Campbell v. National Passenger Railroad Corporation et al, No. 4:2005cv05434 - Document 280 (N.D. Cal. 2009)
Court Description: ORDER granting in part 243 Motion for pre-judgment interest and injunctive relief; denying 252 Motion for judgment as a matter of law or a new trial; denying 254 Motion to Strike (cwlc2, COURT STAFF) (Filed on 8/21/2009)
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Campbell v. National Passenger Railroad Corporation et al Doc. 280 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 No. C 05-5434 CW JOHN EARL CAMPBELL, 8 ORDER DENYING DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW OR A NEW TRIAL, AND GRANTING IN PART PLAINTIFF’S MOTION FOR PRE-JUDGMENT INTEREST AND INJUNCTIVE RELIEF Plaintiff, 9 v. United States District Court For the Northern District of California 10 11 NATIONAL PASSENGER RAILROAD CORPORATION, 12 Defendant. / 13 14 15 On March 3, 2009, a jury returned a verdict in favor of 16 Plaintiff John Campbell on his claims for race discrimination 17 against Defendant National Passenger Railroad Corporation (Amtrak). 18 Amtrak now moves for judgment as a matter of law or, in the 19 alternative, a new trial. 20 for an award of back pay; reinstatement or, in the alternative, 21 front pay; an injunction prohibiting Amtrak from retaliating 22 against him or further discriminating against him; and pre-judgment 23 interest. 24 considered oral argument and all of the materials submitted by the 25 parties, the Court denies Amtrak’s motion and grants Plaintiff’s 26 motion in part. Plaintiff opposes this motion and moves The matter was heard on June 11, 2009. Having 27 28 Dockets.Justia.com 1 United States District Court For the Northern District of California 2 BACKGROUND Plaintiff was employed by Amtrak between 1998 and 2004, 3 serving as a yard conductor at all relevant times. In May, 2004, 4 he applied for a position as an engineer trainee. In July of that 5 year, Amtrak decided not to select him for one of the open 6 positions. 7 Amtrak’s denial of his application was motivated by discriminatory 8 intent. 9 applicant, yet three white applicants were selected for the Plaintiff, who is African-American, asserts that He notes that he received the highest score of any 10 positions instead of him. 11 select Plaintiff because of his poor safety record, Plaintiff 12 asserts that this explanation is a pretext for discrimination. 13 support of this assertion, Plaintiff notes that his safety record 14 was as good or better than that of other applicants who were 15 selected to become engineer trainees. 16 Although Amtrak claims that it did not In In September, 2004, Plaintiff was disciplined for disabling 17 the brakes on a locomotive and leaving it unsecured in the course 18 of coupling it to other railroad cars, which caused the locomotive 19 to roll slowly away on its own. 20 employment was terminated. 21 was motivated by discriminatory intent. 22 committing the rule violation, but asserts that other employees who 23 committed rule violations of similar severity were not punished as 24 harshly. 25 As a consequence, Plaintiff’s Plaintiff claims that his termination He does not deny Plaintiff brought this lawsuit under 42 U.S.C. § 1981, 26 challenging the denial of his application for promotion and his 27 subsequent termination as discriminatory on the basis of race. 28 After trial, the jury rendered a verdict for Plaintiff on both of 2 1 his claims. 2 $259,200 in front pay and $120,000 in non-economic damages. The jury awarded Plaintiff $297,716 in back pay, 3 4 5 DISCUSSION I. Amtrak’s Motion A. United States District Court For the Northern District of California 6 Legal Standard 1. Judgment as a Matter of Law 7 A motion for judgment as a matter of law after the verdict 8 renews the moving party’s prior Rule 50(a) motion for judgment as a 9 matter of law at the close of all the evidence. Fed. R. Civ. 10 P. 50(b). 11 granted only when the evidence and its inferences, construed in the 12 light most favorable to the non-moving party, permits only one 13 reasonable conclusion as to the verdict. 14 conflicting evidence, or if reasonable minds could differ over the 15 verdict, judgment as a matter of law after the verdict is improper. 16 See, e.g., Kern v. Levolor Lorentzen, Inc., 899 F.2d 772, 775 (9th 17 Cir. 1990); Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 18 181 (9th Cir. 1989). 19 20 Judgment as a matter of law after the verdict may be 2. Where there is sufficient New Trial A new trial may be granted if the verdict is not supported by 21 the evidence. There is no easily articulated formula for ruling on 22 such motions. Perhaps the best that can be said is that the motion 23 should be granted “[i]f, having given full respect to the jury’s 24 findings, the judge on the entire evidence is left with the 25 definite and firm conviction that a mistake has been committed.” 26 Landes Constr. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 27 1371-72 (9th Cir. 1987) (quoting 11 Wright & Miller, Fed. Prac. & 28 Proc. § 2806, at 48-49). 3 1 The Ninth Circuit has found that the existence of substantial 2 evidence in support of the verdict does not prevent the court from 3 granting a new trial if the verdict is against the clear weight of 4 the evidence. 