Opinion
Civil Action No. 01-3871.
February 10, 2004
MEMORANDUM AND ORDER
Plaintiff, a long-term employee of the Postal Service, had served for many years as a branch manager when she received certain adverse personnel decisions. She brought this Title VII action claiming that she was the victim of discrimination based on her race (African-American) and/or her gender (female). The case went to trial. The jury found in plaintiff's favor on the gender discrimination issue, and awarded her $105,000 in damages. Defendant has moved for a judgment as a matter of law, or for a new trial.
I. Motion for Judgment as a Matter of Law
Defendant contends, first, that plaintiff did not actually suffer any adverse personnel action sufficient to trigger a Title VII violation. The undisputed facts establish that plaintiff, in her capacity as a branch manager, was responsible for "reconciling" the financial records of her branch, and that, over a period of several months, she was unable to do so. According to plaintiff, the difficulty was caused entirely by the inability of the "Finance Department" (not under her control) to provide accurate records. Plaintiff's superiors took the position that there was $18,000 missing from plaintiff's branch, and unaccounted for. There was also a problem with the use of a government credit card under plaintiff's control: Plaintiff allowed the credit card to be used to purchase flowers for her secretary on the National "Secretary's Day," because she believed that was an appropriate use of Postal Service funds. In addition, an employee under her supervision used the credit card to purchase gasoline for his personal use; when plaintiff learned of this, she immediately caused the money to repaid, but did not impose discipline upon the offending employee.
As a consequence of one or more of these problems, plaintiff was formally disciplined, and reduced in pay grade from branch manager to window clerk (at a much lower level of compensation). Plaintiff immediately appealed the disciplinary decision and, pending the outcome of that appeal, went on sick-leave. The Postal Service also instituted a collection action against plaintiff, seeking to recover the $18,000 allegedly missing from her branch. Plaintiff retained counsel at this point, and established to the satisfaction of an Administrative Judge that the books of the branch were actually in balance, and there was no missing money. Before the administrative appeal from her reduction in rank was finally determined, the disciplinary action was formally rescinded, and plaintiff was restored to her former grade level.
Although plaintiff suffered no actual loss of pay, she did substantially reduce the amount of sick leave remaining available to her, and may have lost some money because of "copay" issues (amount, if any, not specified in the evidence). She did, however, experience severe emotional distress, and found it necessary to obtain professional treatment from a mental health expert, at a cost of approximately $1,500. And she incurred legal fees of approximately $20,000 in the administrative litigation over the discipline and the allegedly missing $18,000. Contrary to defendant's argument, I am satisfied that these adverse impacts upon plaintiff suffice to support a Title VII claim.
And, viewing the evidence in the light most favorable to the plaintiff, as is required at this juncture, the jury's finding that she was discriminated against on the basis of her gender is adequately supported. The evidence permitted the jury to find that two other branch managers, both white males, received much more favorable treatment under similar circumstances. In one case, a window clerk embezzled more than $700,000 in postal funds over a period of two years (by substituting his own computer disk whenever a large purchase of stamps was in prospect), but remained undetected by the white male manager. Not only was no disciplinary action taken against the manager, but no attempt was made to hold him responsible for any part of the missing money. In the other case, approximately $30,000 was indeed missing, but that manager was not sued for return of the money. Defendant's witnesses sought to explain the difference in treatment in various ways, principally the fact that neither of the two white male managers was charged with "fraudulent use of a credit card." The defense evidence was not entirely consistent as to just which official was the ultimate decision-maker in plaintiff's case, or as to the purported basis for the actions taken. The jury could permissibly have found that there was no valid explanation for the difference in treatment, and that the explanations were merely post-hoc rationalizations used as a cover for gender discrimination. Plaintiff testified, for example, that she repeatedly sought to obtain an interview with the local postmaster, Mr. Gallagher, to discuss her situation and the wrongs she was experiencing, but was rebuffed at every turn.
