Varlesi v. Wayne State University et al

Filing 169

ORDER denying DEFENDANTS' 143 , 144 Sealed MOTIONS FOR NEW TRIAL AND/OR FOR JUDGMENT AS A MATTER OF LAW. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TINA M. VARLESI,
Plaintiff,
Case No. 10-14793
Honorable Denise Page Hood

v.
WAYNE STATE UNIVERSITY,
THE SALVATION ARMY, CAROL
PREMO, ANWAR NAJOR-DURACK,
PHYLLIS I. VROOM, SHAWN J. LEE,
ANTONIO GONZALES-PRENDES,
MARGARET BRUNHOFER and
JOYCE STEFANSKI,
Defendants.
___________________________________/

ORDER DENYING DEFENDANTS’ MOTIONS FOR NEW TRIAL
AND/OR
FOR JUDGMENT AS A MATTER OF LAW
I.

BACKGROUND
This matter is before the Court on a Motion for Judgment as a Matter of Law,

New Trial, and/or Amendment of Judgment filed by the remaining Defendants Wayne
State University, Carol Premo, Anwar Najor-Durack and Phyllis I. Vroom
(collectively, “WSU Defendants”). After a jury trial in this matter, on January 31,
2013, the jury rendered its verdict and awarded Plaintiff $848,690.00 in damages.
(Verdict Form, Doc. No. 128; Judgment, Doc. No. 130)

The WSU Defendants argue that the Court made several erroneous evidentiary
rulings which require a new trial or remittur. They also claim that the Court’s refusal
to give several standard jury instructions was erroneous. The WSU Defendants assert
that judgment as a matter of law in favor of the WSU Defendants should be entered
because the facts fail to establish Plaintiff’s burden of proof to establish a prima facie
case of retaliation. Briefs have been filed.
II.

MOTION NEW TRIAL
A.

Standard of Review

Rule 59 of the Rules of Civil Procedure provides that a new trial may be
granted to all or any of the parties and on all or part of the issues for any of the
reasons for which new trials have heretofore been granted in actions at law in the
courts of the United States. Fed. R. Civ. P. 59. Specific grounds for new trial have
included: the verdict is against the weight of the evidence; the damages are
excessive; for other reasons the trial was not fair; there were substantial errors in the
admission or rejection of evidence; the giving or refusal of instructions were in error;
and misconduct of counsel. Clark v. Esser, 907 F.Supp. 1069, 1073 (E.D. Mich.
1995); City of Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749 (6th Cir. 1980);
Static Control Components, Inc. v. Lexmark Int’l, Inc., 697 F.3d 387, 414 (6th Cir.
2012). The grant or denial of a new trial is purely within the discretion of the trial
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court and will not be reversed except upon a showing of abuse of discretion. Logan
v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). The trial court has broad
discretion in deciding a motion for a new trial to prevent a miscarriage of justice.
Clark, 907 F.Supp. at 1073; City of Cleveland, 624 F.2d at 756; Fryman v. Federal
Crop Ins. Corp., 936 F.2d 244, 248 (6th Cir. 1991). If there is no motion for
judgment as a matter of law made on the question of the sufficiency of the evidence,
such is also not available as a ground for a motion for new trial. Southern Ry. Co. v.
Miller, 285 F.2d 202, 206 (6th Cir. 1960). However, such a motion can be viewed as
one claiming that the verdict was against the great weight of the evidence, which can
be considered by the trial court as a motion for new trial under Rule 59. Id.
In considering a motion for new trial on the ground that the verdict is against
the weight of the evidence, the court cannot set aside the verdict simply because it
believes another outcome is more justified. Denhof v. City of Grand Rapids, 494 F.3d
534, 543-44 (6th Cir. 2007). The court must accept the jury’s verdict and can only
overturn the verdict if the verdict was against the weight of the evidence and the jury
verdict was unreasonable. Id. Courts are not free to reweigh the evidence and set
aside the jury verdicts merely because the jury could have drawn different inferences
or conclusions or because judges feel that other results are more reasonable. Bruner
v. Dunaway, 684 F.2d 422, 425 (6th Cir. 1982).
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B.

