Bland v. Fairfax County Virginia
Filing
125
MEMORANDUM OPINION re 102 Defendant's Motion for Judgment as a Matter of Law, for a New Trial, and to Alter or Amend the Judgment. Signed by District Judge James C. Cacheris on 8/3/2011. (tche)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MARY GETTS BLAND,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
FAIRFAX COUNTY, VIRGINIA,
Defendant.
1:10cv1030 (JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendant Fairfax
County, Virginia’s (the “Defendant” or the “County”) Motion for
Judgment as a Matter of Law, for a New Trial, and to Alter or
Amend the Judgment (the “Motion”).
For the following reasons,
the Court will deny Defendant’s Motion but will order remittitur
of the jury award.
I.
A.
Background
Factual Background
This case arises out of incidents of sexual harassment
by a male Fairfax County firefighter in the Fairfax County Fire
and Rescue Department (the “Department”) against a female
firefighter.
Plaintiff Mary Getts Bland (“Plaintiff” or
“Bland”) alleged that by allowing Lieutenant Timothy Young
(“Young”) to harass her, the County violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to e17
1
(“Title VII”).
After a three-day trial, the jury returned a
verdict in favor of Plaintiff and against the County and awarded
Plaintiff a verdict of $250,000.00.
B.
[Dkt. 77.]
Procedural Background
After the jury returned its verdict, Defendant filed
its timely Motion on June 22, 2011, [Dkt. 102], and a memorandum
in support, [Dkt. 103].
With leave of the Court, Defendant also
filed a supplemental memorandum in support on June 30, 2011.
[Dkt. 118.]
Plaintiff filed an opposition on July 14, 2011,
[Dkt. 119], and Defendant replied in support on July 19, 2011,
[Dkt. 120].
Defendant’s Motion is before the Court.
II.
Standard of Review
Defendant moves for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50(b), for a new
trial pursuant to Rule 59(a), for the Court to alter or amend
the judgment pursuant to Rule 59(e), or, in the alternative,
remittitur of the jury’s verdict.
A.
[Dkt. 102.]
Rule 50(b): Judgment as a Matter of Law
“When evaluating a Rule 50(b) motion, the court does
not weigh the evidence or consider the credibility of the
witnesses, but must grant the motion where it finds that
‘substantial evidence does not support the jury’s findings.’”
Trident Enters., Ltd. v. Airtronic USA, Inc., No. 01:09cv1355,
2
2011 WL 2160953, at *3 (E.D. Va. May 31, 2011) (quoting Konkel
v. Bob Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir. 1999)).
A
Rule 50(b) “motion must be granted ‘if a reasonable jury could
only reach one conclusion based on the evidence or if the
verdict in favor of the non-moving party would necessarily be
based upon speculation and conjecture.’”
Id. (quoting Myrick v.
Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005)).
Thus, “[i]f reasonable minds could differ, [the court] must
affirm the jury’s verdict.”
Pitrolo v. Cnty. of Buncombe, 407
F. App’x 657, 659 (4th Cir. 2011) (citing Dennis v. Columbia
Colleton Med. Ctr., 290 F.3d 639, 645 (4th Cir. 2002)).
Although a court is “‘compelled to accord the utmost
respect to jury verdicts and tread gingerly in reviewing them,’”
a court is “‘not a rubber stamp convened to merely endorse the
conclusions of the jury, but rather [has] a duty to reverse the
jury verdicts if the evidence cannot support it.’”
Id. (quoting
Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996)).
A court “will grant motion for judgment as a matter of law ‘if
the nonmoving party failed to make a showing on an essential
element of his case with respect to which he had the burden of
proof.’”
Id. (quoting Wheatley v. Wicomico Cnty., 390 F.3d 328,
332 (4th Cir. 2004)).
The Court must view the evidence and draw
all reasonable inferences in the light most favorable to the
nonmoving party.
Lack v. Wal-Mart Stores, Inc., 240 F.3d 255,
3
259 (4th Cir. 2001).
“Thus, the moving party bears a ‘hefty
burden’ in establishing that the evidence is insufficient to
uphold the jury’s verdict.”
Price, 93 F.3d at 1349 (citation
omitted).
B.
Rule 59(a): New Trial and Remittitur
Under Rule 59(a), a new trial may be granted in an
action in which there has been a trial by jury “for any of the
reasons for which new trials have heretofore been granted in
actions at law in the courts of the United States.”
Civ. P. 59(a).
Fed. R.
“On a Rule 59(a) motion, a district court may
set aside the jury’s verdict and grant a new trial only if ‘(1)
the verdict is against the clear weight of the evidence, or (2)
is based upon evidence which is false, or (3) will result in a
miscarriage of justice even though there may be substantial
evidence which would prevent the direction of a verdict.’”
Attard Indus., Inc. v. U.S. Fire Ins. Co., No. 1:10cv121, 2010
WL 4670704, at *2 (E.D. Va. Nov. 9, 2010) (quoting Atlas Food
Sys. & Servs. Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587,
594 (4th Cir. 1996)).
In considering a Rule 59 motion, “courts
may make credibility judgments in determining the clear weight
of the evidence.”
Id. (citing Knussman v. Maryland, 272 F.3d
625, 647 (4th Cir. 2001)).
“The grant or denial of a motion for
new trial is entrusted to the sound discretion of the district
court and will be reversed on appeal only upon a showing of
4
abuse of discretion.”
Cline v. Wal-Mart Stores, Inc., 144 F.3d
294, 305 (4th Cir. 1998).
As an alternative to ordering a new trial, a court may
order a remittitur.
“Remittitur, which is used in connection
with [Rule] 59(a), ‘is a process, dating back to 1822, by which
the trial court orders a new trial unless the plaintiff accepts
a reduction in an excessive jury award.’”