II. Motion for a New Trial
Defendant advances two reasons for granting a new trial: (1) that the Court's charge with respect to the issue of "intentional discrimination" was incorrect, and (2) that the Court erred in discharging two of the empaneled jurors permitting a verdict by six of the eight jurors.
In presenting the jury questionnaire to the jury, I read the interrogatories which included "Do you find that the United States Postal Service intentionally discriminated against Sharon Roby-Wilson on the basis of her sex?". In discussing that questionnaire with the jury, the charge included the following:
"Now, you'll note that it says `intentionally discriminated'. I did not stress that in my previous instructions. I will point out that, if you conclude merely that the Postal Service made the wrong decision and acted stupidly in disciplining the plaintiff and in instituting the debt collection issue, that would not, in and of itself, be enough to warrant a verdict in plaintiff's favor.
"You must be satisfied that it is more likely than not that her case was handled differently from that of other similarly situated white males, that, in other words, she would have been treated differently than she was, if she had not been a black female.
"You must find that the differential treatment was intentional in the sense that whatever was done was done intentionally. This . . . does not rule out the possibility that intentional actions — decisions can be reached on the basis — being influenced and brought about by racial attitudes which the person making the decision may not be immediately conscious of.
"In other words, it's not necessary for the plaintiff to prove that whoever did this was sort of saying to himself at the time, ah ha, I'm going to get after this African American or I'm going to get after this woman, and I'm going to treat this person differently. What plaintiff must show, however, is that any differential treatment that she received was influenced in a substantial way by considerations of race and gender.
"That is to say that, whether as a result of intentional conscious decision making on that subject or whether as a result of attitudes which were ingrown and not immediately conscious, the person making the decision did decide to treat her in this way, and that decision did, in effect, treat her differently than she would have been treated had she been a white male."
Counsel were invited to request changes or additions, and counsel for the defendant said, "No, Your Honor, that's fine." (Notes of testimony page 122.)
After the jury had been deliberating for some time, they sent in some questions, which were answered to the satisfaction of counsel.
After an overnight recess, defense counsel for the first time requested that the Court "correct the instruction yesterday about unconscious discrimination and . . . correct the instruction to read that plaintiff has the burden of proving intentional discrimination." I took the position that the requested correction was not inconsistent with the instructions already given, and declined to provide further instruction to the jury, in the absence of any further questions from them.
Thereafter, the jury expressed its difficulty in reaching a unanimous verdict, and asked if it would be satisfactory to have a verdict rendered by six of the eight jurors. Counsel stipulated that a verdict by six jurors would be sufficient. The jury then asked whether, if their verdict was in favor of the plaintiff, a vote of six jurors on the issue of damages would also be sufficient. The jury was then instructed that counsel had agreed to accept a verdict by six of the eight jurors, but that the same six who agreed on liability issues should also be required to agree on the damages issues. The jury then asked whether it would be permissible if the two jurors not in accord with their colleagues could go home. Counsel for plaintiff agreed that he had no objection to the two non-consenting jurors being excused, but defense counsel argued that they should be permitted to remain and continue to participate in the discussion. I concluded that the net result of all of these occurrences was that counsel had agreed to accept a verdict by a jury of six, rather than eight; and that therefore there was no reason to insist upon all eight jurors remaining in the deliberation room. The two jurors were permitted to leave. In due course, the six-member jury returned a unanimous verdict.
I am not persuaded that any error was committed. Once counsel agreed upon a liability verdict by six jurors, it seemed clear to me that the same six jurors should resolve the remaining issues, and that it would be error to permit the non-consenting jurors to have a voice in the determination of damages.
I conclude that there is no basis for granting a new trial.
For all of the foregoing reasons, defendant's post-trial motions will be denied.
An Order follows.
ORDER
AND NOW, this day of February 2004, IT IS ORDERED:1. Defendant's Motion for Judgment as a Matter of Law is DENIED.
2. Defendant's Motion for a New Trial is DENIED.