Opinion
Civil No. 98-1091-HA
November 2, 2000
Attorneys for Plaintiff :
Richard C. Busse, Jennifer L. Lanfranco, Busse Hunt, Portland, Oregon
Attorneys for Defendants :
Peter H. Koehler, Karin L. Guenther, Tonkin Torp L.L.P. Portland, Oregon
OPINION AND ORDER
The jury returned a special verdict in this case on May 25, 2000. Judgment was entered on August 4, 2000 in accordance with the verdict, which concluded that plaintiff proved his claim for retaliation for exercising free speech rights, and that defendants failed to prove that plaintiff would have been terminated from his residency for other reasons even in the absence of his protected speech activity. Plaintiff was awarded $32,000 in past economic damages, and $150,000 in non-economic damages against defendants Oregon Health Sciences University ("OHSU") and Dr. Seyfer jointly and severally, and $200,000 in punitive damages against Dr. Seyfer. This court subsequently awarded plaintiff $90,000 in future economic damages against OHSU and Dr. Seyfer jointly and severally. Plaintiff's motion for an award of costs and attorney fees is pending.
Defendants subsequently moved for judgment as a matter of law, or in the alternative for a new trial. For the following reasons, this motion is denied.
ANALYSIS
Judgment as a matter of law is appropriate when the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, which is contrary to the jury's verdict. Omega Environmental, Inc., v. Gilbarco, Inc., 127 F.3d 1157, 1161 (9th Cir. 1997), citing Vollrath Co. v. Sammi Corp., 9 F.3d 1455, 1460 (9th Cir. 1993). Defendants first argue that a reasonable jury could not have concluded that there was a causal connection between Dr. Seyfer's alleged discriminatory motives and the adverse employment action taken by OHSU of terminating plaintiff's residency. Defendants assert that there was no evidence that Dr. Seyfer terminated plaintiff, or that he had any authority to do so.
Instead, the evidence established that such authority rested with the Chief Administrative Officer of OHSU, upon recommendation of a Hearing Committee. Defendants contend that plaintiff's claim fails as a matter of law because of the lack of evidence regarding a causal connection between Dr. Seyfer's discriminatory motives and the adverse employment action recommended by the Hearing Committee.
Defendants raised similar arguments in support of their summary judgment motion. This court acknowledged then, and reiterates now, that the Ninth Circuit recognizes that personal participation is not the only predicate for section 1983 liability. Anyone who `causes' any citizen to be subjected to a constitutional deprivation is also liable." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). This court is guided by the Johnson court's holding that the "requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Id. at 743-44.
There was ample evidence presented at trial suggesting that plaintiff's protected free speech activity of challenging Dr. Seyfer's billing practices was a substantial or motivating factor in the ultimate adverse employment action taken by OHSU. Viewing the evidence in a light favorable to plaintiff, as this court must, Dr. Seyfer's alleged discriminatory animus was established through testimony regarding Dr. Seyfer's hostile reaction to plaintiff's articulation of billing concerns, his threats to dismiss plaintiff, and his subsequent actions of initiating the probationary and administrative leave statuses imposed upon plaintiff. Evidence suggesting a causal link between Dr. Seyfer's animus and plaintiff's ultimate termination included the facts that Dr. Seyfer appeared before the OHSU Hearing Committee that recommended plaintiff's dermination as a representative for OHSU, and was the primary witness against plaintiff.
Additionally, Dr. Seyfer was permitted to attend the entire hearing. Dr. Seyfer's testimony, which constituted 217 pages of a 403-page transcript of the hearing, included hearsay testimony regarding what other doctors said about plaintiff. Following the hearing, the Committee issued an Opinion and Order recommending plaintiff's termination. Plaintiff was terminated as of August 31, 1997.
This evidence was sufficient to present to the jury the question of whether Dr. Seyfer's retaliatory conduct was a substantial factor in plaintiff's termination. Defendants' argument that the Hearing Committee should be viewed as having made a "wholly independent decision to terminate," thereby breaking any causal link between Dr. Seyfer's animus and plaintiff's termination (Defendants' Memorandum in Support of Motion for Judgment, p. 3), remains unavailing. In Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), the Supreme Court held that when the facts presented suggest that both legitimate (such as employee incompetence) and illegitimate (such as retaliation against the exercise of constitutionally protected rights) motives may have played a part in an adverse employment action, the ultimate inquiry is whether the employer would have taken the same adverse action against the plaintiff's employment even in the absence of the protected conduct. Id. at 287.