Emotional Distress
1. Evidence of Other Sources of Emotional Distress

The WSU Defendants argue that Plaintiff was able to ask the jury to award her
$1,000,000 in damages for emotional distress, but the WSU Defendants were barred
from proving that they were not the primary cause of Plaintiff’s emotional distress.
The WSU Defendants note that in response to Plaintiff’s counsel regarding how
Plaintiff was affected by the WSU Defendants “emotionally,” Plaintiff testified at
length that she was extremely concerned, terrified, horrified, worried and stressed;
that she had crying spells and was worried about the effects of the WSU Defendants’
actions on her pregnancy. The WSU Defendants claim that the Court incorrectly
excluded evidence that would have rebutted Plaintiff’s evidence of emotional distress
such as evidence regarding Plaintiff’s 2007 engagement and medical records
regarding a 2002 hospitalization in a mental institution. The WSU Defendants argue
that even if Plaintiff’s testimony was merely the “garden variety” emotional distress
as she argued, any testimony rebutting here testimony was extremely probative and
not more prejudicial. The WSU Defendants claim that Plaintiff opened the door as
to her emotional distress and that they were entitled to present additional evidence
regarding the cause of Plaintiff’s emotional distress. The WSU Defendants assert that
the other sources of emotional distress were relevant to liability, to bolster the WSU
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Defendants’ legitimate business reason and to impeach Plaintiff’s credibility.
Plaintiff responds that she only sought to exclude the “details” of why her
engagement ended in 2007 and not that the engagement ended. As to the 2002
hospitalization, Plaintiff argues that defense counsel was not precluded from asking
Plaintiff about her emotional status as she testified to on direct.
At trial, the Court precluded questions by the defense regarding the 2007
engagement and the 2002 hospitalization. The Court initially found the evidence
regarding Plaintiff’s engagement and hospitalization relevant to Plaintiff’s claim of
emotional distress but more prejudicial than probative. The Court granted Plaintiff’s
Motion in Limine on these two issues, unless Plaintiff opened the door during her
testimony at trial. (Order, Doc. No. 118, p. 10) At trial, Plaintiff testified regarding
her emotional distress as a result of the WSU Defendants’ actions. (Tr. at 257-61)
The WSU Defendants sought clarification from the Court as to whether Plaintiff
opened the door with her testimony. (Tr. at 266) Counsel for the parties argued the
matter. (Tr. at 267-71) The Court ruled that Plaintiff did not open the door as to her
medical record or the engagement break up. (Tr. at 272-73) The Court found that the
circumstances of the break up engagement were more prejudicial than probative. (Tr.
at 375-76)
“Broad discretion is given to the district courts in determinations of
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admissibility based on considerations of relevance and prejudice, and those decisions
will not be lightly overturned.” United States v. Jackson-Randolph, 282 F.3d 369,
376 (6th Cir. 2002). After reviewing the Court’s rulings in this matter, the Court
finds that it did not abuse its discretion in finding that Plaintiff had not opened the
door for the defense to question Plaintiff regarding the 2002 hospitalization or the
2007 engagement break up. The Court did not preclude the defense from questioning
the extent of her emotional distress or to test Plaintiff’s credibility on crossexamination. A new trial is not required based on this issue.
C.

