Opinion
Case No. 01-976-CIV-JORDAN.
July 9, 2004
ORDER
Lorraine Cooper sued Miami-Dade County for terminating her employment in violation of 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, and Fla. Stat. § 112.3187, the Florida Whistleblower's Act, and for causing her intentional infliction of emotional distress, for its negligent retention of Sergeant Earnest Parrish, and for defamation. I granted summary judgment in favor of Miami-Dade County ("the County") on the defamation claim and the intentional infliction of emotional distress claim [D.E. 201]. The Title VII retaliation and negligent retention claims were tried by a jury. At the end of Ms. Cooper's case-in-chief, the County made a Rule 50 motion, asking for a judgment as a matter of law. I granted the County's Rule 50 motion on the negligent retention claim at trial. I deferred ruling on the retaliation claim until after the jury verdict.
I granted judgment as a matter of law in favor of the County because Florida common law does not recognize a tort of sexual harassment. See Castleberry v. Edward M. Chadbourne, Inc., 810 So.2d 1028, 1030 (Fla.Dist.Ct.App. 2002) ("Furthermore, Florida does not recognize a common law cause of action for negligent failure to maintain a workplace free of sexual harassment."). See also Ball v. Heilig-Meyers Furniture Co., 35 F.Supp.2d 1371, 1375, 1377 (M.D.Fla. 1999); Samedi v. Miami-Dade County, 134 F.Supp.2d 1320, 1353 (S.D.Fla. 2001); City of Miami Beach v. Guerra, 746 So.2d 1159, 1159 (Fla.Dist.Ct.App. 1999). To maintain a negligent retention claim, "the underlying wrong allegedly committed by an employee . . . must be based on an injury resulting from a tort which is recognized under common law." Scelta v. Delicatessen Support Servs., Inc., 57 F.Supp.2d 1327, 1348 (M.D.Fla. 1999). Ms. Cooper argues that the Florida Supreme Court's opinion in Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla. 1989), permits a cause of action for common law negligence for sexual harassment. However, Byrd specifically declined to reach this issue. See Byrd, 552 So.2d. at 1105 ("We express no opinion as to whether petitioners in this case have alleged sufficient facts to state a cause of action [for failure to maintain a workplace free from sexual harassment] under the common law, an issue we do not reach.").
It is usually desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion. If the district court grants judgment as a matter of law and the appellate court holds that the district court was in error, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. See, e.g., 9A WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 2533 (2d ed. 1994); Phoenix Savings Loan, Inc. v. Aetna Casualty Surety Co., 427 F.2d 862, 873-874 (4th Cir. 1970).
The jury found that the County's termination of Ms. Cooper was in retaliation for her engaging in statutorily protected activity. The jury also found that Ms. Cooper was entitled to damages and awarded her $194,201 for lost wages and benefits to the date of trial, $140,340 for retirement benefits reduced to present value, and $20,000 for emotional pain and anguish [D.E.246]. Following the verdict, the County renewed its Rule 50 motion as to the Title VII retaliation claim. The County also moved for a new trial, should the Rule 50 motion be denied.
The County's motion for a judgment as a matter of law, or in the alternative a new trial, pursuant to Rule 50, [D.E. 254] is GRANTED for the reasons set forth below.
I. FACTS
A fair number of facts were not contested at trial. Where a conflict exists, the facts are taken in the light most favorable to Ms. Cooper. See Thosteson v. United States, 331 F.3d 1294, 1298 (11th Cir. 2003). I have tried to set the facts out in as much detail as possible — even though some of the details are not legally significant — with the hope of facilitating appellate review.
A. MS. COOPER AND SERGEANT PARRISH
Ms. Cooper was employed as a correctional officer with Miami-Dade County from December 24, 1983, to March 24, 2000. In 1989, when Ms. Cooper was working at the Dade County Jail, she received a written reprimand Ms. Cooper sought out the help of Sergeant Parrish, the then-president of the Organization of Minority Corrections Officers, in preparing a response to the written reprimand She met Sergeant Parrish at the central detention center where he worked and he suggested that they go up to the seventh floor, the administrative floor, to discuss the matter in private. As they exited the elevator, Sergeant Parrish ran his hand up Ms. Cooper's back and popped her bra strap. Ms. Cooper testified that she was shocked and offended and told him, "Who do you think you are? Don't you ever touch me like that again." She further testified that she was nervous and frightened because Sergeant Parrish was a supervisor and she felt she needed his help in responding to the written reprimand Sergeant Parrish responded by telling her that he would not touch her again, and that she should not file a complaint against him. Ms. Cooper did not file a complaint or tell anyone until six years later. During an informal lunch in 1995, Ms. Cooper discussed the incident with Lois Spears, who at that time was the interim director of the Department of Corrections.
Ms. Cooper, Sergeant Parrish, and Director Spears are African-American.
