ALERS et al v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 9/29/16. 9/29/16 ENTERED AND COPIES MAILED AND E-MAILED.(kw, )
Case 2:08-cv-04745-RAL Document 226 Filed 09/29/16 Page 1 of 38
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA,
On October 14, 2015, after a six-day trial, the jury returned a verdict of $265,000
in favor of Denise Szustowicz, the plaintiff, and against the City of Philadelphia, the
defendant. Before me are post-trial motions filed by the City, in the alternative, seeking
judgment as a matter of law, a new trial, entry of a nominal damages award of one
dollar, or a remittitur. See Doc. No. 213. The City also has filed a motion regarding
allegations of juror misconduct based on an alleged misstatement made by a member of
the jury during the voir dire process. See Doc. No. 172. Plaintiff Denise Szustowicz
opposes the City’s motions. Doc. No. 216. She has filed motions seeking to dismiss the
City’s motions. Doc. Nos. 202, 214. After careful review of the record and the briefing, I
conclude that all motions should be denied.
Factual and Procedural Background
I view the facts in the light most favorable to Szustowicz, giving her the
“advantage of every fair and reasonable inference[.]”Warren v. Reading Sch. Dist., 278
F.3d 163, 168 (3d Cir. 2002) .
In October of 2006, Detective Miguel Alers, an Hispanic male, worked in the City
of Philadelphia Police Department’s (PPD) Central Detectives Unit. Trial Transcript
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10/6/2015 9:33 A.M. at 24-25 (T.T. 10/6 (Doc. No. 195) at 24-25).1 Alers, who stood
about 5’4” or 5’5”, told Szustowicz he had been subject to a number of “jokes” by other
detectives in his squad, including raising his desk on milk crates, moving his coat hook
higher up on an office wall, elevating his desk chair on a stack of phone books, and
gluing various items to his desk. Id. at 25. The most “horrendous” of the jokes, from
Szustowicz’s perspective, was that the other detectives took Alers’ gun. Id. at 26. Alers
appeared upset and “completely distraught.” Id. Alers believed the other detectives
were going to accuse him of losing his gun. Id. Szustowicz believed someone was out to
set up Alers, and that the event should have been treated as a crime scene. Id.
Szustowicz told Alers to call internal affairs and report this event, as well as notify the
Equal Employment Opportunity unit within the police department, and the “federal
EEO” [sic]. Id. at 27. Szustowicz thought the “jokes” were racially motivated because
Alers was short and Puerto Rican. Id. at 28. She believed based on her training with the
police department that it was appropriate to file an EEO complaint. Id. at 28-29. Alers
filed an EEO charge in 2006. Id. at 29.
About two weeks after Alers and Szustowicz spoke, Lieutenant Brown and
Captain Seaborough, Szustowicz’s commanding officers, changed Szustowicz’s work
assignment. Id. at 30, 35. Szustowicz later identified the assignment switch as having
happened November 19, 2006. Id. at 57. Szustowicz had been partners with Detective
Because of travails in preparing the transcript, multiple transcripts exist from the same
day. I have used the docket numbers to keep the transcripts straight.
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Castro, but was reassigned to work with Officer Bond. Id. at 31. 2 Szustowicz had
complained to Lieutenant Brown many times about Officer Bond. “He was never there. .
. we were supposed to start at 2, he would come in at 4. He worked for major league
baseball . . . he would leave for like three hours, four hours to go to the [Phillies] ball
game.” Id. at 31-32. Sometimes Bond took a police car, and left Szustowicz at work with
no car. Id. at 32. Szustowicz told Captain Seaborough she would prefer not to work with
Bond because “I need somebody that’s gonna back me up.” Id. Then Szustowicz was told
she would have to serve warrants with Bond. Id. This posed a problem, because “it’s very
dangerous serving warrants. I mean, that’s where we get hurt the most. . . I’m not
comfortable serving a warrant with somebody I know that doesn’t like me.” Id. at 32-33.
Before the switch it was customary to serve warrants with four officers. Id. at 33. After
the switch, Lieutenant Brown ordered Szustowicz to serve a warrant with only Officer
Bond. Id. Lt. Brown reported to Cpt. Seaborough. Id. at 34. Cpt. Seaborough testified
she had no complaints from any detectives saying they would not work with Szustowicz.
T.T. 10/7 (Doc. No. 197) at 18. Cpt. Seaborough reassigned Szustowicz to another job
under Seaborough’s command as a result of Szustowicz’ refusal to serve a warrant with
Bond. Id. at 22-23.
Between the time Alers and Szustowicz spoke, Alers warned Szustowicz that they
had been seen talking and that “they were out to get me.” T.T. 10/6 (Doc. No. 195) at 35.
Alers relayed to Szustowicz that someone told Alers that the captain [Seaborough]
Bond is variously referred to as both Bond and Bonds in the transcript. I have elected
to refer only to “Bond.”
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“mentioned that she had observed me speaking to him and did not like it.” Id. at 48-49. 3
Szustowicz and Alers were talking together at one point about Alers’ situation when Sgt.
Jones happened upon them. Id. at 42. Alers was reassigned to another unit under
Seaborough’s command in November. Id. at 42.
Once her assignment switch happened, Szustowicz never saw Bond. “I was by
myself.” Id. Szustowicz objected to Cpt. Seaborough and Lt. Brown that switching her to
work with Officer Bond amounted to creating a hostile work environment. Id. at 49.
Szustowicz said the same thing to Sgt. Jones. Id. at 50. At one point Szustowicz arranged
to have several detectives with her to serve warrants and the plan was countermanded
by Lt. Brown, who told her she would only serve warrants with Officer Bond. Id. at 51.
Szustowicz told Lt. Brown she did not feel safe with Bond, and reminded him she had
spoken to him before about her poor relationship with Bond. Id. at 51.
Miguel Alers testified that after his gun was taken he talked with Det. Szustowicz,
in October of 2006. Id. at 99. He also talked with Cpt. Seaborough in October, after the
gun was taken. Id. at 100-02. He filed EEO complaints because there was no
“movement” by the Captain on the investigation of Alers’ gun. Id. at 101. Cpt.
Seaborough talked with Alers during November of 2006 because Cpt. Seaborough had
received information that Alers had filed an EEO complaint. Id. at 100-02. Alers related
that he filed a federal EEO complaint on November 1, 2006, and believed he filed one
with the City in December of 2006. Id. at 102. He noticed that Cpt. Seaborough was
constantly watching Alers and Szustowicz when they talked. Id. at 106. He said the
Captain’s conduct was unusual, and had not happened before the Captain had spoken to
There was no objection to this hearsay within hearsay.
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Alers about his EEO complaint. Id. at 107. He relayed his concerns about the Captain
watching them to Det. Szustowicz. Id. at 106-07.
On approximately January 18, 2007, Szustowicz was called into Cpt.
Seaborough’s office with Lt. Brown, and told she was being moved “because I wasn’t
loyal.” T.T. 10/6/15 (Doc. No. 195) at 38-39. On January 23, 2007 Szustowicz gave a
statement as part of the EEO investigation of Alers’ complaint. Id. at 30, 39. Szustowicz
requested a transfer to Northwest Detectives in January 2007, because “I felt like I was
being set up. And I wanted to be with my old lieutenant.” Id. at 60-61. Sometime in
January Szustowicz told Cpt. Seaborough that “because I helped Miguel she
[Seaborough] was coming after me.” Id. at 93. Cpt. Seaborough did not respond. Id.
On March 5, 2007 Szustowicz was given a reprimand for calling Lt. George
Ondrejka a “loser” near the District holding cell, in the presence of patrol officers and
civilians. Id. at 64; Joint Exhibit 5 (JE 5). Szustowicz explained that she and Ondrejka
had made a good-natured bet about whether the DA’s charging unit would approve an
arrest for an elderly woman who had brought a gun to court. Id. at 65-66. They had been
kidding around in the squad car on the way up to serve a warrant, at which Szustowicz
almost got shot. Id. at 66. When they found out that Ondrejka lost the bet Szustowicz
called him “loser” several times, in response to comments from Ondrejka. Id. After
receiving a written reprimand, Szustowicz complained to Ondrejka. Id. at 68.