5 evidence and assess the credibility of witnesses, and need not view 6 the evidence from the perspective most favorable to the prevailing 7 party.” 8 sufficiency of the evidence is less stringent than that governing 9 Rule 50(b) motions for judgment as a matter of law after the United States District Court For the Northern District of California 10 Id. Landes, 833 F.2d at 1371. “The judge can weigh the Therefore, the standard for evaluating the verdict. 11 B. 12 Amtrak argues that judgment as a matter of law or, in the Evidence of Discriminatory Intent 13 alternative, a new trial is warranted because there was 14 insufficient evidence to permit the jury to conclude that the 15 adverse actions against Plaintiff were motivated by discriminatory 16 animus. 17 were not probative of discriminatory intent: evidence of racial 18 slurs by the Amtrak regional manager, Joseph Deely, and others that 19 pre-dated the events at issue in this case; and evidence of the 20 treatment of other Amtrak employees who were not African-American. 21 Defendant argues that, absent this evidence, the evidence of 22 discriminatory intent was insufficient. 23 argues that this evidence was improperly admitted and more probably 24 than not resulted in the verdict for Plaintiff, and thus a new 25 trial is warranted. 26 27 28 Specifically, Amtrak argues that two types of evidence 1. In the alternative, Amtrak Evidence of Racial Slurs Amtrak asserts that evidence of racial slurs by Mr. Deely and others between 1991 and 1999 was not probative of discriminatory 4 1 motive due to the lack of a direct connection between the comments 2 and the actions challenged in this lawsuit. 3 argues both that the evidence was inadmissible and that, even if it 4 was admissible, the evidence was not sufficient to permit the jury 5 to infer that the challenged employment actions were 6 discriminatory. United States District Court For the Northern District of California 7 On this basis, Amtrak In particular, Amtrak objects to the testimony of Mary 8 Fontaine, who worked for Amtrak until 1992 and was a union 9 representative for Amtrak conductors until 1994. Ms. Fontaine 10 testified that the use of racial slurs was common at the Oakland 11 yard, and that she heard Mr. Deely refer to another employee using 12 a common racial slur sometime in 1991. 13 Deely’s interactions with African-American employees were “a little 14 harsher or stricter in nature” than those with white employees. She also testified that Mr. 15 Amtrak also objects to the testimony of Mary Gotthardt, who, 16 according to Amtrak’s recollection,1 testified that she heard Mr. 17 Deely say in 1995 that he “hates hiring” African-Americans, using a 18 common racial slur, because they leave soon after they are trained. 19 Ms. Gotthardt also testified that, in 1995, another Amtrak manager 20 stated in Mr. Deely’s presence that he was going to “give something 21 to those ni--er bitches” to have typed and Mr. Deely did not 22 reprimand him. 23 Finally, Amtrak objects to the testimony of Mark Schulthies, a 24 manager who worked under Mr. Deely in 1998 and 1999. 25 Schulthies testified that Mr. Deely used racial slurs “many times.” Mr. 26 27 28 1 Neither party has submitted a transcript of Ms. Gotthardt’s testimony. Amtrak’s contention is based on its counsel’s recollection of the trial testimony. 5 United States District Court For the Northern District of California 1 On one occasion, Mr. Deely told Mr. Schulthies that he chose not to 2 attend Amtrak’s 1998 Christmas party because he did not want to 3 associate with African-American employees on his own time after 4 having to “deal with” them all day. 5 Mr. Deely used a common racial slur to refer to African-American 6 employees during the conversation and expressed a distaste for the 7 type of music and food at the party because it was associated with 8 African-Americans. 9 told him numerous times to keep African-American employees “in According to Mr. Schulthies, Mr. Schulthies also testified that Mr. Deely 10 their place” and, on more than one occasion, that Plaintiff “didn’t 11 know his place” and needed to be “put down.” 12 Under Ninth Circuit law, “[i]t is clear that an employer’s 13 conduct tending to demonstrate hostility towards a certain group is 14 both relevant and admissible where the employer’s general hostility 15 towards that group is the true reason behind firing an employee who 16 is a member of that group.” 