Sometime in the 1990s, Ms. Cooper asked Sergeant Parrish to place her name on the list for overtime work. During that conversation, Sergeant Parrish invited her to a private party at his home, where strippers would be performing. Ms. Cooper declined. In later conversations, also regarding work issues, Sergeant Parrish would renew these invitations to these "sex parties" and Ms. Cooper would decline.
In 1995, Ms. Cooper requested a transfer from the professional compliance unit, which was located in the headquarters building. She was transferred to the North Dade Detention Center and placed on the afternoon shift. At that time, her supervisor was Sergeant Hart. In 1997, Sergeant Parrish was transferred to the North Dade detention center and he became her immediate supervisor. Upon Sergeant Parrish's arrival, Ms. Cooper was subjected to various forms of harassment. Sergeant Parrish refused to rotate her as he did the rest of the officers, and required her to do the intake, booking, and processing of inmates. Ms. Cooper described this job as extremely stressful. Sergeant Parrish also paired Ms. Cooper with officers whom he knew would not work with her, denied her requests to work overtime, and spoke about her in a derogatory fashion to her co-workers.
On January 3, 1999, Ms. Cooper called in to request an administrative leave day, because she suffered from extreme back pain. Sergeant Kenneth O'Neal and Corporal Leroy Weston approved her administrative leave. However, the following day, Sergeant Parrish asked her to fill out a sick slip for that day. Ms. Cooper refused to do so because her day off was covered by administrative leave. Sergeant Parrish then told her that he would consider that day an unauthorized leave of absence, and would dock her pay for that day. Ms. Cooper informed Captain Ronald Kovacs of Sergeant Parrish's harassment, and Captain Kovacs ordered Sergeant Parrish to change the unauthorized leave of absence back to an administrative leave day. Captain Kovacs did not further investigate Ms. Cooper's allegations of harassment.
On January 6, 1999, Ms. Cooper arrived at work in civilian clothes. She was rushing from her doctor's office and did not want to be late for work, so she had not changed into her uniform, as required. While she was on her lunch break, Sergeant Parrish approached her and asked to speak to her about her failure to wear her uniform. Ms. Cooper asked to discuss it later, after she had finished her lunch, and walked past him with her lunch. Sergeant Parrish repeated that he wanted to speak to her immediately, and he informed her that she was out of compliance for failing to wear her uniform. That evening, Sergeant Parrish handed Ms. Cooper a memo he had prepared informing Captain Kovacs that she had violated the restricted duty policy by not wearing her uniform and that she had been rude and insubordinate when he had tried to discuss the issue with her.
Ms. Cooper was frustrated by the situation and, on that same day, filed a grievance against Sergeant Parrish, alleging that he had been harassing her for no justifiable cause in retaliation for her rejection of his sexual advances made several years earlier. On January 7, 1999, she informed Lieutenant Edwina Talley and Captain Kovacs that she had filed a personal complaint against Sergeant Parrish for sexual harassment and retaliation. She also gave Director Spears a copy of the complaint. In this complaint, however, she only discussed the bra popping incident from 1989, and did not mention the sex parties.
After Ms. Cooper filed her grievance, Sergeant Parrish was transferred out of the North Dade Detention Center, pursuant to department policy which requires that the alleged harasser and the alleged victim be separated while the complaint is investigated. The Department of Corrections investigated the allegations outlined in the grievance and decided that there was no connection between the sexual harassment and the retaliation because of the time frame (approximately six years). After the dismissal of Ms. Cooper's grievance, Sergeant Parrish was transferred back to the North Dade Detention Center on February 8, 1999. His shift overlapped with Ms. Cooper's shift for an hour each day, and during that hour, he was her supervisor.
On February 8, 1999, when Ms. Cooper reported for her shift, she was reassigned for the day by her supervisor, Sergeant Joyce Holmes, to the Department of Corrections facility within the Jackson Memorial Hospital, Ward "D", which is located near downtown Miami. Ms. Cooper refused the assignment, telling Sergeant Holmes that she was on pain medication, and could not drive downtown, on the highway, while under the influence of the prescription drugs. Ms. Cooper refused to go to Ward "D", and decided to return home instead of completing her shift. She testified that she was able to drive home because she lived 15 minutes away from the North Dade Detention Center and only had to drive local roads, while Jackson Memorial Hospital was substantially further away and required highway driving.
B. THE MADISON INCIDENT
On February 9, 1999, Ms. Cooper was working in the front booth at North Dade. At approximately 6:30 p.m., Maria Madison approached the front booth to visit an inmate, Ruben Maddox. Ms. Cooper testified that she felt that Ms. Madison was dressed in an inappropriately seductive manner because she was wearing a lowcut, short, tight-fitting spandex, spaghetti-strap dress. She informed Ms. Madison that she was inappropriately attired and refused to let her in. Ms. Cooper was then relieved by her supervisor, Corporal Blair, so that she could go on her lunch break. Ms. Cooper did not inform Corporal Blair of the incident with Ms. Madison because she assumed Ms. Madison had left. After Ms. Cooper had left, Ms. Madison again approached the front booth to visit Mr. Maddox. Corporal Blair did not notice any problems with Ms. Madison's attire, and issued her a visitor pass.