Id. (quoting Atlas
Food, 99 F.3d at 593). “There is no specific provision for
remittitur under the Federal Rules of Civil Procedure, but it is
well established that a remittitur should be ordered when a jury
award will result in a miscarriage of justice.”
Bennett v.
Fairfax Cnty., 432 F. Supp. 2d 596, 599 (E.D. Va. 2006) (citing
Cline, 144 F.3d at 305).
“If a court concludes that a verdict
is excessive, ‘it is the court’s duty to require a remittitur or
order a new trial.’”
Id. (citing Cline, 144 F.3d at 305).
“Under the practice of remittitur, ‘the trial court orders a new
trial unless the plaintiff accepts a reduction in an excessive
jury award.’”
Id. (citing Cline, 144 F.3d at 305).
“The
decision as to whether damages are excessive is ‘entrusted to
the sound discretion of the district court.’”
Id. (quoting
Robles v. Prince George’s Cnty., 302 F.3d 262, 271 (4th Cir.
2002)).
5
C.
Rule 59(e): Alter or Amend the Judgment
Rule 59(e) of the Federal Rules of Civil Procedure
governs motions to alter or amend a judgment and states only
that “[a] motion to alter or amend a judgment must be filed no
later than 28 days after the entry of the judgment.”
Civ. P. 59(e).
Fed. R.
“It is well-settled, however, that there are
only three grounds for granting a motion to alter or amend a
judgment: ‘(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available
at trial; or (3) to correct a clear error of law or prevent
manifest injustice.’”
Hart v. Hanover Cnty. Sch. Bd.,
3:10cv794, 2011 WL 1791297, at *1 (E.D. Va. May 9, 2011)
(quoting Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.
1993)).
“A Rule 59(e) motion is ‘an extraordinary remedy which
should be used sparingly.’”
Id. (quoting Pac. Ins. Co. v. Am.
Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)).
III.
Analysis
Defendant makes a number of arguments in support of
its Motion.
First, “[t]he evidence presented to the jury does
not support the conclusion that Young’s conduct toward Bland was
sufficiently severe or pervasive to create an objectively
hostile work environment.”
[Dkt. 103] at 6.)
(Memorandum in Support (“Mem.”)
Second, “the evidence presented at trial did
not establish the County’s liability” for Young’s conduct.
6
(Mem. at 10.)
Third, “the jury’s verdict was excessive,” so
“the County should be granted a new trial on all issues.”
at 18-19.)
(Mem.
Finally, in the alternative, “the County moves for a
substantial remittitur of the jury’s verdict.”
(Supplemental
Memorandum in Support (“Supp.”) [Dkt. 118] at 30.)
The Court
will address these arguments in turn.
A.
Rule 50(b)
i.
Severe or Pervasive
In a claim under Title VII against an employer for
creating a hostile work environment because of sexual
harassment, a plaintiff must prove “‘that the offending conduct
. . . was sufficiently severe or pervasive1 to alter the
conditions of her employment and create an abusive work
environment.’”
Ziskie v. Mineta, 547 F.3d 220, 224 (4th Cir.
2008) (citing Ocheltree v. Scollon Prod., Inc., 335 F.3d 325,
331 (4th Cir. 2003)).
“There are ‘both subjective2 and objective
components’ to this element.”
335 F.3d at 333).
Id. at 227 (quoting Ocheltree,
Thus, Plaintiff’s perception of the
environment as hostile or abusive must be reasonable.
Id.
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)).
“The objective severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff’s
1
A plaintiff must also show that the conduct was unwelcome and was based on
his or her sex, Ziskie, 547 F.3d at 224, but Defendant does not challenge
these elements.
2
Defendant does not contest the subjective portion of this element.
7
position, considering all the circumstances.”
Id. (citing
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998)).
Whether harassment is severe or pervasive
discrimination “depends on a constellation of surrounding
circumstances, expectations, and relationships.”
Jennings v.
Univ. of N.C., 482 F.3d 686, 696 (4th Cir. 2007) (citing Davis
v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999)).
Significantly, “[a]ll the circumstances are examined, including
the positions and ages of the harasser and victim, whether the
harassment was frequent, severe, humiliating, or physically
threatening.”
Id. (citing Davis, 526 U.S. at 650-51).
Here, the Court finds that, viewing the evidence in
and drawing all reasonable inferences in the light most
favorable to Plaintiff, Lack, 240 F.3d at 259, the County has
not met its “hefty burden” in establishing that the evidence is
insufficient to uphold the jury’s verdict, Price, 93 F.3d at
1349.
Based on the evidence adduced at trial, a reasonable jury
could return a verdict in favor of Plaintiff as to the “severe
or pervasive” prong of Plaintiff’s Title VII claim.
A review of
the evidence is helpful.
On August 22, 2001, Bland had a personal interview
with Young.
(Tr. 98:14-16.)
In the closed-door interview,
Young asked Bland a series of questions, asking about her
criminal background and driving record.
8
(Tr. 32:24-25.)
Young
asked if Bland’s husband approved of her profession.
32:25.)
(Tr.
Young asked Bland if she liked to be watched while she
masturbated, (Tr. 33:1), and he asked her if she liked to have
sex with more than one partner at the same time, (Tr. 33:4-5).
Young told Bland he “knew more about [her] than her husband.”
(Tr. 33:18.)
Bland did not tell Young she objected to these
questions because she was “shocked, just bombshelled,” and she
did not complain to anyone after she left the interview out of
fear that he would not recommend her for employment.
(Tr. 34:1-
7, 13-15.)
From January 2002 to July 2002, Bland attended the
Department’s recruit training academy.
(Tr. 36:12-24.)
Recruits at the academy were not permitted to speak with field
personnel or to receive phone calls.
(Tr. 36:25-3.)
Nonetheless, Young called Bland while she was at the academy.
