plaintiff was against the
5 manifest weight of the evidence.” Id. at 13. As indicated above, Plaintiff asserted a discrimination
6 claim under USERRA. A violation of USERRA occurs when a person’s:
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membership, application for membership, service, application for service, or
obligation for service in the uniformed services is a motivating factor in the
employer’s action, unless the employer can prove that the action would have been
taken in the absence of such membership, application for membership, service,
application for service, or obligation for service . . . .

10 38 U.S.C. § 4311(c); see Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). Plaintiff

12 drills on March 11 and 14, 2010, and that Defendant terminated his employment because it assessed
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11 argues that the parties stipulated to the fact that Plaintiff was absent because he attended military

13 Plaintiff with six points for those absences. Mot. at 13. According to Plaintiff, these facts
14 “necessarily establish that military service was a motivating factor in Plaintiff’s termination,” and the
15 fact that the jury found for Defendant “evidence[s] the jury confusion and bias caused by the
16 extensive focus of the after-acquired evidence throughout the trial.” Id. at 14.
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Plaintiff’s argument is unavailing. Setting aside Plaintiff’s after-acquired evidence challenge,

18 which the Court addresses below, as Defendant points out, Plaintiff’s attendance at military training
19 on March 11 and 14, 2010, while certainly indispensable to his discrimination claim, is not
20 dispositive on the issue of whether Defendant’s adverse employment action was motivated by his
21 participation in the military training or his military membership. Pursuant to the parties’ stipulated
22 facts, it was undisputed that Plaintiff was absent from work on those dates. However, as set forth in
23 the Court’s summary judgment order, there were numerous factual disputes about whether Defendant
24 was on notice that Plaintiff was absent for military training when it made its decision to terminate
25 Plaintiff and whether Plaintiff provided proper advanced notification and verification for his absence.
26 Dkt. No. Dkt. No. 57 at 6-9. Defendant presented evidence on each of these issues, including
27 testimony from each of the employees involved in the decision to terminate Plaintiff that the
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1 termination was not based on his military status or service. Defendant also presented evidence that it
2 had approved all of Plaintiff’s prior requests for military leave, that it had counseled him on
3 providing notice and verification for his military leave, and that it strictly and uniformly applied its
4 attendance policy for unexcused absences. Thus, there was ample evidence before the jury to support
5 its determination that Defendant’s decision to terminate Plaintiff’s employment for noncompliance
6 with its attendance policy lacked the discriminatory animus required to support a claim under
7 USERRA. The Court therefore finds no error.
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After-Acquired Evidence

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Plaintiff next contends that a new trial is warranted because his case was prejudiced by the

10 improper introduction of after-acquired evidence during the liability phase of trial. Mot. at 14.

12 Defendant’s after-acquired evidence argument that Plaintiff’s absence on March 7, 2010, which
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11 Plaintiff advances that throughout trial, “the jury heard . . . evidence and arguments related to

13 Defendant claims it did not know was unexcused until after Plaintiff’s termination, constituted
14 misconduct of such severity that Plaintiff would have been terminated anyway.” Id. He argues that
15 the Court ordered bifurcation of liability and damages phases of trial, but “[d]ue to the fact that the
16 Defendant’s proposed order to bifurcate specifically requested that punitive damages be separated
17 from the finding liability and actual damages, Plaintiff’s counsel was not aware of the scope of the
18 Court’s bifurcation order until Wednesday morning April 10, 2013. Plaintiff’s counsel objected to
19 the admission of the after-acquired evidence at this point but the evidence had already heavily
20 referenced during trial. Although the Court did exclude the after-acquired evidence on Wednesday
21 afternoon, the cat was then already out of the bag and more importantly, the jury never received any
22 curative instruction or information regarding all the after-acquired evidence.” Id. Plaintiff also
23 contends that, despite the Court’s ruling, “the evidence was still referenced and was treated as
24 admissible during Defendant’s closing arguments over Plaintiff’s objection.” Id.
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Again, Plaintiff’s argument fails. As Defendant correctly notes, the Court precluded