Ms. Madison testified that Ms. Cooper verbally assaulted her by yelling rudely at her and verbally humiliating her. Ms. Cooper denied this, and stated that her loud voice of tone was due to the intercom being broken, and that she was not rude. I credit Ms. Cooper's version of events.
As Ms. Cooper was leaving on her lunch break, she noticed that Ms. Madison was in the lobby. Ms. Cooper again informed Ms. Madison that she was not allowed in the facility because she was inappropriately dressed. Ms. Madison showed her the visitor's pass allowing her in the facility, which had been issued by Corporal Blair. Ms. Cooper took Ms. Madison's visitor pass and wrote "cancelled" across the pass and turned her away. When Ms. Cooper contacted Corporal Blair to advise him of her actions, Corporal Blair said that he had already approved Ms. Madison's visit and that Ms. Cooper should have discussed the incident with him prior to turning her away. Ms. Cooper responded that Ms. Madison had left after she was informed that her attire was inappropriate and she had assumed that Ms. Madison would not return. Ms. Cooper then returned the pass to Ms. Madison and allowed her into the facility.
Ms. Madison filed a personnel complaint against Ms. Cooper for verbal assault on February 11, 1999, alleging that Ms. Cooper had rudely embarrassed her two days earlier. Corporal Blair was responsible for investigating the complaint because he was the shift commander and supervisor that night. Corporal Blair acknowledged, and other witnesses confirmed, that it was against departmental procedure for him to investigate the complaint since he was involved in the incident. Corporal Blair, however, did not witness the alleged verbal harassment of Ms. Madison by Ms. Cooper, which was the basis of the complaint and the later disciplinary action.
Departmental Standard Operating Procedure 6-022, Section 8, provides: "An employee having knowledge of, or involved as a subject or witness in a complaint, shall not independently participate in the investigation, be present during an investigative contact with the complainant or complainant's witnesses, contact the complainant or complainant's witnesses concerning the allegations, disclose or discuss the existence of the facts or a complaint with anyone." See Plaintiff's Exhibit 25.
The witness memoranda from Officer Gibson, Lieutenant Talley, and Officer Parson all described Ms. Cooper as being excessively rude and belligerent to Ms. Madison. According to the witness accounts, Ms. Cooper's treatment of Ms. Madison reduced her to tears and left her visibly shaking.
Ms. Cooper allegedly told Ms. Madison: "I told you not to come in, as you are not properly dressed. Your visit is cancelled. . . . You are a sneaky person trying to get in to visit after I told you no visit, go outside, your visit is cancelled." See Plaintiff's Exhibit 17, Charles D. Parson Memo.
Sergeant Parrish was not present during the incident with Ms. Madison. Nor does Ms. Cooper allege at any time that Sergeant Parrish was linked to this incident, or the subsequent disciplinary action arising from this incident.
C. THE DISCIPLINARY ACTION REPORTS
Sergeant Holmes issued Disciplinary Action Report (DAR) 48 on February 24, 1999, to Ms. Cooper for her refusal to accept reassignment to Ward "D". Specifically, DAR 48 cited Ms. Cooper for failure to obey orders and for antagonistic behavior towards her superiors and fellow employees.
Sergeant Parrish issued DAR 49 on March 8, 1999, to Ms. Cooper for her disrespectful and antagonistic behavior to him on January 6, 1999, when he attempted to speak with her regarding her attire. On October 13, 1999, Ms. Cooper was suspended for 12 days without pay for the violations enumerated in DAR 49. Subsequently, on April 25, 2000, Ms. Cooper entered into a settlement agreement with the Department of Corrections regarding DAR 49. Pursuant to the settlement agreement, Ms. Cooper admitted that she had been offensive in her conduct to Sergeant Parrish and had failed to treat him with the proper respect. Ms. Cooper's suspension was reduced to seven days, and she received back pay for five days. Ms. Cooper agreed not to appeal the seven-day suspension, and the Department of Corrections agreed to not pursue any more disciplinary action related to DAR 49.
Corporal Blair issued DAR 50 to Ms. Cooper for the Madison incident on April 2, 1999. In an attached memorandum, dated April 27, 1999, Corporal Blair recommended that Ms. Cooper be dismissed from the position of correctional officer immediately based upon "her rude antagonistic behavior," as exhibited during the Madison incident, as well as in other incidents, as documented by earlier DARs. On May 4, 1999, Ms. Cooper provided a written rebuttal to DAR 50.
Ms. Cooper received DARs 48-50 at a disciplinary meeting on April 27, 1999. Although DARs 48 and 49 had been prepared earlier, they had been held in abeyance pending the resolution of Ms. Cooper's grievance and Ms. Madison's complaint.
