Eisenhour v. Weber County et al
Filing
369
MEMORANDUM DECISION and Order-denying 326 Motion for Attorney Fees; granting in part and denying in part 335 Motion for Judgment as a Matter of Law ; granting in part and denying in part 335 Motion for New Trial; denying [311 ] Motion ; granting in part and denying in part 316 Motion for Judgment as a Matter of Law ; granting in part and denying in part 316 Motion for New Trial; granting in part and denying in part 316 Motion to Alter Judgment. See Order for details. Signed by Judge Clark Waddoups on 7/1/16. (jmr)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, NORTHERN DIVISION
MARCIA EISENHOUR,
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
WEBER COUNTY, a political subdivision of
the State of Utah, CRAIG D. STOREY,
CRAIG DEARDEN, KENNETH
BISCHOFF, and JAN ZOGMAISTER, in
their official capacities,
Case No. 1:10-cv-00022
Judge Clark Waddoups
Defendants.
Plaintiff Marcia Eisenhour brought a variety of claims against Weber County (the
County), three of its county commissioners (the Commissioners), and state Justice Court Judge
Craig D. Storey alleging that Judge Storey sexually harassed her and that the County and
Commissioners retaliated against her for reporting the harassment. The case proceeded to a jury
trial and the defendants unsuccessfully moved for a directed verdict at the conclusion of
evidence. The case was submitted to the jury, which concluded that none of the Commissioners
were individually liable. But it returned a verdict against the County and Judge Storey on some,
but not all, of Ms. Eisenhour’s claims and awarded Ms. Eisenhour damages in the amount of
$276,503. Judge Storey and the County have now filed renewed motions for judgment as a
matter of law on those claims. (Dkt. Nos. 316, 335). In the alternative, they move for a new trial
and have asked the court to remit the amount of the jury award. (Id.). Ms. Eisenhour opposes the
defendants’ motions and has asked the court to exercise its authority to award her additional
relief against the County not contemplated by the jury’s verdict. (Dkt. No. 311). Finally, she asks
the court to award her attorney fees and costs as the prevailing party in the lawsuit. (Dkt. No.
327).
The court held a hearing on the motions and took them under submission. After carefully
considering the briefs, record evidence, unofficial trial transcript, arguments of the parties, and
relevant authority, the court now grants in part and denies in part the County’s motion for
judgment as a matter of law, for new trial, and for remittitur. It concludes that the County is
entitled to a new trial on Ms. Eisenhour’s claims against it. The court also grants in part and
denies in part Judge Storey’s motion for judgment as a matter of law, for new trial, and for
remittitur. The court concludes that Ms. Eisenhour is not entitled to economic damages from
Judge Storey but that the remainder of the verdict against him must stand. Finally, the court
denies Ms. Eisenhour’s request for additional relief from the County and denies Ms. Eisenhour’s
motion for attorney fees and costs without prejudice to refiling.
I. BACKGROUND
A. Factual Background
Ms. Eisenhour worked as a court administrator for Judge Storey at the Weber County
Justice Court for twenty-four years. The instant case arises out of Ms. Eisenhour’s allegations
that Judge Storey began acting inappropriately toward her in early 2008. According to
Ms. Eisenhour, Judge Storey began invading her personal space and would stand so close to her
that his groin rubbed against her body. In addition to this personal contact, Judge Storey once
called Ms. Eisenhour into his office and told her that he had a dream about her in which she was
in the office break room, naked from the waist up. Ms. Eisenhour claims she was offended by
this conversation. Ms. Eisenhour also claims that in 2007 she found a lengthy and mildly erotic
2
poem in Judge Storey’s credenza, which revealed that he had romantic feelings for her. Ms.
Eisenhour claims further that, shortly after she found the poem in 2007, Judge Storey handed it
to her along with other papers and told her to file them. Ms. Eisenhour believed Judge Storey did
so because he intended for her to see the poem.1
Ms. Eisenhour asserts that when she did not reciprocate Judge Storey’s advances, he
subjected her to unreasonable demands about her work and activities. For instance, although she
had previously enjoyed flexible hours and the ability to miss work without obtaining prior
authorization, Judge Storey told her that this behavior had become a problem. He told her that, in
the future, she could not miss work without his approval. Ms. Eisenhour claims that to obtain
approval, she would need to tell him where she was going, what she was doing, and with whom
she would be. Ms. Eisenhour believed this new policy was possessive and an attempt to control
her. Accordingly, she went to the Weber County Attorney’s Office and reported Judge Storey’s
behavior.
The County immediately placed Ms. Eisenhour on paid administrative leave pending an
internal investigation. Ultimately, the County concluded that under Utah law it lacked the
jurisdiction to resolve complaints against Judge Storey as a member of the judiciary. Thus, it
referred Ms. Eisenhour’s complaints to Utah’s Judicial Conduct Commission (the Commission).2
Ms. Eisenhour eventually returned to work, becoming part of the Clerk/Auditor’s Department so
that she would no longer be supervised by Judge Storey. To minimize contact between Judge
Storey and Ms. Eisenhour, the County moved Judge Storey’s office to a different floor and
designated a deputy court clerk as a liaison between the two of them.
1
Other witnesses contradict Ms. Eisenhour’s version of events. Ms. Eisenhour’s co-workers recall her
finding the poem in 2004, not 2007 as Ms. Eisenhour claims. Further, Judge Storey claims that he did not hand her
the poem to file.
2
The Commission is an independent fact-finding body established by Article III, § 13 of the Utah
Constitution. The Commission is not subject to the County’s governmental authority.