26 Defendant from arguing that it would have terminated Plaintiff had it known the actual reason for his
27 absence on March 7. The Court’s ruling, however, did not preclude Defendant from presenting
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1 evidence relating to Plaintiff’s absence on March 7, particularly as it related to Plaintiff’s credibility.
2 Plaintiff has not cited to any testimony or evidence in the record from Defendant indicating that it
3 considered Plaintiff’s failure to report the change in his military leave to be wrongdoing of such
4 severity that it would have terminated Plaintiff had it known of it at the time of his termination, or
5 any evidence from Defendant regarding the point in time it actually discovered the reason for his
6 March 7 absence. Rather, Defendant presented Plaintiff’s deposition testimony regarding the
7 circumstances of his absence on March 7 to impeach his testimony that he was not at work on that
8 date because he overslept. The Court agrees with Defendant that such testimony was relevant for the
9 jury to assess Plaintiff’s credibility and motivation for withholding verification of his military
10 training for the following weekend of March 11 and 14, 2010. The Court therefore finds no error.
Plaintiff also contends that Defendant’s closing argument focused on Plaintiff’s character

12 rather than on Defendant’s grounds for terminating Plaintiff’s employment, and this “character
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13 assassination relied primarily on Defendant’s arguments with respect to Plaintiff’s absence on March
14 7, 2010.” Id. at 16. Plaintiff asserts that this argument was improper because it relied on evidence
15 that should have been ruled inadmissible during trial. Id. Defendant, however, maintains that its
16 closing argument raised questions about Plaintiff’s credibility and inconsistent testimony. Opp. at 8.
17 It contends that defense counsel made a comment about Plaintiff’s possible motivation for not
18 providing Defendant with information about the change in his military leave on March 7, and that this
19 was permissible because it relevant to whether Plaintiff provided notice on March 11 and 14 and also
20 related to Plaintiff’s credibility. Id. The Court agrees with Defendant. Defendant was permitted to
21 raise questions about Plaintiff’s credibility in its closing, particularly as it related to his testimony
22 regarding the March 7 absence. Plaintiff has failed to establish that such argument was prejudicial,
23 much less that it sufficiently permeated the entire trial. The Court therefore rejects Plaintiff’s
24 argument.
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Allegations of Jury Misconduct

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Plaintiff argues that a new trial must be granted because of three instances of jury misconduct.

27 First, Plaintiff argues that Suzie Zupan, considered titles of exhibits that were not admitted during
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1 trial, but which appeared in the parties’ joint exhibit list that was used as an index to the binder of
2 admitted exhibits provided to the jury for deliberation. Mot. at 16. Second, Plaintiff argues that juror
3 Steve Sunberg’s post-deliberation comments to Plaintiff suggest “that the jury accepted Defendant’s
4 counsel’s invitation to decide the case based on defendant’s character assassination of Plaintiff rather
5 than on the evidence related to Plaintiff’s termination on March 22, 2010.” Id. at 17. Third, Plaintiff
6 contends that a jury question asking why Plaintiff was late for trial on April 11, 2013, and evidence
7 suggesting that a juror considered this “fact” in reaching the verdict indicates that the jury
8 impermissibly considered external factors in rendering its verdict. Id. Each of Plaintiff’s arguments
9 lacks merit.
1.

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In addition to a copy of the jury instructions and verdict forms, the jury was provided a binder

The Exhibit List

12 of exhibits admitted into evidence. The binder contained the parties joint exhibit list (Dkt. No. 123),
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13 which included titles of all exhibits. Plaintiff contends that after trial, Ms. Zupan contacted Plaintiff’s
14 counsel and indicated that she reviewed the description of the exhibits on the exhibit list – including
15 the significance of exhibits that were not admitted – to make her decision during deliberations.
16 Plaintiff proffers a declaration from Ms. Zupan regarding her examination of the exhibit list and the
17 conduct of the jury during deliberations. Zupan Decl., Dkt. No. 146-3. Plaintiff contends that Ms.
18 Zupan’s consideration of evidence outside the record is sufficient to compel a new trial. The Court
19 disagrees.
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“The near-universal and firmly established common law rule in the United States flatly

