Opinion
Case No. 00-4044-RDR.
October 6, 2004
MEMORANDUM AND ORDER
This matter is presently before the court upon defendant's renewed motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) or, in the alternative, for new trial pursuant to Fed.R.Civ.P. 59. Having carefully considered the arguments of the parties, the court is now prepared to rule.
On June 22, 2004, a jury rendered a verdict in favor of plaintiff on her sex discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). The jury found that plaintiff was entitled to damages for lost pay of $80,000 and pain and suffering of $120,000. On July 7, 2004 the defendant filed the instant motion.
In considering a motion for judgment as a matter of law pursuant to Rule 50(b), the court must construe the evidence in the light most favorable to the nonmoving party. Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996). "Unless the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion, judgment as a matter of law is improper." Id. (citation omitted).
Rule 59 provides that 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." Fed.R.Civ.P. 59(a)(1). Motions for a new trial pursuant to Rule 59 are committed to the sound discretion of the trial court. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984). "The party seeking to set aside a jury verdict must demonstrate trial error which constitutes prejudicial error or that the verdict is not based on substantial evidence." White v. Conoco, Inc., 710 F.2d 1442, 1443 (10th Cir. 1983).
In this motion, the defendant initially contends that it is entitled to judgment as a matter of law due to lack of subject matter jurisdiction. The defendant renews the argument that Title VII does not cover the claims made by plaintiff because plaintiff is not an "employee" under Title VII. In the alternative, the defendant asserts that it is entitled to a new trial because the court committed prejudicial error during the trial and the verdict was against the weight of the evidence.
The court shall turn first to the argument made by the defendant concerning jurisdiction. The defendant has repeatedly asserted in this case that Title VII does not provide jurisdiction because plaintiff was not an employee under the provisions of Title VII. Title VII excludes persons who were appointed by elected officials to a policy-making level as employees entitled to coverage. 42 U.S.C. § 2000e(f). The defendant raised the issue for the first time in a motion for summary judgment filed on June 1, 2001. In an order filed on May 16, 2002, the court thoroughly examined this issue and, after considering the evidence in the light most favorable to the plaintiff, denied the defendant's motion.Crumpacker v. Kansas Department of Human Resources, 205 F.Supp.2d 1209 (D.Kan. 2002), aff'd on other grounds, 338 F.3d 1163 (10th Cir. 2003),cert. denied, 124 S.Ct. 1416 (2004). The court found plaintiff could seek relief under Title VII because she was an employee under the definition set forth in 42 U.S.C. § 2000e(f). 205 F.Supp.2d at 1213. The defendant continued to raise the issue during trial and sought judgment as a matter of law based upon it at the conclusion of the plaintiff's case, at the conclusion of the defendant's case, at the conclusion of the trial, and after the verdict. Each time, the court denied the defendant's motion. The defendant now takes another run at it in this motion. The court is again not persuaded that the evidence at trial requires a decision in defendant's favor. The defendant has suggested that the evidence offered at trial showed that Kansas Governor Graves appointed the plaintiff to her position as Director of Employment and Training at the Kansas Department of Human Resources (KDHR). Plaintiff counters that the evidence demonstrated that she was selected and appointed by the Secretary of KDHR, Wayne Franklin.
The evidence offered at trial showed that plaintiff was initially hired by Governor Graves as a governmental affairs liaison and then became a senior legislative liaison with his office. Subsequently, Secretary Franklin observed plaintiff's abilities and sought to hire her as a division director at the KDHR. He asked plaintiff to submit a resumé for the position of Director of Employment and Training at KDHR. Plaintiff submitted a resumé to him and he interviewed her for the position. Following the interview, he decided to hire her and sent a letter to Governor Graves requesting approval of the appointment. Governor Graves approved the appointment pursuant to the provisions of K.S.A. 75-5702. Plaintiff was later terminated from her employment by Secretary Franklin, without any input or direction from Governor Graves.