(Tr. 37:4-7.)
Bland did not ask Young to call her, and she
would know Young called when she was paged over the loudspeaker.
(Tr. 37:8-11.)
In these calls, Young always asked the same questions.
(Tr. 37:12-13.)
He asked Bland how her family was, how her
husband was, and how her marriage was.
(Tr. 37:13-15.)
Young
would remind Bland that he knew more about her than her husband.
(Tr. 37:15-16.)
Young would ask Bland if she would go with him
to a sex store called Night Dreams, which she did not know about
9
until Young told her about it.
(Tr. 37:16-24.)
Young made
“three or four” phone calls like this while Bland was in the
academy, from January to July 2002.
(Tr. 38:10-11.)
Bland did
not report these calls to anyone for fear of losing her job.
(Tr. 38:2-6.)
From July 2002 to June 2003, Bland was assigned to
Fire Station 1 in McLean, (Tr. 39:1-4, 44:4), and she was a
probationary firefighter during this period.
(Tr. 40:12-14.)
While she was at Fire Station 1, Young called Bland “three or
four times.”
(Tr. 41:14-16.)
Young’s calls were as they were
while Bland was at the academy; he would ask how she was, how
her family, husband, and marriage were, tell her he knew all
about her, and asked her to reconsider her decision not to go to
the sex store.
(Tr. 42:1-4.)
Bland did not report these calls
out of fear of being seen as a whiner or complainer.
(Tr. 43:8-
13.)
On November 9, 2007, Bland next came in contact with
Young when he happened to work an overtime shift to replace
Bland’s captain, who was out sick.
(Tr. 68:8-15.)
Young
approached Bland and asked how her family and children were, but
said he would “stop right there.”
(Tr. 71:9-13.)
Young also
told Bland he knew all about her and knew things about her.
(Tr. 71:13-14.)
Throughout the day, Young made sexual innuendo.
(Tr. 71:15-16.)
Young asked Bland to drive the crew across the
10
street from the fire station to get ice cream, and she told him
she would “be happy to drive [his] fat a** across the street,”
to which he replied “oh, so, you are checking out my a**.”
(Tr.
73:1-9.)
On November 25,3 2007, Bland next came in contact with
Young when her crew went to the scene of a fire to relieve the
crew already there.
(Tr. 74:23-25, 75:13-15.)
While Bland was
standing by the fire engine, Young walked by carrying a “pike
pole,” which is six-foot long pole used for hooking onto walls
or ceilings to pull off sheetrock.
(Tr. 77:9-24, 78:23-25.)
Bland testified that Young came by her holding the pike pole,
and as he walked past her, he looked at her, jiggled the pole,
and said “this looks like it would hurt.”
8.)
(Tr. 78:5-7, 114:6-
Bland told everyone on her shift about the incident.
80:16-20.)
(Tr.
Later that day, Young made a sexual comment while he
and Bland were loading the fire hose back into the engine.
(Tr.
93:7-11.)
With this evidence in mind, Defendant argues that
Young’s conduct “was not sufficiently severe to create an
objectively hostile work environment.”
disagrees.
(Mem. at 8.)
The Court
Drawing all reasonable inferences in the light most
favorable to Plaintiff, Lack, 240 F.3d at 259, a reasonable jury
3
There appears to be some confusion in the record as to the exact date of
this incident. The transcript lists the date as November 24 in certain
places and November 25 in others. In their papers, Defendant dates it as
November 25, and Plaintiff dates it as November 27.
11
could have found Young’s conduct severe.
The interview and pike
pole incidents, in particular, are more than merely boorish or
callous behavior and well-beyond workplace banter or joking.
The interview incident is, perhaps, a paradigmatic example of
sexual harassment, considering the relative positions of
interviewer and applicant and the obviously intrusive and
explicit questions asked by Young.
The pike pole incident,
considering the circumstance of Young and Bland’s prior
interaction, where Young held up a six-foot pole used to break
through dry-wall and told Bland that it looked like it would
hurt, reasonably could be viewed as threatening.
A Rule 50(b)
“motion must be granted ‘if a reasonable jury could only reach
one conclusion based on the evidence.’”
Trident Enters., 2011
WL 2160953, at *3 (emphasis added) (quoting Myrick, 395 F.3d at
489).
Though reasonable jurors might differ in their view of
this evidence, a reasonable jury could not “only reach one
conclusion” based on it.
Id.
“If reasonable minds could
differ, [the court] must affirm the jury’s verdict.”
Pitrolo,
407 F. App’x at 659 (citing Columbia Colleton Med. Ctr., 290
F.3d at).
In response to Young’s comments during the interview,
the County argues that “[a]lthough Young’s comments . . . could
be considered highly personal, because there was no witness to
the comments, they could not be intended to ridicule [Bland].”
12
(Mem. at 8.)
The County cites EEOC v. Fairbrook Medical Clinic,
P.A., 609 F.3d 320 (4th Cir. 2010), in support.
misreads Fairbrook.
Id.
The County
Though Fairbrook states that “there is a
difference between generalized statements that pollute the work
environment and personal gender-based remarks that single out
individuals for ridicule,” the latter of which “have a greater
impact on their listeners and thus are more severe forms of
harassment,” nothing in Fairbrook requires comments to be
ridiculing in order to be severe.
29.
Fairbrook, 609 F.3d at 328-
All that is required is that, judged from the perspective
of a reasonable person in the plaintiff’s position and
considering all the circumstances, Ziskie, 547 F.3d at 224, the
conduct was severe.
Here, a reasonable jury could find Young’s
comments in the interview to be severe.
He was an interviewer
who asked an applicant whether she liked to have sex with more
than one partner at a time and whether she liked to be watched
while she masturbated.
