The opinion of the court was delivered by: William J. Martini, U.S.D.J.
This matter comes before the Court on Defendant Alfaro Ortiz's post-trial motion for: (1) an order pursuant to Federal Rule of Civil Procedure 50(b) for judgment as a matter of law; (2) an order pursuant to Federal Rule of Civil Procedure 59(a) granting a new trial; and (3) an order pursuant to Federal Rule of Civil Procedure 59(e) to alter or amend the judgment against him. Also before the Court is Defendant Ortiz's renewed motion for mistrial and his motion to waive the supersedeas bond requirement pursuant to Federal Rule of Civil Procedure 62.
For the reasons explained below, the Court DENIES Defendant's post-trial motion, DENIES Defendant's motion for mistrial, and GRANTS Defendant's motion for waiver of the supersedeas bond requirement subject to certain conditions.
I.Procedural and Factual History*fn1
On December 21, 2007, Plaintiff filed this action against his employer, the State of New Jersey Department of Corrections (the "DOC"), and two of his supervisors, Alfaro Ortiz and William Plantier. During the time relevant to this action, Plaintiff was an Assistant Superintendant at the East Jersey State Prison (the "Prison"). Defendant Ortiz was the Administrator of the Prison, and Defendant Plantier was the Prison's Director of Operations. Plaintiff contended that he exercised his First Amendment rights in the spring and summer of 2005 by complaining to his immediate supervisor, Defendant Ortiz, about allegations of illegal bid-rigging at the DOC and by reporting the bid-rigging to outside law enforcement officials. The complaint attempted to plead causes of action for retaliation in violation of 42 U.S.C. § 1983 and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1, et seq. (the "NJCRA"), and violations of the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. (the "FMLA"), among other claims. Plaintiff alleged that Defendant Ortiz retaliated against him by, among other conduct, scheming to have Plaintiff fired. As part of that alleged scheme, Defendant Ortiz purportedly placed Debbie Schoffstall, another DOC employee, in Plaintiff's office in the fall of 2005 with the intent that she record Plaintiff making lewd, racist, and otherwise offensive statements to create a basis for his termination. Plaintiff further alleged that this scheme was successful as he was terminated from his employment on or around April 8, 2006, while he was out on medical leave. On January 9, 2008, Plaintiff filed an amended complaint, adding Defendants Gerald Kennedy, Fred Armstrong, James Barbo, and George Haymen. All of the newly added defendants were employed in some capacity by the DOC at the relevant time.
On February 22, 2010, the Court granted Defendants' motion to dismiss in part and dismissed a number of Plaintiff's claims, including Plaintiff's Section 1983 and NJCRA claims against the DOC and against all of the other defendants in their official capacities. On December 23, 2010, the Court granted Defendants' motion for summary judgment in part and dismissed all claims against Defendants Kennedy, Armstrong, Barbo, and Haymen, and dismissed several other claims against the remaining Defendants.
On March 19, 2012, the Court began trial on Plaintiff's remaining claims: retaliation in violation of Section 1983 and the NJCRA*fn2 against Defendants Ortiz and Plantier in their individual capacities, and violation of the FMLA against Defendants Ortiz, Plantier, and the DOC. On April 4, 2012, the jury returned its unanimous verdict, finding for Plaintiff on his claims for retaliation against Defendant Ortiz and otherwise finding for Defendants. The jury awarded Plaintiff $659,715 in compensatory damages against Defendant Ortiz. On April 5, 2012, the Court held a supplemental hearing on punitive damages, and the jury returned a special verdict that same day awarding Plaintiff an additional $50,000 in punitive damages against Defendant Ortiz.
On May 7, 2012, Defendant Ortiz filed the pending motions. The parties completed their briefing on June 19, 2012, and the Court held oral argument on July 3, 2012. The Court will address each motion in turn.
II.Motion for Judgment As a Matter of Law Pursuant to Fed. R. Civ. P. 50(b)
Defendant Ortiz first argues that he is entitled to judgment as a matter of law. The Court disagrees.
