Madere v. Compass Bank
ORDER GRANTING 96 Motion for New Trial as to the failure to rehire claim. The Court's judgment on that claim is hereby VACATED. The parties are ordered to confer with each other and then contact the Court's staff no later than November 2, 2012, to obtain a setting for the new trial. Signed by Judge Andrew W. Austin. (kkc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
Before the Court are Plaintiff Kim Madere’s Motion for a New Trial (Clerk’s Doc. No. 96);
Defendant Compass Bank’s Response (Clerk’s Doc. No. 99); and Madere’s Reply (Clerk’s Doc. No.
100). Madere moves for a new trial on two grounds: Federal Rule of Civil Procedure 60(b)(3), and
Federal Rule of Civil Procedure 59. Compass Bank argues that Madere received a fair trial and now,
after an unfavorable verdict, is asking for a mulligan.
The dispute that is at the heart of Madere’s motion for new trial has been the focus of several
prior orders, and thus much of the background material relevant to this order is set out there, and will
not be repeated here. See Clerk’s Doc. Nos. 33, 82, and 94. In brief, Madere sued Compass Bank
for discriminating against her for taking leave under the Family and Medical Leave Act (FMLA)
after suffering a heart attack. At trial, she argued that Compass Bank terminated her because she
took FMLA leave, and then failed to rehire her for the same reason. The jury found against her on
The second of these claims focused on Compass’ failure to hire Madere back after laying her
off. The evidence at trial demonstrated that in the months following the layoffs, the Bank rehired
several of the employees it had let go several months earlier. Madere claimed that she had made it
known to Compass that she wished to be considered for a branch manager position if any such
position came open at any of Compass’ Austin locations. Compass disagreed, and contended that
Madere only applied for two specific positions, and, regardless, she was not qualified to be a branch
manager. The Bank’s sole witness on this issue was Bianca Ramos, who worked in the human
resources area. She testified that because in her opinion Madere lacked the qualifications to be a
branch manager, she did not pass Madere’s resume on to the relevant hiring officers when branch
manager positions became available. She testified that Madere’s experience as a branch manager
at Guaranty Bank was too remote in time and too dissimilar to make her qualified for a branch
manager position with Compass. Ramos also testified that she had not been aware that Madere had
previously taken FMLA leave. As Ramos was effectively the gatekeeper and main decisionmaker
with regard to Madere’s request to be re-hired, Madere’s claim hinged on convincing the jury that
Ramos’s testimony was not credible.
In the present motion, Madere contends that Compass Bank prevented her from contradicting
Ramos’ testimony by not disclosing Ramos as a witness until just before trial, and by failing to
produce information Madere had requested prior to trial that would have been powerful
impeachment evidence regarding Ramos’ testimony. In particular, Madere claims that Compass
Bank failed to produce records related to its hiring of Christopher Dennis as manager of the branch
where Madere had worked when she was a Business Banking Officer immediately prior to her layoff.
In the discovery motions referred to earlier, Compass Bank contended that Dennis’ records were not
responsive to Madere’s requests for production nor the Court’s prior orders compelling discovery
because he was not hired until early in 2010. Ultimately, the Court specifically required Compass
Bank to produce Dennis’ file. Madere contends that his resume and application materials
demonstrate that he was less qualified than she was to be a branch manager, and that if she had been
in possession of his materials at trial she could have significantly undermined Ramos’ testimony
regarding why Compass did not rehire Madere.
Precisely when Dennis was hired as a branch manager is disputed. The date is important
because the Court’s prior order directed Compass to produce personnel files for any person hired as
a branch manager in 2009. According to the Bank, Dennis was not hired until January 5, 2010, and
thus his file was not within the scope of either Madere’s request or the Court’s order. To support
this claim, the Bank points to an internal personnel document listing January 5, 2010, as his start
date. But Madere provided the Court with evidence that the date on these particular forms is often
inaccurate, as numerous other employees had actually started working for the Bank before the date
shown on this same form in their files.
Madere contends that Compass’ failure to provide her with Dennis’ personnel file before trial
so undermines confidence in the jury’s verdict that the Court should order a new trial on the failure
to rehire claim. In response, Compass Bank continues to maintain that Dennis’ file was not
responsive to Madere’s discovery requests or the Court’s previous orders, and further contends that
even if it wrongfully failed to produce the file, Madere was not prejudiced as a result and there is
thus no need to order a new trial.
Federal Rule of Civil Procedure 60
Madere grounds her motion on both Rule 60 and Rule 59. First, she contends that she is
entitled to a new trial under FED . R. CIV . P. 60(b)(3). In pertinent part, that rule provides:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for . . . fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or other misconduct by an opposing party.
FED . R. CIV . P. 60(b)(3). “A party making a Rule 60(b)(3) motion must establish by clear and
convincing evidence (1) that the adverse party engaged in fraud or other misconduct and (2) that this
misconduct prevented the moving party from fully and fairly presenting his case.” Gov’t Fin. Servs.