17 (9th Cir. 1995); see also U.S. Postal Serv. Bd. of Governors v. 18 Aikens, 460 U.S. 711, 713-14 n.2 (1983) (evidence of a decision- 19 maker’s generalized derogatory remarks about a particular group is 20 relevant and admissible to prove race discrimination); 21 Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1038 (9th 22 Cir. 2005) (“Where a decisionmaker makes a discriminatory remark 23 against a member of the plaintiff’s class, a reasonable factfinder 24 may conclude that discriminatory animus played a role in the 25 challenged decision.”); Warren v. City of Carlsbad, 58 F.3d 439, 26 443 (9th Cir. 1995) (holding that a supervisor’s general derogatory 27 comment about Hispanics supported an inference of discriminatory 28 motive). Heyne v. Caruso, 69 F.3d 1475, 1479 Notwithstanding this general principle, there does not 6 1 appear to be any Ninth Circuit law addressing whether conduct 2 probative of racial hostility is relevant to a discrimination claim 3 when the conduct occurred a number of years before the challenged 4 employment actions, as is the case here. United States District Court For the Northern District of California 5 Amtrak cites two Ninth Circuit employment discrimination cases 6 in which the court found that certain remarks by supervisors were 7 insufficient to create an issue of fact adequate to withstand 8 summary judgment. 9 F.2d 1434 (9th Cir. 1990), does not address the timing of the The first, Merrick v. Farmers Ins. Group, 892 10 remarks, but rather deals with their nature. 11 plaintiff alleged that he had been passed over for a promotion 12 because of his age. 13 decision had remarked that the employee who was promoted was “a 14 bright, intelligent, knowledgeable young man.” 15 court found that this statement was a “stray remark” that, 16 “[w]ithout more,” was insufficient to create a triable issue of 17 fact on the issue of discriminatory animus. In Merrick, the The supervisor responsible for the promotion Id. at 1438. The Id. at 1438-39. 18 It is not clear whether Amtrak argues that Mr. Deely’s 19 comments were “stray remarks” that are by their very nature 20 incapable of establishing discriminatory animus, but it should go 21 without saying that the “young man” statement is not comparable to 22 the remarks Mr. Deely is alleged to have made. 23 testified that Mr. Deely used what is probably the most offensive 24 word in the English language to refer to African-Americans. 25 remarks are much more probative of bias against African-Americans 26 than the remark in Merrick was probative of bias against older 27 individuals. 28 multiple remarks over the course of several years, and thus they Three witnesses His In addition, Mr. Deely is alleged to have made 7 United States District Court For the Northern District of California 1 cannot be characterized as “stray.” 2 The second case cited by Amtrak in which the Ninth Circuit 3 affirmed summary judgment despite evidence of biased remarks is 4 Nesbit v. Pepsico, Inc., 994 F.2d 703 (9th Cir. 1993). 5 which also involved a claim of age discrimination, the court 6 considered whether the following evidence was sufficient to give 7 rise to an inference of discrimination: 1) statistical evidence 8 that some older workers were laid off while some younger workers 9 were retained and that employees hired after the layoffs were In Nesbit, 10 generally younger than those who had been terminated; 2) a comment 11 by the plaintiff’s direct superior that “we don’t necessarily like 12 grey hair”; and 3) an article in which the defendant’s Senior Vice 13 President of Personnel was quoted as saying, “We don't want 14 unpromotable fifty-year olds around.” 15 statistical evidence did not tend to demonstrate that the layoffs 16 were marked by any pattern of discrimination. 17 comments, the court found that the “grey hair” remark, which it 18 characterized as “more than the ‘stray remark’ involved in 19 Merrick,” was “at best weak circumstantial evidence of 20 discriminatory animus” toward the plaintiff because it was “uttered 21 in an ambivalent manner and was not tied directly to [the 22 plaintiff’s] termination.” 23 that the “unpromotable fifty-year olds” comment was “very general 24 and did not relate in any way, directly or indirectly,” to the 25 plaintiff’s termination. 26 insufficient evidence to create a triable issue of fact on the 27 issue of discriminatory motive. 28 The court found that the Id. at 705. Id. Turning to the Similarly, the court found The court concluded that there was Amtrak is correct that Mr. Deely’s remarks were not directly 8 United States District Court For the Northern District of California 1 connected to Plaintiff’s termination. 2 “ambivalent” or ambiguous, and are probative of a general hostility 3 to a protected class in a way that the remarks in Nesbit are not. 4 Amtrak has cited no case holding that similar comments that evince 5 racial bias are per se inadmissible or not probative of 6 discriminatory motive simply because they are unrelated to the 7 employment decision in question. 8 to relate directly to the employment decision in order to be 9 admissible would eviscerate the broad principle that an employer’s 10 conduct tending to demonstrate general hostility towards a certain 11 group is admissible as evidence that the decision was 12 discriminatory. 13 was whether the two remarks, standing alone, were sufficient to 14 defeat summary judgment. 15 inadmissible. 16 are probative of Mr. Deely’s racial hostility, as well as other 17 evidence of discriminatory intent, as discussed below. 18 need not determine whether one or two comments, without more, would 19 permit an inference that the actions taken against Plaintiff were 20 discriminatory. 