3
The Commission investigated Ms. Eisenhour’s claims, found no misconduct on Judge
Storey’s part, and dismissed the allegations. Dissatisfied with this result, Ms. Eisenhour went to
the press. On August 4 and August 6, 2009, respectively, the Salt Lake Tribune and Ogden
Standard Examiner printed articles about Ms. Eisenhour’s allegations against Judge Storey. The
articles also reported Ms. Eisenhour’s dissatisfaction with the Commission’s alleged failures to
carry out its investigatory obligations. Shortly thereafter, on August 11, 2009, Weber County
Deputy Attorney General David Wilson wrote an email to the County Commissioners advising
them that Utah law permitted them to merge the Weber County Justice Court with a justice court
in another county. The County asserts that this email was part of a series of ongoing discussions
related to the financial feasibility of keeping the Justice Court open after consistent and
significant decreases in its yearly revenue. But Ms. Eisenhour argues that the County and
Commissioners were motivated to close the Weber County Justice Court in retaliation for her
decision to report Judge Storey’s conduct to the press.
Rumors of the decision to close the Weber County Justice Court began to spread, and
Ms. Eisenhour and her co-workers began seeking alternative employment. Ultimately, in March
2010, the County decided to close the Weber County Justice Court and merge it with the Roy
Justice Court. By that time, Ms. Eisenhour was one of the few employees who had not yet found
another job and was left unemployed. Seven months after the Weber County Justice Court
closed, the County hired Ms. Eisenhour to work in its animal control unit at a significant
decrease in her hourly wage.
4
B. Procedural Background
Ms. Eisenhour filed suit in this court, alleging that Judge Storey sexually harassed her
and that the County and Commissioners closed the Weber County Justice Court in retaliation for
her reporting the harassment to the local newspapers. Specifically, she asserted claims for
violations of Utah’s Whistleblower Act, the First Amendment, the Fourteenth Amendment’s Due
Process and Equal Protection Clauses, and Title VII. The district court3 granted summary
judgment to the defendants on all claims. Ms. Eisenhour appealed this decision to the Tenth
Circuit Court of Appeals, which affirmed the decision in part, reversed the decision in part, and
remanded the case for trial. The Court agreed that defendants were entitled to summary judgment
on the due process and Title VII claims. But as for the First Amendment claim against the
County and Commissioners and Whistleblower Act claim against the County, the Tenth Circuit
concluded that it was genuinely disputed whether the County closed the Justice Court due to
budgetary concerns rather than in retaliation for Ms. Eisenhour’s decision to go to the press. In
particular, the Court stated that two facts precluded summary judgment on these claims: the close
temporal proximity of Mr. Wilson’s email and the newspaper articles and, at the time of the
closure, the Justice Court was operating at a profit. Eisenhour v. Weber Cty., 744 F.3d 1220,
1229–30, 32 (10th Cir. 2014).
The Court also decided that Ms. Eisenhour’s claims against Judge Storey of sexual
harassment in violation of the Equal Protection Clause survived summary judgment because
Ms. Eisenhour’s deposition testimony about the poem, dream, and inappropriate touching would
permit a reasonable jury to conclude that Judge Storey had intentionally discriminated against
her on the basis of her gender in violation of her constitutional right to equal protection. Id. at
3
The Honorable Dee V. Benson, presiding.
5
1234–35. Thus, the Court permitted Ms. Eisenhour’s First Amendment claim against the County
and Commissioners, the Whistleblower Act claim against the County, and Ms. Eisenhour’s equal
protection claim against Judge Storey to proceed to trial.4
At the close of evidence at trial, the defendants unsuccessfully sought judgment as a
matter of law. The court allowed Ms. Eisenhour’s claims to go to the jury, which returned a
special verdict in Ms. Eisenhour’s favor on her Whistleblower Act claim against the County but
in favor of the County and Commissioners on her First Amendment claim. It awarded
Ms. Eisenhour $33,632 against the County in economic damages for lost earnings and medical
insurance benefits. The jury also returned a verdict in Ms. Eisenhour’s favor against Judge
Storey, concluding that he sexually harassed her in violation of her right to equal protection. It
awarded her $58,427 in economic damages for lost earnings and medical insurance benefits, and
$184,444 in noneconomic emotional distress damages against Judge Storey. In total, the jury
awarded Ms. Eisenhour $276,503. (Dkt. No. 335-1).
Both the County and Judge Storey have now filed renewed motions for judgment as a
matter of law, or, in the alternative, for a new trial and for the court to remit the judgment
amount. (Dkt. Nos. 316, 335). For her part, Ms. Eisenhour has requested that the court award her
additional equitable relief against the County—not contemplated by the jury’s verdict—in the
form of a raise. (Dkt. No. 311). She also seeks an award of attorney fees and costs as the
prevailing party in the lawsuit. (Dkt. No. 327). The court considers each motion in turn.
4
The Honorable Clark Waddoups, presiding.
6
II. ANALYSIS
A. Weber County’s Motions for Judgment as a Matter of Law, for a New Trial, or for
Remittitur
1. Weber County’s Motion for Judgment as a Matter of Law
Weber County asks the court to grant it judgment as a matter of law that it did not violate
the Utah Whistleblower Act when it closed the Justice Court. Specifically, the County asks the
court to conclude that, as a matter of law, there was insufficient evidence to support the jury’s
verdict that it closed the Justice Court because Ms. Eisenhour went to the press. See Utah Code
Ann. § 67-31-3 (“An employer may not take adverse action against an employee because the
employee, or a person authorized to act on behalf of the employee, communicates in good
faith . . . a violation or suspected violation of a law, rule, or regulation adopted under the law of
this state, a political subdivision of this state, or any recognized entity of the United States”).
This argument fails.
“A judgment as a matter of law is warranted only if the evidence points but one way and
is susceptible to no reasonable inferences which may support the opposing party’s position.”
Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 685 (10th Cir. 2007) (internal quotation marks
omitted).5 Importantly, in reviewing the record on a judgment as a matter of law, the court
cannot “weigh evidence, judge witness credibility, or challenge the factual conclusions of the
jury. Judgment as a matter of law is appropriate [only] if there is no legally sufficient evidentiary
basis for a claim under the controlling law.” Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d
1091, 1099 (10th Cir. 2001) (internal quotation marks omitted). The court is also required to
draw all reasonable inferences in favor of the jury verdict. See Greene v. Safeway Stores, Inc., 98
5
In claims involving application of state law, the substantive law of the forum state governs the court’s
analysis of the underlying claims, including specification of the applicable standards of proof, but federal law
controls the ultimate, procedural question of whether judgment as a matter of law is appropriate. Haberman v. The
Hartford Ins. Group, 443 F.3d 1257, 1264 (10th Cir. 2006).