The ensuing question of whether the protected conduct was a "substantial" or "motivating" factor behind the adverse action is an "intensely factual determination of motivation and causation." DiRuzza v. Co. of Tehama, 206 F.3d 1304, 1315 (9th Cir. 2000), citing Gilbrook v. City of Westminster, 177 F.3d 839, 853-54 (9th Cir. 1999).
In Gilbrook, the ultimate decision-maker had a legitimate motive to impose adverse employment action against the plaintiffs, but the retaliatory motives of two subordinates in the decision-making process set in motion the chain of events that led to their superior's review, and ultimately to the adverse employment action. The Ninth Circuit concluded that "the Mt. Healthy mixed-motive inquiry is an intensely factual one, the results of which will vary depending on the circumstances," and that the defendants could not use the non-discriminatory motive of a superior for taking adverse action as a shield against liability, if the superior never would have acted but for the subordinates' retaliatory conduct. Gilbrook, 177 F.3d at 854-55.
The Gilbrook court expressed "no opinion as to what the result should be, as a matter of law, if the facts showed that the final decision-maker made a wholly independent, legitimate decision to discharge the plaintiff, uninfluenced by the retaliatory motives of a subordinate." Gilbrook, 177 F.3d at 855. The evidence introduced at this court's trial, however, did not establish undisputably that a wholly independent, legitimate decision was made. The evidence, when viewed in a light favorable to plaintiff, suggested that Dr. Seyfer set in motion the procedures that led to plaintiff's termination, and played a major role at the hearing that ultimately resulted in plaintiff's termination.
Accordingly, defendants' argument that they are entitled to judgment as a matter of law because plaintiff failed to introduce evidence that the "true decision makers [the Hearing Committee members] were motivated by discriminatory animus" (Defendants' Memorandum at 4) fails. There was sufficient evidence to present these factual issues of motivation and causation to the jury. When viewing such evidence favorably to plaintiff, the jury's verdict was reasonable.
Defendants also seek judgment as a matter of law on grounds that plaintiff's termination was inevitable, regardless of his free speech activities. "The focus of the Mt. Healthy mixed-motive analysis is not whether the defendant has produced some legitimate basis for the disciplinary action, but rather whether the disciplinary action would have been taken against the plaintiff `even in the absence of the protected conduct.'" Gilbrook, 177 F.3d at 855; quoting Mt. Healthy, 429 U.S. at 287. Defendants assert that the evidence at trial suggested plaintiff would have been terminated through at least two other independent avenues, regardless of Dr. Seyfer's animus. There was sufficient evidence presented at trial regarding this factual question to require a jury to resolve the issue. Defendants' contention that a reasonable jury could only find plaintiff's termination was inevitable is without merit. Defendants' motion for judgment as a matter of law is denied.
Alternatively, defendants move for a new trial on grounds that (1) this court erred in admitting evidence of prior bad acts; and (2) three errors in the jury instructions occurred. These arguments are rejected.
Defendants first assert that evidence suggesting that Drs. Nguyen, Waldorf, and Wheatley had knowledge of questionable billing practices on the part of Dr. Seyfer should have been excluded as improper under Federal Rules of Evidence 404(b) (barring evidence of "other" bad acts in order to show action in conformity therewith). The evidence regarding the other doctors' experiences with Dr. Seyfer's billing practices was admissible to impeach Dr. Seyfer's denial of such practices and his claims that billing irregularities were innocent mistakes. As argued to the court previously by plaintiff's counsel in opposition to defendants' related motion in limine, the evidence was admissible in accordance with the exceptions to the rule excluding "other bad acts" that are identified under FRE 404. While defendants might have been entitled to a limiting instruction regarding the evidence at issue, defendants failed to request any. The court's subsequent omission of such limiting instructions falls short of creating grounds that compel a new trial.
Defendants also move for a new trial on grounds that the court erred in three instances regarding jury instructions. First, defendants renew their argument that the jury should have been required to determine whether the Hearing Committee acted out of a discriminatory animus. For the reasons already provided, this argument is without merit.