In early May, 2007 Szustowicz was again reprimanded by Cpt. Seaborough. Id. at
70. Seaborough questioned Szustowicz about examining daily attendance reports
(DARs) for other officers. Id. at 71. Anyone in the police department can examine the
DAR system for information about other police officers’ whereabouts and attendance.
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Id. at 72. There is no policy to the effect that police are not permitted to look in the
DARs. Id. at 72. Szustowicz had spoken to a police internal affairs unit (“Impact”) about
irregularities in time reporting at Central Detectives. Id. at 73-74. Nevertheless,
Szustowicz denied looking at DARs during the interview with Cpt. Seaborough. Id. at 76.
Szustowicz believed that at that time she had not. Id. at 76; JE 13 (p. D1769). She also
believed that police policy permitted her not to disclose her cooperation in an internal
affairs investigation. Id. at At some point, based on her review of DARs given her by
another detective, Szustowicz concluded that Lt. Brown was “switching his tour of duty”
in the DARs in order to claim overtime he did not actually earn. Id. at 78. Szustowicz
reported this to Internal Affairs in approximately May of 2007. Id. at 78, 80.
As for the racially offensive remark, Szustowicz filed her own EEOC complaint on
March 23, 2007. Id. at 56. In the complaint Szustowicz alleged she had been retaliated
against for instructing Alers to file his EEO charge. Id. at 57. On July 3, 2007 Szustowicz
gave Cpt. Seaborough a memorandum telling her of the EEO charge. Id. at 58, 92. That
same day Szustowicz was transferred to Northwest Detectives, a division that was not
under Cpt. Seaborough’s command. Id. at 59-60, 82. Nevertheless Szustowicz was
required to return to Central Detectives to be interviewed by Cpt. Seaborough about the
DARs, in addition to an investigation Cpt. Seaborough had launched into alleged racial
comments by Szustowicz. Id. at 83-87. 4 During an interview on July 9, 2007, Cpt.
Seaborough asked if Szustowicz had called anyone a “spook” or “monkey.” Id. at 90; JE
13. Szustowicz denied these allegations. T.T. 10/6 (Doc. No. 195) at 87-88, 90.
The comment at issue was that had said that someone was “more nervous than a spook
in a spelling bee.” T.T. 10/6 (Doc. No. 195) at 89.
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Szustowicz believed, based on all that happened to her, that she was being retaliated
against by Cpt. Seaborough for helping Alers and reporting overtime abuses to Internal
Affairs. Id. at 93.
On August 15, 2007 Cpt. Seaborough issued three “Statement[s] of Charges Filed
and Action Taken” (Form 75-18), charging Szustowicz with “conduct unbecoming an
officer.” JE 22, 23, 24. The first Statement of Charges alleged that Szustowicz had made
a variety of insulting remarks, including those of a racial nature. JE 22; T.T. 10/6 (Doc.
No. 195) at 90, 100. The second Statement of Charges alleged that during the July 9,
2007 interview Szustowicz had been “less than truthful” in answering questions about
her review of DARs and the racially offensive comments. JE 23; T.T. 10/6 (Doc. No. 195)
at 101. The third Statement of Charges alleges that Szustowicz was insubordinate,
having been ordered not to look into DARs and having disobeyed the order. JE 24; T.T.
10/6 (Doc. No. 195) at 101-103.
Szustowicz explained that she had related to a fellow officer a story about two
police officers who had gotten in trouble over a racially offensive comment. T.T. 10/6/15
at 1:47 p.m. (T.T. 10/6 (Doc. No. 196) at 6. She related the story as a warning “to watch
what you say because look what happened to this - - this Cpt. Thompson, Tommy
Thompson was his name.” Id. at 6. She told the story to Det. Castro sometime in 2006,
and possibly as early as 2005, but was not investigated for telling the story until 2007.
Id. at 10. She had heard the story from another officer, and had heard it repeated by
others several times. Id. at 8-9. She had never been asked to cooperate in an
investigation of any other officer for repeating the story. Id. at 9. She had not been
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investigated for telling this story until Cpt. Seaborough interviewed her July 9, 2007. Id.
Szustowicz had a hearing on the charges in January of 2008. Id. at 12-13. She
wished to call a witness to the hearing, Sgt. Nadolski of internal affairs, who knew that
Szustowicz was a cooperating witness in the internal affairs investigation of overtime
abuses at Central Detectives. Id. at 11-12. Szustowicz asked for a continuance because
her witness did not show up. Id. at 14. He was on vacation the date of the hearing. Id. at
20. Szustowicz did not want to proceed without Sgt. Nadolski. Id. Cpt. Flacco, the police
advocate, advised her that the hearing would go forward and that Szustowicz would get
a 30-day suspension and a finding on her record that she had lied. Id. Such a result
would mean that Szustowicz could no longer testify as a police officer. Id. at 15. Flacco
offered Szustowicz a plea to 21-days suspension and a lesser offense. Id. at 14-15. After
entering the plea, Szustowicz concluded that she had been “set up” and sought to
withdraw the plea. Id. at 20-21. She made a formal request to withdraw, but the Police
Commissioner decided not to allow Szustowicz to withdraw her plea. Id. at 22.
Szustowicz went to the Mayor’s office to attempt to overturn the Commissioner’s
decision. Id. at 24. Plaintiff met with Joan Markman, the Mayor’s chief integrity officer
(CIO). Id. As a result of this meeting there was correspondence between Ms. Markman
and the Police Commissioner. Id. at 26; JE 50-51. Ms. Markman recommended that the
Commissioner reconsider his decision not to permit Det. Szustowicz to withdraw her
guilty plea. JE 51 (letter date June 2, 2008). Because Ms. Markman had passed away
before trial, the parties crafted a stipulation concerning her duties as the chief integrity
officer. Id. at 30-31; JE 64. The Police Commissioner did not report to CIO Markman
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and was not bound by her advice. Id. at 31. CIO Markman did not refer Det. Szustowicz’s
complaint “to any law enforcement agency, Ethics Board or City Inspector General.” Id.
at 31. The Commissioner did not order a rehearing. Id. at 32.
Plaintiff was suspended for 21 days, the equivalent of a month and a day of work.
Id. at 46. She lost approximately $5,000.00 of pay. Id. at 47. She was embarrassed and
humiliated by the investigation and charges. Id. at 49. The investigation portrayed her
as “something that I’m not.” Id. at 50. She had trouble sleeping and almost quit the
police force. Id. Because of the stress she took four or five months of sick leave, which
she will not receive as part of her retirement. Id. at 50-51. She had to take a home equity
loan after her suspension in order to support herself. Id. at 52. The investigation and
discipline made her “completely angry and frustrated that I was doing the right thing for
a job that I loved and I was really good at and I did the right thing and I got hurt by it.”
Id. at 52. While suspended Det. Szustowicz was ineligible to make overtime. Id. at 53-54.
Her reputation within the police department was affected: her suspension made
transferring to other units more difficult. Id. at 54. This affected her ability to transfer to
specialized units within the department. Id. at 55-56. For instance, a transfer to
homicide was out of the question. Id. at 56. At homicide she could have made much
more money working overtime. Id. at 56.
In October 2008, Alers and Szustowicz filed this lawsuit against the City in the
Eastern District of Pennsylvania. They accused the City of race discrimination and
retaliation in violation of Title VII of the Civil Rights Act of 1964; discrimination and
retaliation in violation of 42 U.S.C. § 1983; violation of the Fair Labor Standards Act, 29
U.S.C. § 201 et seq.; and violations of a number of state laws. On January 24, 2013,
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Judge Jones granted summary judgment in favor of the City on all claims except for
Szustowicz’s Title VII retaliation claim. See Alers v. City of Philadelphia, 919 F. Supp.
2d 528 (E.D. Pa. 2013).