7
F.3d 554, 557 (10th Cir. 1996). Considering the evidence under these standards, the court
concludes that Ms. Eisenhour presented at trial a legally sufficient evidentiary basis for her claim
under Utah law, drawing all inferences in favor of the verdict.
In reaching this conclusion, the court recognizes that the County presented compelling
evidence that the decision to close the Weber County Justice Court was motivated by budgetary
concerns rather than Ms. Eisenhour’s decision to report the harassment or the Commission’s
investigative failures to the newspapers. Indeed, the County put on evidence from Weber County
Comptroller Dan Olsen who testified that although the court was technically operating at a profit
in 2009, it had been steadily losing net revenue in the amount of approximately $200,000 every
year. The County also presented evidence indicating that if it did not close the court before Judge
Storey were reelected to his position, the County would be required to pay Judge Storey’s salary
for the full six years of his retention, regardless of whether the court were operational. Thus, the
decision to close the court rather than waiting for reelection, even if the court was technically
operating at a profit at that time, made good economic sense. Moreover, the County presented
evidence that discussions about closing the Justice Court began months before Ms. Eisenhour
went to the press with her complaints of Judge Storey and the Commission, greatly minimizing
any relevance of the temporal proximity between the newspaper articles and Mr. Wilson’s email.
Additionally, the Commissioners all testified that the newspaper articles played no role in their
decision to close the court and that the decision was motivated exclusively by budgetary
concerns. This is all persuasive evidence that the County did not violate the Whistleblower Act.
See Johnson v. City of Murray, 544 F. App’x 801 (10th Cir. 2013) (rejecting a plaintiff’s claim
that the city retaliated against her in violation of Utah’s Whistleblower Act when the city council
decided to outsource the animal control to a neighboring city, thereby terminating the plaintiff’s
8
position, shortly after a newspaper printed an interview with the plaintiff in which she alleged
that her former supervisor had mistreated animals at the shelter, and reasoning that “[w]hile the
decision may have been partially motivated by public relations concerns caused by the article,
the evidence suggests it was as much an economic decision as anything else. Thus, [plaintiff] has
not adequately established that the decision to outsource animal control was made to retaliate
against her for her communication to the newspaper.”).6
But the problem for the County is that it presented these same arguments and evidence to
the Tenth Circuit, compare Dkt. Nos. 335 pp. 27–28, 362 pp. 5–7, with Appellee Br. at 13–18,
39, Eisenhour v. Weber Cty., 744 F.3d 1220 (10th Cir. Apr. 11, 2013) (Case No. 12-4190), which
concluded that the close temporal proximity between the newspaper articles and Mr. Wilson’s
email, coupled with the fact that the Justice Court was technically operating in the black in 2009,
presented a legally sufficient basis for Ms. Eisenhour’s Whistleblower claim to proceed to the
jury as a matter of law.7 And importantly for the purposes of the instant motion, the evidence as
to these two points was not refuted by any evidence at trial that was not a part of the record on
appeal. Where the Tenth Circuit has concluded that this evidence, even when weighed against
the persuasive evidence presented by the County, would permit a jury to conclude that the
County violated Utah’s Whistleblower Act, this court cannot reach a contrary conclusion. See
Stifel, Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1543 (10th Cir. 1996) (recognizing that
under law of the case doctrine, a trial court may not reconsider a question decided by an
6
Though not binding, the court finds unpublished decisions from the Tenth Circuit to be persuasive. See
10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”).
7
The court recognizes the County’s argument that Comptroller Olsen’s spreadsheet, which shows that the
County was contemplating merger in 2008, minimizes the persuasive value of the temporal relationship between
Mr. Wilson’s email and the newspaper articles. But the County made this same argument to the Tenth Circuit, see
Appellee Br. at 14–39–40, Eisenhour v. Weber Cty., 744 F.3d 1220 (10th Cir. Apr. 11, 2013) (Case No. 12-4190),
and it was apparently unpersuasive.
9
appellate court). For this reason, the court is bound by the Tenth Circuit’s ruling, which is law of
the case, to deny the County’s motion for judgment as a matter of law.
2. Weber County’s Motion for a New Trial
The County argues in the alternative that even if it is not entitled to judgment as a matter
of law on Ms. Eisenhour’s Whistleblower Act claim, it should be entitled to a new trial.
Specifically, the County argues that the jury was obviously confused regarding Ms. Eisenhour’s
claims against it because it found that the closure of the Weber County Justice Court constituted
adverse action for the purposes of the Whistleblower Act claim, but did not constitute adverse
action for the purposes of the First Amendment claim. (Dkt. No. 335 p. 30).8 These inconsistent
verdicts, argues the County, require a new trial. The court agrees.9
In the Tenth Circuit, an irrevocably inconsistent decision on a special verdict form can
present grounds for a new trial. See Johnson v. ABLT Trucking Co., 412 F.3d 1138, 1143 (10th
Cir. 2005); Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 854 (10th Cir. 2000); see also 9A
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2510 at 207 (West
1995) (“If the jury’s answers are inconsistent with each other even when the trial judge views
them in the most generous way to avoid such a conclusion, a new trial . . . ordinarily is
required.”). “To be irreconcilably inconsistent, the jury’s answers must be logically
8
As further evidence of jury confusion, the County presents an affidavit from Juror Rich Coombs. Federal
Rule of Evidence 606(b) generally prohibits this court from receiving a juror’s affidavit consisting of “any statement
made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the verdict or indictment” when inquiring into the validity
of a verdict. Jurors may only testify in certain limited circumstances. See id. (b)(2) (“A juror may testify about
whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside
influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the
verdict form.”). The court need not rely on Mr. Coombs’s affidavit in concluding that the jury was obviously
confused or abused its power. Accordingly, the court does not consider the affidavit further.
