Peterson v. National Security Technologies, No. 2:2012cv05025 - Document 162 (E.D. Wash. 2013)
Court Description: ORDER DENYING PLAINTIFFS MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL. Denying 158 Plaintiff's Motion for Judgment as a Matter of Law. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Peterson v. National Security Technologies Doc. 162 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ALBERT O. PETERSON, NO: 12-CV-5025-TOR Plaintiff, 8 9 10 ORDER DENYING PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL v. NATIONAL SECURITY TECHNOLOGIES, LLC, 11 Defendant. 12 13 BEFORE THE COURT is Plaintiff’s Motion for Judgment as a Matter of 14 Law (ECF No. 158). This matter was submitted for consideration without oral 15 argument. The Court has reviewed the completed briefing and the record and files 16 herein, and is fully informed. 17 18 BACKGROUND Having failed to convince a jury that Defendant retaliated against him for 19 opposing a racially discriminatory employment practice, Plaintiff seeks judgment 20 as a matter of law on his state and federal retaliation claims. In the alternative, ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 1 Dockets.Justia.com 1 Plaintiff requests that the Court grant him a new trial. For the reasons discussed 2 below, the motion will be denied. 3 4 DISCUSSION Motions for judgment as a matter of law are governed by Federal Rule of 5 Civil Procedure 50. Under Rule 50(b), a party may renew an unsuccessful motion 6 for judgment as a matter of law within 28 days of the entry of an adverse judgment. 7 In ruling on such a motion, the court may (1) affirm the entry of judgment on the 8 verdict; (2) order a new trial; or (3) award judgment to the moving party as a 9 matter of law. Fed. R. Civ. P. 50(b). The standard of review is narrow: the court’s 10 sole objective is to determine whether, “under the governing law, there can be but 11 one reasonable conclusion as to the verdict.” Winarto v. Toshiba Am. Elec. 12 Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001). The court must construe 13 the evidence and all reasonable inferences to be drawn therefrom in the light most 14 favorable to the non-moving party. Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 15 2002); Winarto, 274 F.3d at 1283. The court must also refrain from weighing the 16 evidence and making credibility determinations. Winarto, 274 F.3d at 1283; 17 Wallace v. City of San Diego, 479 F.3d 616, 624 (9th Cir. 2007). In sum, a Rule 18 50(b) motion may only be granted when the evidence “permits only one reasonable 19 conclusion, and that conclusion is contrary to the jury’s verdict.” Pavao, 307 F.3d 20 at 918. ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 2 1 Motions for a new trial are governed by Federal Rule of Civil Procedure 2 59. Under Rule 59, a court may grant a new trial “only if the verdict is contrary to 3 the clear weight of the evidence, is based upon false or perjurious evidence, or to 4 prevent a miscarriage of justice.” Passantino v. Johnson & Johnson Consumer 5 Prods., Inc., 212 F.3d 493, 510 n. 15 (9th Cir. 2000). When ruling on a Rule 59 6 motion, the court must “weigh the evidence as [the court] saw it” and determine 7 whether the jury’s verdict is “contrary to the clear weight of the evidence.” Molski 8 v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quotation and citation 9 omitted). The court may not, however, grant a new trial “simply because it would 10 have arrived at a different verdict.” Silver Stage Partners, Ltd. v. City of Desert 11 Hot Springs, 251 F.3d 814, 819 (9th Cir. 2001). 12 Plaintiff has advanced two arguments in support of his post-trial motions. 13 First, Plaintiff contends that he is entitled to judgment as a matter of law because 14 Defendant “failed to introduce evidence of the reason for [his] termination.” ECF 15 No. 158 at 4. The crux of this argument is that Defendant failed to establish that its 16 legitimate, non-discriminatory reason for terminating Plaintiff’s employment was 17 credible. Because Defendant’s “final decision maker” never testified, Plaintiff 18 asserts, it is “unknown and unknowable” whether he was terminated because he 19 reported the racist email in the first instance or because he reported it “down the 20 chain” to a subordinate employee. ECF No. 158 at 4-5. ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 3 1 This argument fails for the simple reason that Plaintiff, rather than 2 Defendant, had the ultimate burden of proof at trial. Assuming arguendo that 3 McDonnell Douglas actually applies,1 Defendant was not required to convince the 4 jury that Plaintiff was, in fact, terminated for a non-discriminatory reason. Instead, 5 Defendant’s burden was simply to produce a legitimate, non-discriminatory reason 6 for the challenged employment action. Defendant easily satisfied this requirement 7 through the trial testimony of Kenneth Andriessen, who testified that the company 8 president, Dr. Stephen Younger, accepted the recommendation of the Disciplinary 9 Action Review Board (“DARB”) that Plaintiff be terminated for reporting the 10 email outside the chain of command. Andriessen Dep., ECF No. 158-1, at Tr. 86- 11 87. The fact that Defendant never called Dr. Younger as a witness is immaterial; 12 Mr. Andriessen’s unequivocal testimony on the subject was plainly sufficient to 13 satisfy Defendant’s burden of production. At that point, the McDonnell Douglas 14 burden shifting framework, along with its corresponding presumptions, dropped 15 from the case. Sanghvi v. City of Claremont, 328 F.3d 532, 537 (9th Cir. 2003). 