This is “more than general crudity,”
Fairbrook, 609 F.3d at 328, and a reasonable juror could have
found it severe.
Defendant also argues that “[i]f Young’s comments
during [Bland’s] interview had not been obviously sexual, the
nature of the other remarks he made would be ambiguous.
In
fact, without the remarks during the interview, there would be
no basis whatsoever for the Court to conclude that his other
13
remarks were sexual.”
(Supp. at 16-17.)
That may be true, if
Young’s comments in Bland’s interview were not clearly sexual.
But, they were indisputably sexual.
Thus, the nature of that
first incident is one of the “constellation of surrounding
circumstances, expectations, and relationships,” Jennings, 482
F.3d at 696, that a reasonable juror must take into account when
evaluating the evidence of other instances.
Because of the
sexually charged nature of Young’s comments in Bland’s
interview, a reasonable juror could view later comments that
might otherwise be ambiguous as clearly sexual.
Defendant cites Conner v. Schrader-Bridgeport Intern.,
Inc., 227 F.3d 179 (4th Cir. 2000), in support, arguing that the
conduct Bland experienced “stands in stark contrast to the
severe conduct experienced by the plaintiff in Conner.”
at 8.)
(Mem.
In Conner, the Fourth Circuit found as severe the
following: the plaintiff was denied the necessary training to
perform her job and was inequitably assigned to perform more
difficult tasks, was required to expose her uterine blood to a
coworker in view of other coworkers, she was asked if she was
“on the rag,” was asked if she “got any last night,” and was
regularly “mock[ed]” while she mopped the floor.
F.3d at 197.
Conner, 227
The evidence in Conner, particularly the blood, is
severe, but the Court finds that this conduct is not “in stark
contrast” to the conduct experienced by Bland.
14
Indeed, the
Conner comments are, if anything, less sexually explicit than
those during Bland’s interview, and Conner does not have an
incident that could be viewed as threatening.
Defendant also relies on Whitten v. Fred’s, Inc., 601
F.3d 231 (4th Cir. 2010), arguing that “[n]one of Young’s
conduct came close to approximating the conduct that [the
plaintiff in Whitten] experienced.”
(Mem. at 9.)
In Whitten,
the plaintiff worked at a store for two days, in which another
employee made it clear that he was unhappy that plaintiff had
been transferred to his store, repeatedly called her dumb and
stupid, told her that he did not want her working in his store,
and told her that he would make her life a “living hell” if she
ever took work matters “over his head.”
236.
Whitten, 601 F.3d at
That same male employee, once each in the two days,
“walked behind [plaintiff] in the office and pressed his
genitals against her back as he passed by.”
Id.
The Court
finds the conduct Bland experienced at least “comes close to
approximating” that in Whitten.
Though Young never touched
Bland, as stated above the pike pole incident reasonably could
be viewed as threatening.
Defendant also argues that the sole witness to the
pike pole incident, other than Bland and Young, Nancy Sanfacon,
testified that Young was being playful and not threatening when
Young said the pike pole looked like it would hurt.
15
(Supp. at
6.)
According to Defendant, Sanfacon’s perception of the
incident is that “of an objectively reasonable person.”
at 7.)
(Supp.
Sanfacon’s view may very well be a reasonable view, but
it is not the only reasonable view.
Again, a Rule 50(b) “motion
must be granted ‘if a reasonable jury could only reach one
conclusion based on the evidence.’”
Trident Enters., 2011 WL
2160953, at *3 (quoting Myrick, 395 F.3d at 489).
Though
reasonable jurors might differ in their view of this evidence, a
reasonable jury could not “only reach one conclusion” based on
it.
Id.
“If reasonable minds could differ, [the court] must
affirm the jury’s verdict.”
Pitrolo, 407 F. App’x at 659
(citing Columbia Colleton Med. Ctr., 290 F.3d at).
Defendant also makes much of the fact that Bland
testified on direct examination that she took Young’s “this
looks like it would hurt” comment with the pike pole as a threat
of sexual assault, but Bland testified that during the
Department’s investigation she told the investigator that Young
did not make any sexual gesture with the pike pole.
7.)
(Supp. at
Even granting Defendant’s premise that this undermines
Bland’s trial testimony, this may go to Bland’s subjective view
of the incident, but does not affect what an objective,
reasonable juror would find in viewing the evidence on this pike
pole incident.
Moreover, “Rule 50(b) does not permit the court
to weigh the evidence or assess the credibility of the
16
witnesses,” Pitrolo, 407 F. App’x at 659, so to the extent
Defendant suggests any perceived inconsistency on Bland’s part
undermines her direct testimony, that is not relevant here.
The
only question before the Court in reviewing a Rule 50(b) motion
is whether a reasonable jury could have reached the conclusion
that it did.
These interview and pike pole incidents are not the
only evidence in the record.
Young’s unwelcome phone calls, as
detailed above, were not in and of themselves particularly
severe.
As the Fourth Circuit has stated, however, “[t]he more
serious incidents enumerated [above],” i.e., the interview and
pike pole incidents, “were complemented by numerous additional
occurrences that, in isolation, may have seemed less
problematic, but which actually served to exacerbate the
severity of the situation.
Reviewed and considered
cumulatively, the unwelcome conduct here was clearly of
sufficient severity to support the jury’s verdict against
[Defendant].”
Conner, 227 F.3d at 197-98.
The phone calls, at
least, form part of the circumstances “constellation of
surrounding circumstances . . . and relationships,” Jennings,
482 F.3d at 696, that a reasonably jury could consider when
viewing the evidence.
Defendant makes much of the intermittent occurrences
of Young’s conduct.
If the standard were “severe and
17
pervasive,” there might be something to that argument.
standard, however, is “severe or pervasive.”
The
And, for the
reasons stated above, a reasonable juror could find Young’s
conduct was sufficiently severe.