"A motion made pursuant to Fed. R. Civ. P. 50 should be granted only if, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Fowler v. UPMC Shadyside, 578 F.3d 203, 213 n.8 (3d Cir. 2009). "In determining whether the evidence is sufficient to sustain liability, the court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version." Id.
Defendant Ortiz argues that he cannot be liable under Section 1983 because there was insufficient evidence from which a reasonable jury could find that he participated in, made, or influenced the decision to terminate Plaintiff. On its surface, Defendant Ortiz's argument appears to only attack the sufficiency of the evidence at trial, but at its core, the argument also asks the Court to resolve a number of related legal questions because the sufficiency of the evidence turns on whether the Court accepts Defendant's construction of Section 1983 law. On review, the Court finds that it correctly construed the relevant law at trial and that the evidence was sufficient to support the jury's verdict.
For the sake of clarity, the Court will address Defendant Ortiz's legal arguments and evidentiary arguments separately.
A. The Court's Interpretation of the Law Pertaining to Section 1983 Claims
To state a claim under Section 1983 for violation of First Amendment rights, a plaintiff must plead the following elements: (1) constitutionally protected conduct; (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) a causal link between the constitutionally protected conduct and the retaliatory action. Thomas v. Independence Tp., 463 F.3d 285, 296 (3d Cir. 2006). At trial, the court typically decides the first element as a matter of law and then instructs the jury as to the nature of the plaintiff's protected activity. See Model Civ. Jury Instr. 3d Cir. 7.4 (2011). Similarly, at trial the Court need not instruct the jury regarding the second element where the element is not in dispute. See id. cmt. Thus, as the Third Circuit's Model Jury Instruction 7.4 indicates, the elements the plaintiff must prove at trial to establish his or her case are: (1) that the defendant took a specific adverse action against the plaintiff; and (2) that the plaintiff's protected activity was a motivating factor in the defendant's decision to take that adverse action.
Defendant Ortiz's argument revives an issue that Defendants raised at trial during discussion of how the Court should charge the jury with respect to the first element regarding an adverse action. During the charge conference, the Court proposed instructing the jury that it must find for Plaintiff if Plaintiff proved that either Defendant "engaged in conduct that resulted in" Plaintiff's termination. By contrast, Defendants requested an instruction that the jury could find for Plaintiff only if he proved that either of the Defendants "participated in the decision to terminate" him. (11T 4:20-6:3).
At the time of the charge conference, defense counsel focused only on a line of authority holding that in order for an individual defendant to be found liable under Section 1983, the individual defendant must be "personally involved" in depriving the plaintiff of his constitutional rights and cannot be liable "solely [through] the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). The Court did not find this argument convincing because Plaintiff sought to hold Defendants Plantier and Ortiz liable based on their conduct and not on the conduct of their subordinates or other individuals.*fn3 The Court found that under a proper application of the law, its proposed instruction was correct, and Defendants could be liable for engaging in conduct that resulted in Plaintiff's termination even if they did not technically make the final decision to terminate Plaintiff. Drawing on the Third Circuit's model jury instructions, the Court ultimately instructed the jury that:
In order for Mr. Hilburn to recover on this claim against Mr. Ortiz or Mr. Plantier, Mr. Hilburn must prove both of the following by a preponderance of the evidence: First, he must prove that Mr. Ortiz or Mr. Plantier engaged in conduct that resulted in the termination of Mr. Hilburn; and Second, Mr. Hilburn's protected activity -- he must prove that his protected activity was a motivating factor in Defendants' decisions to engage in conduct that resulted in the termination of Mr. Hilburn. (11T 161:3-12).