On March 16, 2015, this case was referred to the Honorable Lynne A. Sitarski for
trial, pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. See Doc. No. 121. One month
later, on April 16, 2015, Judge Sitarski recused herself from the matter. See Doc. No.
128. Judge Jones then referred the case to me on April 22, 2015. See Doc. No. 130. A
jury trial was held between October 5, 2015 and October 14, 2015. On October 14, 2015,
the jury returned a verdict in favor of Szustowicz in the amount of $265,000.00. See
Doc. No. 160.
A flurry of post-trial motions followed. These were subject to considerable delay
due to difficulties securing the full trial transcript, as well as requests for additional time
for briefing. See Doc. No. 203. In addition, the parties attempted to settle their
differences during the summer of 2016. Those efforts have concluded, and the post-trial
motions are ripe for determination.
The City argues that I should grant judgment in its favor, or a new trial, because
Szustowicz failed to show that the PPD retaliated against Szustowicz in response to her
engaging in activities protected by Title VII. See generally, Doc. No. 213, Defendant’s
Memorandum of Law (Def. Mem.) at 7. There are two threads of argument, the first
regarding Szustowicz’s allegations about retaliation for assisting Alers, the second
regarding her allegations about retaliation related to her own complaint of
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As to Alers’ complaint, the City contends that Szustowicz failed to establish
a causal link between Szustowicz’s assisting Alers and the alleged adverse employment
action against Szustowicz. Id. at 7-8.
The City contends that Szustowicz failed to establish that Seaborough
knew that Szustowicz was assisting Alers prior to the time that Seaborough
forced Szustowicz to switch partners. Id. at 9-10.
The City contends that there was insufficient evidence from which the jury
could infer retaliatory intent merely from switching partners. Id. at 10-11.
The City contends that the temporal link between the switching of partners
and Captain Seaborough’s investigation was too remote to establish
causation. Id. at 18.
The City also contends that Szustowicz did not establish a good faith basis
to believe that Alers stated a claim of race discrimination. Id. at 12-14.
As to her own complaint of discrimination, the City contends that
Szustowicz failed to establish retaliation. Id. at 14-16.
The City argues that, if I do not grant judgment notwithstanding the verdict, or a
new trial, I should grant nominal damages of one dollar because Szustowicz failed to
prove emotional damages. Id. at 16-19.The City argues in the alternative that I should
order a remittitur. Id. at 19-23.
In response, Szustowicz contends that the jury was given sufficient evidence to
infer the link between the protected conduct and the retaliation, and that the jury’s
verdict should stand. See generally, Doc. No. 216. Szustowicz also argues that the City
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did not properly raise its Rule 50(a) motion and, therefore, is precluded from bringing
this Rule 50(b) motion in the first instance.
APPLICABLE LEGAL STANDARDS
A. Standard of review for post-trial motions.
1. Rule 50 Judgment as a matter of law
Federal Rule of Civil Procedure 50 provides that a court may enter judgment as a
matter of law if it “finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the [non-moving] party on that issue.” See Fed. R. Civ. P.
50(a)(1). In ruling on the City’s motion, I must draw all reasonable inferences in favor of
Szustowicz and can neither make credibility determinations, nor weigh the evidence. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Entry of
judgment as a matter of law is appropriate only if “viewing the evidence in the light most
favorable to the non-movant [Szustowicz] and giving it the advantage of every fair and
reasonable inference, there is insufficient evidence from which a jury could reasonably
find liability.” Warren, 278 F.3d at 168. Put another way, “[t]he question is not whether
there is literally no evidence supporting the party against whom the motion is directed
but whether there is evidence upon which the jury could properly find a verdict for that
party.” See Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993) (quotation
2. Rule 59 grant of a new trial.
In addition to requesting that judgment be entered in its favor notwithstanding
the verdict, the City alternatively seeks a new trial or remittitur. Federal Rule of Civil
Procedure 59 provides that I may grant a new trial following a jury verdict “for any
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reason for which a new trial has heretofore been granted in an action at law in federal
court.” See Fed. R. Civ. P. 59(a)(1)(A). “The law is such that ‘a new trial should be
granted only when the verdict is contrary to the weight of the evidence or when a
miscarriage of justice would result if the verdict were to stand.’ Brennan v. Norton, 350
F.3d 399, 430 (3d Cir.2003).” Holt v. Pennsylvania, No. CV 10-5510, 2015 WL
4944032, at *25 (E.D. Pa. Aug. 19, 2015). If there is a reasonable or rational basis for the
verdict, it should not be set aside. See Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 202 (3d
Cir.1996). “In order to preserve an issue for judgment pursuant to Rule 50(b), the
moving party must timely move for judgment as a matter of law at the close of the
nonmovant's case, pursuant to Rule 50(a), and specify the grounds for that motion.
Fed.R.Civ.P. 50(b).” Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1172–73 (3d Cir.
3. Plaintiff’s waiver argument.
At the outset, Plaintiff has argued that the City waived its Rule 50 arguments
because it did not include them in its Rule 50(a) motion just prior to the case going to
the jury for deliberations. See Pl. Br. at 5. This is incorrect. The City’s argument is that 1)
there was an insufficient causal link between plaintiff’s protected conduct and
Seaborough’s alleged retaliatory acts, and 2) plaintiff did not have a good-faith basis to
believe that Alers made a valid race discrimination claim. Def. Br. at 7-14. The trial
transcript reflects that counsel for the City clearly stated each of these arguments during
its oral Rule 50(a) motion. See T.T. 10/13/2015 (Doc. No. 209) at 60:7-16. 5
“Both he [Alers] and Det. Szustowicz testified that she had a conversation with him
and advised him to do it. She certainly hasn't -- excuse me, I shouldn't say, she -13
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I will consider the City’s arguments on the merits.
A. The evidence was sufficient.
The City contends that despite the verdict, I should enter judgment in its favor on
Szustowicz’s Title VII retaliation claim. In support of that argument, the City claims that
1) there was insufficient evidence of a causal link between Szustowicz’s assistance to
Alers and Seaborough’s investigation into her conduct and 2) Szustowicz failed to
establish that she had a good-faith basis to believe that Alers made a valid race
discrimination claim. See Def. Mem. at 7-14. The City also argues that the evidence was
insufficient to establish retaliation based on Szustowicz’s own complaint. Def. Mem. at
14-15. Szustowicz argues that “the trial transcript is replete with competent admissible
evidence sufficient to support the Jury’s verdict.” See Pl. Br. at 9. I find that, viewing the
evidence in a light most favorable to the Szustowicz, there was sufficient evidence from
which a reasonable factfinder could conclude that Szustowicz was retaliated against for
helping Miguel Alers file complaints, and for filing her own.
There was sufficient evidence of a causal link between Szustowicz’s
assistance of Alers and Seaborough’s investigation of Szustowicz.
To establish a prima facie case of retaliation Szustowicz needed to demonstrate
that: (1) she engaged in protected employee activity; (2) her employer took a materially
adverse action or actions against her; and (3) there was a causal relationship between
plaintiff has certainly not established that there was a good faith basis for her making
that suggestion. And additionally, she has not established that Captain Seaborough was
aware that she had advised him to file a complaint, or that she had even filed her own
complaint until July 3rd. So in terms of the time line, and the knowledge of Captain
Seaborough, that's not there.”
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the protected activity and the adverse action. Marra v. Philadelphia Housing
Authority, 497 F.3d 286, 300 (3d Cir. 2007). The third prong, the causal link, may be
established through evidence that illustrates “(1) the temporal proximity between the
protected activity and the alleged discrimination and (2) the existence of a pattern of
antagonism in the intervening period.” Jensen v. Potter, 435 F.3d 444, 450 (3d Cir.
2006) (internal quotation marks omitted). Timing alone will not support a finding of
causation unless “unusually suggestive[.]” Morrissey v. Luzerne Cnty. Cmty. Coll., 117
F. App’x 809, 816 (3d Cir. 2004) (non-precedential) (citing Krouse, 126 F.3d at 503)). If
Szustowicz failed to establish a prima facie case, the City is entitled to judgment as a
matter of law. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 n.4 (3d Cir.
