Wilbur v. Correctional Services Corp.

Full title: DIANE WILBUR, Plaintiff, -vs- CORRECTIONAL SERVICES CORP., a foreign…

Court: United States District Court, M.D. Florida

Date published: Nov 13, 2003

Case No. 5:02-cv-220-Oc-10GRJ (M.D. Fla. Nov. 13, 2003)

Opinion

Case No. 5:02-cv-220-Oc-10GRJ

November 13, 2003

ORDER

WM. TERRELL HODGES, Senior District Judge

The jury in this Title VII sexual discrimination case found for the Plaintiff in the amount of $25,000.00 for emotional pain and mental anguish (Doc. 68). This case is before the Court for consideration of the Defendant's motion for judgment as a matter of law or, in the alternative, for a new trial (Doc. 72). The Plaintiff has responded (Doc. 74). Upon due consideration and for the following reasons, the Defendant's motion for judgment as a matter of law is due to be granted.

Background and Facts

The Plaintiff, Diane Wilbur, is a former employee of the Defendant, Correctional Services Corporation, which maintains a juvenile correctional facility in Citrus County, Florida. The Plaintiff began her employment with the Defendant in 1997 and was promoted to Case Manager Supervisor in September of 2000. The Plaintiffs duties as Case Manager Supervisor consisted of overseeing the efforts of seven Case Managers who endeavored to prepare juvenile offenders for successful return to society. The Plaintiffs immediate supervisors included Mr. Eric Gallon, the Facility Administrator, and Mr. William Newkirk, the Assistant Facility Administrator.

The Plaintiff brought this action on July 30, 2002, following her termination on May 25, 2001. She alleged that the Defendant created a sexually hostile work environment, engaged in quid pro quo sexual harassment and retaliated against her for her good faith complaints of sexual discrimination. The trial in this matter was held during the week of August 18, 2003 and resulted in a jury verdict in favor of the Plaintiff in the amount of $25,000.00 for emotional pain and mental anguish. The jury verdict (Doc. 68), which took the form of a general verdict with written interrogatories, was returned as follows:

Do you find from a preponderance of the evidence:

1. That the Plaintiff was subjected to a hostile or abusive work environment because of her sex or gender? Answer Yes or No No

2. That such hostile or abusive work environment was created or permitted by a supervisor with immediate or successively higher authority over the Plaintiff? Answer Yes or No No

3. That the Plaintiff suffered damages as a proximate or legal result of such hostile or abusive work environment? Answer Yes or No No

4. That the Defendant exercised reasonable care to prevent and correct promptly any sexually harassing behavior in the work place? Answer Yes or No Yes

5. That the Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Defendant to avoid or correct the harm? Answer Yes or No Yes

6. That the Plaintiff was subjected by her supervisor or supervisors to a quid pro quo sexual demand or threat (as those terms are explained in the Court's instructions)? Answer Yes or No Yes

7. That the Plaintiffs employment was terminated because of her rejection of the quid pro quo sexual demand or threat? Answer Yes or No No

8. That the Plaintiff in good faith asserted claims or complaints of sex or gender discrimination? Answer Yes or No Yes

9. That the Plaintiff was then discharged from her employment because of her assertion of such claims or complaints? Answer Yes or No No

10. That the Plaintiff should be awarded damages to compensate for emotional pain and mental anguish? Answer Yes or No Yes

If your answer is Yes, in what amount? $25.000

After the verdict was published and before the jury was discharged, Plaintiffs counsel, at sidebar, suggested that the verdict might contain an inconsistency in that it was possible to conclude that the jury had not found the requisite facts supporting the imposition of liability, but had nevertheless awarded damages. Plaintiff's counsel asked that the matter be returned to the jury for further consideration. The Court declined to do so and ruled that the issue would be resolved on motion for judgment as a matter of law. The Court then added $24,000.00 to the jury award, representing the stipulated amount of back pay and benefits, and directed the Clerk to enter judgment in the amount of $49,000.00 for the Plaintiff.