In his post-trial motions, Defendant Ortiz revisits this issue and argues that under the law, if properly applied, he could only have been found liable if Plaintiff proved that he "influenced or participated in the decision to terminate" Plaintiff. In support of this argument, Defendant Ortiz again draws on case law relating to personal involvement, and the Court finds this case law unavailing for the same reasons as at trial. But Defendant Ortiz also raises three new arguments: that the Plaintiff failed to prove a "cat's paw" theory of liability, that Defendant Ortiz lacked the necessary decision-making authority to terminate Plaintiff, and that Defendant's conduct did not constitute an "adverse employment action", i.e., it was not sufficiently deterrent. Ultimately, none of these arguments convinces the Court that its prior construction of the law was incorrect.
Defendant's argument regarding cat's paw liability fails for the same reason as Defendant's argument regarding personal involvement. The Supreme Court discussed the cat's paw theory of liability in its recent opinion in Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011). Aside from the fact that Staub does not involve a Section 1983 claim, it is also not a factually analytical situation: as Staub makes clear, the cat's paw theory is about holding an employer liable for acts of employment discrimination committed by an employee who lacked decision-making authority. Id. at 1189 ("We consider the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.") (emphasis added); see also id. at 1190 ("The court [of appeals] observed that Staub had brought a 'cat's paw' case, meaning that he sought to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision."). Again, in this case, the jury found Defendant Ortiz liable for taking actions which effectuated Plaintiff's termination. If this were a cat's paw case, Plaintiff would be seeking to hold the DOC liable for Defendant's actions. That issue never reached the jury and was not part of the verdict.
Defendant's argument that in order to succeed on an action for retaliation under Section 1983, a plaintiff must demonstrate that the defendant with the retaliatory motive was the same individual who made the decision to terminate the plaintiff's employment, is a variation on the same theme and is similarly incorrect. Again, each of the cases Defendant Ortiz cites only addresses the issue of when an entity or employer can be held liable for the retaliatory acts of its employees. Walsh v. WalMart Stores, Inc., 200 F. App'x 134, 137 (3d Cir. 2006) (affirming dismissal of Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., claims against employer-entity); Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 289 (3d Cir. 2001) (reversing dismissal of claims under Title VII, 42 U.S.C. § 2000e, et seq., and state law against employer-entity where plaintiff produced evidence of causation based on actions of his department head and supervisor that occurred after protected activity); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000) (holding that employer may be liable for acts of non-supervisor employee that did not make decision to terminate plaintiff provided non-supervisor employee had influence or leverage over official decision-maker); Kanafani v. Lucent Tech. Inc., No. 07-11, 2009 WL 3055363, at *11-12 (D.N.J. Sept. 18, 2009) (denying defendant's motion for summary judgment on plaintiff's Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq., claim for retaliation against employer-entity where plaintiff had produced some evidence that manager who decided to terminated plaintiff knew of plaintiff's protected activity). These cases do not speak to when another employee can be liable for his own acts of retaliation.
Defendant's third argument, that his conduct did not constitute an adverse employment action, also fails but for slightly different reasons. As noted above, in order to succeed on a retaliation claim under Section 1983 based on deprivation of First Amendment Rights, the plaintiff must prove that the defendant took a retaliatory action sufficient to deter a person of ordinary firmness from exercising his or her First Amendment rights. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (discussing elements of claim for retaliation under Section 1983). But as the Third Circuit has noted, the "'deterrence threshold' . . . is very low . . . a cause of action is supplied by all but truly de minimis violations."
O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006) (citation omitted). Thus, Defendant Ortiz asks the Court to, post-verdict, rule as a matter of law that Defendant's actions were insufficient to meet the deterrence threshold. This argument suffers from several flaws.