D. MS. COOPER'S COMPLAINT OF HARASSMENT AND RETALIATION AND DIRECTOR SPEARS' TERMINATION DECISION
On April 29, 1999, shortly after receiving DARs 48-50, Ms. Cooper filed a sexual harassment and retaliation complaint against Sergeant Parrish with the EEOC. Ms. Cooper testified that the retaliation intensified after she filed her EEOC complaint and that she received more DARs for other infractions. Barbara Mizell, an administrative assistant to Captain Kovacs and to Captain Aaron Grandberry, stated in a verified statement that in the months after Ms. Cooper filed her internal complaint and her EEOC charge, she overheard, on several occasions, conversations between Captain Grandberry, Sergeant Parrish, and Lieutenant Talley, and between Captain Kovacs, Sergeant Parrish and Lieutentant Talley. According to Ms. Mizell's statement, they stated how they were angry with Ms. Cooper for filing her sexual harassment complaint and discussed how to get Ms. Cooper terminated from her employment with the Department of Corrections.
Ms. Mizell later recanted her verified statement, but, as discussed later in this order, I allowed the portions of the statement summarized in the text to be admitted as substantive evidence under Rule 807 because they were corroborated by other sources. Significantly, however, I did not allow Ms. Cooper to introduce the portion of the statement implicating Director Spears in the plot to get Ms. Cooper terminated.
Ms. Cooper testified that Director Spears was aware that she had filed the EEOC complaint. At this time, Director Spears was the director of the Department of Corrections, was responsible for employee discipline, and had sole authority to terminate employees. Upon receiving a recommendation of termination, Director Spears' normal routine was to look at why the recommendation had been made, investigate the relevant incident, and review the employee's disciplinary history. After that, Director Spears would meet with the employee and an representative of the employee's choice, and allow the employee to explain the situation.
On March 23, 2000, Director Spears asked Ms. Cooper to meet with her regarding DAR 50, the Madison incident. Ms. Cooper brought her attorney, Michael Braverman, to the meeting. At that meeting, Director Spears allowed Ms. Cooper to explain what happened with Ms. Madison. Ms. Cooper explained that she had denied Ms. Madison entry into the facility because she was concerned for Ms. Madison's safety, given her inappropriate attire. She acknowledged, however, that Corporal Blair had the final say in whether to allow Ms. Madison into the facility, and that she should have contacted Corporal Blair before cancelling Ms. Madison's pass.
At trial, Ms. Cooper confirmed, during cross-examination, that Director Spears gave her every opportunity to refute the allegations, both in her response to DAR 50 and in her rebuttal to Corporal Blair's memorandum: "[Director Spears] gave me every opportunity to explain what transpired. I explained my total version, in addition to the rebuttal, which outlined all — a lot of the documents pertaining to the DAR." See Trial Transcript, Day 5, at 203-04. She also testified that she told Director Spears that she believed that she was being harassed and retaliated against for filing a sexual harassment complaint against Sergeant Parrish. Ms. Cooper also informed Director Spears of the other contributions she had made to the Department of Corrections, such as her volunteer work with Onecka Lowery, and of commendation letters which she had received.
Director Spears testified at trial that in deciding what action to take regarding Ms. Cooper, she reviewed DAR 50, the witness statements from the Madison incident, and Ms. Cooper's written rebuttal. Director Spears also reviewed Ms. Cooper's performance and disciplinary history, and Corporal Blair's recommendation for termination. Director Spears testified that, in response to Ms. Cooper's allegations that the DARs were the result of retaliation, she went back to check if retaliation had occurred, and she determined that it had not.
Under cross-examination, Ms. Cooper admitted that she had been subject to various disciplinary actions by the Department of Corrections. She received a two-day suspension in 1989, a written reprimand in 1989, a three-day suspension in 1990, a four-day suspension in 1991, a 15-day suspension in 1992, a written reprimand in 1993, a 20-day suspension in 1993, a written reprimand in 1995, and a 12-day suspension in 1999. Trial Transcript, at Day 1. All but one of these disciplinary actions were for offensive and antagonistic behavior towards supervisors and fellow employees, or for failures to follow orders. See Defendant's Exhibits 4-6, 9, 13, 15, 17-20. Her 20-day suspension in 1993 was for failure to report to work, and was later reduced to a three-day suspension.
On March 23, 2000, Director Spears terminated Ms. Cooper's employment. In the termination letter, Director Spears informed Ms. Cooper: "This termination is based on violations enumerated in the enclosed and incorporated Disciplinary Action Report signed by you on April 27, 1999. Your Personnel Record Summary, your past performance, and your response to the Disciplinary Report were reviewed and considered prior to the imposition of discipline." Director Spears explained her termination decision at trial: "I imposed termination because of the preponderance of like behavior. We're a paramilitary organization, and you have to obey the rules and regulations. You can't be antagonistic towards supervisors, toward the public, toward your fellow employees. You have to learn to get along, and because there were so many other incidences of this nature, I just didn't see where I could do anything else. Lorraine's job performance was good, the mechanics of it, but there was such a disturbance wherever she worked that the other people were not able to perform to their top ability . . . And at the end of this time, my decision was to terminate." See Trial Transcript, Day 5, at 122.