The City contends that Szustowicz failed to establish the third element of her
prima facie case – the causal relationship between her protected activity and the alleged
retaliation by the City. I have broad discretion to cull the record for evidence supportive
of that link. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)
(“[W]e have been willing to explore the record in search of evidence, and our caselaw
has set forth no limits on what we have been willing to consider [to establish the causal
link].”) “Although timing and ongoing antagonism have often been the basis for the
causal link, our case law clearly has allowed a plaintiff to substantiate a causal
connection for purposes of the prima facie case through other types of circumstantial
evidence that support the inference.” Id. at 280–81. I find that there was sufficient
evidence for a reasonable juror to have found a causal connection between Szustowicz’s
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assistance with Aler’s EEO and/or EEOC complaint(s) and the alleged retaliatory
The City argues that there was no evidence that Cpt. Seaborough was aware that
Szustowicz had helped Alers. I disagree. The jury could have drawn a reasonable
inference from testimony from Alers and Szustowicz that Cpt. Seaborough indeed was
aware of both Alers’ complaint and Szustowicz’s assistance by the time of the partner
shifting incident in November of 2006.
Alers and Szustowicz talked in October of 2006. T.T. 10/6 (Doc. No. 196) at 99.
After the conversation, Alers noticed that Cpt. Seaborough was constantly watching
Alers and Szustowicz when they talked. Id. at 106. He said the Captain’s conduct was
unusual, and had not happened before the Captain had spoken to Alers about his EEO
complaint. Id. at 107. He relayed his concerns about the Captain watching them to Det.
Szustowicz. Id. at 106-07. After Alers and Szustowicz spoke, Alers warned Szustowicz
that they had been seen talking and that “they were out to get me.” T.T. 10/6 (Doc. No.
195) at 35. Alers relayed to Szustowicz that someone told Alers that the captain
[Seaborough] “mentioned that she had observed me speaking to him and did not like it.”
Id. at 48-49. 6 Szustowicz and Alers were talking together at one point about Alers’
situation when Sgt. Jones happened upon them. Id. at 42. Seaborough acknowledged
that she was aware of issues surrounding Alers in 2006. See T.T. 10/7 (Doc. No. 197) at
Alers talked with Cpt. Seaborough in October, after the gun was taken, and filed
EEO complaints because there was no “movement” by the Captain on the investigation
There was no objection to this hearsay within hearsay.
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of Alers’ gun. T.T. 10/6 (Doc. No. 196) at 100-02. After Alers filed the EEO complaint,
Seaborough “called me into her office after receiving a phone call from the EEO Unit. . .
.” See id. at 102. This conversation occurred sometime in November of 2006. Id. Cpt.
Seaborough talked with Alers because Cpt. Seaborough had received information that
Alers had filed an EEO complaint. Id. Alers related that he filed a federal EEO complaint
on November 1, 2006, and believed he filed one with the City in December of 2006. Id.
at 102. In sum, Alers testified that he spoke with Szustowicz sometime in October, filed
an EEO complaint on November 1, 2006, that Cpt Seaborough learned about the EEO
complaint sometime after it was filed, and that she spoke with him about it in November
of 2006. T.T. 10/6 (Doc. No. 196) at 102. Szustowicz testified that the partner switch
happened on November 19, 2006. T.T. 10/6 (Doc. No. 195) at 57. The chronology is not
crystal clear, but a reasonable juror could have concluded that Seaborough learned of
Alers’ complaint shortly before the reassignment happened in November of 2006, and
just a few weeks after Szustowicz had counseled Alers to file an EEO complaint in
October of 2006.
“Determining whether temporal proximity alone may create an inference of
retaliation is ‘essentially fact-based ... depending ... on how proximate the events
actually were, and the context in which the issue came before us.’” See Mclaughlin v.
Fisher, 277 Fed. Appx. 207, 219 (3d Cir. 2008) (not precedential) (quoting Farrell, 206
F.3d at 279). The jury reasonably could have found that helping Alers file his EEO
complaint triggered the Plaintiff’s partner switch, as well as other antagonistic action.
“[T]iming plus other evidence” reasonably could have supported such a conclusion.
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Blakney v. City of Philadelphia, 559 Fed. Appx. 183, 186 (3d Cir. 2014) (not
precedential). (citing to Farrell, 206 F3d at 280).
The jury might reasonably have concluded that Seaborough, a police captain with
many years of experience, knew about Alers’ complaint, as well as Szustowicz’s
assistance, and that the partner switch, accomplished so close in time to Seaborough
learning of Alers’ complaint, was an effort to retaliate against Szustowicz for helping
The City argues Szustowicz’s re-assignment was nothing more than a de minimis
action which “does not suggest retaliatory intent at all. . . .” Def Mem. at 8. While a
single antagonistic action may not suffice to constitute retaliation, a pattern of
antagonistic actions can serve to unite a retaliatory end result with a protected act. See,
e.g., Washco v. Fed. Express Corp., 402 F. Supp. 2d 547, 560 (E.D. Pa. 2005)
(discussing patterns of antagonism). If the jury believed Szustowitz’s testimony that
Captain Seaborough assigned Szustowitz to Officer Bond in retaliation for her helping
Alers – and I must assume it did – the jury could infer that re-assignment to work with
an entirely incompetent, if not criminally negligent, co-worker was the direct result of
Szustowicz’s interaction with Alers. 7 As such, the re-assignment cannot fairly be
characterized as de minimis. Nor was the reassignment the only incident.
In addition to the re-assignment, Szustowicz contends that she was retaliated
against for reporting discrepancies in daily attendance reports (DARs). In May of 2007,
In addition to her concerns about serving warrants with Bond, Szustowicz explained
that she protested the re-assignment because she had concerns about Bond’s conduct at
work. Bonds would regularly arrive late for his shifts, allow his second job with Major
League Baseball to interfere with his police duties, and take the squad car with him to go
to baseball games. See T.T. 10/6 (Doc. No. 195) at 31-32.
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Szutowicz was called into Seaborough’s office to explain why she had examined DARs
from other officers. See T.T. 10/6 (Doc. No. 195) at 70. Szustowicz had received the
DARs from Detective Dave Smith, which purported to show overtime discrepancies. See
id. at 77-78. Plaintiff later mailed the questionable DARs to Internal Affairs for further
investigation. Id. at 79. The receipt of the DARs from Detective Smith and Szustowicz’s
mailing of them to Internal Affairs happened just prior to Szustowicz confirming a
transfer request in May of 2007. Id. at 80.
Plaintiff transferred to Northeast Detectives on July 6, 2007. See JTE 26. The
transfer removed Szustowicz from Seaborough’s supervision. 8 On July 9, 2007,
Szustowicz returned to Central Detectives to be interviewed by Seaborough. T.T. 10/6
(Doc. No. 195) at 82-83; see also JTE 13 (noting a July 9, 2007 interview date). This
interview related to the DARs that Szustowicz mailed to Internal Affairs. T.T. 10/6 (Doc.
No. 195) at 83-84. Szustowicz explained that she was never given a written order not to
access the DARs. Id. at 86. Furthermore, because there was an Internal Affairs
investigation launched as a result of the DARs Szustowicz provided, Szustowicz believed
that she was under no obligation to tell Captain Seaborough that she had accessed those
DARs in the first place. Id. at 86. It is routine in Internal Affairs investigations that
individuals are told not to reveal that they have been speaking to investigators. See id. at
There was some dispute during the trial over the difference between “transfer” and
“detail.” A detail means that a police officer is assigned work in another district, while
still supervised by their superior officer from the sending district, while a transfer means
another supervisor takes over responsibility for managing that officer. See T.T. 10/6
(Doc. No. 195) at 82-83; see also T.T. 10/7 (Doc. No. 197), at 56 (noting a similar
description from Captain Seaborough). Whether Plaintiff had been transferred or
detailed was a question for the jury to resolve.
