Barrett v. Salt Lake County et al

Filing 96

MEMORANDUM DECISION AND ORDER denying 71 Motion for New Trial; denying 71 Motion to Amend/Correct. Signed by Judge Dale A. Kimball on 4/29/13. (jlw)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

MICHAEL BARRETT,
Plaintiff,
vs.
SALT LAKE COUNTY,
Defendant.

MEMORANDUM DECISION AND
ORDER REGARDING DEFENDANT’S
MOTION FOR A NEW TRIAL OR TO
AMEND JUDGMENT
Case No. 2:10CV792 DAK

This matter is before the court on Defendant’s Motion for a New Trial or, in the
Alternative, to Amend a Judgment.1 The court has carefully reviewed the written memoranda
submitted by the parties. Pursuant to local rule 7-1(f), the court has concluded that oral argument
would not be helpful or necessary, and thus the court will determine the motion on the basis of
the written memoranda. See DUCivR 7-1(f).
Defendant’s motion is based upon “(1) a continuing objection to the jury instructions and
special verdict form used in this case,” (2) Defendant’s belief that there was “insufficient
evidence to directly demonstrate retaliatory animus by the decision maker,” and (3) Defendant’s
belief that there was “a lack of knowledge by the decision maker that Plaintiff engaged in a

1

While not styled as such in the caption of the motion, Defendant also moves under Rule
50(b) to direct entry of judgment as a matter of law. See Docket No. 71 at 1. The court denies
Defendant’s Rule 50(b) motion.

protected activity.”2 The court denies Defendant’s motions for the following reasons.
1.

There Was Sufficient Evidence to Permit Mixed-Motive Theory to Be Presented to
the Jury
Based on Twigg v. Hawker Beechcraft Corporation, 659 F.3d 987 (10th Cir. 2011), the

court has ruled multiple times that Plaintiff had presented evidence that would permit a mixedmotive theory to be presented to the jury.3 After hearing Defendant’s argument at the October
25, 2012 Jury Instruction Conference that direct evidence was needed to proceed on a mixedmotive theory, the court disagreed, finding that Twigg did not require proof by “direct evidence.”
See Twigg, 659 F.3d at 999-1000. Defense counsel graciously corrected himself at the
subsequent October 29, 2012 Jury Instruction Conference, but he still argued that there was no
evidence directly reflecting the alleged retaliatory attitude. Again, the court disagreed with
Defendant’s counsel and ruled that there was sufficient evidence for the mixed-motive theory to
go to the jury, and the court again affirms its ruling that there was sufficient evidence for the
mixed-motive theory to go to the jury.
More importantly, the court finds that this issue is moot in any event because the jury did
not return a verdict on the mixed-motive theory but rather found Defendant liable on the “but
for” or “pretext” theory of liability.
2.

The Jury Instructions and Special Verdict Were Clear and Correct
2

Docket No. 72 at p.1.

3

See Docket No. 33, Mem. Dec. & Order dated June 4, 2012 at 14. The court explicitly
so ruled at the initial jury instruction conference on October 25, 2012 and at the final jury
instruction conference on October 29, 2012.
2

The proposed jury instructions and special verdict forms filed by the parties prior to trial
reflect the parties’ confusion about how to clearly instruct the jury about the Title VII retaliation
claim, which Plaintiff was pursuing under both a “pretext” theory4 and under a mixed-motive
theory of causation.5 The final jury instructions, however, accurately and clearly instructed the
jury on the Title VII retaliation cause of action,6 and the special verdict form accurately and
clearly asked the jury to decide first whether Plaintiff had proved a “pretext” theory of retaliation
and, if he had not so proved, whether he had proved a mixed-motive theory.7
Defendant has repeatedly argued that the instant case should have been presented as a
“pretext” test and not a “mixed-motive” test and that “initially, both parties submitted special
verdict forms based upon the “pretext” test.”8 The court disagrees that the proposed special

4

The “pretext” theory has also been referred to by this court (and other courts) as a “but
for” theory of causation.
5

See Docket Nos. 42, 44.

6

See Docket No. 70, Jury Instructions No. 14 (explaining that there were two different
ways Plaintiff could prove retaliation and stating that the jury would be asked on the Special
Verdict if Plaintiff met his burden under either theory); Jury Instruction No. 15 (explaining the
“but-for” framework requirements); Jury Instruction 16 (explaining pretext and that if the jury
disbelieved Defendant’s explanation, the jury may “but need not” infer that the Defendant’s true
motive was retaliatory). Instruction 16 also states that Defendant “is not required to prove to you
that its actions were motivated by the articulated reasons. The burden is always on Plaintiff to
demonstrate that but for the retaliatory motive, Defendant would not have taken an adverse
action against him.”; Jury Instruction No. 17 (explaining requirements for a “mixed-motive”
framework).
7

