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Hurd v. City of Lincoln

United States District Court, D. Nebraska

May 2, 2019

TROY M. HURD, Plaintiff,
v.
THE CITY OF LINCOLN, a political subdivision; Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Motion for New Trial or Judgment as a Matter of Law, ECF No. 255, filed by Defendant City of Lincoln, and the Motion for Equitable Relief/Front Pay, ECF No. 268, filed by Plaintiff Troy Hurd. Also before the Court are the Motion for Leave to Depose Jurors or for an Evidentiary Hearing, ECF No. 284, filed by the City; and the Motions to Strike, ECF Nos. 279 & 286, filed by Hurd. For the reasons stated below, the Motion for New Trial or Judgment as a Matter of Law will be granted, in part, and the Motion for Equitable Relief/Front Pay will be granted, in part. The other Motions will be denied.

         BACKGROUND

         Ruling on the City's motion for summary judgment, Judge Kopf concluded that Hurd could proceed to trial on his claims for retaliatory hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. § 48-1114. Mem. and Order, ECF No. 136, Page ID 3879-80. On November 29, 2018, the case was reassigned to the undersigned and tried to a jury on February 5, 2019. ECF No. 179. The case was submitted to the jury on February 15, 2019, and the jury returned a verdict in favor of Hurd in the amount of $1, 177, 815.43. Verdict Form, ECF No. 245, Page ID 4944; Judgment, ECF No. 250.

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 50(b) provides that “[n]o later than 28 days after the entry of judgment . . . the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59.” Fed.R.Civ.P. 50(b). “In ruling on the renewed motion, the court may:

(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.”

Id. “If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed.” Fed.R.Civ.P. 50(c)(1).

         “Rule 50(b) provides for post-trial renewal of a Rule 50(a) trial motion for judgment as a matter of law, ” and “[a] court reviewing a Rule 50(b) motion is limited to consideration of only those grounds advanced in the original, Rule 50(a) motion.” Nassar v. Jackson, 779 F.3d 547, 551 (8th Cir. 2015) (citing Graham Constr. Servs. v. Hammer & Steel Inc., 755 F.3d 611, 617-18 (8th Cir. 2014)). “Judgment as a matter of law is warranted only when no reasonable juror, taking all reasonable inferences in the light most favorable to the opposing party, could find against the movant.” Estate of Snyder v. Julian, 789 F.3d 883, 887 (8th Cir. 2015) (citing Brawner v. Allstate Indem. Co., 591 F.3d 984, 986 (8th Cir. 2010); Townsend v. Bayer Corp., 774 F.3d 446, 456 (8th Cir. 2014) (“A grant of [judgment as a matter of law] is proper only if the evidence viewed [favorably to the prevailing party at trial] would not permit reasonable jurors to differ as to the conclusions that could be drawn.”). “In deciding whether to grant judgment as a matter of law, [courts] may not weigh the credibility of evidence, and conflicts in the evidence must be resolved in favor of the verdict.” S. Wine and Spirits of Nev. v. Mountain Valley Spring Co., LLC, 646 F.3d 526, 533 (8th Cir. 2011) (citing Schooley v. Orkin Extermination Co., 502 F.3d 759, 764 (8th Cir. 2007)); see also Bavlsik v. Gen. Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017).

         “A new trial may be granted on all or some issues ‘after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.'” Stults v. Am. Pop Corn Co., 815 F.3d 409, 414 (8th Cir. 2016) (quoting Fed.R.Civ.P. 59(a)(1)(A)). “A new trial is appropriate when the first trial, through a verdict against the weight of the evidence, an excessive damage award, or legal errors at trial, resulted in a miscarriage of justice.” Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir. 1996); see also Trickey v. Kaman Insus. Techs. Corp., 705 F.3d 788, 807 (8th Cir. 2013). “With respect to legal errors, a ‘miscarriage of justice' does not result whenever there are inaccuracies or errors at trial; instead, the party seeking a new trial must demonstrate that there was prejudicial error.” Trickey, 705 F.3d at 807 (citing Buchholz v. Rockwell Int'l Corp., 120 F.3d 146, 148 (8th Cir. 1997)).