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86-87. In addition to the DAR issue, Szustowicz was also confronted regarding alleged
racial remarks she made in the presence of co-workers. See id. at 90.
The jury could have found that a pattern of antagonism overcame concerns about
temporal proximity. The Third Circuit has stated that temporal proximity 9 between the
protected act and the retaliatory act is necessary to prove a retaliation claim. Shaner v.
Synthes, 204 F.3d 494, 505 (3d Cir. 2000). A jury reasonably could have found that no
more than two weeks separated Szustowicz’s assistance of Alers and the switch in
partners to Officer Bond. T.T. 10/6 (Doc. No. 195) at 35. The jury might also reasonably
have concluded that even less time separated Cpt. Seaborough’s learning of Alers’ EEO
complaint and Szustowicz’s partner switch. Compare T.T. 10/6 (Doc. No. 195) at 30, 35,
57 (reassignment) with T.T. 10/6 (Doc. No. 196) at 100-02 (Alers conversation with
Seaborough). The Third Circuit has held that temporal proximity of more than ten days
triggers the need for additional evidence of retaliatory motive. See Blakney, 559 Fed.
Appx. At 186 (citing to Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.
2000)) “We have held that such ‘other evidence’ may include, but is not limited to, a
‘pattern of antagonism’ subjecting plaintiff to a “constant barrage of written and verbal
warnings and ... disciplinary actions, all of which occurred soon after plaintiff's initial
complaints.’” See id. (quoting Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892, 894 (3d
Just because an adverse action occurs after a complaint does not mean that the
plaintiff can demonstrate a causal link between the two events. See Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997); see also Williams v. Phila. Hous. Auth.
Police Dep’t, 380 F.3d 751, 760-61 (3d Cir. 2004) (over two months is not unusually
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In light of the evidence, a reasonable juror could have concluded that the
switching of partners in November of 2006 was only the beginning of a series of events
that were motivated by a desire to retaliate. This evidence of a pattern of events also
answers the City’s argument that the temporal link between the partner switching
episode in November of 2006 and Seaborough’s investigation of Szustowicz in JulyAugust, 2007 was too remote. The jury reasonably could have found a pattern of
antagonism that linked the partner switching episode in November of 2006 and
Seaborough’s investigation of Szustowicz in July-August, 2007.
Plaintiff’s good faith belief in the merits of Alers’ complaint.
The City also contends that Szustowicz cannot show a good faith belief in the
merits of Alers’ EEO complaint. Def. Mem. at 12-14.Plaintiff argues that she was not
required to show a good faith belief in the merits of Alers’ EEO complaint. She points
out that both the opposition and participation clauses found in Title VII were tried. See
Pl. Rep. Br. at 2. She explains that
[t]he ‘participation’ clause protects any person who has participated in any
manner in Title VII proceedings (or the necessary precursors to such
proceedings). The opposition clause is for a person who has him or herself
opposed illegal employment practices under Title VII. Good faith is normally not
required for [a] participation claim under the retaliation statute. Indeed, the
majority rule is that all manner of participation is protected, even if done in bad
See id. at 2 (citing EEOC Guidelines, vol. 2, § 8-II.C.2).
The Third Circuit agrees that Title VII protects both individuals who participate
in Title VII proceedings, and those who oppose discrimination. See Slagle v. County of
Clarion, 435 F.3d 262, 266 (3d Cir. 2006). Supreme Court precedent requires that an
“employee must hold an objectively reasonable belief, in good faith, that the activity they
Case 2:08-cv-04745-RAL Document 226 Filed 09/29/16 Page 22 of 38
oppose is unlawful under Title VII.” Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d
Cir. 2006) (citing to Clark County v. Breeden, 532 U.S. 268, 271 (2001)). This aligns
with earlier Third Circuit precedent, which requires that a retaliation plaintiff must act
under a reasonable belief that a violation of Title VII occurred. See id. (citing Aman v.
Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996)).
While in Moore the Third Circuit held there must be a good faith belief in the
merits of a claim in opposition cases, the same is not necessarily true in a participation
case. Plaintiff’s suggestion that all manner of participation is protected “even if done in
bad faith,” is an overstatement. See Pl. Rep. Br. at 2. Nevertheless, the EEOC guidelines
states that “courts have consistently held that a respondent is liable for retaliating
against an individual for filing an EEOC charge regardless of the validity or
reasonableness of the charge.” See EEOC Guidelines, vol. 2, § 8-II.C.2. (citing Wyatt v.
Boston, 35 F.3d 13, 15 (1st Cir. 1994)) (emphasis added). That reading implies that a
defendant can be liable for retaliation against a plaintiff even if the underlying charge in
which he or she participated is ultimately found to be without merit. The Court in Wyatt
confirmed this, writing that, as to the participation clause, there is no requirement that
the underlying charges be valid or reasonable. See 35 F.3d at 15.
In Slagle, the Third Circuit cited to the Wyatt case in holding that the
participation clause does not require the charges to be valid or reasonable. See 435 F.3d
at 268 (citing Wyatt, 35 F.3d at 15). Though Alers’ allegations were ultimately
dismissed, I find that they do not rise to the level of bad faith as a matter of law. More
importantly, I find that Szustowicz participated in Alers’ claims in good faith. It is not
necessary to decide whether someone who participated in bad faith is protected.
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The evidence is sufficient to establish retaliation based on
Szustowicz’s own complaint.
The City argues that Szustowicz has failed to establish retaliation related to her
own complaint. Def. Mem. at 14. Captain Seaborough initiated the investigation into
Plaintiff’s use of racial epithets on July 2, 2007, a day before Szustewicz gave
Seaborough a memorandum with her EEO charges attached. Def. Br. at 15. In order to
prove retaliatory intent, a plaintiff must show that the employer had knowledge of the
protected act, in this case, plaintiff’s EEO filing. See id. (citing Doyle v. U.S. Sec’y of
Labor, 285 F.3d 243, 250 (3d Cir. 2002)). Seaborough testified that she knew about
Szustowicz’s EEO complaint on July 3rd. See T.T. 10/7/15 (Doc. No. 197) at 71. There
are several reasons why I disagree with the City’s argument.
First, the Doyle case does not control. In Doyle, a company named Hydro, in the
business of decontaminating nuclear power plants, recruited the plaintiff to help with
the decontamination of a plant in Michigan. 285 F.3d at 245. Doyle was given a
standard release form to sign, but he refused because he believed that one of the
paragraphs in the form waived his right to file a charge under Section 210 of the Energy
Reorganization Act of 1974, 42 U.S.C. § 5851 (“ERA”). Id. at 246. The Third Circuit
found that the plaintiff never engaged in a protected activity by refusing to sign the
waiver. Id. at 251.
Here, by filing a complaint with the EEOC and the police department’s EEO unit,
Szustowicz clearly engaged in protected activity. Doyle failed to prove by a
preponderance of the evidence that the defendant was using the waiver form as a means
to obscure discriminatory motives. Id. at 252. The company gave waivers to all
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applicants for temporary positions and “the record does not illustrate that Hydro
previously made exceptions in its hiring practices for applicants, if there were any,
similarly situated to Doyle who insisted on signing a modified version of the
authorization or on not singing the authorization at all.” Id. at 253.
In this case, by contrast, there was no evidence of a policy prohibiting police
employees from looking at other officers’ DARs. Nor was there any evidence that
employees other than Szustowicz ever were disciplined for looking at DARs, according
to Deputy Commissioner Gaittens:
Q: To your knowledge, was there any directives that specifically stated that
officers could not go into the DAR system, review it for other officers[,] and make
Q: In your 33 years [at the Philadelphia Police Department], have you ever heard
of an officer who was disciplined because they had acquired a DAR from another
officer and turned it into IMPACT?
A: For specifically acquiring—
A: ---just by itself, no.
See T.T. 10/7 (Doc. No. 207) at 34.