One Ltd. P’ship v. Peyton Place, Inc., 62 F.3d 767, 772 (5th Cir. 1995) (internal quotation marks
omitted) (quoting Washington v. Patlis, 916 F.2d 1036, 1039 (5th Cir. 1990), and Montgomery v.
Hall, 592 F.2d 278, 278–79 (5th Cir. 1979)). “‘The purpose of the rule is to afford parties relief
from judgments which are unfairly obtained, not those which may be factually incorrect.’” Id.
(quoting Diaz v. Methodist Hosp., 46 F.3d 492, 496 (5th Cir. 1995)). With regard to what amounts
to “misconduct” under the rule, “a party may engage in Rule 60(b)(3) misconduct if he fails to
disclose evidence he knows about and the production of such evidence was clearly called for.”
Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir. 1979).
Federal Rule of Civil Procedure 59
Madere also seeks a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure,
which provides that “[t]he court may, on motion, grant a new trial on all or some of the issues . . .
after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law
in federal court.” FED . R. CIV . P. 59(a). “A new trial may be granted, for example, if the district
court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the
trial was unfair, or prejudicial error was committed in its course.” Beckham v. La. Dock Co., 124
F. App’x 268, 270 (5th Cir.2005) (per curiam) (quoting Smith v. Transworld Drilling Co., 773 F.2d
610, 612 (5th Cir. 1985)). A new trial may also be granted when there is “uncertainty or contingency
to the finality of the jury’s determination,” see Cook v. United States, 379 F.2d 966, 970 (5th Cir.
1967), or when the jury’s inconsistent verdict cannot be reconciled, see Crossland v. Canteen Corp.,
711 F.2d 714, 726 (5th Cir. 1983).
Madere contends that Compass Bank’s misconduct prevented her from having a fair trial
when it: (1) did not disclose Bianca Ramos as a witness until after the end of the discovery period;
and (2) failed to disclose the fact that Christopher Dennis had been hired as a branch manager until
one day before trial, and failed to produce his file until after the verdict, and only after the third order
of the Court addressed to the issue.
Madere first argues that Compass Bank’s late designation of Ramos demonstrates bad faith.
The Court cannot agree. Although it was quite late, Compass Bank did disclose Ramos as a witness
in time for Madere to take her deposition. And after her deposition, Madere had sufficient time to
request additional discovery and focus her trial strategy. Madere’s argument seems to be that
Compass Bank knew Ramos made the hiring decision that mattered but hid that from Madere,
hoping that it would come out during trial and catch Madere unprepared. There is not clear and
convincing evidence that this happened, and the Court rejects this argument.
Whether Compass Bank should have produced Dennis’s file earlier and whether that file
would have affected the trial is more complicated. The Bank claims that the fact of Dennis’ hiring
and the contents of his personnel file were not responsive to Madere’s requests or the Court’s orders
because he did not begin at his branch manager position until January of 2010. But Compass Bank’s
position that it hired Dennis in January of 2010 instead of December of 2009 appears unfounded.
As noted earlier, it is true that there is an internal HR document that lists his hire date as January 5,
2010, but that is not the only evidence on the point, nor is it very reliable evidence given that it is
undisputed that the same date on several other employees’ forms is demonstrably incorrect. The
documentary evidence shows that Compass Bank offered Dennis the branch manager job in 2009,
and he accepted it in 2009. Clerk’s Doc. No. 96-11. Ramos sent an email “confirm[ing] our offer
of employment and your acceptance” on December 30, 2009. Id. Thus, when the Court ordered the
Bank to produce the personnel files of everyone hired as a branch manager through the end of 2009,
the Bank should have produced this file, and its explanation for not doing so is flawed. If the Bank
believed that the Court’s use of the term “hired” meant “started work,” it should have sought
clarification from the Court instead of unilaterally deciding that Dennis’ file was not within the scope
of the Court’s order.1
This failure is exacerbated by the fact that Compass has consistently taken a very narrow
view of what it was required to produce. Obtaining all of the files of persons that were arguably
similarly situated to Madere has been like pulling teeth. While the Court does not believe that the
failure to produce the file before trial was the fault of the Bank’s counsel or the result of any bad
faith on their part, the Court does conclude from the evidence that the Bank itself did not act in
diligent good faith in producing responsive documents before trial. The question thus becomes
whether this misconduct justifies granting a new trial.
The Court does not believe that such an argument would have had any merit. The order
applied to anyone “hired” in 2009. The email that confirmed an offer of employment and an
acceptance was a “hiring” in any sense of that term. The fact that Dennis’ first day of work was not
until January 5, 2010, has no bearing on when he was “hired.”