8

See Special Verdict, Docket No. 68, at Questions 2 -4.
See Docket No. 72 at 7.
3

verdict forms submitted by the parties were based upon a “pretext” theory.9 Indeed, Defendant’s
proposed special verdict form asked a mixed-motive theory question: “Has Salt Lake County
proven by a preponderance of the evidence that it would have made the same disciplinary
decision regarding Barrett, even if Barrett had not participated in a protected activity?”10 Only
under a “mixed-motive” theory would Defendant Salt Lake County be required to prove that it
would have made the same decision regarding Barrett even if he had not participated in a
protected activity. See, e.g., Fye v. Oklahoma Corp Comm. 516 F.3d 1217, 1224 (10th Cir. 2008).
Under a “pretext theory,” however, the plaintiff bears the initial burden of establishing a prima
facie case of discrimination, and if the defendant is [then] able to articulate a legitimate
nondiscriminatory reason for the adverse action, the plaintiff must then show that the articulated
reasons are a pretext for retaliation.” Medlock v. Orth Biotech, Inc. 164 F.3d 545, 549-50 (10th
Cir. 1999).
After the court’s proposed verdict form was discussed and finalized at the October 25
Jury Instruction Conference, the court, after reviewing the relevant case law again, determined
that the special verdict form still conflated the two theories, and, particularly in light of the Jury
Instructions, would be confusing to the jury. The court then emailed to all counsel another
special verdict form that attempted to clarify the two different theories of causation and required
the jury to answer questions on the special verdict form regarding both the “pretext” theory and a

9

Plaintiff’s counsel also disagrees with Defendant’s assertion that the original proposed
special verdict forms were based on a “pretext” theory. See Docket No. 73. Plaintiff’s proposed
special verdict form asked mixed-motive questions. See Docket No. 53 at 3, Questions 3 & 4.
10

See Docket No. 52 at 4.
4

“mixed-motive” theory.11 Ultimately, on October 26, 2012, after receiving objections from
Defendant to the court’s newly proposed special verdict form12 and after receiving Plaintiff’s
proposal that the jury answer the “mixed-motive” theory questions only if the jury did not find in
favor of Plaintiff on a “pretext” theory,13 the court adopted Plaintiff’s proposal. The court sent
the final proposed special verdict form and jury instruction to counsel on October 27, 2012.14
At the final jury instruction conference on the morning of October 29, 2012, Defendant
objected to the court’s proposed special verdict form. Defendant argued that the jury should
answer the question: “Has Salt Lake County Proven by a preponderance of the evidence that it
had a legitimate, non-retaliatory reason for taking the adverse action against Mr. Barrett?15 The
court, however, explained that the County was taking on a heavier burden than the law required
under a pretext theory and that it did not have to prove that it had a legitimate non-retaliatory
reason for taking adverse action against Mr. Barrett.16 The court also ruled that the jury

11

See Docket No. 72, Defendant’s Memorandum in Support of Motion for New Trial or
in the Alternative to Amend Judgment, Exhibit 1 at page 6 of 143 - Email from Anne Morgan to
Counsel, dated October 26, 2012.
12

Id.. at Exhibit 1, page 37 of 143.

13

Id. at Exhibit 1, page 48 of 143.

14

Id. at Exhibit 1, pages 98, 113 -116, 126 of 143.

15

” Id. at Exhibit 1, page 142-143 of 143 - Question 5 of Defendants Proposed Special
Verdict, emailed on October 27, 2011.
16

The court also clarified that there was a typographical error in the proposed special
verdict Question No. 2 and that the error would be corrected to direct the jury to go proceed to
“Question No. 5" instead of “Question No. 4" if the jury answered “yes” to Question No. 2. The
County did not object to this change, and Plaintiff’s counsel agreed that it should be changed
because the jury was not going to answer the mixed-motive questions (Questions Nos. 3 & 4) if it
5

instructions adequately informed the jury that, if the County had offered a legitimate nonretaliatory reason for taking adverse action against Mr. Barrett, it was Mr. Barrett’s burden to
prove that the reason was mere pretext.17
Accordingly, the court finds that the Jury Instructions adequately instructed the jury as to
the requirements for finding retaliation under a “pretext” theory and under a “mixed-motive”
theory and that the Special Verdict correctly guided the jury. The court notes, once again,
however, that the jury did not reach the mixed-motive questions on the special verdict form,
having already found that Plaintiff was retaliated against under a “pretext/but for” theory of
causation.18
3.

There Was Sufficient Evidence That the Decisionmaker Had Knowledge That
Plaintiff Engaged in a Protected Activity.
Defendant’s third basis for its motions is that Defendant believes that there was no

evidence presented to the jury that Linda Hamilton–the ultimate decisionmaker–had any
knowledge that Plaintiff had assisted Ms. Nish in making a complaint about sexual harassment.
The court finds (again) that there was indeed sufficient evidence presented at trial that Ms.
Hamilton had knowledge that Plaintiff had engaged in a protected activity, and the court properly
permitted the issue to go to the jury.

answered “yes” to the “but for” question.
17

See Jury Instructions Nos. 15 & 16, Docket No 70.

18

See Special Verdict, Docket No 68.
6

CONCLUSION
Accordingly, Defendant’s Motion for a New Trial or in the Alternative To Amend a
Judgment [Docket No. 71] is DENIED.
DATED this 29th day of April, 2013.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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