Next, defendants complain that the jury was misled as to the definition of "substantial or motivating factor." A fair review of the adequacy of instructions encompasses consideration of the charge as a whole, and determining whether "the court's instructions fairly and adequately covered the issues presented, correctly stated the law, and were not misleading." Thorsted v. Kelly, 858 F.2d 571 (9th Cir. 1988) (citation omitted). In considering whether to use instructions proposed by parties, a court is not required to use the exact words proposed, or incorporate every proposition of law suggested, or amplify an instruction, if the instructions as given allowed the jury to determine intelligently the issues presented. Ragsdell v. Southern Pac. Transp. Co., 688 F.2d 1281, 1282 (9th Cir. 1982).
During deliberations, the jury sent a written inquiry to the court concerning the term "significant or motivating factor." The parties failed to agree upon an appropriate response to the question, and the court elected to refer the jury to final instructions (copies of which the jurors possessed). These instructions included the following explanations:
PLAINTIFF MUST PROVE BY A PREPONDERANCE OF THE EVIDENCE EACH OF THE FOLLOWING THREE THINGS:
(1) THAT DR. SEYFER WAS AWARE, PRIOR TO THE TIME THAT HE RECOMMENDED THE PLAINTIFF'S TERMINATION, THAT DR. OSTAD HAD QUESTIONED DR. SEYFER'S BILLING PRACTICES;
(2) THAT THIS QUESTIONING WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE DECISION TO DISCHARGE THE PLAINTIFF FROM OHSU'S PROGRAM; AND
(3) THAT THE DEFENDANTS' ACTS WERE THE PROXIMATE OR LEGAL CAUSE OF DAMAGES SUSTAINED BY THE PLAINTIFF.
IN ORDER TO PREVAIL, PLAINTIFF NEED NOT PROVE THAT HIS EXERCISE OF HIS RIGHT TO FREE SPEECH WAS THE SOLE FACTOR IN THE DECISION TO TERMINATE HIM. PLAINTIFF NEED ONLY PROVE THAT HIS SPEECH WAS A MOTIVATING FACTOR IN THE DECISION TO TERMINATE HIM. TO PREVAIL, PLAINTIFF MUST PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT A MOTIVATING FACTOR IN PLAINTIFF'S TERMINATION WAS HIS EXERCISE OF HIS RIGHT TO FREE SPEECH.
YOU MAY FIND THAT PLAINTIFF'S PROTECTED SPEECH WAS A MOTIVATING FACTOR IN HIS TERMINATION, EVEN IF THE FINAL DECISIONMAKERS AT PLAINTIFF'S TERMINATION HEARING WERE NOT MOTIVATED TO RETALIATE AGAINST PLAINTIFF, IF YOU FIND THAT THE PERSON WHO SET IN MOTION THE CHAIN OF EVENTS THAT LED TO PLAINTIFF'S TERMINATION WAS MOTIVATED TO RETALIATE AGAINST PLAINTIFF FOR HIS PROTECTED SPEECH.
* * *
IF YOU FIND IN THE PLAINTIFF'S FAVOR ON EACH OF THE FACTS THAT THE PLAINTIFF MUST PROVE, YOU MUST THEN CONSIDER WHETHER THE DEFENDANTS HAVE SHOWN BY A PREPONDERANCE OF THE EVIDENCE THAT PLAINTIFF WOULD HAVE BEEN TERMINATED FROM THE PROGRAM FOR OTHER REASONS EVEN IN THE ABSENCE OF PLAINTIFF'S QUESTIONS REGARDING DR. SEYFER'S BILLING PRACTICES. IF YOU FIND THAT DEFENDANTS HAVE PROVEN THAT PLAINTIFF WOULD HAVE BEEN TERMINATED BECAUSE OF UNSATISFACTORY PERFORMANCE AS A RESIDENT, REGARDLESS OF HIS QUESTIONING OF DR. SEYFER'S BILLING PRACTICES, THEN YOUR VERDICT SHOULD BE FOR THE DEFENDANTS.
Final Jury Instructions at 10-12.