In sum, the Court finds that, viewing the evidence and
drawing all reasonable inferences in the light most favorable to
Plaintiff, Lack, 240 F.3d at 259, the County has not met its
“hefty burden” in establishing that the evidence is insufficient
to uphold the jury’s verdict, Price, 93 F.3d at 1349.
ii.
Imputing Liability to the County
Plaintiff must also have proven “‘that the offending
conduct . . . was imputable to her employer.’”
at 224 (citing Ocheltree, 335 F.3d at 331).
Ziskie, 547 F.3d
“In a case where an
employee is sexually harassed by a coworker4 . . . the employer
may be liable only ‘if it knew or should have known about the
harassment and failed to take effective action to stop it.’”
Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006) (emphasis
4
Defendant argues for the affirmative defense provided in Faragher v. City of
Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998). That affirmative defense is inapplicable to the coworker harassment in this case. See Matvia v. Bald Head Island Mgmt., Inc.,
259 F.3d 261, 266 (4th Cir. 2001) (stating that “[t]he affirmative defense of
Faragher and Ellerth allows an employer to avoid strict liability for a
supervisor’s sexual harassment”) (emphasis added); Alford v. Martin & Gass,
Inc., No. 1:08cv595, 2009 WL 497581, at *6 (E.D. Va. Feb. 25, 2009)
(Brinkema, J.) (stating that because an “incident was perpetrated by nonsupervisory co-workers,” Faragher/Ellerth did not apply to that incident).
For example, in Barrett v. Applied Radiant Energy Corp., 240 F.3d 262 (4th
Cir. 2001), cited by Defendant in support as an application of
Faragher/Ellerth, the alleged harasser was the plaintiff’s “former
supervisor.” 240 F.3d at 264. That is not to say Defendant is strictly
liable here, it is only to say that Defendant may be liable in negligence as
set forth below and that Faragher/Ellerth is not the correct rubric with
which to determine that liability.
18
added) (quoting Ocheltree, 335 F.3d at 334); accord Hoyle v.
Freightliner, LLC, --- F.3d ----, No. 09–2024, 2011 WL 1206658,
at *9 (4th Cir. Apr. 1, 2011) (“In a case where an employee is
sexually harassed by a co-worker, the employer may be liable in
negligence if it knew or should have known about the harassment
and failed to take effective action to stop it.”)
“But ‘[t]he
law against harassment is not self-enforcing and an employer
cannot be expected to correct harassment unless the employee
makes a concerted effort to inform the employer that a problem
exists.’”
Howard, 446 F.3d at 567 (quoting Barrett v. Applied
Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001)).
Ultimately, the Court “must determine when the [County] had
actual or constructive notice of [Young’s] alleged harassing
behavior and whether the [County’s] response was reasonable once
such notice was provided.”
Howard, 446 F.3d at 567.
With respect to the reasonable-response prong, where,
as here, the defendant has an anti-harassment policy, (D. Ex.
17; admitted at Tr. 553:23-554:2), “the distribution of an antiharassment policy provides ‘compelling proof’ that the
[employer] exercised reasonable care in preventing and
correcting harassment.”
Hoyle, 2011 WL 1206658, at *9 (quoting
Barrett, 240 F.3d at 266).
“To sustain her claim, a plaintiff
must show by a preponderance of the evidence that the policy was
either adopted or administered in bad faith or that it was
19
otherwise defective or dysfunctional.”
Id.
(citing Barrett,
240 F.3d at 266).
Here, viewing the evidence in and drawing all
reasonable inferences in the light most favorable to Bland,
Lack, 240 F.3d at 259, a reasonable jury could have found that
liability should be imputed to Defendant.
Defendant makes much
of the fact that after Bland reported Young’s conduct in
November 2007, Young’s conduct stopped.
(Mem. at 13.)
If
Defendant was not on actual or constructive notice of the
harassment before that time, that would be well and good.
But
Bland testified that in March of 2006 she told then-captain and
station commander Edith Eshelman about Young’s conduct during
the recruiting interview, during the academy, and during her
probationary period.
(Tr. 66:16-67:7.)
The record shows that
the pike pole incident occurred on November 25, 2007.
74:25-78:22.)
(Tr.
Thus, the Court “must determine when the [County]
had actual or constructive notice of [Young’s] alleged harassing
behavior and whether the [County’s] response was reasonable once
such notice was provided.”
Howard, 446 F.3d at 567.
On the
evidence in the record, a reasonable jury could find that the
County had notice in March of 2006 and did not reasonably
respond after that notice.
As to notice, a reasonable jury could find that
Bland’s telling Eshelman put the County on (at least)
20
constructive notice.
Eshelman, now a chief, was at that time
the Fire Station 17 station commander and a captain.
429:12-13-430:1.)
(Tr.
Telling a supervisory station commander who
is a captain would put the County on notice.
“Knowledge of
harassment can be imputed to an employer if a reasonable person,
intent on complying with Title VII, would have known about the
harassment.”
Ocheltree, 335 F.3d at 334.
Indeed, Eshelman
testified that officers in the Department are required to report
claims of sexual harassment and that she did not make a report
about what Bland told her in March 2006.
(Tr. 432:15-21.)
Eshelman did not report Bland’s allegation because she thought
it was “too old.”
(Tr. 433:2-3.)
Moreover, Eshelman testified that she told her
battalion chief, whom she acknowledges is supposed to report
alleged incidents up the chain of command, but to her knowledge
he did not do so, (Tr. 433:10-25), and there is no evidence in
the record that the battalion chief did anything in response to
Bland’s report to Eshelman.
Eshelman’s response to Bland’s
report was to have Young moved to another station that day so
that he would not come in contact with Bland.
432:1.)
(Tr. 431:21-
Eshelman testified that she did not hear anything else
about Bland’s report to her.