16 1 17 Plaintiff unequivocally disclaimed reliance upon the McDonnell Douglas burden 18 shifting framework at summary judgment, and he made no mention of burden 19 shifting at trial. Thus, there is reason to question whether Plaintiff may invoke the 20 presumption of retaliation arising under McDonnell Douglas at this late stage. ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 4 1 At bottom, Defendant was never required to “prove” that Plaintiff was, in fact, 2 terminated for the reasons recommended by the DARB. 3 Plaintiff’s second argument is that there is insufficient evidence to support 4 the jury’s findings that (1) he was not engaged in protected activity; and (2) his 5 protected activity was not a motivating factor in Defendant’s decision to terminate 6 his employment. See ECF No. 158 at 10 (“There exists no evidence in the record 7 to support a rational conclusion that Plaintiff did not have a reasonable belief that 8 he was engaged in protected activity.”); ECF No. 161 at 8 (“There is no shadow of 9 any doubt that Plaintiff’s report of the racist email was a motivating factor (a 10 11 cause) in the recommendation to take adverse action.”). While styled as challenges to the sufficiency of the evidence presented at 12 trial, these arguments are actually a reprise of Plaintiff’s unsuccessful arguments 13 on summary judgment. With respect to protected activity, Plaintiff argues, once 14 again, that he reasonably believed that he was opposing an unlawful employment 15 practice. As the Court previously indicated in denying Plaintiff’s motion for 16 summary judgment and motion for reconsideration, whether Plaintiff held an 17 objectively and subjectively reasonable belief that he was opposing an unlawful 18 employment practice was a question of fact to be resolved by the jury. ECF No. 19 101 at 11-13; ECF No. 119 at 3-4. 20 ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 5 1 2 At the close of the evidence, the Court issued the following instruction, which was taken verbatim from Plaintiff’s Proposed Instruction No. 10: 3 Even if the racial conduct about which Plaintiff complained was not illegal, he was still engaged in protected activity if he had an objective and reasonable belief that it was illegal. In making the assessment about whether Plaintiff had an objective and reasonable belief that the conduct was illegal, due allowance must be made for the limited knowledge possessed by most employees about the factual and legal bases of the law. Plaintiff was engaging in protected activity if he made a reasonable mistake about the facts or the law. 4 5 6 7 ECF No. 149, Instruction No. 10. The jury presumably resolved this issue in 8 Defendant’s favor,2 finding that Plaintiff had failed to prove by a preponderance of 9 the evidence that “he was retaliated against for opposing an unlawful employment 10 practice which he reasonably believed constituted unlawful discrimination on the 11 2 12 The verdict form did not ask the jury to make specific findings as to each element 13 of Plaintiff’s retaliation claims. See ECF No. 151 at 1-2. Plaintiff did not propose 14 separate questions as to each element, see ECF No. 124 at 20-21, and expressly 15 objected to Defendant’s proposal that separate questions be asked. See ECF No. 16 127 at 7 (“The Defendant has [proposed a verdict form with] separate questions for 17 protected activity and substantial/motivating factor. This should be a single 18 question.”). Given that Plaintiff expressly declined to request separate findings on 19 the individual elements of his claims, Court will assume that the jury found against 20 Plaintiff on each element. ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 6 1 basis of race” in violation of 42 U.S.C. § 1981 and the WLAD. ECF No. 151 at 1- 2 2. Contrary to Plaintiff’s assertions, this finding was supported by the evidence 3 presented at trial. Plaintiff explained his reasons for reporting the racist email to 4 the jury during his case-in-chief. The jury apparently concluded that Plaintiff’s 5 stated reasons were not credible. Plaintiff is not entitled to judgment as a matter of 6 law on this issue. 