II. STANDARD
Judgment as a matter of law under Rule 50 should be granted where "the evidence is so weighted in favor of one side that one party must prevail as a matter of law." Thosteson, 331 F.3d at 1298 (internal citation omitted). See also Bishop v. City of Birmingham Police Department, 361 F.3d 607, 609 (11th Cir. 2004). In deciding a motion for judgment as a matter of law, "the court should review all of the evidence in the record. . . . [and] should give credence to the evidence favoring the nonmovant as well as that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). The court may not, however, make credibility determinations or weigh the evidence. See id. All evidence is considered in the light most favorable to the non-moving party, but the non-movant "must put forth more than a mere scintilla of evidence that `reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.'" Thosteson, 331 F.3d at 1298. "`If the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict, then the motion [is] properly granted." See Bishop, 361 F.3d at 609. See also Abel v. Dubberly, 210 F.3d 1334, 1337 (11th Cir. 2000) ("A substantial conflict in the evidence is required before a matter will be sent to the jury.").
III. ANALYSIS
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee on the basis of, among other things, the employee's gender. See 42 U.S.C. §§ 2000e-2(a). Title VII also prohibits retaliation against an employee for exercising her Title VII rights, namely complaining about discriminatory treatment. Similarly, the Florida Whistleblower's Act prohibits an employer from retaliating against an employee who discloses an employer's illegal practices, such as sexual harassment. See FLA.STAT. § 112.3187. Retaliation claims brought under the Florida Whistleblower's Act are analyzed under the same standards as Title VII retaliation claims, so I will analyze the claims together under Title VII standards. See Sierminski v. Transouth Financial Corp., 216 F.3d 945, 950-951 (11th Cir. 2000); Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1132 (Fla.Dist.Ct.App. 2003).
To establish a prima facie case of retaliation under Title VII, Ms. Cooper must show that (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link between her protected activity and the adverse action. See Weeks v. Harden Manufacturing Corp., 291 F.3d 1307, 1312 (11th Cir. 2002); Gupta v. Florida Board of Regents, 212 F.3d 571, 587 (11th Cir. 2000). Once Ms. Cooper has proved her prima facie case, the burden shifts to the County to provide a legitimate, non-discriminatory reason for the adverse action. See E.E.O.C. v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir. 1993). If the County does, the burden then shifts back to Ms. Cooper to prove, by a preponderance of the evidence, that the County's explanation is a pretext for retaliation. See Meeks v. Computer Associates International, 15 F.3d 1013, 1019 (11th Cir. 1994). Ms. Cooper "must show that `a discriminatory reason more likely than not motivated'" Director Spears. Id. (internal citations omitted).
In the summary judgment order dated October 16, 2003, I ruled that Ms. Cooper had established a prima facie case of retaliation under Title VII, and that the County had proffered a legitimate, non-discriminatory reason for the termination, namely Ms. Cooper's poor employment record and numerous prior suspensions. The question left for the jury was whether they could reasonably disbelieve the County's proffered nondiscriminatory reasons for its actions. I originally concluded that, viewed in the light most favorable to Ms. Cooper, she had presented evidence which "directly establishes discrimination or which permits the jury to reasonably disbelieve the [County's] proffered reason." Steger v. General Electric Co., 318 F.3d 1066, 1079 (11th Cir. 2003). See also Reeves, 530 U.S. at 148.
My conclusion was based on the following facts, viewed in the light most favorable to Ms. Cooper: Ms. Cooper complained about alleged sexual harassment on the part of Sergeant Parrish to her superiors, to the internal affairs bureau, and to the Equal Employment Opportunity Commission in early 1999. In early 2000, Ms. Cooper was terminated from her employment. Ms. Cooper alleged that the termination was in retaliation for her complaints about sexual harassment.
As the Eleventh Circuit has explained, once a case proceeds to trial, the shifting burdens of proof evaporate, and the sole issue is whether the employee's proffered reason for termination was pretextual. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 518-19 (11th Cir. 1995).
The evidence presented at trial was different — in a legally significant way — from the record at summary judgment, so my prior Rule 56 ruling does not preclude the grant of a Rule 50 motion. See Abel, 210 F.3d at 1337. Applying the Rule 50 standard, I find that the trial evidence is insufficient to create a substantial question of fact as to whether Ms. Cooper's employment was terminated because she previously exercised her rights under Title VII by filing a sexual harassment complaint against Sergeant Parrish. Before discussing the trial evidence, however, it is necessary to explain the evidence presented at the summary judgment stage.