9
Because the inconsistent verdicts appear in a special verdict form, this issue is properly before the court
despite the County’s failure to raise it before the jury was excused. See Heno v. Sprint/United Mgmt. Co., 208 F.3d
847, 851 (10th Cir. 2000) (“When the verdicts are special verdicts a party is not required to object to the
inconsistency before the jury is discharged in order to preserve that issue for a subsequent motion before the district
court.” (internal quotation marks and brackets omitted)).
10
incompatible, thereby indicating that the jury was confused or abused its power.” Johnson, 412
F.3d at 1144 (internal quotation marks and citations omitted). “For example, a verdict that finds
(1) no negligence by the defendant and (2) that the defendant’s negligence caused the plaintiff's
injuries, is facially inconsistent and cannot form the basis of a judgment.” Id. But before granting
a new trial on the basis of any inconsistency, the court must “reconcile the jury’s findings, by
exegesis if necessary.” Id. at 1143. “A jury’s verdict may not be overturned merely because the
reviewing court finds the jury’s resolution of different questions in the case difficult, though not
impossible, to square.” Id. at 1144. Applying these principles to the special verdict form here, the
court finds the jury’s inconsistent findings as to Ms. Eisenhour’s First Amendment and
Whistleblower Act claims require a new trial on both claims.10
Here, with respect to the First Amendment claim, the jury concluded that, as a factual
matter, “the closing of the Weber County Justice Court . . . [was not] an adverse action taken
against Plaintiff by” Weber County. In contrast, with respect to the Whistleblower Act claim, the
jury found that “the closing of the Weber County Justice Court [was] an adverse action taken
against plaintiff by Defendant Weber County.” (Dkt. No. 335-1, pp. 3, 9). Ms. Eisenhour does
not explain, nor can the court can conceive of, any logical way to reconcile these directly
contradictory factual findings. The jury was not instructed that there was a different standard for
adverse action in the First Amendment versus Whistleblower Act context and the conduct
alleged to be adverse—terminating Ms. Eisenhour’s position by closing the Justice Court—was
identical.
Indeed, under the Whistleblower Act, ‘“Adverse action’ means to discharge, threaten, or
discriminate against an employee in a manner that affects the employee’s employment, including
10
The County asks for a new trial only on the Whistleblower Act claim. But the court cannot conclude that
the Whistleblower Act verdict was the result of jury confusion or abuse of power but the First Amendment verdict
was not. Thus, the existence of inconsistent verdicts requires a new trial on both claims.
11
compensation, terms, conditions, location, rights, immunities, promotions, or privileges.” Utah
Code Ann. § 67-21-2(2) (emphasis added). By the statute’s plain language, the County’s closure
of the Justice Court—assuming the jury believed the closure was to terminate Ms. Eisenhour’s
position—would certainly constitute adverse action under the Whistleblower Act.
Similarly, in the First Amendment context, an employer’s conduct is adverse if a
reasonable employee would have found the action materially adverse, which means it might have
dissuaded a reasonable worker from engaging in protected free speech activity. See Duvall v.
Putnam City Sch. Dist., Indep. Sch. Dist. No. 1 of Okla. Cty., 530 F. App’x 804, 815 (10th Cir.
2013). Unlike the Whistleblower Act, which specifically requires that the action affect the
employee’s job, the reasonably dissuade standard is broader. It does not require that the
discriminatory conduct affect the terms and conditions of the employee’s employment. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (holding that adverse action
under Title VII “is not limited to discriminatory actions that affect the terms and conditions of
employment”); Hook v. Regents of Univ. of Ca, 394 F. App’x 522, 535 (10th Cir. 2010) (“[The
Tenth Circuit] consider[s] an employment action to be adverse in the First Amendment
retaliation setting if it would deter a reasonable person from exercising his First Amendment
rights; [t]his test is identical to the test which is applied in Title VII retaliation claims.” (internal
quotation marks and citations omitted)). Thus, and importantly for the purposes of this case, it is
well settled that “employment action short of discharge may give rise to First Amendment
claims.” Gonzales v. Hernandez, 4 F. App’x 743, 748 (10th Cir. 2001); accord Brammer-Hoelter
v. Twin Peaks Charter Acad., 492 F.3d 1192, 1207 (10th Cir. 2007) (“Actions short of an actual
or constructive employment decision can in certain circumstances violate the First Amendment.”
(alterations omitted)). Accordingly, assuming the jury believed that the County closed the Justice
12
Court to discharge Ms. Eisenhour from her position, as it must have in finding the County liable
under the Whistleblower Act, this conduct would also necessarily constitute adverse action for
the purposes of the First Amendment. The jury’s decision that the County engaged in adverse
action in violation of the Whistleblower Act but not in violation of the First Amendment
evidences that the jury was confused or abused its power in returning its verdicts against the
County. As a consequence, the County is entitled to a new trial on both claims.11
B. Judge Storey’s Motion for Judgment as a Matter of Law, for a New Trial, or for
Remittitur
1) Judge Storey’s Motion for Judgment as a Matter of Law
As does the County, Judge Storey first asks this court to grant him judgment as a matter
of law on Ms. Eisenhour’s claim that he sexually harassed her in violation of the Equal
Protection Clause. To sustain the verdict in favor of Ms. Eisenhour on this claim, there must
have been sufficient evidence that: 1) Judge Storey acted under color of state law, 2) he deprived
Ms. Eisenhour of a constitutional right, and 3) his actions were the proximate cause of
Ms. Eisenhour’s injuries and damages. See Escue v. N. Okla. College, 450 F.3d 1146, 1157 (10th
Cir. 2006). No one disputes that Judge Storey was, at the time of the conduct at issue, acting
under the color of state law. But Judge Storey first contends that Ms. Eisenhour failed to present
a legally sufficient evidentiary basis for the jury to conclude that he deprived her of a
constitutional right. Second, he argues that there is no evidence to show that his actions were the
proximate cause of Ms. Eisenhour’s damages. The court considers each argument in turn.
a. The Constitutional Right Element
For the jury to have concluded that Judge Storey deprived Ms. Eisenhour of a
constitutional right—here, the right to be free from sex discrimination under the Equal Protection
11
Because the court finds that a new trial is necessary, it need not address the issue of remittitur as to
Ms. Eisenhour’s damage award against the County.