21 prohibited the admission of juror testimony to impeach a verdict.” Tanner v. United States, 483 U.S.
22 107, 107 (1987); McDonald v. Pless, 238 U.S. 264, 267 (1915). Federal Rule of Evidence 606(b) is
23 an embodiment of this longstanding policy, strongly disfavoring the admission of juror testimony to
24 impeach a verdict. It provides:
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(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of
a verdict or indictment, a juror may not testify about any statement made or incident
that occurred during the jury’s deliberations; the effect of anything on that juror’s or
another juror’s vote; or any juror’s mental processes concerning the verdict or
indictment. The court may not receive a juror’s affidavit or evidence of a juror’s
statement on these matters.

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(2) Exceptions. A juror may testify about whether:
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(A) extraneous prejudicial information was improperly brought to the jury’s
attention;

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(B) an outside influence was improperly brought to bear on any juror; or

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(C) a mistake was made in entering the verdict on the verdict form.

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Rule 606(b) offers a standard governing not only testimony, but any statement made by a

8 juror after the verdict has been reached, including affidavits. Hatcher v. County of Alameda, 2011
9 WL 4634053, at *2 (N.D. Cal. Oct. 5, 2011). When such evidence is submitted, the Court must
10 review the writing under the same standard as would be applied were the statement given as live

12 it falls within the categories of admissible juror testimony permitted by Rule 606(b). Rule 606(b)
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11 testimony in court. Id. Specifically, “the district court must examine this material to decide whether

13 permits testimony only on the questions of ‘whether extraneous prejudicial information was
14 improperly brought to the jury’s attention’ and ‘whether any outside influence was improperly
15 brought to bear on any juror.’” Hard v. Burlington N. R. Co., 870 F.2d 1454, 1461 (9th Cir. 1989).
16 “Within this exception, jurors are limited to testifying as to the existence and nature of extraneous
17 evidence – testimony regarding the impact of such information on any juror or on the jury as a whole
18 is prohibited.” Hatcher, 2011 WL 4634053, at *2 (citing Abatino v. United States, 750 F.2d 1442,
19 1446 (9th Cir. 1985) (“[J]urors may not be questioned about the deliberative process or subjective
20 effects of extraneous information, nor can such information be considered by the trial or appellate
21 courts.”) (quoting United States v. Bagnariol, 665 F.2d 877, 884-85 (9th Cir. 1981)). Restricting its
22 review to affidavits and testimony admissible under Rule 606(b), the Court must determine whether
23 these materials are sufficient on their face to require setting aside the verdict and, if so, whether an
24 evidentiary hearing is required. Hard, 870 F.2d at 1461.
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Generally, “[e]xtraneous-information cases . . . call for more searching review; we grant a

26 new trial if ‘there is a reasonable possibility that the material could have affected the verdict.’”
27 United States v. Rosenthal, 454 F.3d 943, 949 (9th Cir. 2006). Unlike ex parte cases, we generally
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1 place the burden “on the party opposing a new trial to demonstrate the absence of prejudice.” Id.
2 “Although the presence of extrinsic material does not always require a new trial, [citations omitted]
3 we carefully review the circumstances and nature of the material to ensure that jurors deliberate
4 without undue outside pressure or influence.” Id. “Where extraneous information is imparted, as
5 when papers bearing on the facts get into the jury room without having been admitted as exhibits, or
6 when a juror looks things up in a dictionary or directory, the burden is generally on the party
7 opposing a new trial to demonstrate the absence of prejudice, and a new trial is ordinarily granted if
8 there is a reasonable possibility that the material could have affected the verdict.” Sea Hawk
9 Seafoods, Inc. v. Alyeska Pipeline Service Co., 206 F.3d 900, 905 (9th Cir. 2000)
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The Court has reviewed Ms. Zupan’s Declaration and finds that the only admissible statement

12 included in the binder. The remaining statements in Ms. Zupan’s Declaration concern both her and
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11 in her Declaration is contained in paragraph 9, indicating that the parties’ joint exhibit list was