         DISCUSSION

         I. Judgment as a Matter of Law

         After Hurd presented his evidence, the City moved for judgment as a matter of law under Rule 50(a), arguing Hurd failed to present enough evidence upon which a reasonable jury could find in his favor. Trial Tr., ECF No. 273, Page ID 5468-69. The City renewed the motion following its presentation of evidence. Trial Tr., ECF No. 274, Page ID 5472. The Court denied the motion, and the jury returned a verdict for Hurd. ECF No. 245. Following trial, the City renewed its motion under Rule 50(b). Def.'s Mot., ECF No. 255. Specifically, the City argues Hurd presented insufficient evidence to establish any of the elements of a claim for retaliation under Title VII or the NFEPA. Trial Tr., ECF No. 273, Page ID 5468-69.

         To succeed on his retaliation claim under Title VII or the NFEPA, Hurd had to establish (1) he engaged in protected conduct, (2) he suffered a materially adverse employment action, and (3) there was a causal connection between his protected activity and the adverse action. Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062, 1069 (8th Cir. 2017) (Title VII); O'Brien v. Bellevue Pub. Sch., 856 N.W.2d 731, 741 (Neb. 2014) (NFEPA). Although the prima facie elements are the same under Title VII and the NFEPA, the parties agreed that the causal-connection standards for these claims differ. Compare Donathan v. Oakley Grain, Inc., 861 F.3d 735, 739 (8th Cir. 2017) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013) (“The plaintiff's ultimate burden in a Title VII retaliation case is to prove an impermissible retaliatory motive was the ‘but-for cause' of the adverse employment action.”), with Ludlow v. BNSF Ry. Co., 788 F.3d 794, 802-03 (8th Cir. 2015) (affirming district court's “motivating-factor instruction” in NFEPA retaliation case).

         The City's briefing enumerates several bases for its Rule 50(b) motion, including erroneous evidentiary rulings, juror misconduct, and excessive damages. The City did not, however, separately address or demonstrate that, based on the evidence admitted at trial, the jury lacked “a legally sufficient evidentiary basis” to find in favor of Hurd on either of his retaliation claims. Bavlsik, 870 F.3d at 805. The City has, therefore, not shown that it is entitled to judgment as a matter of law in its favor notwithstanding the jury's verdict, and the Court finds there was sufficient evidence for a reasonable jury to find the City liable for retaliation under Title VII and the NFEPA.

         The Court will also deny the City's request for judgment as a matter of law on the issue of damages for lost wages because the City's pre-verdict motion for judgment as a matter of law did not request judgment on the amount of lost wages-or any other category of damages. Nor did the City object to submission of lost wages to the jury. Def.'s Objs., ECF No. 218; Trial Tr., ECF No. 251, Page ID 5045-50; Hyundai Motor Fin. Co. v. McKay Motors I, LLC, 574 F.3d 637, 642 (8th Cir. 2009); see Hudson v. United Sys. of Ark., Inc., 709 F.3d 700, 705 (8th Cir. 2013). The Court finds there was sufficient evidence for a reasonable jury to award Hurd $44, 624.89 for lost wages and fringe benefits associated with the City's failure to consider appointing him to a backup EMS supervisor position.

         II. New Trial/Remittitur

         Alternatively, the City seeks a new trial on liability based on allegedly erroneous evidentiary rulings; a new trial on future emotional distress damages based on juror misconduct; and a new trial or remittitur on the amounts awarded for lost wages and emotional distress damages.

         a. Evidentiary Rulings

         “An allegedly erroneous evidentiary ruling does not warrant a new trial unless the evidence was so prejudicial that a new trial would likely produce a different result.” Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875, 880 (8th Cir. 2015) (quoting Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 833 (8th Cir. 2005)).

         The City argues (1) evidence of alleged adverse actions that occurred prior to November 15, 2014, should have been excluded as time barred; (2) evidence that Hurd was not considered for the EMS backup supervisor position and that he was prohibited from “riding out of grade” as a battalion chief should have been excluded because Hurd did not specifically allege these adverse actions in his administrative charges; (3) Hurd's criminal conviction and resulting written reprimand should have been admitted to show his divorce was not caused by his employment issues; (4) Hurd's unredacted medical records should have been admitted to show his divorce was not caused by his employment issues; (5) Kimberley Taylor Riley's redacted investigative report should have been excluded; (6) Sara Khalil should have been precluded from testifying about her ...


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