Discussion

Although the testimony at trial was sharply disputed an in conflict, there was substantial evidence supporting the jury's response to each of the interrogatories concerning the liability issues. Furthermore, each of those responses (to Questions 1-9) were entirely consistent with each other. Only the award of damages (in response to Question 10) was inconsistent with the remainder of the verdict.

First, the jury could reasonably have concluded — as it did — that the Plaintiff was not subjected to a sexually hostile work environment, as defined in the Court's instructions to the jury, either because the jury rejected the Plaintiff's account of sexual improprieties or because it found those improprieties to be insufficiently severe or pervasive.

Secondly, the jury could reasonably have concluded — as it did — that the Plaintiff unreasonably failed to invoke the employer's complaint procedure thereby establishing the Defendant's affirmative defense under Farragher even if a discriminatory hostile environment had been proved.

Third, the jury could reasonably have concluded — as it did — that the Plaintiff was subjected to a quid pro quo sexual demand or threat (her strongest factual contention, supported by the testimony of a corroborating witness); but that she was not terminated either because she rejected that demand or in retaliation because she complained about it. There was, in other words, no causally related adverse employment action or retaliation; the jury accepted the employer's neutral explanation that the Plaintiff was terminated because she had interfered in an ongoing investigation into an unrelated incident involving a juvenile detainee.

It follows that there was no remediable adverse employment action suffered by the Plaintiff even though she proved that she had been subjected to a quid pro quo demand. Nevertheless, the jury obviously concluded that she should be compensated because of that demand and, at that point, the verdict exceeded the boundary of the law.¹ A single quid pro quo demand, as offensive as it might be, is simply not an actionable wrong under the statute unless it is causally connected to some sequential adverse employment action.

1 The Court must acknowledge that the verdict form was inartfully prepared in a way that contributed to the jury's ultimate award despite the lack of liability. It would have been preferable, for example, to have informed the jury on the face of the verdict that a negative response to Questions 7 and 9 would foreclose an affirmative response to Question 10.

Rule 49(b) Inconsistent Verdict Standard

Fed.R.Civ.P. 49(b) provides that a court may direct the jury to answer specific written interrogatories and to return a general verdict. Rule 49(b) sets forth three possible situations resulting from the use of written interrogatories with a general verdict:

[1] When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. [2] When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. [3] When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.²

2 Fed.R.Civ.P. 49(b) (emphasis added).

"Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury's finding inconsistent results in a collision with the Seventh Amendment."³ A verdict is inconsistent when the answers to written interrogatories "exhaust all the possible grounds" on which the jury's general verdict could rest and do not support the general verdict.⁴ In determining whether the answers "represent a logical and probable decision on the issues submitted" the Court should "refer to the entire case — pleadings, evidence, argument, jury instructions — and not just to the jury's answers themselves."⁵ However, in searching for consistency, the Court cannot fill in facts omitted from the written interrogatories.⁶ Where the jury's answers compel a result that is inconsistent as a matter of law with the general verdict, the Court may properly enter judgment according to the answers, notwithstanding the general verdict.⁷

3 Atlantic Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962).

4 Arnold v. Panhandle Santa Fe Ry. Co., 353 U.S. 360, 361 (1957).

5 Royal Cup, Inc. v. Jenkins Coffee Serv., Inc., 898 F.2d 1514, 1521 (11th Cir. 1990).

6 Burger King Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983).

7 See, e.g., Elliott v. Watkins Trucking Co., 406 F.2d 90 (7th Cir. 1969); Abou-Khadra v. Mahshie, 4 F.3d 1071, 1083 (2d Cir. 1993).

The verdict form submitted to the jury was of the type contemplated in Rule 49(b) — a general verdict accompanied by written interrogatories. Essentially, the jury was asked to make specific findings of fact on each material element of the Plaintiffs claims and then to apply the law, as instructed, to those facts. As the jury was asked to make a decision regarding the ultimate question of liability as well as specific factual determinations, the verdict rendered was not a special verdict within the meaning of Rule 49(a).⁸ Therefore, Rule 49(b) governs this Court's consideration of the jury's verdict.