The court believes that the evidence offered at trial bolsters the decision made by the court in its earlier order on defendant's motion for summary judgment. The courts that have considered this issue have made clear that the scope of the statutory exception relied upon by the defendant is limited to persons appointed by elected officials. See Anderson v. City of Albuquerque, 690 F.2d 786, 800-01 (10th Cir. 1982); Wanner v. State of Kansas, 766 F.Supp. 1005, 1009 (D.Kan. 1991); see also Tranello v. Frey, 962 F.2d 244, 249-50 (2nd Cir.), cert. denied, 506 U.S. 1034 (1992); Heap v. County of Schenectady, 214 F.Supp.2d 263, 268 (N.D.N.Y 2002); O'Neill v. Indiana Comm. on Public Records, 149 F.Supp.2d 582, 590 (S.D.Ind. 2001); Braaksma v. Wells Community Hopsital, 98 F.Supp.2d 1026, 1028-29 (N.D.Ind. 2000). The fact that an elected official must approve the appointment has repeatedly been determined to be insufficient to fall within the exception. Anderson, 690 F.2d at 801; Wanner, 766 F.Supp. at 1009; Tranello, 962 F.2d at 250; O'Neill, 149 F.Supp.2d at 590. With this legal background and the factual circumstances of this case, the court finds that plaintiff was not appointed by an elected official and, therefore, does not fall within the statutory exception of 42 U.S.C. § 2000e(f). Accordingly, the defendant is not entitled to judgment as a matter of law on this issue.
The court notes that in a subsequent discrimination case brought by the plaintiff's successor, Heather Whitley-Beaven, Judge Murguia reached the same conclusion as this court. Beaven v. State of Kansas, 316 F.Supp.2d 921, 923-24 (D.Kan. 2003). Judge Murguia determined that Ms. Beaven did not fall within the exception to Title VII's definition of employee for a person appointed by an elected official with policymaking responsibilities. Id.
The defendant next contends that it is entitled to judgment as a matter of law or a new trial because the court committed error during the trial and the verdict is against the weight of the evidence. The court shall begin the defendant's arguments concerning prejudicial error.
The defendant asserts that the court erred in the admissibility of certain evidence. Specifically, the defendant contends that the court should not have admitted evidence related to: (1) the Women's Issues Task Force; and (2) the failure of the defendant to follow its internal procedures. The defendant also argues that the court erred in not giving certain instructions. The defendant believes that the court should have given instructions to the jury on: (1) the Women's Issues Task Force evidence; (2) the failure of the defendant to follow its internal procedures; and (3) the standard applicable to a government employer in discrimination cases.
Prior to trial, the defendant filed a motion in limine concerning evidence of (1) the Women's Issues Task Force and (2) its duty to investigate and remedy complaints of discrimination and retaliation. The court carefully considered these issues and determined that they could not be excluded prior to trial. See Crumpacker v. Kansas Dept. of Human Resources, No. 00-4044-RDR (D.Kan. 6/10/04). Rather, the court took the approach that evidence concerning these matters could be introduced at trial and would be examined for admissibility at that time. At trial, the court allowed some evidence on both of these issues. The court was of the belief that evidence concerning these matters could be introduced to show the defendant's intent.
Direct evidence of discriminatory intent usually is unavailable in gender discrimination or retaliation cases. Hardeman v. City of Albuquerque, 377 F.3d 1106, 1117 (10th Cir. 2004). Instead, circumstantial evidence must be used and reasonable inferences from that evidence may be used to ascertain intent. Id.
The admission of evidence is "a discretionary judgment call by the trial judge as the rules of evidence provide." United States v. Willie, 941 F.2d 1384, 1398 (10th Cir. 1991), cert. denied, 502 U.S. 1106 (1992). The starting point for the introduction of any evidence is relevance. However, a finding that evidence is relevant "does not validate the form in which that evidence is admitted." Johnson v. Colt Ind. Operating Corp., 797 F.2d 1530, 1534 (10th Cir. 1986). The court must then consider whether the evidence is admissible under the other rules of evidence. Lastly, the court must determine, even if the evidence is relevant and admissible, whether it should be excluded because its probative value is outweighed by its prejudicial effect. Willie, 941 F.2d at 1398.
The court continues to believe that we correctly allowed some evidence on both of these issues. The court believes that this evidence was admissible on the issue of the defendant's intent. The court is not persuaded that this evidence was incorrectly admitted or that its introduction prejudiced the defendant.
The court turns next to the defendant's arguments concerning the failure of the court to give some limiting instructions. As previously noted, the defendant contends that the court erred in failing to give three instructions.