(Tr. 434:4-6.)
Additionally,
Defendant’s sexual harassment policy, (D. Ex. 17; admitted at
Tr. 553:23-554:2), states that “supervisory personal shall
21
promptly and thoroughly investigate all instances of suspected
or reported sexual harassment.”
(emphasis added.)
That is, a
supervisor, such as Eshelman, is required by the County’s sexual
harassment policy to act on any reports of harassment,
including, as she testified, reporting that conduct up the chain
of command.
As to “whether the [County’s] response was reasonable
once such notice was provided,” Howard, 446 F.3d at 567, after
Bland told Eshelman, Eshelman admitted that neither she nor her
battalion chief did anything in response.
Eshelman had Young
moved to a different station for that day, but did nothing
further.
all.
Eshelman’s battalion chief apparently did nothing at
Regardless of what may constitute a reasonable response in
general, a reasonably jury could find that this was not it.
Nor, as the County argues, (Mem. at 10), does the
County’s policy itself suffice to show the County “exercised
reasonable care in preventing and correcting harassment.”
Hoyle, 2011 WL 1206658, at *9.
The County’s policy on sexual
harassment, (D. Ex. 17), states that “supervisory personal shall
promptly and thoroughly investigate all instances of suspected
or reported sexual harassment.”
(emphasis added.)
And, the
Department standard operating procedure of sexual harassment,
(D. Ex. 23; admitted at Tr. 561:19-562:1), states that
“[s]upervisors are required to take positive, corrective actions
22
to ensure that sexually harassing behavior or acts do not occur
and are not repeated in the work place.”
(emphasis added.)
Eshelman, and the battalion chief to whom she reported
Bland’s allegations, did not “promptly and thoroughly
investigate” Bland’s claim, (D. Ex. 17), nor did they “take
positive, corrective actions to ensure that [Young’s] sexually
harassing behavior or acts . . . [were] not repeated in the work
place,” (D. Ex. 23), as required by the policy Defendant argues
constitutes reasonable care in preventing and correcting
harassment.
The Department’s policy surely could have
constituted reasonable care, but where “a plaintiff . . .
show[s] by a preponderance of the evidence that the policy was .
. . defective or dysfunctional,” Hoyle, 2011 WL 1206658, at *9,
the policy alone will not suffice as reasonable care.
Because
Eshelman and her battalion chief, however well-intentioned,
plainly violated the County and Department’s policy mandating
investigation and positive, corrective action, a reasonable jury
could find that the policy was, in this instance, defective or
dysfunctional.
Defendant also argues that “Bland’s failure to report
Young’s conduct during the August 22, 2001, interview for four
and a half years shows that Bland failed to take advantage of
the policies and procedures for reporting harassment, and her
failure to take advantage of the existing policies was
23
unreasonable.”
(Mem. at 12.)
It is true that “‘[t]he law
against harassment is not self-enforcing and an employer cannot
be expected to correct harassment unless the employee makes a
concerted effort to inform the employer that a problem exists.’”
Howard, 446 F.3d at 567 (quoting Barrett, 240 F.3d 262 at 268).
Here, however, Bland did inform her employer of Young’s conduct
when she told her station-commander captain, who was then
required to act and to report the alleged harassment, and who
also told the battalion chief who has the same duties.
There is
therefore no issue of whether Bland made an effort to notify her
employer; she did so, thereby providing at least the
constructive notice required for imputing liability to
Defendant, and a reasonable jury could have found sufficient
evidence of that imputability and, as stated, a lack of a
reasonable response.
B.
Rule 59(a)
i.
New Trial
Defendant moves for a new trial under Rule 59(a),
(Mem. at 14), or, in the alternative, for a remittitur of the
jury’s verdict, (Supp. at 30).
“On a Rule 59(a) motion, a
district court may set aside the jury’s verdict and grant a new
trial only if ‘(1) the verdict is against the clear weight of
the evidence, or (2) is based upon evidence which is false, or
(3) will result in a miscarriage of justice even though there
24
may be substantial evidence which would prevent the direction of
a verdict.’”
Attard Indus., 2010 WL 4670704, at *2 (quoting
Atlas Food Sys., 99 F.3d at 594).
In considering a Rule 59
motion, “courts may make credibility judgments in determining
the clear weight of the evidence.”
Id. (citing Knussman, 272
F.3d at 647).
For the same reasons set forth above with respect to
Defendant’s Rule 50(b) motion, and considering the credibility
of the witnesses, Defendant has not shown that the verdict is
against the clear weight of the evidence, is based upon evidence
which is false, or will result in a miscarriage of justice.
Thus, the Court will not grant a new trial.
The Court will, however, grant Defendant’s motion for
remittitur, “because the jury’s award was excessive, in that the
amount was too large considering there was no evidence that
[Plaintiff] received any medical treatment . . . and the jury
award was inconsistent with similar federal cases.”
Bennett,
432 F. Supp. 2d at 602.
Even though the Court finds the jury award to be
excessive, the Court will not grant a new trial based on the
jury award.
Defendant argues that a new trial is appropriate
because the jury’s award was the result of passion or prejudice.
(Mem. at 19.)
“Fourth Circuit has held that, to receive a new
trial on liability and damages, the jury verdict must be made
25
excessive by ‘passion and prejudice springing from indulgence,
in the jury room, in such feelings, [that] may not be cured by a
remittitur, but only a new trial.’”
Bennett, 432 F. Supp. 2d at
602 (quoting Ford Motor Co. v. Mahone, 205 F.2d 267, 273 (4th
Cir. 1953)).
“[T]he sheer size of a jury award does not, by
itself, demonstrate that it was the result of passion or
prejudice.”
Id. at 604.
Here, with the exception of its own conclusory
assertions, Defendant has presented no evidence that the verdict
was solely the result of the jury’s passion or prejudice.
