Opinion
CIVIL ACTION NO. 98-1656.
January 9, 2001
MINUTE ENTRY
Before the Court is defendant's Motion for New Trial, Alternative Motion To Alter or Amend Judgment Under Federal Rule of Civil Procedure 59. The Court heard oral argument on November 8, 2000 and has considered the pleadings, memoranda and relevant law and finds for the reasons that follow.
Al Morris was the plaintiff in a Title VII suit against Sheriff Harry Lee, claiming that Lee unlawfully retaliated against him for complaining about same-sex sexual harassment. The matter was brought to trial on July 31, 2000 and the jury returned a verdict on August 4, 2000 finding that Sheriff Harry Lee unlawfully retaliated against Morris in violation of federal law. The jury awarded compensatory damages and back pay. See Verdict Form, August 4, 2000. The Court ordered reinstatement. See Order and Reasons, 8/28/00. On September 12, defendant filed a Motion for New Trial, Alternative Motion to Alter or Amend Judgment, and a request for a Stay of the reinstatement order pending disposition of the motion for new trial, which was granted.
As grounds for the new trial, Lee makes two claims: (1) that in its Reasons for Judgment, the Court found that the failure to rehire plaintiff, as opposed to the decision to fire plaintiff, was the discriminatory act supporting the jury verdict, and that such a finding is not a ground for relief because plaintiff never plead failure to rehire as an adverse employment action; and (2) that there is no evidence on the record to suggest that defendant's failure to rehire plaintiff was discriminatory.
In Smith v. Transworld Drilling Comp., 773 F.2d 610 (5th Cir. 1985) Judge Rubin instructed that
Rule 59 of the Federal Rules of Civil Procedure confirms the trial court's historic power to grant a new trial based on its appraisal of the fairness of the trial and the reliability of the jury's verdict. The rule does not specify' what grounds are necessary to support such a decision but states only that the action may be taken "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." A new trial may be granted, for example, if the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.Id. at 612-13 (internal citations omitted); See generally, Wright, Miller Kane, Federal Practice and Procedure Civil 2d, § 2805 at 54 (1995). As such, "[c]ourt's do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done, and the burden of showing harmful error rests on the party seeking the new trial." Wright, Miller Kane, Federal Practice and Procedure Civil 2d, § 2803 at 46-47 (1995). "Rule 59(a) should not be the avenue to which losing parties run after trial." Sisk, et al v. Sears, Roebuck, et al, 1996 WL 736967 (E.D.La. 1996). The decision to grant or deny a motion for a new trial is within the sound discretion of the trial court. Pryor v. Trane Company, 138 F.3d 1024, 1026 (5th Cir. 1998).
Defendant argues that a new trial is necessary because plaintiff failed to plead the failure to rehire as an adverse employment action. A review of the record reveals that such a claim has no merit. Keeping in mind that the failure to rehire plaintiff did not occur until after the commencement of this litigation, the Court granted an unopposed motion to amend the pre-trial order. See Unopposed Motion to Amend Pre-Trial Order, 6/30/00. Accordingly, the pre-trial order was amended to include "evidence that Al Morris applied to be rehired by the Sheriffs department . . . Morris intends to offer this evidence and to question Defendant about the reason Morris was not rehired after his acquittal of felony charges, in an attempt to prove pretext as part of his retaliation case."See id. at 1. Federal Rule of Civil Procedure 16 requires that the pretrial order both limits and controls the trial. Fed.R.Civ.P. 16. In conformance with the rule, the pre-trial order binds all parties to its terms. See e.g. Trinity Carton Company, Inc. v. Falstaff Brewing Corp., 767 F.2d 184 (5th Cir. 1985); Hodges v. United States, 597 F.2d 1014 (5th Cir. 1979); United States of America v. State of Texas, 523 F. Supp. 703 (E.D. Tex. 1981).
Issues concerning the failure to rehire were included in the pre-trial order as amended. The United States Court of Appeals for the Fifth Circuit has stated, "[i]t is well settled . . . that a joint pretrial order . . . supersedes all pleadings and governs the issues and evidence to be presented at trial." McGehee v. Certainteed Corp., 101 F.3d 1078 (5th Cir. 1996); Lifemark Hospitals, Inc. v. Liljeberg Entrprises, Inc., 1997 WL 675330 (E.D. La. 1997). Regardless of the pleadings concerning failure to rehire, inclusion in the pre-trial order established matters concerning rehire as viable at trial. See e.g. Price v. Williams, 2000 WL 1168772 (E.D. La. 2000). Finding that issues concerning the failure to rehire were properly before the Court via the pre-trial order, the Court now turns to defendant's claim that there is no evidence to support a jury finding that not rehiring Morris after he was acquitted of felony charges was unlawful discrimination under Title VII.