21 Nonetheless, they are not Indeed, requiring racist remarks In addition, the question before the Nesbit court Nesbit did not hold that the remarks were Here, there was evidence of multiple remarks that The Court Amtrak also contrasts two discrimination cases in which the 22 Ninth Circuit reversed the district court’s grant of summary 23 judgment in the defendant’s favor. 24 Farm Ins. Cos., 124 F.3d 1145 (9th Cir. 1997), held that the 25 plaintiff had established a triable issue of fact on her claim for 26 discriminatory failure to promote. 27 supported the plaintiff’s position was a statement by the 28 individual in charge of hiring decisions that another employee was 9 The first, Cordova v. State Included in the evidence that United States District Court For the Northern District of California 1 a “dumb Mexican.” 2 other than plaintiff and was made after the hiring decision at 3 issue, the court found that it was “direct evidence of . . . 4 discriminatory animus.” 5 support of its conclusion, the Cordova court stated that “the 6 timing of [the] alleged remarks is not so far removed from the 7 contested hiring decision so as to render them completely unrelated 8 to that decision.” 9 the court’s discussion and is dictum. Even though the remark referred to an employee Id. Id. at 1149. Amtrak notes that, in However, this statement was not central to In addition, the court’s 10 statement does not compel the conclusion that any racist remark 11 that is removed in time from the hiring decision is necessarily 12 inadmissible or not probative of discriminatory animus. 13 The second case in which the Ninth Circuit reversed the 14 district court’s grant of summary judgment is Lam v. University of 15 Hawaii, 40 F.3d 1551 (9th Cir. 1994). 16 Seventh Circuit’s statement in Hunter v. Allis-Chalmers Corp., 797 17 F.2d 1417, 1423 (7th Cir. 1986), that “acts ‘remote in time or 18 place’ may be excluded under Fed. R. Evid. 403.” 19 1562. 20 broadly,” it would not be helpful to the defendants because the 21 plaintiff “testified not to remote acts but to a consistent pattern 22 of behavior on the part of Professor A. -- a member of the relevant 23 department -- with one manifestation of his alleged discriminatory 24 attitude having occurred only a few months before the directorship 25 search.” 26 absolutely bar evidence of racist conduct occurring a number of 27 years before the challenged employment actions, and thus Lam does 28 not indicate that the evidence of Mr. Deely’s past comments was The Lam court considered the Lam, 40 F.3d at The Ninth Circuit stated that, even if Hunter were “read Id. at 1563. The court did not adopt a rule that would 10 1 United States District Court For the Northern District of California 2 inadmissible. Although Amtrak has cited some out-of-circuit cases in support 3 of its position that temporally removed racist statements are not 4 admissible to show discriminatory intent, the Court is not bound to 5 follow these cases. 6 because Mr. Deely’s alleged comments were made a number of years 7 before the employment decisions at issue, they should have been 8 excluded at trial. 9 more probative of discriminatory animus, the jury was entitled to The Court rejects the argument that, simply Although more recent statements may have been 10 evaluate the persuasiveness of the evidence for itself. 11 counsel highlighted the age of the statements, and the jury could 12 very well have come to the conclusion that Mr. Deely had changed 13 his opinion of African-Americans between 1999 and 2004. 14 probative value of the evidence was substantial, particularly given 15 the nature of the statements at issue. 16 statements may have been “inflammatory,” to use Amtrak’s word, 17 racist statements are by their very nature inflammatory. 18 not provide a basis to exclude them as evidence. Amtrak’s But the And, even though the This does 19 The Court concludes that evidence of the racist remarks 20 between 1991 and 1999 was probative of discriminatory intent, was 21 admissible and was sufficient, combined with the other evidence, to 22 permit the jury to conclude that the actions taken against 23 Plaintiff were motivated by discriminatory animus. 24 2. Evidence of Treatment of Similarly Situated Employees 25 It is undisputed that evidence of disparate treatment of 26 employees who are of a different race than the plaintiff but who 27 are otherwise similarly situated may be introduced as evidence that 28 11 United States District Court For the Northern District of California 1 an adverse employment action was discriminatory. 2 Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 3 2003). 4 similar disciplinary backgrounds who were not African-American were 5 not terminated for committing rule violations similar to the 6 violation for which Plaintiff was terminated. 7 this evidence should not have been admitted and, in any event, was 8 not probative of discriminatory motive because the other employees 9 were not situated similarly to Plaintiff in two respects: they did 10 not engage in conduct of comparable seriousness, and they were not 11 disciplined by the same supervisors. 12 exclusively at Plaintiff’s termination claim; the relevant portions 13 of Amtrak’s briefs do not discuss employees who were promoted in 14 lieu of Plaintiff, let alone attempt to show that any such 15 employees were not situated similarly to Plaintiff. 