A. BARBARA MIZELL'S VERIFIED STATEMENT AND RECANTATION
At summary judgment, Ms. Cooper presented the verified statement of Barbara Mizell, dated September 17, 2003. Ms. Mizell worked as an administrative assistant in the North Dade Dentention Center, from 1998 through 2000, and knew Ms. Cooper during that time. In her verified statement, Ms. Mizell stated that sometime in 1999, within a month after the filing of Ms. Cooper's EEOC charge, she overheard Captain Grandberry, Sergeant Parrish, Captain Kovacs, and Administrative Lieutenant Talley say that they were angry about the complaint and overheard them plotting about how to have Ms. Cooper terminated. See D.E. 90, Exhibit A, at ¶¶ 6-7 (Mizell Statement). Ms. Mizell also stated that she overheard them saying that Director Spears had knowledge of their intentions and approved their course of action. Based in large part on this evidence, I found that there was a material issue of fact as to whether the County's proffered non-discriminatory reason for termination was pretextual, and denied the County's motion for summary judgment. Ms. Mizell's statement, if believed, provided direct evidence of discrimination by Director Spears, the person who made the termination decision.Shortly before trial, the County deposed Ms. Mizell. At her deposition, Ms. Mizell recanted her verified statement. Specifically, Ms. Mizell stated that she "never heard Captain Grandberry or anyone else say they was going to plot anything and that they was going to, they was out to get her." See D.E. 234, at 32, 113 (Mizell Deposition). Ms. Mizell further stated that she had never heard Captain Kovacs say that Director Spears knew that he was plotting with other people to terminate Ms. Cooper or that Director Spears approved that course of conduct. Id. at 34, 113-14. Ms. Mizell also said that she could not have heard such a conversation between these four people because they were not all employed at the North Dade Detention Center at the same time. Id. at 36. According to Ms. Mizell, Captain Grandberry started working at the North Dade Detention Center after Captain Kovacs had left. Id. at 36-37. Ms. Mizell also stated that she had not read the verified statement carefully before signing it. Id. at 110, 112. The County filed an emergency motion to strike Ms. Mizell's verified statement [D.E. 233] on November 28, 2003.
When I questioned Ms. Mizell in court, under oath, on December 3, 2003, about the discrepancy between her deposition and her verified statement, Ms. Mizell stated that she had not read the statement carefully before signing it. Ms. Mizell explained that she was presented with the statement by Ms. Cooper in a shopping center parking lot. Ms. Mizell was in a hurry, so she briefly read it, and then signed it. She also testified that Ms. Cooper asked her to write in the name of Captain Kovacs on the statement.
Although Ms. Mizell's verified statement constituted hearsay, at trial I denied the County's motion to strike it, and allowed portions of it to be introduced by Ms. Cooper under Rule 807's residual hearsay exception. Rule 807 allows for the admission of a hearsay statement which has circumstantial guarantees of trustworthiness, if certain requirements are satisfied. I found that most of the assertions in Ms. Mizell's statement had independent guarantees of trustworthiness. See, e.g., United States v. Rodriguez, 218 F.3d 1243, 1246 (11th Cir. 2000) (allowing under the residual hearsay exception testimony by motel clerks that the hotel guests were from out of town where the clerks based their testimony upon review of documents, such as licenses and passports, from the guests, and where the clerks' testimony was corroborated by an FBI agent's independent review of the documents). Ms. Mizell's statement that she overheard the four officers plotting was corroborated by a statement in the EEOC file purportedly from her, Corporal Weston's deposition, and Ms. Cooper's deposition.
Rule 807 allows the admission of a hearsay statement if "(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence." I found that portions of the conversations overheard by Ms. Mizell went directly to the main issue of retaliation, and that Ms. Mizell's statement was — given Ms. Mizell's recantation — the only evidence of these conversations. Thus, I ruled that her statement regarding these conversations should be admitted in the interests of justice.
There is a one-page typewritten statement in the EEOC file that purports to be a statement taken from Ms. Mizell in March of 2000. In this statement, Ms. Mizell is attributed with saying that some of Ms. Cooper's supervisors were plotting to get back at her, and naming the particular supervisors (none of whom, however, are Director Spears). I understand that Ms. Mizell claims to have spoken with the EEOC investigator for just a couple of minutes, but I find it hard to believe that there would be a statement of this length in the file if she had not spoken to the investigator for longer.
It is significant that the testimony from Corporal Weston and Ms. Cooper was given prior to Ms. Mizell having submitted her statement, and that their testimony recounts that Ms. Mizell also purportedly told them about the conversations she had overheard.
However, there was nothing in the record to indicate or corroborate the claim in the verified statement that she overheard the officers stating that Director Spears knew and/or approved of the plot. Moreover, in her deposition and in court, Ms. Mizell denied ever hearing such a conversation. Ms. Mizell's verified statement testimony regarding that point was hearsay, with no other guarantees of trustworthiness, and thus not admissible under any hearsay exception. I allowed Ms. Cooper to enter Ms. Mizell's statement as a substantive exhibit, but with all references to Director Spears deleted. Thus, there was no direct evidence at trial that Director Spears acted with discriminatory intent.