“[W]ithout additional evidence of passion and prejudice by the
jury, an excessive verdict alone is insufficient to require a
new trial.”
Id. at 603.
Nor, as Defendant argues, are the
issues of liability and damages so interconnected as to prevent
a fair determination of damages apart from evidence of
liability.
(Mem. at 20.)
The Court finds that the jury’s
verdict as to liability was reasonable, as stated above, and the
jury’s damages award can be fairly addressed by an order of
remittitur.
ii.
Remittitur
“Under Title VII, compensatory damages are available
for, among other things, ‘emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and
other nonpecuniary losses.’”
Homesley v. Freightliner Corp., 61
26
F. App’x 105, 116 (4th Cir. 2003) (quoting 42 U.S.C. §
1981a(b)(3)).
“[M]edical evidence need not be adduced to
support compensatory damages.”
n.2.
Bennett, 432 F. Supp. 2d at 603
“The Fourth Circuit has held that ‘a plaintiff's
testimony, standing alone, may support a claim of emotional
distress precipitated by a constitutional violation.’”
(citing Price, 93 F.3d at 1241, 1251).
Id.
The plaintiff’s
“testimony must ‘establish that the plaintiff suffered
demonstrable emotional distress, which must be sufficiently
articulated.’”
Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d
536, 546-47 (4th Cir. 2003) (quoting Price, 93 F.3d at 1254).
“The testimony cannot rely on ‘conclusory statements that the
plaintiff suffered emotional distress’ or the mere fact that the
plaintiff was wronged,” but rather “it must indicate with
specificity ‘how [the plaintiff’s] alleged distress manifested
itself.’”
Id. at 547 (quoting Price, 93 F.3d at 1254).
“The
plaintiff must also ‘show a causal connection between the
violation and her emotional distress.’”
Id. (quoting Columbia
Colleton Med. Ctr., 290 F.3d at 653).
Bland testified that, as a result of Young’s conduct,
she suffered “[t]remendous headaches, chest pains with anxiety.”
(Tr. 96:7-9.)
sleeping.
Bland also testified that she had problems
(Tr. 97:1-2.)
She testified that she took an
antidepressant for a “brief period of time,” but stopped because
27
of the side-effects.
for her headaches.
(Tr. 96:10-15.)
She also took medications
(Tr. 96:18-19.)
Bland also testified that her job that she “loved” had
been “tainted.”
(Tr. 93:25-94:1.)
She “shut down” and “did not
engage in any fire department activities at all.”
16.)
(Tr. 92:15-
Bland also testified that she was in “continual[] fear[]”
of running into Young.
(Tr. 86:9-10.)
Bland could not recall the specific date when her
headaches started, but it was while she was at Fire Station 17,
(Tr. 129:2-4), to which she moved in March 2006, (Tr. 66:13-21).
Bland stated that the headaches “probably” began before November
2007, but intensified and became more frequent afterwards.
129:5-7.)
(Tr.
Bland could not remember when she began taking
sleeping medication, but it was while she was at Fire Station
17.
(Tr. 129:8-12.)
Bland began taking medicine for chest pain
and anxiety only two weeks before trial.
(Tr. 129:20-130:3.)
Bland’s testimony was corroborated by a co-worker,
Alyssa Vance, and her husband, Mica Bland.
Vance testified to
Bland’s change in personality, stating that after November 2007,
Bland became “a little more distracted at work . . . a little
bit more withdrawn.”
(Tr. 359:20-23.)
Vance stated that though
Bland used to actively participate and volunteer, Bland no
longer participated or volunteered in activities at the fire
station and sometimes cleaned the fire engine by herself.
28
(Tr.
359:23-360:1.)
Vance, however, acknowledged that at during the
same time period, Bland was going through a divorce and had
requested a station transfer.
(Tr. 364:2-4, 18-20.)
Mica Bland testified that he noticed changes in
Bland’s personality after the pike pole incident, stating that
she is “scared now,” anxious, cries at unexplained times for no
known reason, and is distracted.
(Tr. 325:11-326:2.)
Mica
Bland also testified that Bland will sometimes grab her chest
while having a tough time breathing.
(Tr. 326:5-6.)
The evidence as to damages is relatively thin.
That
said, making the permitted credibility determination, Attard
Indus., 2010 WL 4670704, at *2, the Court finds that Bland was a
wholly credible witness on the issue of her own distress,
particularly in light of her demeanor on the witness stand.
Bland’s testimony establishes that she suffered demonstrable
emotional distress, which was sufficiently articulated.
333 F.3d at 546-47.
Bryant,
She indicated how the distress manifested
itself, id. at 547, and showed sufficient causation, when viewed
in light of her credibility and demeanor on the witness stand.
The jury’s damages award, however, was excessive.
Judge Lee noted in Bennett, “[i]n employment discrimination
cases involving remittitur, the Fourth Circuit has found that
verdicts, where compensatory damages were not supported by
medical evidence and that were over $100,000.00, were
29
As
excessive.”
432 F. Supp. 2d at 602 (collecting cases).
Bennett
and the Fourth Circuit’s decision in Hetzel v. County of Prince
William, 89 F.3d 169 (4th Cir. 1996), are instructive.
In Bennett, the jury awarded the plaintiff
$540,000.00.
432 F. Supp. 2d at 601.
The plaintiff in Bennett
testified at trial that he was humiliated by not receiving a
promotion and because of his humiliation he had to leave his
position, for which he later reapplied.
Id. at 605.
The
plaintiff also testified that he suffered chronic headaches,
insomnia, and stomach problems, and testified that he did not
seek medical treatment for any of those conditions.
Id.
Considering this evidence, and the fact that the plaintiff was
owed back-pay in the amount of $5,000.00, Judge Lee remitted the
award to $50,000.00.