13
Clause—Ms. Eisenhour was required to establish that Judge Storey subjected her to sexual
discrimination, his conduct was unwelcome, and the conduct was sufficiently severe or pervasive
as to interfere with Ms. Eisenhour’s working environment. See id. Judge Storey contends he is
entitled to judgment as a matter of law because Ms. Eisenhour presented no credible evidence at
trial to support this element of her claim. When the court considers the evidence under the
required legal standards, the court must disagree.
As explained, Judge Storey is entitled to judgment as a matter of law only if “there is no
legally sufficient evidentiary basis for a claim under the controlling law.” Hampton v. Dillard
Dep’t Stores, Inc., 247 F.3d 1091, 1099 (10th Cir. 2001) (internal quotation marks omitted).
Moreover, in considering whether Ms. Eisenhour presented sufficient evidence to support the
jury’s verdict, the court cannot weigh evidence, judge witness credibility, or challenge the factual
conclusions of the jury. See id. The court is required to draw all reasonable inferences in favor of
the jury’s verdict. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996).
Accordingly, when the court assumes, as it must, that the jury believed Ms. Eisenhour’s
testimony and rejected the contradictory testimony, the court must conclude that she presented
legally sufficient evidence of sex discrimination as required by the second element of her equal
protection claim.
In particular, Ms. Eisenhour testified that she found the poem that Judge Storey wrote
about her in 2007, rather than in 2004 as other witnesses testified, thereafter he handed her the
poem along with other papers and told her to file it, he described a dream he had about her in
which she was naked from the waist up, and he rubbed his groin against her body. She also
testified that this conduct made her feel uncomfortable. Ms. Eisenhour’s testimony in this regard,
if believed, is sufficient to support her equal protection claim. Indeed, the Tenth Circuit
14
concluded this same evidence12 would allow a reasonable jury to conclude that Judge Storey
discriminated against her because of her sex in violation of the Equal Protection Clause. Judge
Storey presents no legal basis that would allow this court to depart from the Tenth Circuit’s
holding in this respect, which is, of course, binding. See Stifel, Nicolaus & Co. v. Woolsey & Co.,
81 F.3d 1540, 1543 (10th Cir. 1996) (recognizing that a trial court may not reconsider a question
decided by an appellate court). Thus, the court must conclude that Ms. Eisenhour presented at
trial sufficient evidence of a constitutional violation to sustain the jury’s verdict against Judge
Storey.
b. The Proximate Cause Element
Judge Storey also challenges the jury’s finding as to the third element of Ms. Eisenhour’s
sexual harassment claim: whether he was the proximate cause of Ms. Eisenhour’s damages.
Although proximate cause is sometimes an amorphous concept, the Tenth Circuit has described
it in this way: “What we mean by the word ‘proximate,’ one noted jurist has explained, is simply
this: Because of convenience, of public policy, of a rough sense of justice, the law arbitrarily
declines to trace a series of events beyond a certain point.” Lobato v. New Mexico Env’t Dep’t,
733 F.3d 1283, 1294–95 (10th Cir. 2013) (alterations omitted); see also W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 41, at 264 (5th ed. 1984) (“As a practical matter, legal
responsibility must be limited to those causes which are so closely connected with the result and
of such significance that the law is justified in imposing liability. Some boundary must be set to
liability for the consequences of any act, upon the basis of some social idea of justice or
policy.”). Thus, while an injury may have countless causes, not all should give rise to legal
12
At that time, the evidence was presented in the form of Ms. Eisenhour’s deposition testimony, but
Ms. Eisenhour’s trial testimony mirrored her deposition testimony in relevant respects. Judge Storey does not direct
the court to any material discrepancies between Ms. Eisenhour’s deposition testimony and her trial testimony that
would change the result.
15
liability. For instance, a plaintiff might assert harms which, although related to the constitutional
violation in a but-for sense, are causally too remote from the violation, either because they were
not foreseeable or because independent intervening events act to cut off liability for them. See
generally Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 § 3:109;
see, e.g., Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998) (holding that in a § 1983
retaliation case, the plaintiff must prove that the defendant’s action was a proximate cause of the
plaintiff’s injury; thus, a superseding or intervening cause will break the causal connection).
Ordinarily, what constitutes proximate cause is a question of fact for the jury. But where the facts
are such that they are susceptible to only one inference, the question is one of law that may be
disposed of by the court. See Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 855 (10th Cir.
2003). Because Judge Storey challenges the evidence of proximate causation as to both
Ms. Eisenhour’s noneconomic and economic damages, the court considers each damage award in
turn.
Turning first to the evidence presented to support Ms. Eisenhour’s noneconomic
damages, the court finds that Ms. Eisenhour presented at trial legally sufficient evidence to show
a causal connection between Judge Storey’s conduct and her pain, suffering, and emotional
distress damages. The jury believed the testimony and the court must accept it as binding. See
Lamon v. City of Shawnee, 972 F.2d 1145, 1159 (10th Cir. 1992) (“It is the jury’s exclusive
province to assess the credibility of witnesses and determine the weight to be given to their
testimony.”). In particular, Ms. Eisenhour testified that she felt sick inside when she found the
poem and that she felt uncomfortable when Judge Storey described his dream about her. She also
testified that the situation with Judge Storey caused her anxiety, insomnia, increased weight loss,
16
and put stress on her marriage.13 When she returned to work after reporting the harassment,
Ms. Eisenhour claims she felt resentment and hostility from her co-workers and believed that
Judge Storey had turned them against her.