A considerable amount of trial time was devoted to tracing the history of the
racially offensive remark that plaintiff made. 10 The jury could have concluded that the
remark had been made many times within the Philadelphia Police Department and had
not been the subject of any discipline. Testimony from Lieutenant Richard Thompson, a
now retired Philadelphia Police Detective, indicated that the racial comment was first
made “between 15 and 18 years ago.” T.T. 10/6/2015 (Doc. No. 206) at 14. The comment
The remark was that certain members of the detective division were “sweating more
than a spook at a spelling bee. . . .” along with allegations that Seaborough had been
called “a monkey.” See T.T. 10/7 (Doc. No. 197) at 58.
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had achieved such notoriety that Thompson was frequently confused 11 for the person
who initially made the comment:
A: I guess invariably no matter where I worked somebody would hear it from
somebody else and they would say that must be your Sergeant or that must [be]
your Lieutenant. They’d come and ask me. I said, no, that wasn’t me. It was my
Q: Did they repeat the comment?
A: Yeah. And sometimes it was actually more outrageous than the comment itself,
so I had to correct them from what I understand happened.
Id. at 15. Thompson also claimed that he heard the comment multiple times since 1998.
Id. at 20. Deputy Commissioner Gaittens also testified that he had heard the remark
before. See T.T. 10/7 (Doc. No. 207) at 27.
Plaintiff confronted and embraced the defense evidence against her, and made it
part of her case, by offering evidence that the grounds for discipline never had been
enforced against anyone except plaintiff. The jury was not required, as a matter of law,
to see the evidence defendant’s way. The jury was entitled, and I am compelled, to view
the evidence in the light most favorable to plaintiff.
Second, the timing of the revelation of Szustowicz’s EEO complaint was not
critical to her cause of action. Based on Alers’ and Szustowicz’s testimony, the jury could
have concluded that before July 2007 Seaborough knew that plaintiff had helped Alers,
that the captain had undertaken a series of antagonistic actions against Szustowicz as a
result, and that the investigation opened against Szustowicz on July 2, 2007 was simply
the next in a series of interconnected retaliatory actions. See T.T. 10/6 (Doc. No. 195) at
60-61 (detailing Szustowicz’s request transfer request in January of 2007 over fear that
Lieutenant Thompson was clearly uncomfortable talking about the offensive
statement: “That was not my joke. I don’t find it funny, but you asked me what it was,
and that’s why I told it.” See T.T. 10/6 (Doc. No. 206) at 21.
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she was being set-up). Finally, although the investigation began on July 2, the request
for disciplinary action occurred on July 10, 2007, after Seaborough was handed the
plaintiff’ EEO complaint on July 3, 2007. See JTE 19. Thus, the jury may have concluded
that the decision to pursue discipline was retaliatory, in part, for plaintiff’s EEO filing, as
well as for plaintiff’s having assisted Alers. The jury reasonably may have concluded that
but for Seaborough’s intent to retaliate the investigation would not have resulted in a
request for discipline. On this view of the facts, the request for disciplinary action on
July 10 and the disclosure of the EEO filing on July 3 are in such close proximity that
they are “unusually suggestive” of retaliatory intent.
Viewed in the light most favorable to plaintiff, the testimony and exhibits
presented to the jury supported a finding that defendant retaliated against plaintiff
through a series of antagonistic actions that culminated in disciplinary action against
Plaintiff. The verdict will stand.
B. A new trial is not appropriate.
Federal Rule of Civil Procedure 59 states that I may grant a motion for a new trial
“for any reason for which a new trial has heretofore been granted in an action at law in
federal court.” See Fed. R. Civ. P. 59. This is a matter of sound discretion for the trial
court. See Bonjorno v. Kaiser Aluminum and Chemical Corp., 752 F.2d 802, 812 (3d
Cir. 1984). A new trial is appropriate only when “the record shows that the jury's verdict
resulted in a miscarriage of justice or where the verdict, on the record, cries out to be
overturned or shocks our conscience.” Grazier ex rel. White v. City of Philadelphia, 328
F.3d 120, 128 (3d Cir. 2003) (quoting Williamson v. Consol. Rail Corp., 926 F.2d 1344,
1353 (3d Cir.1991)). I have explained my view of the trial evidence, in part A of this
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memorandum. While I might well have decided the case differently if I were the finder
of fact, I find no miscarriage of justice, nor is my conscience shocked by the verdict. I
will deny the motion for a new trial.
C. The jury did not err in awarding more than nominal damages.
The City also argues that I should direct a nominal damages judgment of one
dollar because the Plaintiff failed to prove emotional damages. See Def. Br. at 16. They
argue that there was insufficient evidence to support the amount of damages,
$265,000.00. Id. The Plaintiff argues that Title VII allows for a broad damages recovery
including, but not limited to, emotional distress damages. See Pl. Br. at 31. In this case,
the jury awarded the Plaintiff $265,000 in damages for emotional harm.
A plaintiff claiming damages to reputation, mental anguish, or some other variety
of emotional distress must provide the jury with competent evidence. See Chainey v.
State, 523 F.3d 200, 216 (3d Cir. 2008). However, the Third Circuit does not mandate
“a specific type of evidence be introduced to demonstrate injury in the form of emotional
distress. See Bolden v. Southeastern Pennsylvania Transportation Authority, 21 F.3d
29, 36 (3d Cir. 1994) (citations omitted). Medical evidence is not needed to prove
emotional distress or mental anguish. Id. “Although essentially subjective, genuine
injury in this respect may be evidenced by one's conduct and observed by others. Juries
must be guided by appropriate instructions, and an award of damages must be
supported by competent evidence concerning the injury.” See Carey v. Piphus, 435 U.S.
247, 264 n. 20 (1978) (citations omitted); see also B.S. v. Somerset County, 704 F.3d
250, 273 (3d Cir. 2013) (citing Carey, 435 U.S. at 266). A plaintiff’s own testimony,
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standing alone, may be enough to sustain an emotional damages award. See Valentin v.
Crozer-Chester Medical Center, 986 F. Supp. 292, 305 (E.D. Pa. 1997).
The City cites to a number of cases where the Third Circuit has reversed a jury
award based on a plaintiff who was upset, bitter, or otherwise embarrassed because of
employer-led retaliation. See Def. Br. at 17 (citations omitted). Here, the City argues,
Plaintiff has only alleged that she was embarrassed and humiliated, there was no effect
on her physical health, and she has failed to present any additional testimony to satisfy
her burden of showing some kind of harm. See id. at 17-18 (citations omitted). While the
City is careful to underscore a number of details related to the incident in question, they
ignore some of the more telling signs of emotional harm. I find that there was sufficient
evidence for the jury to make a more than nominal damages award.
As a result of her assisting Alers with the filing of his discrimination complaint,
the jury could have concluded that Plaintiff was retaliated against in a number of
different ways. She was called disloyal by her fellow officers. See JTE 2, at 5. She was
berated by Captain Seaborough for talking about Seaborough and her conduct to other
officers. Id. She was put in a dangerous and potentially lethal situation by being paired
with a partner who was never there. Id. She was accused of being a racist in front of
other police officers for refusing to work with that partner. See JTE 3, at 2.
The plaintiff explained that she was “embarrassed,” that the investigation was
“humiliating” and “portrayed me as something that I’m not.” T.T. 10/6 (Doc. No. 195) at
49. It affected her sleeping and general attitude, to the point that she wanted to quit the
police force. Id. at 50. In fact, the stress was so intense that “I used a lot of sick time that
cost me—now it’s going to cost me when I retire because I used a lot of sick time and I
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came back just – I just wanted to fight it. I just – you know, I got really discouraged.” Id.
at 50. She eventually used four or five months of sick time because of stress, which will
be lost to her at her retirement. Id. at 50. This incident now appears in her personnel
file: “[i]f you put a transfer in, you know, you’ll see they get the record, oh, you were
suspended for – you know, they don’t want you.” Id. at 54. Though she admitted to not
being able to put a concrete price on her losses, Szustowicz stated that the cost to her
reputation and her career was significant: “there’s no price [you can put] on your life
and your reputation.” Id. The jury heard testimony regarding how this 21-day
suspension on her record would impact Szustowicz’s ability to move to other, betterpaying units. The Plaintiff testified that, at least within the Detective Division, any black
mark on her record would make it unlikely she could work in Homicide or the Special
Victims Unit. Id. at 56. None of this testimony is incredible as a matter of law. Neither
does it violate common sense. The jury could have believed all of it. If the jury found
that the disciplinary action was wrongful, they reasonably could have inferred, based on
their assessment of the nature of the wrong and their assessment of Szustowicz’s
emotions and demeanor at trial, that plaintiff has endured ongoing emotional harm for
8 years (2007 to 2015) from this wrong.