"[A] trial court should not grant a new trial on evidentiary grounds unless the verdict is against the great weight of the evidence."Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265, 269 (5th Cir. 1998) (citations omitted). And although a judge's power to set aside verdicts is supported by clear precedent at common law, it must be balanced with "a decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system." Wright, Miller Kane, Federal Practice and Procedure Civil 2d, § 2806 at 74 (1995). "What courts cannot do . . . is to grant a new trial simply because the court would have come to a different conclusion than the jury did."Peterson v. Wilson, 141 F.3d 573, 577 (5th Cir. 1998). It is thus apparent that "against the great weight of the evidence" is a confining standard . . . not easily met." Populis v. K-Mart Corporation, Inc., 1994 WL 660517 (E.D. La. 1994) (citing Scott v. Monsanto, 868 F.2d 786 (5th Cir. 1989). At trial, the defense put forth the theory that plaintiff was terminated because of pending felony charges against him. Plaintiff put forth evidence without objection proving that he was exonerated of those crimes and still was refused rehire. A reasonable jury could decide that the Sheriffs failure to rehire even after exoneration of all charges was fueled by an illegal motive under Title VII.
To put it another way, the plaintiff was fired based on the charges levied against him. Once he was exonerated of those charges, the failure to rehire could be seen as perpetuating a tangible employment action, the termination, that was taken for those actions for which plaintiff was exonerated.
Based on the evidence put forth at trial, a reasonable jury could have determined that failing to rehire Morris was tantamount to retaliation and was in essence the final act in the resolution of Mr. Morris' job status with the Sheriff. Therefore, there is no contradiction between the finding of the Court that the tangible employment action was the failure to rehire and the jury determination via the interrogatories that Sheriff Harry Lee unlawfully retaliated against plaintiff.
In the alternative, defendant requested remittitur regarding jury award of $47,000 in back pay. It is defendant's position that the award must be reduced by earnings realized by plaintiff during the time he was out of work. Indeed, as a general rule, a "Title VII plaintiff has a statutory duty to mitigate her damages." Rutherford v. Harris County, Texas, 197 F.3d 173 (5th Cir. 1999). "Damage awards which are . . . excessive or so large as to appear contrary to right reason . . . are subject to remittitur." Brunnemann v. Terra International, 975 F.2d 175, 178-79 (5th Cir. 1992). "A jury's assessment of damages is entitled to great deference and will not be disturbed unless it is entirely disproportionate to the injury sustained." Green v. The Administrators of the Tulane Educational Fund, 2000 WL 341027 (E.D. La. 2000). "Ultimately, in determining whether the jury's verdict is adequate, the court must determine whether the jury's verdict was "clearly within the universe of possible awards which are supported by the evidence." Id. (citing Brun-Jacobo v. Pan American World Airways, Inc., 847 F.2d 242, 246 (5th Cir. 1988). The courts "determine the size of the remittitur in accordance with the "maximum recovery rule" by reducing the verdict to the maximum amount the jury could have properly awarded." Denton v. Morgan, 136 F.3d 1038, 1046 (5th Cir. 1998). The denial of a motion for remittitur is reviewed for abuse of discretion. Brunnemann, 975 F.2d at 179. In this case, plaintiff testified as to his lost earnings and was not cross-examined by counsel for the defense. Without any evidence to contradict plaintiffs assertions of his past monetary losses, the jury verdict awarding $47,000 in backpay is not entirely disproportionate to the injury sustained, and is clearly within the universe of awards supported by the evidence. The defendant is thus not entitled to remittitur in this case. Accordingly,
IT IS ORDERED that defendant's motion for New Trial, Alternate Motion to Alter or Amend Judgment (rec.doc. 100) is DENIED.
IT IS FURTHER ORDERED that the Stay of Judgment (rec.doc. 102) is LIFTED and plaintiff is to be reinstated in accordance with this Court's judgment dated August 24, 2000.
IT IS FURTHER ORDERED that plaintiffs motion to reconsider award of front pay (rec.doc. 114) is DENIED.