13 the jury’s deliberative process and are therefore inadmissible.
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Considering her statement that the joint exhibit list was before the jury, the Court agrees with

15 Defendant that the titles of exhibits that were not admitted is not prejudicial evidence. As Defendant
16 points out, the titles of documents on the exhibit list – without more – have no reasonable connection
17 to the issue of whether Plaintiff’s military status was a motivating factor in Defendant’s decision to
18 terminate his employment. Opp. at 10. Even as to the exhibits titles that mentioned a verbal warning
19 or some form of “service” or “production” related discipline, because Defendant did not present any
20 testimony that it considered Plaintiff’s job performance or other discipline in making its termination
21 decision, such titles did not have any rational connection to the issue of discriminatory animus on the
22 basis of military status or service. The Court therefore finds no basis to grant a new trial based on the
23 joint exhibit list that was included in the exhibit binder.
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2.

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After deliberations, the jury was given the opportunity to voluntarily speak to the parties and

Mr. Sundberg’s Post-Deliberation Comment

26 counsel regarding the trial. At that time, Mr. Sundberg, a veteran, expressed his feeling that Plaintiff
27 had poorly represented the military in his conduct at Sysco. Poole Decl., Dkt. No. 146-2. Plaintiff
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1 argues that Mr. Sundberg’s statement demonstrated that the jury improperly relied on Defendant’s
2 cousel’s “character assisnation of Plaintiff rather than on the evidence related to Plaintiff’s
3 termination,” and “suggest[s] bias against the Plaintiff based on [Mr. Sundberg’s] view of appropriate
4 conduct of military service members.” Mot. at 17. Plaintiff’s argument is unavailing. Mr.
5 Sundberg’s comment does not amount to extrinsic evidence, but merely reflects his personal
6 assessment of Plaintiff’s conduct based on his personal life experiences. See Hatcher, 2011 WL
7 4634053, at *3 (recognizing that “jurors are expected to bring their own personal experiences with
8 them into the courtroom, and may rely on their person knowledge or past experiences when hearing
9 the evidence, deliberating, and deciding their verdict . . . .”); Rucker v. Patrick, 2008 WL 4104230, at
10 *9 (discussion of personal experiences is not extraneous evidence under Rule 606(b)). Further, to the

12 Sundberg attached to her Declaration, such material is inadmissible under Rule 606(b) as it pertains
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11 extent that Plaintiff relies on statements in Ms. Zupan’s Declaration or email messages sent by Mr.

13 to the jury’s deliberative process. The Court therefore finds no basis to support a new trial.
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3.

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During jury deliberations, the jury foreperson submitted a jury question to the Court asking, in

Jury Question Regarding Plaintiff’s Absence

16 part, “Can we find out why [Plaintiff] was late for court on Thursday? 10:45 am?” Dkt. No. 139.
17 Plaintiff argues that the question indicates the jury considered external factors in rendering its verdict,
18 particularly, “that the jury was primarily concerned with Plaintiff’s character, which Plaintiff
19 contends was the inevitable result of the improper introduction of after-acquired evidence and
20 arguments at the liability phase of trial.” Mot. at 17.
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Defendant counters that the Court properly responded to the question by instructing the jury

22 to disregard Plaintiff’s late arrival and to only consider testimony and evidence admitted at trial in
23 reaching its verdict. Opp. at 11. Defendant further argues that, to the extent that Plaintiff relies on
24 Ms. Zupan’s statement that another juror considered Plaintiff’s absence from court during
25 deliberations, the statement should be excluded under Rule 606(b) because it relates to a juror’s
26 mental impressions during the deliberative process. Id. The Court agrees with Defendant. The
27 Court’s instruction adequately addressed the jury question and there is no evidence that the jury
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1 thereafter disregarded it. Accordingly, the Court finds no basis to support a new trial.
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IV. CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s Motion for a New Trial (Dkt.

4 No. 146).
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IT IS SO ORDERED.

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7 Dated: December 16, 2013
_______________________________
Maria-Elena James
United States Magistrate Judge

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