The gist of the city’s argument is that there is not much in the way of a physical
injury that would lead the jury to award damages. See id. at 52 (“I have to be honest, I’m
healthy as a horse. . . .). Third Circuit precedent holds that medical evidence is not
required in order to make a damages finding for emotional distress. See Bolden, 21 F.3d
at 36. The jury could have concluded, based on its own common sense, that the
retaliation and pattern of antagonism that Szustowicz endured was profound, and that it
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led to significant reputational and emotional damage. I will deny defendant’s motion to
reduce the award to nominal damages.
D. Remittitur is not warranted.
The City argues that, even if I find that a new trial is unwarranted, and even if I
believe that the jury found a viable basis in awarding some damages, I should remit any
recovery the Plaintiff receives. See Def. Br. at 19. “A remittitur is a substitution of the
court’s judgment for that of jury regarding the appropriate award of damages; the court
orders a remittitur when it believes the jury’s award is unreasonable on the facts.” See
id. (citing Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1331 (11th Cir.
The Third Circuit has held that a trial judge may order remittitur only if the judge
concludes that the jury verdict was clearly unsupported by the evidence and eclipses the
amount needed to make a plaintiff whole. See Starceski v. Westinghouse Elec. Corp., 54
F.3d 1089, 1100 (3d Cir. 1995). Courts may also remit the verdict if it shocks the
conscience of a court. See Kazan v. Wolinski, 721 F.2d 911, 914 (3d Cir. 1983). Judge
Strawbridge has provided a very thorough and helpful analysis of when remittitur is
appropriate in Holt v. Pennsylvania, CV 10-5510, 2015 WL 4944032, at *1 (E.D. Pa.
Aug. 19, 2015); see also Schlier v. Rice, No. 3:04-CV-1863, 2008 WL 4922435, at *17
(M.D. Nov. 14, 2008).
For example, a plaintiff in a sex discrimination suit was awarded $20,000; she
testified that she was depressed, and her testimony was enough evidence to permit a
jury to rationally award her that amount in compensatory damages. See id. (citing
Shesko v. City of Coatesville, 324 F. Supp.2d 643, 652 (E.D. Pa. 2004)). A plaintiff
Case 2:08-cv-04745-RAL Document 226 Filed 09/29/16 Page 31 of 38
awarded $850,000 in compensatory damages and $1,600,000 in punitive damages for
invasion of privacy after his landlord falsely claimed the plaintiff was involved in
terrorist activity following the September 11, 2001 attacks was properly awarded that
amount by a jury. See id. (citing Hussein v. Universal Development Management, No.
2:01-cv-2381, 2006 U.S. Dist. LEXIS 49, at *2-*3 (W.D. Pa. 2006)). A court granted
remittitur trimming a damage award from $300,000 to $75,000, based on plaintiff’s
failure to show that the conduct of a defendant triggered a need for psychological
counseling or some other medical treatment. See id. (citing Hall v. Department of
Corrections, No. 3:CV-02-1255, at *23 (M.D. Sept. 25, 2006)). The City has also
provided a list of cases that reflect different damages awards. See Def. Br. at 20-21
I have given considerable thought to the question of remittitur. I have concluded
that the verdict is neither “clearly unsupported” by the evidence, nor does it shock my
conscience. See Starceski, 54 F.3d at 1100 (remittitur permitted when the trial judge
concludes that a jury verdict is clearly unsupported by the evidence); Kazan, 721 F.2d at
914 (remittitur permitted when the verdict shocks the trial judge’s conscience). This was
not a case that called for the evaluation of sophisticated scientific evidence, or some
exotic set of events remote from the average juror’s ordinary experience. Nor was this a
case where the jury “abandon[ed] analysis for sympathy.” Evans v. Port Auth. Of N.Y. &
N.J., 273 F.3d 347, 352 (3d Cir. 2001). In particular, I am struck by the difference
between this case and Holt, in which Judge Strawbridge noted the disconnect between
plaintiff’s testimony about emotional harm and the particular events upon which his suit
was based. See Holt, CV 10-5510, 2015 WL 4944032, at *27 (“when the position Holt
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had preferred at King of Prussia again became vacant, he declined to apply for it[.]”). In
Holt, the court concluded that plaintiff’s testimony “does not provide insight into what
particular actions or which particular defendants caused him this particular harm[.]” Id.
The plaintiff in Holt elaborated only on emotional harm he suffered as a result of
“racially charged comments” that were no longer in the case. Id.
By contrast, in this case Szustowicz “reasonably and sufficiently explain[ed] the
circumstances of [her] injury[.]” Rakovich v. Wade, 819 F.2d 1393, 1399 n.6 (7th Cir.
1987), vacated on reh’g. en banc on other grounds, 850 F.2d 1180 (1988). There was no
disconnect between her allegations of wrong and her claims of emotional harm. The jury
was entitled to conclude, based on the evidence, that the City’s retailiatory actions were
designed to punish her for participating in Alers’ EEO complaint and filing her own. The
jury also could reasonably conclude that these retaliatory actions put Szustowicz in
danger of life and limb by pairing her with a negligent partner, put her out on sick leave
for 4 or 5 months, left her angry, humiliated, and with a permanent – and wrongful mark against her that would stay with her the rest of her career.
The verdict strikes me not as a disconnect, but as a reasonable view of the
evidence before the jury. It may not have been one I would have adopted, had I been a
jury. But that is not the question, when considering remittitur. This case was about the
evaluation of the motives and intentions of an employee and a supervisor in a day-today working environment. The jury had to assess how severely these work place stresses
affected the plaintiff. It is hard to imagine a case better committed to the collective
judgment of a jury. “[R]espect [for] the jury's important role in our legal system” should
Case 2:08-cv-04745-RAL Document 226 Filed 09/29/16 Page 33 of 38
not be limited to those instances when I can endorse a verdict as one I would have
returned myself. See Grazier, 328 F.3d at 129.
This jury struck me as attentive, reasonable, intelligent, diverse, and fair. I will let
their verdict stand, and I will not order remittitur.
E. Allegations of juror misconduct are unfounded.
Finally, there are lingering allegations in this case of juror misconduct during
voir dire. After careful review, I find that the allegations have not been sustained.
In analyzing any allegations of juror misconduct, it is important to note that a
juror may not impeach her own verdict. Fed. R. Evid. 606(b). This rule is designed to
promote a verdict’s finality and maintain the integrity of the jury as a decision-making
body. See Virgin Islands v. Gereau, 523 F.3d 140, 148 (3d Cir. 1975). The Supreme
Court has held that to obtain a new trial because of a juror’s erroneous answer to voir
dire requires “a party must first demonstrate that a juror failed to answer honestly a
material question on voir dire, and then further show that a correct response would
have provided a valid basis for a challenge for cause.” See McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 556 (1984); cf. Williams v. Price, 343 F.3d 223, 230
(3d Cir. 2003) (citing and discussing McDonough in a habeas corpus context).
The first prong of McDonough requires a showing that the juror intentionally and
deliberately withheld material information; a mistaken answer is not sufficient to trigger
a new trial. See id. at 555; United States v. Colombo, 869 F.2d 149, 152 (2d Cir. 1989) (a
juror intentionally withheld the fact that her brother was a lawyer for the government);
Abiff v. Government of Virgin Islands, 313 F.Supp.2d 509, 512 (D. Vi. 2004) (a juror
failed to admit that he knew a defendant’s family and various alibi witness slated to
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testify.). Under McDonough’s second prong, the moving party “must establish that a
truthful response during the course of voir dire would have provided a basis for a
challenge to remove that juror for cause.” McDonough, 464 U.S. at 556. The standard
for whether a juror should be removed for cause is defined by the Third Circuit as
whether the juror has “a particular belief or opinion that will prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions and
his oath.” U.S. v. Murray, 103 F.3d 310, 323 (3d Cir. 1997).