Ms. Eisenhour’s testimony of her pain, suffering, and emotional distress was
corroborated by the testimony of her therapist, Dr. Thomas Olsen, who testified that finding the
poem upset Ms. Eisenhour and contributed to her overall stress and depression. He testified
further that, after Ms. Eisenhour reported the sexual harassment to the County, she felt
uncomfortable in the work environment, felt vulnerable at work, and that this stress resulted in
migraines and panic attacks. Dr. Olsen also testified that during this period, Ms. Eisenhour was
experiencing a “moderate to high level of depression,” general agitation, nausea, stress, and
diarrhea. His notes reflect that Ms. Eisenhour suffered “headaches, stomachaches, insomnia, and
panic attacks each day at work” because of Judge Storey’s conduct. Given this evidence, the
jury’s conclusion that Ms. Eisenhour suffered pain, suffering, and emotional distress as a direct
result of Judge Storey’s conduct is not unreasonable. Thus, the court must conclude that
Ms. Eisenhour has presented a legally sufficient basis for the award of at least some
noneconomic damages.14
The court reaches a different conclusion with respect to the jury’s verdict awarding
Ms. Eisenhour economic damages for lost wages and benefits because Ms. Eisenhour presented
at trial no evidence that Judge Storey was the proximate cause of her unemployment. Even under
Ms. Eisenhour’s theory of the case, she lost her job and benefits only after and because Weber
13
To be sure, there was evidence that Ms. Eisenhour may have had other life events that might have caused
or contributed to her emotional distress. But the jury was free to weigh the evidence and effect of those other
potential causes of stress and depression when it concluded that Judge Storey caused Ms. Eisenhour’s emotional
distress injuries. On a motion for judgment as a matter of law, the court cannot question Ms. Eisenhour’s credibility
or reweigh that evidence.
14
The court considers whether the amount of damages is excessive infra Section II.B.3.
17
County closed the Justice Court. Indeed, the undisputed evidence showed that she continued
working at the Justice Court at her same salary until its closure. Ms. Eisenhour does not allege,
nor was there any evidence, that Judge Storey personally participated in the decision to close the
Justice Court or that the County’s decision to do so would have been the foreseeable result of his
conduct. And importantly, not even Ms. Eisenhour claims that the closure of the Justice Court
was the result of Judge Storey’s sexual harassment. Instead, she claims it was the result of her
decision to report the harassment to the newspapers. Thus, even under Ms. Eisenhour’s theory of
the case, the chain of events that caused her to lose her job with the County is so far attenuated
from Judge Storey’s conduct that it was not reasonably foreseeable. Rather, Ms. Eisenhour’s
decision to go to the press and the alleged resulting closure of the court represent intervening
events that break any causal connection between Judge Storey’s conduct and Ms. Eisenhour’s
economic damages. See Taylor v. Brentwood Union Free Sch. Dist., 143 F.3d 679, 687 (2d Cir.
1998) (holding that intervening actions of school district, school board, and disciplinary hearing
panel were independent, superseding causes of any injury sustained by teacher, and, thus,
because principal’s actions were not the proximate cause of teacher’s injuries, principal could not
be held liable on teacher’s § 1983 race discrimination claim). For this reason, the jury’s verdict
against Judge Storey for Ms. Eisenhour’s economic damages cannot stand and he is entitled to
judgment as a matter of law as to this damage award.15
15
Alternatively, if judgment as a matter of law were not appropriate, Judge Storey would be entitled to a
new trial on Ms. Eisenhour’s claim for economic damages because the jury’s conclusion that Judge Storey was the
proximate cause of her economic damages is against the clear weight of the evidence. See Fed. R. Civ. P. 50(c)(1)
(“If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion
for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The
court must state the grounds for conditionally granting or denying the motion for a new trial.”).
18
2) Judge Storey’s Motion for a New Trial
Having decided that Judge Storey is not entitled to judgment as a matter of law on
Ms. Eisenhour’s claim for noneconomic damages resulting from Judge Storey’s sex
discrimination, the court considers whether Judge Storey is entitled to a new trial. Judge Story
presents two grounds that he claims require a new trial: first that the jury’s verdict is contrary to
the overwhelming weight of the evidence; and second that he was deprived of a fair trial because
of Ms. Eisenhour’s counsel’s conduct during the trial. The court considers, and rejects, both
arguments.
a. The verdict is not against the weight of the evidence.
Judge Storey first argues that jury’s verdict is against the weight of the evidence because
1) Ms. Eisenhour’s coworkers testified that she found the poem in 2004, not 2007 as she claims;
2) she did not present evidence that the poem was objectively or subjectively offensive because
there was testimony from Ms. Eisenhour’s coworkers that she thought it was funny and/or
flattering and they laughed about it for years; and 3) there was insufficient evidence that Judge
Storey intended to sexually harass Ms. Eisenhour. These arguments are not sufficient to require a
new trial.
When “a new trial motion asserts that the jury verdict is not supported by the evidence,
the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the
evidence,” viewing the evidence in the light most favorable to the jury’s verdict. Lompe v.
Sunridge Partners, LLC, 818 F.3d 1041, 1061–62 (10th Cir. 2016). Accordingly, a party seeking
a new trial on this basis bears a “heavy burden.” Blanke v. Alexander, 152 F.3d 1224, 1235 (10th
Cir. 1998). “A new trial is not warranted simply because the court would have reached a
different verdict.” Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226, 1248 (Fed. Cir. 1989);
19
accord Bruner-McMahon v. Jameson, 566 F. App’x 628, 635 (10th Cir. 2014) (citing with
approval the district court’s refusal to substitute its own judgment for that of the jury). Rather, a
new trial is warranted only “[i]f, having given full respect to the jury’s findings, the judge on the
entire evidence is left with the definite and firm conviction that a mistake has been committed.”
Charles Alan Wright, Arthur R. Miller, et al., Grounds for New Trial—Weight of the Evidence,
11 Fed. Prac. & Proc. Civ. § 2806 (3d ed.). Considering the evidence presented at trial in this
case, the jury’s verdict against Judge Storey is not so clearly against the clear weight of the
evidence that a new trial is required.