On the verdict form, the jury indicated that plaintiff proved his claim for retaliation for exercising free speech rights, and that defendants failed to prove that plaintiff would have been terminated from his residency for other reasons even in the absence of his protected speech activity. Defendants' argument now is that the court erred in not expanding upon the instructions above to include "but for" terminology regarding plaintiff's burden. See Defendants' Reply brief at 6 ("The plaintiff has to show that the protected conduct was a cause in fact, i.e., a `but for' cause, for the termination").
Defendants rely upon Knickerbocker v. City of Stockton, 81 F.3d 907, 911 (9th Cir. 1996), in which the court stated that the "dual motive" test announced in Mt. Healthy must be used in cases in which an adverse employment action was based on protected and unprotected activities. The court recognized that the plaintiff in a "dual motive" case must show that the alleged protected activities were a "substantial factor" in the complained of adverse employment action, and explained that protected activities are a "substantial factor" where the adverse actions would not have been taken "but for" the protected activities. The Knickerbocker court further explained, however, that in "dual motive cases, it is the defendant's affirmative burden to prove that it would have taken the adverse action if the proper reason alone had existed." Id.
Neither party provides citations to the trial record in support of their respective positions regarding this issue. Before and during trial, this court was confronted with disputes as to whether plaintiff presented a mixed motive case. Defendants' position in the parties' jointly signed pretrial order was that plaintiff's performance was substandard, and that it was "solely for that legitimate, nondiscriminatory reason, that Defendants Seyfer and OHSU terminated" plaintiff. Pretrial Order at 4 (emphasis provided).
This court concludes that there was no error necessitating a new trial in what the jury was told, and what it was asked to determine. The jury was told that plaintiff must first prove that his questioning of Dr. Seyfer's billing practices was a substantial or motivating factor in his termination. The jury was then instructed that if it found in the plaintiff's favor on each of the facts that the plaintiff must prove, it then had to determine whether the defendants had proved that plaintiff would have been terminated from the program for other reasons even in the absence of plaintiff's questions regarding Dr. Seyfer's billing practices. The jury was told that if defendants proved "that plaintiff would have been terminated because of unsatisfactory performance as a resident, regardless of his questioning of Dr. Seyfer's billing practices," then it was to return a verdict for defendants.
The jury followed these instructions, and so indicated in its conclusions on the verdict form. The verdict demonstrates that the jury found that defendants failed to prove that plaintiff would have been terminated regardless of that protected activity.
The court concluded, and still concludes, that the instructions and the verdict form fairly and accurately reflected the appropriate issues identified in Mt. Healthy and later amplified in Knickerbocker. The instructions and verdict form explicitly required the jury to determine first whether plaintiff proved that his protected activity was a substantial or motivating factor in his termination, and second, if plaintiff met his burden, whether defendants proved that plaintiff would have been terminated regardless of his protected activity. The decision not to adopt defendants' proposed version of those issues fails to rise to a level of error compelling a new trial. "An error in a civil trial need only be more probably than not harmless." Coursen v. A.H. Robins Co., 764 F.2d 1329 (9th Cir. 1985) (citing Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir. 1983)). Defendants were permitted to argue the substance of their proposed instructions to the jury, and the court concludes that even if the instructions at issue had been amplified as desired by defendants to include different "but for" terminology, it is more likely than not that the jury would have reached the same result.
Finally, defendants contend that the instructions were in error because the jury was permitted to substitute its judgment for that of the Hearing Committee's. Defendants' argument is premised upon the supposition that because of the amount of damages the jury awarded, the jury must have concluded that plaintiff's performance at OHSU was poor. Nevertheless, defendants presume, the jury concluded that the Committee's decision to recommend termination was too harsh, and therefore improperly used its verdict to mandate negative consequences as a result of that recommendation. Defendants contend that the court erred in rejecting their proposed instruction that would have admonished the jury against "second-guessing" the Hearing Committee's recommendation.
This final argument is without merit. The instructions to the jury properly informed the jury that it was to determine whether plaintiff had proved the elements of his claim, and whether defendants had proved the elements of their affirmative defense. Consideration of the charge as a whole establishes that the instructions fairly and adequately covered the issues presented, correctly stated the law, and were not misleading.
CONCLUSION
For the reasons provided above, defendants' motion for judgment as a matter of law or for a new trial (doc. # 144-1) is denied.
IT IS SO ORDERED.