Impact on Trial
A party who contends that they have been a victim of misconduct justifying a new trial under
Rule 60(b)(3) need not demonstrate prejudice in a traditional sense, but rather must show she was
prevented from fairly presenting her case:
Although Rule 60(b)(3) applies to misconduct in withholding information called for
in discovery . . . it does not require that the information withheld be of such a nature
as to alter the result in the case. . . . This subsection of the rule is aimed at judgments
which were unfairly obtained, not at those which are factually incorrect.
Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978) (citations omitted). Rozier is a
particularly instructive case. There, the plaintiff had requested in discovery cost /benefit analyses
related to certain design modifications of fuel tanks of cars similar to the 1969 Galaxie 500 (which
was the vehicle at issue in that product liability case). Ford objected to the request as being
irrelevant because the cars asked about were not Galaxie 500s, but after a motion to compel, was
ordered to produce the cost/benefit analyses. Id. Ford ultimately stated that there were no responsive
materials. After losing at trial, the Plaintiff learned that there were documents that were in fact
responsive to the request, and moved for a new trial under Rule 60(b)(3). Id. at 1340. As Compass
does here, Ford argued in Rozier that the report was not responsive to the trial court’s order. After
finding to the contrary (stating that “by any fair reading” the trial court’s order required Ford to
produce the report), the Fifth Circuit concluded that the failure to produce the report was clear and
convincing evidence that “Ford engaged in misrepresentation and other misconduct” under the Rule.
When faced with deciding whether the misconduct merited a new trial, the Court stated:
The more vexing question is whether nondisclosure of the Trend Cost Estimate
prevented Mrs. Rozier from fully and fairly presenting her case. At trial, Mrs. Rozier
contended that Ford was negligent in designing a fuel tank that could not withstand
an impact such as that involved in the accident which took her husband's life. Prior
to trial, she expressed an intention to rely on 14 theories to explain how Ford
deviated from the appropriate standard of care. Inevitably, information developed
in the discovery stages of the case influenced the decision as to which theories would
be emphasized at trial. We are left with the firm conviction that disclosure of the
Trend Cost Estimate would have made a difference in the way plaintiff's counsel
approached the case or prepared for trial and that Mrs. Rozier was prejudiced by
Rozier, 573 F.2d at 1342 (internal quotation marks and citations omitted). After discussing the
important policy considerations underpinning the obligation to respond to discovery, the Circuit
found that the failure to produce the materials made the trial unfair, and granted a new trial.
The factual scenario in this case bears a great deal of similarity to that in Rozier. Madere
made several requests for the personnel files of others who were hired for the position that she
applied for. The Bank objected to producing the material, contending it was irrelevant. After a
hearing, the Court ordered the production of the files. After trial, Madere learned of the existence
of potentially responsive documents, and another order compelling their production was entered.
When Dennis’ file came to light, and its obvious potential impact on the trial was apparent, the Bank
contended that it had not engaged in misconduct because the file was not within the scope of the
Court’s order. The Court has addressed and rejected these issues, and what remains is the question
of whether the lack of Dennis’ file made the trial unfair.
Madere contends that, without Dennis’ personnel file, she was significantly hamstrung in
attacking Ramos. She argues that allowing the Bank to sponsor Ramos as a witness to testify that
the Bank never considered rehiring Madere as a branch manager because she was not qualified for
that position, without Madere having Dennis’ file, was fundamentally unfair. She asserts that
without Dennis’ file she was denied the most effective impeachment evidence there could
be—evidence of someone hired by Ramos who had less impressive qualifications than Madere. The
Court agrees. Ramos was the linchpin of the Bank’s defense to the failure to rehire claim. It is
obvious that had Madere been able to cross-examine Ramos with Dennis’ file, it could have
impacted the jury’s assessment of Ramos’ testimony. It is important to emphasize that this does not
mean that the Court believes that the outcome of the trial would have been different.2 That is not
what Rule 60(b)(3) is about. While the undersigned is loathe to ever set aside a jury’s hard work and
deliberate decision, Rule 60(b)(3) exists to protect the integrity of the trial process and that integrity
was undermined here.
For the reasons set forth above, the Court HEREBY GRANTS Plaintiff Kim Madere’s
Motion for a New Trial (Clerk’s Doc. No. 96) as to the failure to rehire claim. The Court’s judgment
on that claim is hereby VACATED. The parties are ordered to confer with each other and then
contact the Court’s staff no later than November 2, 2012, to obtain a setting for the new trial.
SIGNED this 22nd day of October, 2012.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
For example, the Bank has pointed out that at the time the position Dennis was hired for
came open, Madere had already worked at her new job for several months, that she enjoyed it, made
comparable money, worked closer to home, and it was unlikely she would have left that job to go
back to Compass Bank. Further, the position opening came almost two years after Madere took
FMLA leave. Given the length of the time between the protected action (taking FMLA leave) and
the time of the position coming open, it is possible that a jury would find the two events unrelated.
For this reason, the Court would not have granted the motion for new trial on Rule 59 grounds.
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