In reviewing jury instructions, the court must determine if the instructions properly state the law and provide the jury with ample understanding of the issues and the standards applicable. Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir. 1988). The instructions must cover the issues presented by the evidence and accurately state law. United States v. Davis, 953 F.2d 1482, 1492 (10th Cir.), cert. denied, 504 U.S. 945 (1992). A new trial is warranted only when a failure to give an instruction is prejudicial in view of the entire record. United States v. Martin, 18 F.3d 1515, 1519 (10th Cir.), cert. denied, 513 U.S. 868 (1994).
The court carefully considered the instructions proposed by the defendant. The court was not satisfied with the wording or the intent of these instructions concerning the Women's Issues Task Force or the defendant's failure to follow internal procedures. The court believed then and continues to believe that these instructions might have caused more confusion than assistance.
The court finds that the instructions as a whole conveyed the law concerning the standard to be applied to the defendant in determining the issues in this case. The court found no need to instruct the jury that the defendant was not to be held to a higher standard. Accordingly, the court finds no error in failing to give the instruction requested by the defendant. See Webb v. ABF Freight Systems, Inc., 155 F.3d 1230, 1248 (10th Cir. 1998) ("[N]o particular form of words is essential if the instruction as a whole conveys the correct statement of the applicable law."), cert. denied, 526 U.S. 1018 (1999); Oertle v. United States, 370 F.2d 719, 726 (10th Cir. 1966) (district court not required to give proposed jury instruction, even though substantively correct, if point of law it refers to is fairly and adequately covered by the instructions), cert. denied, 387 U.S. 943 (1967).
Finally, we shall consider the defendant's arguments concerning the weight of the evidence. The defendant asserts that the jury's verdict was contrary to the weight of the evidence on the gender discrimination claim and the retaliation claim.
The defendant begins by suggesting that the verdict on the retaliation claim was against the weight of the evidence because plaintiff (1) failed to direct any questions to Secretary Franklin regarding the letter of August 21, 1998; and (2) made no mention of it during closing argument.
In considering a motion for new trial based upon the contention that the verdict is against the weight of the evidence, the court must view the record in the light most favorable to the prevailing party. Patton v. TIC United Corp., 77 F.3d 1235, 1242 (10th Cir.), cert. denied, 518 U.S. 1005 (1996). The motion is not to be granted unless the verdict is clearly, decidedly, or overwhelmingly against the weight of the evidence. Id. "A new trial is not warranted simply because the court would have reached a different verdict." Boyce v. Commissioners of Dickinson County, 857 F.Supp. 794, 797 (D.Kan. 1994) (citations omitted).
Frankly, the court agrees with the defendant that the handling of the retaliation claim by plaintiff's counsel was unusual. Nevertheless, the court must consider the evidence that was offered in support of it, rather than the matter in which it was litigated by the plaintiff. In construing the entirety of the evidence, the court is not convinced that the verdict was clearly against the weight of the evidence. The evidence showed that plaintiff did complain about her treatment in the letter of August 21, 1998, and that she was terminated shortly after that. The defendant had explanations for the actions that were taken, but plaintiff suggested through evidence that those explanations were not the defendant's true motivating reason. The jury apparently chose not to believe the reasons offered by the defendant. Under these circumstances, the court shall not grant the defendant a new trial on this claim.
The defendant next argues that the jury's verdict on the gender discrimination claim was against the weight of the evidence. The defendant asserts that plaintiff presented no evidence to rebut its reasons for discharge or to show that its reasons were pretextual.
The court has reviewed the entirety of the evidence presented at trial. The court finds that the plaintiff produced sufficient evidence to allow a jury reasonably to find that the defendant intentionally discriminated against her based on her gender in terminating her from employment. The defendant did offer legitimate reasons for the plaintiff's discharge. Plaintiff, however, offered evidence why those reasons were pretextual. This evidence was hardly overwhelming, but the court does find that it was adequate to support the jury's verdict. Accordingly, the defendant's motion for judgment as a matter of law or for new trial must be denied.
IT IS THEREFORE ORDERED that defendant's motion for judgment as a matter of law or, in the alternative, for new trial (Doc. #226) be hereby denied.
IT IS SO ORDERED.