First, although there was contradicting evidence about the date the poem was found, the
jury’s verdict that Ms. Eisenhour found the poem in 2007 is supported by Ms. Eisenhour’s
testimony, which the jury elected to believe. Although the jury could have easily credited
Ms. Eisenhour’s coworkers’ recollection that she found the poem in 2004, it chose to credit
Ms. Eisenhour’s testimony. The jury was free to weigh Ms. Eisenhour’s credibility against her
coworkers’ credibility and determine which version of events to believe. Where there is sharply
conflicting evidence that can be reconciled only by judging the credibility of the witnesses, the
jury’s decision to credit Ms. Eisenhour’s testimony is not plainly in error. See Richardson v. City
of Albuquerque, 857 F.2d 727, 730–31 (10th Cir. 1988) (“Where there are two permissible views
of the evidence, the fact finder’s choice between them cannot be clearly erroneous.”) (citing
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985); United States v. Yellow Cab Co.,
338 U.S. 338, 342 (1949)).
Second, the jury was free to read the poem, consider the dream, and determine whether
both were objectively offensive. It was also entitled to believe Ms. Eisenhour’s testimony that
Judge Storey rubbed his groin against her body and conclude that this was objectively offensive
20
conduct.16 Similarly, the jury was free to believe Ms. Eisenhour’s testimony that this conduct
was unwelcome and upsetting. See Escue, 450 F.3d at 1157 (explaining that the question of
whether conduct is unwelcome turns largely on credibility determinations that are best
committed to the trier of fact). And although there was no direct evidence that Judge Storey
intended for Ms. Eisenhour to see the poem, it was permissible for the jury to infer such intention
from Ms. Eisenhour’s testimony that Judge Storey handed the poem to her with other papers and
told her to file them. This inference is not unreasonable, nor is there anything to suggest that
Judge Storey did not act intentionally when he told her about the dream and rubbed his groin
against her body. Thus, although there was evidence contradicting Ms. Eisenhour’s testimony,
this other evidence was not so compelling that the jury’s verdict in Ms. Eisenhour’s favor for
noneconomic damages against Judge Storey is against the clear weight of the evidence.
b. The jury’s verdict is not the result of prejudice.
Judge Storey’s argument that Ms. Eisenhour’s counsel’s conduct at trial was so
prejudicial that it requires a new trial must also be rejected. “Conduct of counsel ordinarily is not
grounds for reversal, unless such conduct substantially influences the verdict or denies the
defendant a fair trial.” Hoops v. Watermelon City Trucking, Inc., 846 F.2d 637, 641 (10th Cir.
1988) (citation and internal quotation marks omitted). Considering the evidence here, the court is
not convinced that Ms. Eisenhour’s counsel’s conduct unfairly influenced the jury’s verdict or
that Judge Storey was otherwise denied a fair trial.
As evidence of prejudice, Judge Storey claims that Ms. Eisenhour’s counsel made
repeated references to excluded testimony, resulting in numerous sidebars and causing the trial to
go longer than expected, leaving the defendants with less than two days to present their evidence.
16
Although there was some evidence that it would have been difficult for Judge Storey to rub his groin
against Ms. Eisenhour’s body because of the way the office furniture was configured, this evidence was not so
overwhelming that the court can conclude the jury could not reasonably credit Ms. Eisenhour’s testimony.
21
But although Judge Storey faults Ms. Eisenhour’s counsel for impermissibly referencing
excluded evidence, he makes no effort to explain how this evidence was prejudicial to him. See
James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1212 (10th Cir. 2011) (“An
erroneous admission of evidence is harmless unless it had a substantial influence on the outcome
or leaves one in grave doubt as to whether it had such effect.” (internal quotation marks
omitted)). Judge Storey’s evidence in support of this argument is weak at best, given that the
excluded evidence related largely to Ms. Eisenhour’s claims against the County, not him.
Similarly, the existence of numerous objections and sidebars, coupled with the fact that the trial
went longer than anticipated, was not so prejudicial that it warrants a new trial. Judge Storey
does not describe any evidence that he was prevented from introducing because of the trial
schedule. Nor does he point to any evidence that would suggest that the jury’s verdict was
impermissibly based on passion or prejudice rather than fair consideration of the relevant
evidence and testimony, a proposition that appears unlikely given Ms. Eisenhour’s testimony
described above. For these reasons, Judge Storey has not established that Ms. Eisenhour’s
counsel’s conduct necessitates a new trial.17
3) Judge Storey’s Motion for Remittitur
Finally, Judge Storey asks the court to remit the jury’s award of noneconomic emotional
distress damages in the amount of $184,444 because that amount is “so excessive as to shock the
judicial conscience and . . . raise an irresistible inference that passion, prejudice, corruption or
other improper cause invaded the trial.” Prager v. Campbell Cty. Mem’l Hosp., 731 F.3d 1046,
17
This is not to say that the court is unsympathetic to Judge Storey’s frustrations with Ms. Eisenhour’s
counsel’s trial techniques or her presentation of evidence. But Judge Storey is entitled to a fair trial, not a perfect
trial. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (“[A] litigant is entitled to a fair trial
but not a perfect one, for there are no perfect trials.”). While the trial in this case may not have been ideal, Judge
Storey was not denied a fair trial.
22
1062 (10th Cir. 2013) (internal quotation marks omitted).18 Under existing precedent and the
evidence accepted by the jury as true, the court is also required to reject this argument.
In evaluating the jury’s award, the court may consider factors such as the severity of the
conduct directed at the plaintiff and the context in which it took place, the nature of the harm
suffered by the plaintiff, and other economic and convenience factors. See, e.g., Smith v. NW Fin.