First, whether conduct reaches the deterrence threshold is generally a question of fact to be addressed to the jury, but Defendants did not dispute the issue at trial, and so the Court assumed it to be conceded.*fn4 Second, Defendant Ortiz fails to explain how termination is sufficient to deter a person of ordinary firmness but how conduct resulting in an individual's termination is not. Regardless of who made the final decision, the end harm to the Plaintiff was his termination. The Court does not see how a jury could reasonably find that Defendant Ortiz successfully schemed to have Plaintiff terminated but that that conduct was somehow "de minimis" and thus insufficient to meet the deterrence threshold.*fn5 And finally, Defendant's construction of the law would require the Court to reach a legal conclusion that is ridiculous on its face. If Defendant Ortiz were correct, an individual who had the power to get a co-worker or subordinate fired but lacked the authority to actually sign off on the termination could never be held liable for retaliation under Section 1983. Every supervisory employee at nearly every major public entity would effectively be insulated from liability for retaliation against his subordinate and co-workers merely because the entity that employs both individuals has some variation of a human resources department. Assuming that Defendant Ortiz lacked the authority to make the final decision to terminate Plaintiff, scheming to have Plaintiff fired was the most severe retaliatory action that Defendant Ortiz was able to take. Under Defendant's proposed interpretation, that conduct -- even when it was successful -- would not create a cause of action against the actual wrong-doer. The Court finds no support in the case law for such a massive exception to Section 1983 liability, nor does Defendant Ortiz provide any authority for one. Nor can the Court square this interpretation with the overwhelming authority holding that adverse actions much short of termination are sufficient to meet the deterrence threshold. See, e.g., Rutan v. Republican Party of Illinois, 497 U.S. 62, 76 n.8 (1990) ("[T]he First Amendment, as the court below noted, already protects state employees not only from patronage dismissals but also from 'even an act of retaliation as trivial as failing to hold a birthday party for a public employee . . . when intended to punish her for exercising her free speech rights.'").*fn6
B. Sufficiency of the Evidence
Defendant Ortiz argues that the evidence at trial was insufficient to support the jury's verdict against him, but Defendant's argument relies heavily on the Court adopting his construction of the law. Now that the Court has rejected that construction, Defendant's argument clearly fails.
At trial, there was more than sufficient evidence from which a jury could reasonably find that Defendant Ortiz engaged in conduct that resulted in Plaintiff's termination and that Defendant Ortiz was motivated in part by Plaintiff's protected activity, including: Plaintiff's testimony regarding the discussion of bid-rigging at morning meetings attended by himself and Defendant Ortiz and his conversations with Defendant Ortiz regarding bid-rigging, (2T 18:15-22:20); Plaintiff's testimony regarding his reporting the bid-rigging to Defendant Ortiz and outside investigators associated with the United States Attorneys Offices for the District of New Jersey, (2T 23:14-24:11; 2T 29:9-31:1; 2T 44:20-46:19; 3T 32:12-40:12); Plaintiff's testimony regarding the change in demeanor exhibited by Defendant Ortiz and changes in Defendant's treatment of Plaintiff after Plaintiff's protected activity, (2T 42:10-43:2; 2T 54:17-55:2; 3T 48:18-50:2); Plaintiff's testimony that Defendant Ortiz threatened him that if he continued to talk about the bid-rigging he would lose his job, (3T 21:3-25); Plaintiff's testimony regarding documents and complaints he filed with the EED regarding Defendant Ortiz, the EED's lack of a response, and his subjective fear that Ortiz was building a file against him that would justify his termination, (3T 84:18-88:10); Plaintiff's testimony that Defendant Ortiz placed Debbie Schoffstall in Plaintiff's office against Plaintiff's wishes and despite the fact that Plaintiff did not feel he had any need for her at the time, (3T 97:5-99:20; 3T 105:8-108:10); Plaintiff's testimony regarding the EED's actions against him, which included Plaintiff's suspension for 40 days, (3T 119:5-126:21), and his eventual termination; corroborating testimony from Edward Guz, the Business Manager at the Prison who was present during discussions between Plaintiff and Defendant Ortiz regarding bid-rigging, and Stanley Beet, an investigator from the United States Attorney's Office who met with Plaintiff regarding an investigation into bid-rigging at the Prison; and Ms. Schoffstall's testimony that she felt Defendant Ortiz had used her as an "instrument" to retaliate against Plaintiff, (8T 174:3-174:14), and emails she sent regarding those feelings. This is but a cursory summary of the evidence at trial. Plaintiff also introduced a multitude of corroborating documents, including EED documents and letters from DOC personnel to Plaintiff that would have supported such a finding. The jury could even have reasonably and fairly drawn inferences from the testimony of Defendant Ortiz and other defense witnesses, such as Kenneth Green, then the Acting Director of the EED, that would support its finding of liability, depending on how the jury assessed the credibility of each witness's testimony.