Ms. Cooper argued that Ms. Mizell's testimony regarding Director Spears was admissible for impeachment purposes. As I ruled at trial, however, Ms. Cooper cannot elicit adverse testimony from Ms. Mizell (the recantation) solely for the purpose of impeaching Ms. Mizell with the portion of the verified statement which constituted hearsay, and getting evidence before the jury which would otherwise be inadmissible. See Hooks v. United States, 375 F.2d 212, 213-14 (5th Cir. 1967); United States v. Gilbert, 57 F.3d 709, 711 (9th Cir. 1995); Whitehurst v. Wright, 592 F.2d 834, 839-40 (5th Cir. 1979); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984).
B. EVIDENCE AT TRIAL OF DIRECTOR SPEARS' DISCRIMINATORY INTENT
Ms. Cooper was not able to present direct evidence of Director Spears' discriminatory intent. A Title VII plaintiff, however, can prove such intent by circumstantial evidence, and I turn to that evidence now.
In the termination letter, Director Spears informed Ms. Cooper that the termination was based on DAR 50, the Madison visitor incident. The letter also stated that Ms. Cooper's personnel record summary, past performance, and response to the DAR were considered prior to making the decision to terminate her employment. Director Spears testified that she terminated Ms. Cooper's employment because Ms. Cooper's history, and the DAR 50, indicated that Ms. Cooper had a tendency to disobey orders and to be antagonistic towards supervisors, fellow employees, and the public. Ms. Cooper must prove, by a preponderance of the evidence, that Director Spears' reasons were pretextual, and that she was actually motivated by retaliatory animus. See Meeks v. Computer Associates Int'l, 15 F.3d at 1019. Ms. Cooper must do more than "quarrel with the wisdom of [Director Spears'] reason." See Chapman v. AI Transport, et al., 229 F.3d 1012, 1030 (11th Cir. 2000) ("A plaintiff is not allowed to recast an employer's proffered nondiscriminatory reason or substitute his business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employer cannot succeed by simply quarreling with the wisdom of that reason."). See also Alexander v. Fulton County, Ga., 207 F.3d 1303, 1341 (11th Cir. 2000) ("[I]t is not the court's role to second-guess the wisdom of an employer's decisions as long as the decisions are not racially motivated.").
Without Ms. Mizell's statement regarding Director Spears' knowledge and approval of the retaliatory plot to terminate Ms. Cooper, Ms. Cooper has no direct evidence of Director Spears' retaliatory animus. Moreover, since the alleged harassers and conspirators (Sergeant Parrish, Captain Kovacs, Administrative Lieutenant Talley, and Captain Grandberry) did not make the decision as to Ms. Cooper's termination, Ms. Cooper cannot "benefit from the inference of causation arising from the common identity of a harasser and a decisionmaker." Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1248 (11th Cir. 1998) (finding that plaintiff failed to establish a causal link between harasser's actions and decisionmaker's termination of plaintiff, and reversing district court judgment in plaintiff's favor). Instead, Ms. Cooper must show that Director Spears was motivated by the harassers' retaliatory animus, i.e., that Director Spears "acted in accordance with the decision [of Captain Kovacs or Sergeant Parrish] without herself evaluating [Ms. Cooper's] situation . . ." See id. at 1249. But, a subordinate's animus cannot be attributed to the ultimate decision-maker if she makes an effort to determine the plaintiff's side of the story, see id. at 1250 ("[w]hen the employer makes an effort to determine the employee's side of the story before making a tangible employment decision affecting that employee . . . it should not be held liable under Title VII for that decision based only on its employee's hidden discriminatory motives"), conducts her own evaluation, and makes an independent decision. See Pennington v. City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001) ("Where a decisionmaker conducts [her] own evaluation and makes an independent decision, [her] decision is free of the taint of a biased subordinate employee.") (citing string of cases). See also Willis v. Marion County Auditor's Office, 118 F.3d 542, 547 (7th Cir. 1997) ("[W]hen the causal relationship between the subordinate's illicit motive and the employer's ultimate decision is broken, and the ultimate decision is clearly made on an independent and a legally permissive basis, the bias of the subordinate is not relevant.").
Causation can be established in Title VII cases where the decisionmaker and harasser are not the same if "the plaintiff shows that the harasser employed the decisionmaker as her `cat's paw' — i.e., the decisionmaker acted in accordance with the harasser's decision without herself evaluating the employee's situation." See Llampallas, 163 F.3d at 1249.
The County argues that the evidence shows that Director Spears conducted an independent investigation, that there is no evidence (direct or circumstantial) that Director Spears harbored retaliatory animus, and that over 14 months elapsed between when Ms. Cooper filed her sexual harassment complaint and when her employment was terminated. The County argues that this record does not allow a reasonable jury to find that Director Spears was motivated by the retaliatory animus of Sergeant Parrish and other alleged harassers.