Acceptance, Inc., 129 F.3d 1408, 1416–17 (10th Cir. 1997). Further, it is appropriate that such
analysis should be “informed by a review of awards granted in comparable cases.” Wulf v. City
of Wichita, 883 F.2d 842, 875 (10th Cir. 1989). But in considering whether the verdict is
conscience shocking, the court must be mindful that the valuation of noneconomic emotional
distress is not susceptible to proof by set dollar amounts. Thus, the jury’s award can be supported
by any competent evidence tending to sustain it—even testimony from the plaintiff alone. See
Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1076 (10th Cir. 2002).
As explained, Ms. Eisenhour presented at trial sufficient evidence to support the jury’s
conclusion that she suffered pain, suffering, and emotional distress damages as a result of Judge
Storey’s conduct. And given Ms. Eisenhour and Dr. Olsen’s testimony described above, the
jury’s valuation of Ms. Eisenhour’s emotional distress damages does not appear to be the product
of passion, prejudice, or corruption rather than fair consideration of the evidence presented.
Indeed, although there may have been other potential causes of Ms. Eisenhour’s distress, the jury
was allowed to consider all of the evidence and determine how much of Ms. Eisenhour’s
depression, stress, and related physical ailments were the result of Judge Storey’s conduct versus
18
Because the court has concluded that the evidence was insufficient to support the jury’s award of
economic damages in any amount against Judge Storey, the court limits its inquiry to whether remittitur of the
noneconomic damage award is appropriate.
23
any other cause.19 The court cannot reevaluate this evidence now. See Prager, 731 F.3d at 1061–
62 (“A district court abuses its discretion in ordering a remittitur when the size of the verdict
turns upon conflicting evidence and the credibility of witnesses.” (internal quotation marks
omitted)). The jury was also allowed to set the dollar amount it believed was necessary to
compensate Ms. Eisenhour for the physical and emotional distress it believed Judge Storey
caused. See id. at 1063 (stating that the jury “is clothed with a wide latitude and discretion in
fixing damages, pursuant to the court’s instructions, deemed proper to fairly compensate the
injured party”). Although Judge Storey is understandably dissatisfied with such a high figure, he
does not explain why this amount is conscience shocking, given Ms. Eisenhour and Dr. Olsen’s
trial testimony.
Also supporting the jury’s award in this case is that it is in accord with amounts awarded
in comparable cases. See, e.g., Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1272
(10th Cir. 2000) (concluding that jury award of $295,000 was not excessive against employer for
failing to take action to correct sexual harassment consisting of crude language, sexuallyoriented jokes and comments, and inappropriate touching); Smith, 129 F.3d at 1416 (approving
damage award of $200,000 in emotional distress damages where Plaintiff testified that, as a
result of sexual harassment, she suffered nausea, migraines, humiliation, degradation, loss of
self-respect, sleeplessness, consumption of sleeping pills, frequent crying, loss of a loan officer
career, and stress in her relationship with her daughter); Evans v. Fogarty, 241 Fed. App’x 542,
561–62 (10th Cir. 2007) (upholding an award of $300,000 in a First Amendment retaliation
case); Baty v. Willamette Indus., Inc., 985 F. Supp. 987, 991 (D. Kan. 1997), aff’d, 172 F.3d
19
The court rejects Judge Storey’s contention that the evidence failed to support that Ms. Eisenhour
suffered any actual injury. As explained, she and her therapist presented evidence that she suffered depression,
anxiety, insomnia, and weight loss as a result of Judge Storey’s conduct. Certainly this is actual injury sufficient to
warrant an award of compensatory damages under § 1983. Cf. Carey v. Piphus, 435 U.S. 247, 266 (1978) (holding
that in the absence of actual injury, a § 1983 plaintiff can recover only nominal damages).
24
1232 (10th Cir. 1999) (approving compensatory and punitive damages in the amount of
$300,000 where plaintiff testified that as a result of sexual harassment she felt upset, frustrated,
humiliated, and embarrassed; that she felt resentment from other employees, including
management personnel; that she experienced stress, headaches, and weight fluctuations; that she
found it difficult to do her work; and that the harassment had generally “made [her] life hell”);
see also Clawson v. Mountain Coal Co., LLC, Case No. 01-cv-02199, 2007 WL 4225578, at *2–
3 (D. Colo. 2007) (approving award of damages in the amount of $250,000 even where the
plaintiff described his emotional distress in “relatively benign” terms). This further supports the
conclusion that the jury’s award was based on its assessment of the evidence rather than passion,
prejudice, or any another improper cause. For these reasons, remittitur of the jury’s award of
noneconomic damages is not warranted.
C. Ms. Eisenhour’s Motions for Equitable Relief and Attorney Fees and Costs
Ms. Eisenhour asks the court to award her additional equitable relief against the
County—not contemplated by the jury’s verdict—in the form of a raise. The court denies the
motion because it is rendered moot by the court’s decision that Weber County is entitled to a
new trial on Ms. Eisenhour’s claims against it.
Likewise, because the court’s ruling that the County is entitled to a new trial and that the
economic damage award against Judge Storey must be set aside may affect Ms. Eisenhour’s
entitlement to some of the attorney fees she seeks, the court denies Ms. Eisenhour’s motion for
attorney fees but invites her to submit a renewed motion upon completion of the trial, and taking
into account this ruling. For the same reason, the court will permit Ms. Eisenhour to submit a
renewed bill of costs after the new trial.
25
III. CONCLUSION
Based on the foregoing, the court GRANTS IN PART and DENIES IN PART the
County’s renewed motion for judgment as a matter of law, for a new trial, and for remittitur
(Dkt. No. 335), GRANTS IN PART and DENIES IN PART Judge Storey’s renewed motion
for judgment as a matter of law, new trial, or alter or amend the judgment (Dkt. No. 316);
DENIES Ms. Eisenhour’s motion for equitable relief at moot (Dkt. No. 311), and DENIES
Ms. Eisenhour’s request for attorney fees and costs (Dkt. No. 327) without prejudice to refiling.
SO ORDERED this 1st day of July, 2016.
BY THE COURT:
_________________________________
Clark Waddoups
United States District Judge
26
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