16 See, e.g., At trial, Plaintiff offered evidence that employees with Amtrak argues that This argument is directed Amtrak notes that, in order for two employees to be considered 17 similarly situated, they must “have similar jobs and display 18 similar conduct.” 19 of the safety rules for which Plaintiff was terminated was more 20 serious than those of other employees because only Plaintiff 21 “knowingly and intentionally violated a safety rule by failing to 22 secure a locomotive prior to coupling,” and thus the discipline of 23 the other employees is not probative of discriminatory intent. 24 “intentional violation” distinction, however, appears to be the 25 product of post hoc rationalization, as Amtrak has not pointed to 26 any formal policy that mandates different consequences for 27 intentional rule violations and what it characterizes as simply 28 poor judgment calls. Id. at 641. Amtrak asserts that the violation Nor would it make sense to terminate one 12 The United States District Court For the Northern District of California 1 employee for engaging in an intentional rule violation the 2 consequence of which was relatively minor, while merely 3 reprimanding someone who made a poor judgment call that resulted in 4 more serious consequences. 5 consequences of the rule violations, while none of the other 6 employees committed exactly the same rule violation as Plaintiff, 7 the other employees engaged in rule violations that caused 8 collisions and derailments. 9 and derailments are not precisely the same as the risk of a As for the seriousness of the safety While the safety risks of collisions 10 locomotive rolling down the tracks on its own, they are 11 sufficiently similar to enable the jury to determine whether the 12 fact that the other employees were not terminated suggested a 13 discriminatory intent. 14 As for Amtrak’s argument that the employees who were used as 15 comparators were not similarly situated because they were 16 disciplined by other supervisors, Amtrak has pointed to no Ninth 17 Circuit case that provides that only employees with the same 18 supervisor are similarly situated. 19 the case is that Mr. Deely had the last word on all significant 20 disciplinary decisions, regardless of the supervisor who signed the 21 disciplinary report. 22 disciplinary actions were imposed on other employees between June, 23 1999 and November, 2002, during which time Mr. Deely was not 24 employed by Amtrak, does not mean that the employees were not 25 similarly situated. 26 all of whom were disciplined after Mr. Deely returned as well, to 27 demonstrate that Amtrak’s purported “three strikes” rule was a 28 pretext for discrimination because other employees were not Morever, Plaintiff’s theory of In addition, the fact that some of the Plaintiff used the example of these employees, 13 1 terminated on their third or higher strike when Mr. Deely was in 2 charge.2 United States District Court For the Northern District of California 3 In short, there may be cases where it is so clear that another 4 employee is not situated similarly to the plaintiff that it is 5 appropriate to decide the issue as a matter of law. 6 cases, it would be appropriate to exclude evidence of the 7 comparator employee’s treatment as a means of showing 8 discriminatory intent. 9 is one of fact, which is appropriately left to the jury. In those Absent such clarity, however, the issue of Bowden v. 10 Potter, 308 F. Supp. 2d 1108, 1117 (N.D. Cal. 2004) (“The Court 11 first notes that not only must all inferences be drawn in Mr. 12 Bowden’s favor but also that the question of similarly situated is 13 generally an issue of fact.”) (citing Mandell v. County of Suffolk, 14 316 F.3d 368, 379 (2d Cir. 2003); Graham v. Long Island R.R., 230 15 F.3d 34, 39 (2d Cir. 2000)); Gifford v. Atchison, Topeka and Santa 16 Fe Ry. Co., 685 F.2d 1149, 1156 (9th Cir. 1982) (“We conclude that 17 Gifford offered sufficient evidence to raise an issue of fact. 18 district court erred in deciding as a matter of law that Gifford 19 and the two male employees who were not fired were not similarly 20 situated.”). 21 the other employees were situated similarly to Plaintiff. 22 argued to the jury that Plaintiff’s infractions were more serious 23 than those of the other employees and were otherwise 24 distinguishable, but the jury apparently rejected this explanation 25 of Plaintiff’s treatment, as it was entitled to do. Here, there was a triable issue of fact as to whether Amtrak The issue of 26 2 27 28 The Similarly, the fact that Mr. Deely did not work for Amtrak when Plaintiff received his first two disciplinary actions is irrelevant. Those actions are not being challenged in this lawsuit. 14 1 similar situation provides no basis for overturning the jury’s 2 verdict or ordering a new trial. 3 C. 4 Amtrak argues that, in the alternative to granting judgment as 5 a matter of law or ordering a new trial for the reasons described 6 above, the Court should order a new trial because the jury’s 7 verdict was against the clear weight of the evidence. 