Id.
In Hetzel, the plaintiff testified that she suffered
headaches, stress, and problems with her family life as a result
of the defendant’s conduct.
89 F.3d at 171.
The plaintiff
testified that although she had been devastated and humiliated,
she had not seen a doctor, therapist, or other professional.
Id.
The jury awarded the plaintiff $750,000.00 in damages for
emotional distress, which the district court reduced to
$500,000.00.
Id. at 170.
The Fourth Circuit found that the
“thin evidence of rather limited damages would in-and-of itself
entitle her to only a minimal damage award for intangible
30
injuries” and remanded the case for a remittitur of the jury
award.
Id. at 171.
The district court reduced the plaintiff’s
damages award to $15,000.00.5
See Hetzel v. Cnty. of Prince
William, No. 98-1514, 1999 WL 623195, *2 (4th Cir. Aug. 17
1999).
In a recent case, however, the Fourth Circuit affirmed
a district court’s denial of motion for remittitur of a
$225,000.00 jury verdict awarded for pain, suffering, and mental
anguish.
See Blake v. Baltimore Cnty., No. L-07-50 at Dkt. 203,
(D. Md. July 14, 2010).6
In Blake, the plaintiff was forced by
his employer, the Baltimore County Police Department, to undergo
a fitness-for-duty medical evaluation.
Id.
At trial, the
plaintiff testified as to his own “rise in blood pressure,” how
he was “perturbed,” “angry,” and “worried,” and how the
procedure impacted him at work and at home.
Id.
The
plaintiff’s testimony was supplemented by that of his wife and
of a co-worker and, significantly, the plaintiff’s treating
physician testified about the physical, objective manifestations
of the plaintiff’s emotional distress.
5
Id.
The jury awarded
It is worth noting that this was not the end of the Hetzel case. The
Supreme Court held that Judge Brinkema “correctly afforded [the plaintiff]
the option of a new trial when [the District Court] entered judgment for the
reduced damages” as directed by the Fourth Circuit. Hetzel v. Prince William
Cnty., 523 U.S. 208, 211 (1998). The plaintiff elected the option of a new
trial, and the jury returned a verdict in the amount of $45,000.00. See
Hetzel v. Cnty. Of Prince William, 1:94cv919 [Dkt. 251]. The defendant moved
for judgment as a matter of law or to set aside the verdict, 1:94cv919 [Dkt.
257], which this Court denied, 1:94cv919 [Dkt. 266]. The defendant did not
appeal that decision.
6
Plaintiff provided the Court and Defendant a copy of the district court’s
remittitur decision in Blake, [Dkt. 121-4].
31
$225,000.00 for pain and suffering and the district court denied
the defendant’s motion for remittitur.
affirmed the district court’s denial.
Id.
The Fourth Circuit
Blake v. Baltimore Cnty.,
No. 10–1849, 2011 WL 2784123, at *1 (4th Cir. July 15, 2011).
Though Blake is distinguishable, particularly with respect to
the testimony of the treating physician, the Court bears that
recent case in mind here.
The evidence presented here is substantially similar
to that in Bennett and Hetzel.
Bland testified that she
suffered tremendous headaches, chest pains, anxiety, and
problems sleeping.
She testified that she took an
antidepressant for a brief period and took medications for her
headaches.
Bland also testified that her job performance and
enjoyment were affected, testimony corroborated by Vance and
Mica Bland, and that she was in fear of running into Young.
Bland, though, did not testify with particular specificity as to
the dates of her medicine use, and there is testimony that Bland
was going through a contemporaneous divorce.
Bland did not seek
medical treatment, and, significantly, did not lose any pay or
otherwise face adverse employment action in that sense.
This evidence, coupled with the jury’s verdict,
illustrates that the award was excessive, as it was not
proportional to Bland’s injuries and inconsistent with similar
cases.
The Court finds that an award somewhere between that in
32
Hetzel, as that case is over 12-years old, and Bennett is
appropriate.
As Judge Lee noted in Bennett, there is no
“specific formula to provide the district courts more guidance”
on how to determine the proper award.
432 F. Supp. 2d at 601;
see also Pine Ridge Coal Co. v. Local 8377, United Mine Workers
of America, 187 F.3d 415, 421 (4th Cir. 1999) (“Once a party has
established the fact of damages, the court may estimate damages
based on just and reasonable inferences drawn from the evidence
submitted.”)
With that in mind, the Court remits the jury award
to $50,000.00, which it believes is proportional to the injury
sustained and within precedent, particularly Bennett and Hetzel,
as stated above, while taking Blake into account.
C.
Rule 59(e)
Defendant also moves the Court to alter or amend the
judgment pursuant to Rule 59(e).
“[T]here are only three
grounds for granting a motion to alter or amend a judgment
[under Rule 59(e)]: ‘(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available
at trial; or (3) to correct a clear error of law or prevent
manifest injustice.’”
Hart, 2011 WL 1791297, at *1 (quoting
Hutchinson, 994 F.2d at 1081.
Defendant, apparently (it does
not say), argues only that this Court has made a clear error of
33
law or that the verdict is manifestly unjust.7
For the reasons
stated above with respect to Defendant’s Rule 50(b) and 59(a)
arguments, there was no clear error of law and no manifest
injustice in this case.
Thus, Defendant has shown that the
“extraordinary remedy” of a Rule 59(e) motion, “which should be
used sparingly,” Hart, 2011 WL 1791297, at *1, is appropriate
here.
IV.
Conclusion
For these reasons, the Court will deny Defendant’s
Motion but will order remittitur of the jury award.
An appropriate Order will issue.
August 3, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
7
There was, to this Court’s knowledge, no intervening change in controlling
law or new evidence not available at trial, and Defendant presents no
argument as to either.
34
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