Future Damages

The WSU Defendants argue that the Court improperly ruled that the question
of future damages should be determined by the jury and that they are entitled to a new
trial on damages or remittitur. They assert that Plaintiff’s front pay calculation was
unduly speculative and that the evidence presented by Plaintiff of the average salaries
of social workers was simply not enough to support damages for wage loss. The
WSU Defendants argue that this evidence required the speculative assumption that
Plaintiff would have been successful in pursuing a social work career. The WSU
Defendants claim that future damages were speculative and that the jury should not
have determined the amount. The WSU Defendants also claim that Plaintiff failed
to mitigate her damages.
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Plaintiff responds that it asked the jury to award Plaintiff $750,000 in future
economic damages based on the evidence presented, but the jury, in its discretion,
awarded Plaintiff $200,000 in future economic losses, 25% of the amount sought by
Plaintiff. Plaintiff claims that she provided ample evidence of her mitigation efforts.
Future damages or front pay is compensation for “the post-judgment effects of
past discrimination.” Shore v. Federal Express Corp., 777 F.2d 1155, 1158 (6th Cir.
1985). “While the determination of the precise amount of an award of front pay is a
jury question, the initial determination of the propriety of an award of front pay is a
matter for the court.” Arban v. West Publishing Corp., 345 F.3d 390, 406 (6th Cir.
2003). The district court’s determination of whether an award of front pay is
appropriate must ordinarily precede its submission of the case to the jury. Roush v.
KFC Nat’l Management Co., 10 F.3d 392, 398-99 (6th Cir. 1993). Awards of front
pay must be guided by consideration of certain factors, including: an employee’s
duty to mitigate; the availability of employment opportunities; the period within
which one by reasonable efforts may be re-employed; the employee’s work and life
expectancy; the discount tables to determine the present value of future damages; and
other factors that are pertinent on prospective of damage awards. Id. at 399. In a
Title VII case, the defendant bears the burden of establishing that the plaintiff lacked
diligence in mitigating damages by showing that there were substantially equivalent
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position available and that the plaintiff did not diligently pursue those positions.
Madden v. Chattanooga City Wide Service Dep’t., 549 F.3d 666, 680 (6th Cir. 2008).
After proofs were presented at trial, the Court allowed the issue of future
damages to be brought to the jury. There was sufficient evidence for the jury to
consider whether Plaintiff mitigated her damages. Although the Court did not allow
Plaintiff to present expert testimony on the future damages issue because Plaintiff
failed to disclose and designate an expert on this issue as required under Rule 26, the
Court took judicial notice of the Bureau of Labor Statistics presented by Plaintiff.
Courts have taken judicial notice of the publications of the Bureau of Labor Statistics
of the U.S. Department of Labor. See, Pierce v. New York Cent. R. Co., 304 F.Supp.
44, 45-46 (D.C. Mich. 1969). The Court finds it did not abuse its discretion in
allowing the jury to consider the future damages issue.
D.

Delayed Admission of Evidence

The WSU Defendants claim that the Court delayed admission of two letters
written by Pamela Mackey to Carol Premo (Exhibits I and J). They argue that the
Court’s failure to admit the letters in a timely manner allowed Plaintiff’s counsel to
raise the implication that the WSU Defendants may have manufactured the evidence
after the fact, undermining the credibility of the WSU Defendants’ key witnesses.
The WSU Defendants assert that the Court ruled prior to trial that all evidence
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regarding Plaintiff’s performance at her Fall 2007 internship at the Veterans
Administration was relevant to corroborate Joyce Stefanski’s complaints against
Plaintiff. (Order, Doc. No. 118) Exhibits I and J were letters regarding Plaintiff’s
performance at the VA.
At trial, Defendant Premo identified the letters sent to her by Mackey. Plaintiff
objected to the letters as hearsay and the Court took the admissibility of the
documents under advisement. The WSU Defendants called Mackey to testify that she
wrote the letter, but the Court, in front of the jury required Mackey to produce the
emails transmitting the letters. The emails were produced later, but the WSU
Defendants claim that rather than allowing Mackey to further testify, the Court
admitted the letters at the close of proofs. The WSU Defendants claim they were not
allowed to use the letter to cross-examine Plaintiff since they were admitted after the
close of proofs. The WSU Defendants assert that the letters were relevant to support
that Plaintiff was removed from the program for legitimate non-discriminatory
reasons. The WSU Defendants were only able to use the evidence during closing
argument, which they claim negatively affected their rights to defend the allegations
brought by Plaintiff.
Plaintiff responds that the WSU Defendants submit “zero legal support” that
the delayed admission of the letters from Mackey requires a new trial. Plaintiff
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claims the WSU Defendants’ witnesses were legitimately cross-examined regarding
the letters and that they could not get their stories straight as to the letters. Plaintiff
states that the proffered letters were undated and/or unsigned and the reason for the
delay was to allow the defense to establish the circumstances of the letters. Plaintiff
claims the WSU Defendants never requested to recall Mackey to testify as to the
letters. Plaintiff argues that despite the letters, the jury was not persuaded by the
WSU Defendants’ arguments.
A trial court under Rule 611 of the Rules of Evidence, “must have considerable
discretion in controlling the mode and order of the proof at trial.” United States v.
Lash, 937 F.2d 1077, 1087 (6th Cir. 1991)(quoting United States v. Vinson, 606 F.2d
149, 152 (6th Cir. 1979)). The WSU Defendants cite no legal support for their
contention that the Court’s admission of their evidence at a later time requires a new
trial. The Court admitted the evidence the WSU Defendants sought to be admitted
and the WSU Defendants were able to argue the evidence at closing. A new trial is
not required because the Court, in its discretion and after it was satisfied the proper
foundation was laid by the defense as to the letters, admitted the letters the close of
proofs.
E.