8 9 United States District Court For the Northern District of California Weight of the Evidence First, Amtrak argues that there is “no persuasive evidence” that Mr. Deely or Mr. Shelton knew Plaintiff. Plaintiff, however, 10 points out that there is evidence that Mr. Shelton was on the panel 11 that interviewed him in connection with a previous application for 12 engineer trainee. 13 another employee to discuss Plaintiff, which implies that Mr. 14 Shelton knew who Plaintiff was. 15 evidence that he was introduced to Plaintiff when he was introduced 16 to the members of Plaintiff’s yard crew. 17 that Plaintiff left a memorable telephone message for Mr. Deely on 18 one occasion and that, on another occasion, Mr. Deely told Mr. 19 Schulthies to keep Plaintiff “in his place.” 20 sufficient evidence at trial for the jury to conclude that Mr. 21 Deely and Mr. Shelton knew who Plaintiff was and were aware of his 22 race. 23 credited because, as discussed further below, he lied at his 24 deposition about whether he had disengaged the locomotive’s brakes. 25 Nonetheless, the Court is not the finder of fact, and cannot in its 26 rulings simply “ignore every material word that [Plaintiff] said,” 27 as Amtrak requests. 28 There is also evidence that Mr. Shelton met with As for Mr. Deely, there is There is also evidence There was thus Amtrak argues that Plaintiff’s testimony should not be Def.’s Mot. at 15. Amtrak also argues that there was “no persuasive evidence” 15 1 that Mr. Deely participated in the decision to terminate Plaintiff. 2 Although Mr. Deely denied having any involvement in the decision, 3 there was evidence that he was required to be involved in any 4 personnel decision of this type. 5 the testimony that Mr. Deely happened not to be involved on this 6 particular occasion. United States District Court For the Northern District of California 7 The jury was entitled to discount Amtrak repeats its argument that the evidence of racial slurs 8 and similarly situated employees, discussed above, does not support 9 the inference that the challenged employment decisions were 10 discriminatory. 11 supports the jury’s verdict. 12 the testimony about racial slurs was weak. 13 argues that, even though Mr. Schulthies testified that Mr. Deely 14 told him to keep African-American employees “in their place,” there 15 is no evidence that Mr. Deely knew which employees were African- 16 American. 17 that Mr. Deely knew Plaintiff and, by extension, knew that 18 Plaintiff was African-American. 19 race of other employees is not clear; Mr. Deely’s instruction to 20 keep African-Americans in their place is probative of racial bias, 21 regardless of whether he knew the race of any given employee at any 22 given point in time. 23 testimony about Mr. Deely’s racial slurs is weak because Mr. 24 Deely’s office, where the alleged exchanges that Ms. Gotthardt 25 identified took place, was not in the building that she described. 26 The jury was presented with this evidence and was entitled to draw 27 its own conclusions about a discrepancy it could have viewed as 28 minor. As discussed, this evidence was relevant and Amtrak further argues that much of In particular, Amtrak As explained above, the jury was entitled to conclude Amtrak’s argument concerning the Amtrak also argues that Ms. Gotthardt’s 16 United States District Court For the Northern District of California 1 Amtrak also casts doubt on Mr. Schulthies’ testimony about Mr. 2 Deely’s expressed reasons for not attending the Christmas party. 3 At trial, Mr. Schulthies testified that, when discussing these 4 reasons, Mr. Deely referred to African-American employees using an 5 offensive racial slur, whereas at his deposition, Mr. Schulthies 6 testified that Mr. Deely had used the phrase “those people” to 7 refer to African-American employees. 8 inconsistency, Mr. Schulthies explained that at his deposition, he 9 had refrained from using the slur because he was uncomfortable When confronted with this 10 saying the word, and that his omission of this detail at the 11 deposition was “not a material lie.” 12 of this explanation to mean that Mr. Schulthies admitted lying 13 about Mr. Deely’s use of the slur, but did not consider the lie to 14 be material. 15 event, the jury was presented with evidence of the inconsistency 16 and was free to draw its own conclusion about Mr. Schulthies’ 17 credibility. 18 Amtrak takes the last portion This interpretation is not supportable. And, in any Amtrak further argues that, even if race was a motivating 19 factor for its termination of Plaintiff, the jury was required to 20 conclude that Amtrak would have made the same decision even if race 21 had not been a motivating factor. 22 the fact that the officer at Plaintiff’s disciplinary hearing 23 sustained the charges against Plaintiff and that Mr. Shelton 24 testified that he would make the same decision today. 25 not required to credit Mr. Shelton’s testimony, and there was 26 evidence that other employees with similar disciplinary histories 27 and who had committed similarly serious rule violations were not 28 terminated. 17 Amtrak bases this argument on The jury was United States District Court For the Northern District of California 1 In sum, the jury’s verdict is not clearly contrary to the 2 clear weight of the evidence so as to warrant a new trial. 