7 8 9 10 11 12 13 14 15 With regard to causation, Plaintiff has simply re-argued his position on summary judgment: As stated repeatedly throughout the course of this litigation, this case is unique because the report of the racist email is inextricably tied to the recommended reason for termination, i.e., that he reported the email outside the chain of command or that he had an ulterior motive for reporting it. The only defense in such circumstances (variously stated) was that the manner [of] Plaintiff’s opposition conduct was so disruptive that it interfered with the efficient and harmonious operation of the Defendant’s business. That affirmative defense was never pled by the Defendant and [was] never decided by the jury. ECF No. 161 at 8-9. This argument fares no better than it did on summary judgment. As the 16 Court indicated in denying Plaintiff’s motion for summary judgment, the issue of 17 causation boiled down to whether Plaintiff was terminated (1) for reporting the 18 racist email in the first instance; or (2) for going out-of-process by reporting it 19 “down the chain” to a subordinate rather than “up the chain” to a superior or to 20 Defendant’s human resources department. ECF No. 101 at 13-14. On summary ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 7 1 judgment and at trial, Defendant came forward with evidence that it would not 2 have terminated Plaintiff—or taken any adverse employment action against him 3 whatsoever—had he simply reported the email in accordance with Defendant’s 4 reporting policy. This evidence tended to establish that Plaintiff’s reporting of the 5 email in the first instance (as opposed to the manner in which he reported it) was 6 neither a “motivating factor” (§ 1981)3 nor a “substantial factor” (WLAD) in 7 Defendant’s decision to terminate his employment. 8 9 Contrary to Plaintiff’s assertions, the so-called “significant workplace disruption” defense first articulated in Hochstadt v. Worcester Found. For 10 Experimental Biology, 545 F.2d 222 (1st Cir. 1976) was not the “only defense” 11 available to Defendant on the facts of this case. As a matter of common sense, the 12 disruptiveness of an employee’s protected activity only becomes relevant once the 13 3 14 Whether the “motivating factor” standard continues to apply in mixed-motive 15 race retaliation cases under § 1981 following the Supreme Court’s decision in 16 Univ. of Texas Sw. Med. Ctr. v. Nassar, --- U.S. ---, 133 S. Ct. 2517 (2013), 17 decided ten days after the jury returned its verdict, remains an open question. 18 Given that the “motivating factor” standard on which the jury was instructed was 19 more favorable to Plaintiff than the “but for” standard set forth in Nassar, however, 20 the Court need not decide this issue. ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 8 1 jury finds that the employee actually engaged in protected activity. As noted 2 above, the jury in this case presumably found that Plaintiff did not engage in 3 protected opposition activity because he lacked an objectively and subjectively 4 reasonable belief that he was opposing a racially discriminatory employment 5 practice. Thus, the jury had no occasion to decide whether that opposition activity 6 “unreasonably interfered with Defendant’s interest in maintaining a harmonious 7 and efficient business operation.” ECF No. 151 at 2. For these reasons, Plaintiff’s 8 motion for judgment as a matter of law is denied. 9 Plaintiff’s alternative request for a new trial is also denied, as the jury’s 10 verdict is not against the clear weight of the evidence. In the Court’s view, the 11 evidence presented at trial required the jury to make two rather straightforward 12 credibility determinations: (1) whether Plaintiff genuinely believed that he was 13 opposing a racially discriminatory employment practice when he reported the 14 racist email; and (2) whether the fact of reporting—as distinguished from the 15 manner of reporting—played a role in Defendant’s decision to terminate Plaintiff’s 16 employment. The clear weight of the evidence supports findings in Defendant’s 17 favor on both issues. The jury was clearly disturbed that Plaintiff chose to “report” 18 the racist email to a black employee with a history of filing race discrimination 19 complaints against the sender rather than simply walking across the parking lot and 20 informing a member of Defendant’s human resources department. Moreover, the ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 9 1 evidence gave the jury no reason to question Defendant’s explanation that Plaintiff 2 was fired for deliberately violating its reporting policy. To the contrary, the 3 evidence established that Defendant’s purported loss of trust in Plaintiff’s 4 management abilities was well-founded. Thus, the Court concludes that Plaintiff is 5 not entitled to a new trial. 6 IT IS HEREBY ORDERED: 7 8 9 The District Court Executive is hereby directed to enter this Order and provide copies to counsel. DATED September 18, 2013. 10 11 THOMAS O. RICE United States District Judge 12 13 14 15 16 17 18 19 20 ORDER DENYING PLAINTIFF’S POST-TRIAL MOTIONS ~ 10
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