Remittitur

The WSU Defendants seek remittur claiming that the $848,690 awarded to
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Plaintiff was excessive, shocks the conscience and against the great weight of the
evidence. The WSU Defendants claim that given Plaintiff’s age and job experience,
a jury verdict amounting nearly 15 years of lost wages is excessive as a matter of law.
They argue that the jury sought to punish the WSU Defendants and that punitive
damages are not required under Michigan law. The WSU Defendants claim that
Plaintiff did not properly support the requested damages based on emotional distress.
Plaintiff responds that the WSU Defendants provide no explanation or support
for their bald assertion that the $849,000 verdict was “punitive” or otherwise
excessive. Plaintiff asserts that emotional injury may be proved based on a plaintiff’s
own testimony and without medical support. As noted in the WSU Defendants’ brief,
Plaintiff testified at length as to her emotional distress damages claim. Plaintiff
claims that the compensatory damages awarded by the jury are in line with other
cases.
“A trial court is within its discretion in remitting a verdict only when, after
reviewing all evidence in the light most favorable to the awardee, it is convinced that
the verdict is clearly excessive.” Fuhr v. School Dist. of City of Hazel Park, 364 F.3d
753 (6th Cir. 2004)(quoting Farber v. Massilon Bd. of Educ., 917 F.2d 1391, 1395
(6th Cir. 1990)). Damages for mental and emotional distress will not be presumed
and must be proved by competent evidence. Moorer v. Baptist Memorial Health
11

Care System, 398 F.3d 469, 485 (6th Cir. 2005). Emotional injury may be proved
without medical support. Id. Such may be proved by a plaintiff’s own testimony,
along with the circumstances of a particular case. Id. Even if a plaintiff recovered
only $16,000 in economic damages, but was awarded $300,000 for emotional
distress, denial of motion for remittitur was affirmed by the appellate court. Id., citing
Miller v. Alldata Corp., 14 Fed. Appx. 457, 467 (6th Cir. 2001).
The jury awarded damages in the amount of $848,690 ($148,690 in economic
damages; $200,000 in future economic damages; and $500,000 in non-economic
damages). (Verdict, Doc. No. 128) As noted by the WSU Defendants in their
arguments regarding damages, Plaintiff testified extensively regarding her emotional
injury. The WSU Defendants cannot now argue that she failed to testify regarding
any emotional distress she suffered. Case law is clear that emotional injury does not
require medical support. As to the amount, the Court concludes that the amount
awarded by the jury is not so excessive to shock the conscience. Plaintiff submitted
cases showing the damages were in line with other similar cases. The 2001 case
noted above, Miller, awarded $300,000 for emotional distress. After reviewing the
briefs submitted by the parties and the evidence presented at trial, viewing the
evidence in the light most favorable to Plaintiff, the jury’s total award of $848,690
will not be remitted.
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F.