3 II. Plaintiff’s Motion 4 A. 5 Although the jury awarded Plaintiff $297,716 in back pay, the Back Pay 6 parties now agree that back pay is an equitable remedy for the 7 Court to decide. 8 1061, 1068-69 (9th Cir. 2005). 9 not be awarded back pay because he lied at his deposition, See Lutz v. Glendale Union High Sch., 403 F.3d Amtrak argues that Plaintiff should 10 testifying that he had not disabled the brakes on the locomotive. 11 At trial, Plaintiff admitted that he had disabled the brakes and 12 that he had perjured himself at his deposition. 13 it is within a court’s discretion to deny equitable remedies on the 14 basis that the plaintiff has lied under oath. 15 Magnusen, 523 F.2d 643, 645-46 (9th Cir. 1975). 16 As Amtrak notes, See NLRB v. Although the Court does not condone Plaintiff’s conduct, it 17 will not deny equitable relief because of that conduct. 18 admitted at trial that he had committed the rule violation that led 19 to his termination, and it was this testimony that the jury 20 considered when it reached its decision that the termination was 21 discriminatory. 22 past falsehood. 23 Plaintiff Plaintiff was also forthcoming at trial about his The Court will therefore order back pay to compensate 24 Plaintiff for his termination. 25 calculation of back pay. The Court will defer to the jury’s 26 B. 27 Plaintiff requests that the Court order that Amtrak reinstate 28 Reinstatement or Front Pay him to the position of engineer trainee or, in the alternative, 18 1 award him front pay. 2 “reinstatement, when it is feasible, is the preferred remedy in a 3 discrimination suit.” 4 191 F.3d 1148, 1156 (9th Cir. 1999) (internal quotation marks 5 omitted). 6 impossible to reinstate the plaintiff.” 7 City of El Segundo, 802 F.2d 1131, 1137 (9th Cir. 1986)). 8 United States District Court For the Northern District of California 9 The Ninth Circuit has held that Gotthardt v. National R.R. Passenger Corp., However, “awards of front pay are appropriate when it is Id. (quoting Thorne v. Because reinstatement is feasible here, the Court will order Plaintiff reinstated as an Amtrak employee. However, although the 10 jury concluded that Plaintiff would have been selected as an 11 engineer trainee if it had not been for his race, the Court cannot 12 overlook that, subsequent to being denied the promotion, Plaintiff 13 left a locomotive unsecured during a coupling procedure in clear 14 violation of safety rules. 15 the violation, notwithstanding his deposition testimony to the 16 contrary. 17 history when he was considered for the engineer trainee position. 18 If it had been, Amtrak may have been justified in denying his 19 application. 20 warrant terminating Plaintiff, the violation was nonetheless 21 serious. 22 Plaintiff now acknowledges committing This rule violation was not on Plaintiff’s disciplinary And while the jury found that the violation did not Considering the potentially disastrous consequences that could 23 result from a mistake on the part of a locomotive engineer, the 24 Court cannot in good conscience order Plaintiff promoted to an 25 engineer trainee given the rule violation he committed subsequent 26 to being denied the promotion in the first instance. 27 having considered the equities, the Court concludes that, while it 28 is appropriate to reinstate Plaintiff as a yard conductor, it is 19 Accordingly, 1 not appropriate to order Amtrak to promote him to the position of 2 engineer trainee. 3 In order to place Plaintiff in a position similar to that in 4 which he would be had he not been terminated, Amtrak must afford 5 him seniority rights as if he had been an Amtrak employee for the 6 period of time between his termination and the present date. 7 Because the Court is ordering Plaintiff reinstated, his request for 8 an award of front-pay is denied as moot. 9 C. United States District Court For the Northern District of California 10 Other Injunctive Relief Plaintiff seeks an injunction prohibiting Amtrak from 11 discriminating against him in the future or retaliating against him 12 for bringing this lawsuit. 13 employment discrimination is entitled to an injunction against 14 future discrimination, unless the employer proves it is unlikely to 15 repeat the practice.” 16 1539, 1544 (9th Cir. 1987) (citations omitted). 17 assurances that it will not engage in discrimination or retaliation 18 in the future, Amtrak continues to deny that it discriminated 19 against Mr. Campbell to begin with. 20 warranted. “Generally, a person subjected to EEOC v. Goodyear Aerospace Corp., 813 F.2d Far from offering Accordingly, an injunction is 21 D. 22 Although Plaintiff has not cited any Ninth Circuit case Pre-judgment Interest 23 holding that pre-judgment interest should be awarded on back pay in 24 § 1981 cases, the Ninth Circuit has held that pre-judgment interest 25 should be awarded in cases brought under the Fair Labor Standards 26 Act: 27 28 The reason for awarding pre-judgment interest is to make whole those employees who have been deprived of wages unlawfully. An award of pre-judgment interest also 20 1 2 3 4 5 Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir. 1986). 