8 Mason v. Ford Motor Co., 307 F.3d 1271, 1274-75 (11th Cir. 2002) ("When Rule 49(a) is employed, the jury makes specific factual findings; and the judge makes the ultimate legal conclusions based on those facts. When Rule 49(b) is employed, the jury itself applies the law to those factual findings to issue a general verdict.").

The jury expressly found in its answers to Questions 1 through 3 that the Plaintiff failed to prove by a preponderance of the evidence any of the required elements of a hostile work environment claim.⁹ Thus, the award of damages in Question 10 cannot reasonably be said to relate to this claim. To be sustained the damage award must therefore be supported by the jury's findings regarding the Plaintiffs quid pro quo or retaliation claims.

9 Moreover, the jury's answers to Questions 4 and 5 show that the Defendant established the elements of its Farragher defense to the hostile work environment claim.

The jury found in its answers to Questions 6 and 8 that the Plaintiff proved she was subjected to a quid pro quo demand or threat from her supervisor and that she in good faith asserted claims or complaints of sex or gender discrimination. To prevail on her quid pro quo claim, the Plaintiff must also establish that she suffered a "tangible employment action" as a result of her rejection of the sexual demand or threat.¹⁰ Similarly, to prevail on her retaliation claim, the Plaintiff must establish that she suffered an "adverse employment action" as a result of her good faith claims or complaints of sex or gender discrimination.¹¹ The Court finds no distinction between the term "adverse employment action" and "tangible employment action."¹² For purposes of analysis, the Court will treat these terms as synonymous.¹³

10 Frederick v. Sprint Mgt Co., 246 F.3d 1305, 1311 (11th Cir. 2001).

11 Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000).

12 Compare Gupta, 212 F.3d at 587 (defining adverse employment action), with Burlington Indus., Inc. v. Ellerth. 524 U.S. 742, 761 (1998) (defining tangible employment action).

13 Davis v. Town of Lake Park, Florida. 245 F.3d 1232, 1238-40 (11th Cir. 2001).

Termination of employment is clearly a tangible employment action. However, the jury expressly found in its answers to Questions 7 and 9 that the Plaintiff was not terminated as a result of her rejection of the quid pro quo sexual demand or as a result of her good faith assertion of claims or complaints of sexual discrimination. The Plaintiff offers two arguments to explain how the jurors could have properly concluded that the Plaintiff was entitled to damages and yet still have answered Questions 7 and 9 as they did.

The Plaintiff first attempts to explain the jury's answers by manufacturing an ambiguity in the use of the phrase "because of in Questions 7 and 9. The Plaintiff argues that the jury might have concluded that her termination was neither "because of her rejection of the quid pro quo demand nor "because of her good faith complaints of harassment when these events are considered separately, but might have concluded that the confluence of these events precipitated her termination. With this understanding, the Plaintiff explains, the jury would have answered Questions 7 and 9 in the negative, as it did, because the questions ask whether the Plaintiff was terminated "because of each protected activity separately.

The Court's instructions concerning causation do not support this contrived reading of the jury verdict. The instructions, which were both read to the jury and provided to the jury in written form, read as follows:

For an adverse employment action to be "causally related" to statutorily protected activities it must be shown that, but for the protected activity, the adverse employment action would not have occurred. Or, stated another way, it must be shown that the protected activity by the Plaintiff was a substantial motivating cause that made a difference in the Defendant's decision.

These instructions contemplate precisely the understanding of causation the Plaintiff ascribes to the jury. In answering that the Plaintiffs termination was not "causally related" to her protected activity, the jury necessarily considered and rejected a finding that the Plaintiffs protected activities taken together brought about her termination.¹⁴ Accordingly, the Plaintiffs explanation of Questions 7 and 9 is not reasonable.