In Limine Rulings
1.

Manuals

The WSU Defendants argue that the issues presented at trial was whether
Plaintiff was discriminated against on the basis of her pregnancy and whether she was
retaliated against for complaining of pregnancy discrimination. They claim the issue
was not whether Plaintiff was treated properly or in accordance with University
policies. The WSU Defendants argue that allowing Plaintiff to use the two manuals
(the School of Social Work Policy Manual and the Field Placement Manual) to
interrogate the WSU Defendants as to whether the manuals were followed and to
suggest to the jury that the manuals created contractual rights, obligations or duties
to Plaintiff was improper since the issue before the jury did not involve any express
or implied contract claim.
Plaintiff responds that the manuals were placed in evidence by both parties and
introduced with no objection. Plaintiff asserts that this Court’s order allowing
testimony that the WSU Defendants failed to follow their own manuals and policies
was relevant to the WSU Defendants’ reasons for dismissing Plaintiff and their
credibility.
In its Order regarding the parties’ motions in limine, the Court allowed Plaintiff
to present evidence that the WSU Defendants failed to follow their own manuals and
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policies to show that their reason for their actions were mere pretext and to their
credibility. The WSU Defendants did not object to the admission of the manuals.
Although the WSU Defendants now argue that Plaintiff was alleging contractual
issues at trial, the Court finds that its previous ruling allowing questions regarding
whether the WSU Defendants followed their own manuals and policies goes to the
issue of pretext and credibility. New trial is not required on this issue.
2.

Salvation Army Statements

The WSU Defendants argue that the statements made by Salvation Army
employees should not have been allowed since Plaintiff did not allege that the WSU
Defendants had knowledge of the statements. Examples of statements include one
made by a residential manager at the Salvation Army that Plaintiff looked like a
“beached whale” and that “I’m sure your parents are really proud that their daughter
is having a baby [out of wedlock].” (Br. at 33; Doc. No. 144)
Plaintiff responds that Plaintiff testified at trial she reported the comments to
the WSU Ombudsman and Office of Equal Opportunity office. Plaintiff argues that
the Court’s ruling allowing the statements was not in error and the evidence was
relevant and admissible.
After reviewing the parties’ arguments, the Court finds it did not abuse its
discretion in allowing the evidence as to statements made by the Salvation Army
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employees. “Broad discretion is given to the district courts in determinations of
admissibility based on considerations of relevance and prejudice, and those decisions
will not be lightly overturned.” Jackson-Randolph, 282 F.3d at 376. The Salvation
Army statements were relevant to the issue of whether the WSU Defendants had
knowledge of these statements.
G.

Jury Instructions

The WSU Defendants argue that the Court’s failure to give certain jury
instructions (same actor inference; presumption of regularity; business judgment)
were in error. Plaintiff responds that the Court did not err in not giving these
instructions to the jury.
The trial court has broad discretion in giving or declining to give jury
instructions. United States v. Tasis, 696 F.3d 623, 627 (6th Cir. 2012). The same
actor inference was not given at the Court’s discretion because Court found that the
facts shown at trial did not support issuance of the instruction. Plaintiff was not
chosen by her advisor to be admitted into the program. The evidence did not show
that the same person who made the decision to admit Plaintiff into the program also
made the decision to fail Plaintiff. The Court will not reverse its previous ruling on
this issue.
As to the presumption of regularity instruction, the Court did not give the
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instruction because the issue of whether the individual WSU Defendants “regularly
performed” their duties was being attacked by Plaintiff. The Court found that the
“inference” instruction was sufficient. The Court did not err in its refusal to give this
instruction.
Regarding the business judgment instruction, the Court declined to give this
instruction because the evidence at trial did not show that Wayne State has broad
discretion in its judgment, in light of Title IX, other regulations and its own policies
as to its programs. The Michigan standard instruction on business judgment used in
discrimination cases was used. A new trial is not required for the Court’s refusal to
give this instruction.
III.