This same evidence was also sufficient for the jury's implicit decision to reject Defendant's affirmative defense based on the Supreme Court's decision in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).*fn7
Defendants did produce evidence at trial from which a reasonable jury could have concluded that both Defendants proved they were entitled to the Mt. Healthy defense, as Defendant Ortiz outlines in his post-trial briefs. But, again, it is not for the Court to choose which application of the facts is the correct one or to substitute its own conclusions for those of the jury. See Fowler,578 F.3d at 213 n.8
Because the evidence was sufficient for the jury's verdict, the Court must reject Defendant's motion.
III.Motion for a New Trial Pursuant to Fed. R. Civ. P. 59(a)
Pursuant to Rule 59(a)(1)(A): "The court may, on motion, grant a new
trial on all or some of the issues -- and to any party -- as follows:
(A) after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law
in federal court." The exact standard for granting a new trial depends
on the nature of the alleged error. But in any event, the Court may
not grant a new trial for harmless errors, pursuant to Federal Rule of
Civil Procedure 61:
Unless justice requires otherwise, no error in admitting or excluding evidence--or any other error by the court or a party--is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.
See also Vandenbraak v. Alfieri, 209 F. App'x 185, 188-89 (3d Cir. 2006).
Defendant Ortiz raises a number of reasons he claims that a new trial is warranted. The Court will address each in turn.
B. Based on Errors in the Jury Instructions and Verdict Form
Defendant Ortiz argues that the Court made several crucial errors in its jury charge and on the accompanying verdict form that necessitate a new trial. The Court has reviewed both the charge and the verdict form and finds that it committed no error.
When a jury instruction is erroneous, a new trial is warranted unless such error is harmless. See Advanced Med., 955 F.2d at 199. An error is harmless if it is "highly probable" that the error did not contribute to the judgment. Id. An erroneous jury instruction may also be considered non-fundamental when, taking the instructions as a whole, the erroneous instruction is a "solitary misstatement of law" buried in an otherwise correct legal explanation. Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 137 (3d Cir. 1997).
Defendant Ortiz claims the Court erred by failing to properly instruct the jury regarding the availability of the Mt. Healthy defense. Defendants are incorrect, as comparison of the Court's instruction to the Third Circuit's model charge makes clear. The model charge, § 7.4, regarding the Mt. Healthy defense, states:
However, [defendant] argues that [he/she] would have made the same decision to [describe adverse action] whether or not [plaintiff] had engaged in the protected activity. If [defendant] proves by a preponderance of the evidence that [defendant] would have treated [plaintiff] the same even if [plaintiff's] protected activity had played no role in the employment decision, then your verdict must be for [defendant] on this claim.]
At trial, the Court gave an instruction that mapped the model charge:
However, Mr. Ortiz . . . and/or Mr. Plantier argue that they would have engaged in the same conduct that resulted in Mr. Hilburn's termination whether or not Mr. Hilburn had engaged in the protected activity. If either Defendant proves by a preponderance of the evidence that he would have treated Mr. Hilburn the same even if Mr. Hilburn's protected activity had played no role in the employment decision, then your verdict must be for that Defendant on this claim. (4T 162:4-12). The Court's instruction was thus not in error.