6 Circuit’s rationale applies equally to back pay awarded under 7 § 1981. 8 judgment interest. 9 United States District Court For the Northern District of California serves to discourage unlawful employment practices by denying to employers the interest-free use of money that is being delayed by administrative and judicial process. For these reasons, we conclude that it is ordinarily an abuse of discretion not to include pre-judgment interest in back-pay awards under the FLSA. Affected employees, therefore, are entitled to pre-judgment interest. The Ninth Accordingly, the Court will order Amtrak to pay pre- “Generally, the interest rate prescribed for post-judgment 10 interest under 28 U.S.C. § 1961 is appropriate for fixing the rate 11 of pre-judgment interest . . . .” 12 Assurance Co. of Boston, 486 F.3d 620, 628 (9th Cir. 2007). 13 statute provides that interest is calculated “at a rate equal to 14 the weekly average 1-year constant maturity Treasury yield, as 15 published by the Board of Governors of the Federal Reserve System, 16 for the calendar week preceding. [sic] the date of the judgment.” 17 In Nelson v. EG & G Energy Measurements Group, Inc., 37 F.3d 1384, 18 1391 (9th Cir. 1994), the court stated: 19 20 21 22 23 24 Blankenship v. Liberty Life This EG & G argues that the pre-judgment interest rate should have been calculated at the 52-week Treasury bill rate3 as of the time of judgment, which was 3.51 percent. This does not correspond with the approach taken in Western Pacific Fisheries[, Inc. v. S.S. President Grant, 730 F.2d 1280, 1289 (9th Cir. 1984)]. In that case, insurance underwriters had paid out funds for which they sought reimbursement. The interest rate utilized for the pre-judgment interest was the average 52-week Treasury bill rate operative immediately prior to the date of payment by the underwriters. This makes good sense 25 3 26 27 28 At the time Nelson was decided, 28 U.S.C. § 1961(a) provided that the applicable interest rate was “the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment.” 21 1 2 3 4 because pre-judgment interest is intended to cover the lost investment potential of funds to which the plaintiff was entitled, from the time of entitlement to the date of judgment. It is the Treasury bill rate during this interim that is pertinent, not the Treasury bill rate at the time of judgment. The Treasury bill rate at the time of judgment has no bearing on what could have been earned prior to judgment. 5 6 7 8 9 The method of calculating the pre-judgment interest utilized by the district court reasonably reflected this approach. The interest due was calculated as though the plaintiffs had invested the withheld funds at the 52-week Treasury bill rate and then reinvested the proceeds annually at the new rate. This reasonably reflects the conservative investment income the plaintiffs would have been able to have earned had they received the funds on September 30, 1987. United States District Court For the Northern District of California 10 37 F.3d at 1391-92. 11 Plaintiff’s proposed method of calculating pre-judgment 12 interest is erroneous because it assumes that Plaintiff would have 13 been paid his entire amount of back wages -- and begun earning 14 interest on the sum -- on the date of his termination. In reality, 15 he would have been paid only a portion of the back wages at that 16 time, with additional payments occurring on a periodic basis. 17 Thus, Plaintiff is due interest equivalent to that which would have 18 accrued if he had invested his back wages, at the time they would 19 have been paid, at a rate equal to the weekly average one-year 20 constant maturity Treasury yield on the date the wages were due to 21 him, and then reinvested the proceeds annually at a rate equal to 22 the weekly average one-year constant maturity Treasury yield at the 23 time of the reinvestment, up to the date on which Amtrak satisfies 24 the judgment. In practice, this calculation may be difficult to 25 perform with precision. Accordingly, the parties should attempt to 26 stipulate to a figure for pre-judgment interest that approximates 27 the result that would obtain under this approach, based on 28 22 1 prorating the total back pay award of $297,716 over a set number of 2 intervals between the date of Plaintiff’s termination and the 3 present. 4 intervention. If a dispute arises, the parties may seek the Court’s United States District Court For the Northern District of California 5 CONCLUSION 6 For the foregoing reasons, the Court DENIES Amtrak’s motion 7 for judgment as a matter of law or a new trial (Docket No. 252), 8 and GRANTS Plaintiff’s motion for pre-judgment interest and 9 equitable relief, as modified herein (Docket No. 243). Amtrak’s 10 motion to strike (Docket No. 254) the declaration of Richard 11 Palfin, which contains calculations for an award of front pay, is 12 DENIED; this motion is moot in light of the fact that the Court has 13 not granted an award of front pay. 14 IT IS SO ORDERED. 15 16 Dated: 8/21/09 CLAUDIA WILKEN United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 23
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