MOTION FOR JUDGMENT AS A MATTER OF LAW
The WSU Defendants argue that they are entitled to a Judgment as a Matter of

Law citing their trial brief, their motion for summary judgment and generally the
evidence at trial that Plaintiff failed to establish a prima facie case of discrimination
based on her pregnancy and a prima facie case of retaliation. The WSU Defendants
generally argue that Plaintiff did not establish that the WSU Defendants’ legitimate
and nondiscriminatory reasons for the WSU Defendants’ actions were pretext for
discrimination or retaliation. Plaintiff responds that there was sufficient evidence at
trial to support her claims of discrimination and retaliation.
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Motions for Judgment as a Matter of Law are governed by Rule 50(a) of the
Rules of Civil Procedure which provides:
(a)

Judgment as a Matter of Law.

(1) In General. If a party has been fully heard on
an issue during a jury trial and the court finds that
reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue, the
court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law
against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with a
favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of
law may be made at any time before the case is submitted
to the jury. The motion must specify the judgment sought
and the law and facts that entitle the movant to the
judgment.
Fed. R. Civ. P. 50(a). If the court does not rule on the motion for judgment as a
matter of law after the close of all the evidence the court is considered to have
submitted the action to the jury. Fed. R. Civ. P. 50(b). The motion may be renewed
by filing a motion no later than 28 days after the judgment has been entered. Fed. R.
Civ. P. 50(b). Failure to make a pre-verdict motion for judgment as a matter of law
under Rule 50(a) precludes any post-verdict motion under Rule 50(b) and any such
claim is waived. Sykes v. Anderson, 625 F.3d 294, 304 (6th Cir. 2010); American and

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Foreign Ins. Co., v. Bolt, 106 F.3d 155, 160 (6th Cir. 1997).
Judgment as a matter of law is appropriate when “viewing the evidence in the
light most favorable to the non-moving party, there is no genuine issue of material
fact for the jury, and reasonable minds could come to but one conclusion in favor of
the moving party.” Tisdale v. Federal Express, Corp., 415 F.3d 516, 527 (6th Cir.
2005); Jackson v. Quanex Corp., 191 F.3d 647, 657 (6th Cir. 1999). “The evidence
should not be weighed, and the credibility of the witnesses should not be questioned.
The judgment of this court should not be substituted for that of the jury; instead, the
evidence should be viewed in the light most favorable to the party against whom the
motion is made, and that party given the benefit of all reasonable inferences.”
Tisdale, 415 F.3d at 530. “[W]henever there is a complete absence of pleading or
proof on an issue material to the cause of action or when no disputed issues of fact
exist such that reasonable minds would not differ” only then is it appropriate to take
the case away from the jury. O’Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir. 1975).
It is noted that the WSU Defendants merely referred to the briefs previously
filed to support their argument in this motion. The Court is under no duty to sift
through the record in search of evidence or argument in support of a party’s position.
See In re Blazo Corp., 1995 WL 764130, *3 (6th Cir. Dec. 27, 1995); United States
v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Rule 50(a) requires that the moving
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party specify the law and facts that entitle the movant to the judgment. Fed. R. Civ.
P. 50(a). The WSU Defendants have not done so.
As Judge Mark A. Goldsmith previously ruled in its order denying in part the
WSU Defendants’ Motion for Summary Judgment, Plaintiff established a prima facie
case of discrimination and retaliation. As to pretext, there was sufficient evidence
before the jury to find that the WSU Defendants’ reasons for the actions it took
against Plaintiff were mere pretext. The Court denies the WSU Defendants’ Motion
for Judgment as a Matter of Law.
IV.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that the Wayne State University Defendants’ Motions for

Judgment as a Matter of Law, New Trial and/or Amendment of Judgment [Doc. Nos.
143 and 144] are DENIED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: June 24, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of
record on June 24, 2014, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry
Case Manager
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