Nor did the Court err by failing to include a specific interrogatory in the jury verdict form relating to the Mt. Healthy defense or mitigation of damages. It is well-settled law that Federal Rule of Civil Procedure 49 "places the matter of submitting interrogatories to the jury entirely within the discretion of the trial judge." Moyer v. Aetna Life Ins. Co., 126 F.2d 141, 145 (3d Cir. 1941); Allstate Ins. Co. v. Hrin, No. 05-158, 2006 WL 2540778, at *5 (E.D. Pa. Aug. 31, 2006). Generally, the failure to include an affirmative defense on a verdict form is not an abuse of discretion where the form, read in light of the jury instructions, informed the jury that in finding the defendant liable they were implicitly rejecting the affirmative defense. See Moyer, 126 F.2d at 145; see also E.E.O.C. v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 440 (7th Cir. 2012) (finding no error where trial court failed to include interrogatory regarding affirmative defense on verdict form); Fuller v. Fiber Glass Sys., LP, 618 F.3d 858, 867 (8th Cir. 2010) (same); Advanced Bodycare Solutions, LLC v. Thione Intern., Inc., 615 F.3d 1352, 1362 n.22 (11th Cir. 2010) (finding no error where trial court did not include interrogatory on mitigation of damages); Shapiro v. Kelly, 141 F.3d 1163, 1998 WL 197793, at *6-7 (5th Cir. 1998) (table) (same). Here, because the Court properly instructed the jury regarding the Mt. Healthy defense, as discussed above, and mitigation, see (11T 164:7-18), the jury could not have found Defendant Ortiz liable without implicitly rejecting the Mt. Healthy defense nor could the jury have awarded compensatory damages without properly considering the issue of mitigation. For these reasons, the Court's refusal to include specific interrogatories on these issues was not erroneous.*fn8
C. Based on the Jury Verdict Being Against the Weight of the Evidence
Defendant Ortiz argues that he is entitled to a new trial because the jury's verdict was against the weight of the evidence. The Court disagrees.
"[A] district court ought to grant a new trial on the basis that the verdict was against the weight of the evidence only where a miscarriage of justice would result if the verdict were to stand." Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1352 (3d Cir. 1991) (citation omitted). A new trial may also be appropriate where "the verdict, on the record, cries out to be overturned or shocks our conscience."
Id. at 1353.The Third Circuit has recognized that in so ruling the district court runs the risk of substituting its judgment for the judgment of the jury, and thus the district court's freedom to make such a substitution varies with the complexity of the case. Id. at 1352. "Where the subject matter of the litigation is simple and within a layman's understanding, the district court is given less freedom to scrutinize the jury's verdict than in a case that deals with complex factual determinations such as passing upon the nature of an alleged newly discovered organic compound in an infringement action." Id. (quotation omitted).
Defendant's arguments in support of its motion on this point are variations of its prior arguments for judgment as a matter of law which the Court has already rejected: (1) there was no evidence that Defendant Ortiz participated in or influenced the decision to terminate Plaintiff; and (2) the evidence establishes that Plaintiff would have been terminated regardless. The jury found otherwise and had a sufficient evidentiary basis for doing so, as the Court discussed above. Defendant Ortiz does not explain how this verdict is so against the weight of the evidence as to shock the conscience or result in a miscarriage of justice, nor does the jury's verdict shock the conscience. Defendant Ortiz had the opportunity to present his version of the facts at trial and defense counsel vigorously presented his case with competence and thoroughness. That the jury rejected his arguments does not mean that there was a miscarriage of justice. The facts of the case were relatively straightforward and did not require the jury to understand complicated technical information. That Defendant Ortiz was able to put forth evidence that was refuted some of the evidence proffered by Plaintiff is not a basis for relief where a reasonable juror could have interpreted the evidence as supporting either party's case. See id. at 1354 (reversing trial court's decision to grant new trial based on defendant's presentation of evidence contradictory to plaintiffs).
D. Based on the Court's Examination of Witnesses
Defendant Ortiz also argues that it is entitled to a new trial because the Court improperly examined witnesses resulting in unfair prejudice. In support of its argument, Defendant Ortiz cites a number of instances from the trial transcripts where the Court asks what Defendant Ortiz believes to be improper or unfair questions. The Court has reviewed ...