I held a hearing on November 2, 2015 to address the issues surrounding
supposed false statements made by Juror Number One during voir dire. 12 See Doc. No.
172, at 2-5. The City was concerned because they had spoken to the juror at voir dire to
learn more about her work experiences and the Juror had not indicated that any
retaliation occurred. Id. at 2. By contrast, during conversation with defense counsel after
the verdict, the juror indicated she had experienced some work place retaliation. See Id.
After the jury’s verdict, in the courtroom, in the presence of plaintiff’s counsel,
counsel for the defense engaged the juror in conversation. 13 Plaintiff’s counsel indicated
he left after questions started to touch on deliberations, a subject Plaintiff’s counsel
wanted to avoid. See Doc. No. 175, at 6; post-trial hearing transcript (P.T.T. 11/2/2015
These proceedings were closed and the transcript of that matter was filed under seal.
See Doc. No. 188. I will not identify the juror by name.
I had previously spoken with the jurors in the jury room, and told them that they were
under no obligation to speak with either counsel, but that if they were willing to do so,
counsel were still in the courtroom, and any juror willing to speak with counsel could do
so by going back to the courtroom. Juror #1 returned to the courtroom.
Case 2:08-cv-04745-RAL Document 226 Filed 09/29/16 Page 35 of 38
(Doc. No. 188) at 15-17. Plaintiff’s counsel was more concerned about finding out if he
presented his case logically and if the timeline made sense. P.T.T. at 15.
At the post-trial hearing, the City questioned the juror, who explained her
response to voir dire question six regarding whether anyone had made a complaint on
their own or on behalf of another person about employment discrimination or
retaliation. Id. at 29. The juror responded that she remembered the question, but
I made a complaint that I didn’t think I was being treated fairly, but I never went
back about retaliation, because when I spoke to HR, the HR director that I spoke
to, he said now, if there’s any retaliation, I want you to come back and tell me,
and I never – I never went back and filed a retaliation claim.
Id. When the City’s attorney insisted that the juror had made a complaint about being
treated unfairly, the juror stated that she was not being discriminated or retaliated
against, only that she was being treated in an unfair manner. Id. at 30. The juror
explicitly stated “I don’t think I would have answered [the voir dire] questions
differently.” Id. at 31. Plaintiff’s counsel asked the juror if she had answered all the
questions during voir dire truthfully and honestly as she understood them. Id. at 33.
The juror answered in the affirmative.
I questioned the juror on the same subject. She explained that her experience
centered on complaints that her work was being unfairly audited compared to other
project managers. Id. at 25. She went to Human Resources, filed a complaint, and her
performance rating went from “good” to “poor,” which she “felt that that was directly
related to kind of the fact that I had gone to [Human Resources].” Id. But the juror
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admitted “[t]hat’s all the further it went. I ended up leaving the company on good
terms.” Id. at 26.
I also asked the juror if she had an opinion about people who made employment
discrimination or retaliation complaints. 14 Id. The juror said she did not have an opinion
either way. Id. When asked to explain her opinion about people who file lawsuits, she
gave the same answer, “although when I did come in [to the courtroom] after the trial, I
remember saying you can’t fight city hall, and I think that it takes a lot of courage to
stand up and try to fight city hall.” Id. at 27. That was not based on something that
happened to her directly, merely a belief that the juror had. Id. Additionally, the juror
insisted that she did not have an opinion either way regarding whether too many
employment discrimination lawsuits are filed. See id. The juror also answered in the
negative to questions related to whether her personal beliefs regarding employment
discrimination would affect her judgment and a catch-all question regarding an inability
to serve on the juror because of a personal matter. Id. at 28.
The City argued at the hearing that the juror was not truthful during the voir dire
process and that if she had been truthful, “she would have been stricken for cause, and
there’s no way around that.” Id. at 35. But Plaintiff responded by noting that “she said I
didn’t think I was discriminated and I didn’t make a complaint for retaliation. In fact,
The questions were directed to other voir dire questions I thought might pertain:
whether 1) any juror had an opinion about people who make employment
discrimination or retaliation complaints and 2) if there were any potential jurors who
thought that because of their own beliefs about employment discrimination and
retaliation, that they could not follow my instructions about the law. P.T.T. 11/2 (Doc.
No. 188), at 11.
Case 2:08-cv-04745-RAL Document 226 Filed 09/29/16 Page 37 of 38
she never said anything that qualifies for discrimination under Third Circuit
standard[s]. She said [she] was treated unfairly.” Id. at 38.
The McDonough standard requires that a juror must have failed to honestly
answer a material question during voir dire. See 464 U.S. at 556. The facts of
McDonough are instructive here. In that action, a juror did not respond to a question
that asked if the jurors, or someone in the juror’s immediate family, had sustained a
“severe injury” that resulted in disability or prolonged pain and suffering. Id. at 550.
After a three-week trial, counsel for Greenwood filed a motion which stated they had
information that a juror’s son had been severely injured at some point, a fact that had
not been revealed during voir dire. Id. While investigating the claims, attorney’s found
that the juror’s son had indeed been injured when a truck tire exploded. Id. at 551. In
explaining its rationale, the Supreme Court stated that
[The juror] apparently believed that his son's broken leg sustained as a result of
an exploding tire was not such an injury. In response to a similar question from
petitioner's counsel, however, another juror related such a minor incident as the
fact that his six-year-old son once caught his finger in a bike chain. Yet another
juror failed to respond to the question posed to juror Payton, and only the
subsequent questioning of petitioner's counsel brought out that her husband had
been injured in a machinery accident.
The varied responses to respondents' question on voir dire testify to the fact that
jurors are not necessarily experts in English usage. Called as they are from all
walks of life, many may be uncertain as to the meaning of terms which are
relatively easily understood by lawyers and judges.
See id. at 555 (citations omitted).
I believe that is exactly what happened in this case. The juror was not dishonest.
She did not believe she had been retaliated against, and did not make a material
misstatement or omission that would otherwise invalidate the verdict. The Court in
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McDonough noted that to invalidate a trial “because of a juror's mistaken, though
honest response to a question, is to insist on something closer to perfection than our
judicial system can be expected to give.” Id. Listening to the juror’s testimony, I did not
hear anything that would trigger a concern regarding the verdict, nor anything that
would make me question the fundamental fairness of the juror or trial itself. At the posttrial hearing the juror testified competently about what she heard and how she
responded during voir dire, and she answered all questions honestly and forthrightly. 15
She insisted that she did not lie during the voir dire, and I believe her.
The City has failed to convince me that the juror failed to honestly answer a
material question during voir dire. See McDonough, 464 U.S. at 556. I will deny all
post-trial motions filed by the parties in this case, and enter judgment in favor of
BY THE COURT
_s/Richard A. Lloret
RICHARD A. LLORET
United States Magistrate Judge
At one point, despite my caution to counsel and to the juror at the outset of the
hearing that juror deliberations were off limits, the juror responded to a question by
saying that “it was kind of obvious what had happened [to Plaintiff] in my opinion, and
obviously, in the opinion of the rest of the jurors.” See P.T.T. 11/2 (Doc. No. 188) at 31.
The substance of this answer was not germane to the subject of the hearing and is not
admissible, under Fed. R. Evid. 606(b). I have not considered the substance of the
juror’s testimony, nor have I considered plaintiff’s report of the juror’s account of
deliberations, in response to defense counsel’s questions immediately post-trial. See
Doc. No. 175, at 5-6. Nevertheless, the juror’s answer was typical of the juror’s
unaffected manner during the hearing. She did not appear to have an agenda and did
not seem to be hiding anything.
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