14 See Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2003).

The Plaintiff next argues that there was sufficient evidence adduced at trial from which the jury could have concluded that the Plaintiff suffered a tangible employment action apart from her termination. Specifically, the Plaintiff maintains that the following evidence would be sufficient to support the jury's damage award: (1) the attempted discharge on February 5; (2) the attempted demotion on February 22; (3) the Plaintiffs write-up for calling in sick on February 23; (4) the failure to consider the Plaintiff for a promotion; (5) the Plaintiffs stress-related illness which caused her to miss one week of work; (6) the Plaintiffs defacto demotion caused by Mr. Newkirk's micro-management of the Plaintiffs work; (7) the abusive nature of Mr. Gallon and Mr. Newkirk during the February 27 meeting; (8) the Plaintiff being sent home for improper attire; and (9) the general level of hostility which pervaded the Plaintiffs employment after February 5. This Court disagrees.

The February 5th attempted discharge was immediately remedied by Mr. Gallon, as such it cannot constitute a tangible employment action.¹⁵ Similarly, the February 22nd attempted demotion never took effect, and therefore cannot constitute a tangible employment action.¹⁶ Further, one unfavorable write-up does not rise to the level of tangible employment action, nor does the general allegation of Mr. Gallon and Mr. Newkirk's abusive nature.¹⁷ Also, there is simply no evidence that the Plaintiff was denied consideration for a promotion or that the Plaintiff suffered "significantly diminished material responsibilities."¹⁸ Moreover, the Plaintiffs illness allegedly occasioned by stress from the hostile environment is entirely subjective and cannot support the jury verdict.¹⁹ The confluence of these instances likewise does not rise to the level of a tangible employment action.

15 Gupta. 212 F.3d at 588 ("A proposed action that is corrected as soon as the proper official is made aware of it before it goes into effect, so that the employee does not actually suffer any consequence, is not `adverse.'").

16 Id.

17 Davis, 245 F.3d at 1240-41.

18 Kocsis v. Multi-Care Mgt, Inc., 97 F.3d 876, 886 (6th Cir. 1996). The Plaintiff testified only that Mr. Newkirk mirco-managed her work and elaborated that Mr. Newkirk would sometimes authorize her subordinates to leave early without her approval.

19 Davis, 245 F.3d at 1239-40 ("[T]he employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances.").

Accordingly, the only tangible employment action at issue in this case was the Plaintiffs ultimate termination. Because the jury found that the Plaintiff was not terminated because of her rejection of the quid pro quo demand or her good faith complaints of sexual discrimination, there is no view of this case which would make the jury's answers to the written interrogatories consistent with its general verdict. The answers "exhaust all the possible grounds" for the jury's verdict.²⁰ Moreover, considering the entire case, the jury's answers to Questions 1 through 9 represent a logical and probable decision on the issues submitted. Therefore, the answers compel a result that is inconsistent as a matter of law with the general verdict, and judgment according to the answers is appropriate.²¹

20 Arnold v. Panhandle Santa Fe Ry. Co., 353 U.S. 360, 361 (1957).

21 For these reasons, the Court need not reach the Defendant's arguments for judgment as a matter of law pursuant to Fed.R.Civ.P. 50.

Conclusion

Accordingly, upon due consideration it is ordered that:

(1) the Defendant's Motion for Judgment as a Matter of Law (Doc. 72) is GRANTED;

(2) the Clerk is directed to vacate the judgment in favor of the Plaintiff (Doc. 69) and enter judgment in favor of the Defendant;

(3) the Plaintiffs Motion for a Reasonable Award of Front-pay (Doc. 70) is DENIED as moot;

(4) the Plaintiffs Motion for Attorney Fees and Costs (Doc. 71) is DENIED as moot;

(5) the Defendant's Motion to Stay Consideration of the Plaintiffs Motions (Doc. 73) is DENIED as moot; and

(6) the Defendant's Motion for Leave to File a Reply to Plaintiffs Response (Doc. 75) and Amended Motion (Doc. 76) is DENIED as moot.

IT IS SO ORDERED.

DONE and ORDERED.