Ms. Cooper contends that Llampallas and Pennington do not govern her case, because her situation is factually distinct. She also argues that there is sufficient circumstantial evidence that Director Spears had knowledge of and approved the retaliatory course of action taken by others.
In Llampallas, Ms. Llampallas faced harassment from a female co-worker, Marta Blanch, after she broke off their sexual relationship. See Llampallas, 163 F.3d at 1239. Ms. Blanch threatened to have Ms. Llampallas fired if she would not resume the sexual relationship. Id. at 1240. When Ms. Llampallas refused to do so, Ms. Blanch called the company's president, Harvey Kaylie, and informed him that she was quitting because she could not work with Ms. Llampallas anymore. Id. at 1239. Ms. Blanch did not inform Mr. Kaylie of their sexual history or animosity. Id. at 1239, 1250. Mr. Kaylie then held a private meeting with Ms. Llampallas. Id. At this meeting, Ms. Llampallas did not inform Mr. Kaylie of her prior sexual relationship, or current tension, with Ms. Blanch. Id. at 1249. In the end, Mr. Kaylie decided to terminate Ms. Llampallas' employment with the company because he wished to retain Ms. Blanch. Id. at 1248. A bench trial was held, and the district court found in favor of Ms. Llampallas. In relevant part, the district court found that Ms. Llampallas had established causation because Ms. Blanch made good on her threat to have Ms. Llampallas fired. Id. The Eleventh Circuit reversed the district court judgment and concluded that, under these facts, there was "no evidence to support an inference of a causal link between Blanch's discriminatory animus and the decision to terminate Llampallas' employment." Id. at 1248-49. Importantly, the Eleventh Circuit noted that Mr. Kaylie did not fire Ms. Llampallas based solely on Ms. Blanch's threat to quit. Id. at 1249 ("Kaylie's decision to suspend and discharge Llampallas was not simply a tacit approval of Blanch's own decision to do the same."). Instead, Mr. Kaylie conducted an independent investigation and concluded that he preferred to retain Ms. Blanch as an employee. Id. The Eleventh Circuit ultimately held that Ms. Blanch's discriminatory animus could not be attributed to Mr. Kaylie because he had conducted an independent investigation. Id. ("We do not, however, need to decide whether Mini-Circuits could be held liable based on Kaylie's unwitting compliance in Blanch's manipulative plan, because such is not the case before us.").
Ms. Cooper argues that Llampallas is not applicable in this case, because the Eleventh Circuit emphasized in Llampallas that the decisionmaker was not "on notice" "that Blanch's threat [to quit] was motivated by a discriminatory animus towards Llampallas." Id. at 1250. The problem with this argument is that later Eleventh Circuit cases applying Llampallas emphasize that no inference of discriminatory animus can be attributed to a decision-maker who conducts an independent investigation and allows the plaintiff to present her side of the story, even if the decision-maker is aware of the alleged discrimination against the plaintiff. See, e.g., Pennington, 261 F.3d at 1270. See also Wright v. Southland Corp., 187 F.3d 1287, 1304 n. 20 (finding no discriminatory intent on the part of the decision-makers where biased employee was not involved in the decision to terminate the plaintiff and no evidence was presented that the employee manipulated the decision-maker).
In Pennington, for example, Michael Pennington received certain religious accommodations from his supervisor, Mr. Hughes, after filing a grievance with the City of Huntsville. Pennington, 261 F.3d at 1264. Two years later, he applied for a promotion to the position of Neighborhood Services Programmer, for which another candidate, Joey Flanders, was selected. Id. Mr. Pennington again filed a grievance with the City, alleging that he had been denied the promotion because of retaliation and race discrimination. Id. The City's Equal Employment Officer agreed with him, and issued a memorandum to Richard Liles, the ultimate decision-maker, that Mr. Pennington's supervisor may have issued a biased recommendation for Mr. Pennington because of the prior religious accommodation. Id. Following this finding, the City rescinded the job offer to Mr. Flanders, and conducted the interview process again. During Mr. Pennington's interview, Mr. Liles mentioned the prior interview and the possible bias that was involved. Id. at 1266. Mr. Pennington alleged that these remarks were evidence of a retaliatory motive towards him, but the Eleventh Circuit found that the record indicated that Mr. Liles "raised these issues to explain the need for the re-interview." Id. at 1267.
Mr. Flanders was again offered the position of Neighborhood Services Programer, but Mr. Pennington was offered a position as a Programmer for the Scruggs Center. Id. at 1264. However, Mr. Pennington's offer was subject to conditions that were not imposed on Mr. Flanders, namely the participation in a writing skills program and additional evaluations at three months and six months after the promotion. Id. Mr. Liles explained that these requirements were necessary because Mr. Pennington had never worked at this facility before. Id. Mr. Liles also expressed his intent that he would conduct the evaluations personally to ensure that Mr. Pennington was not further retaliated against. Id.
The district court granted summary judgment in favor of the City of Huntsville on Mr. Pennington's employment discrimination and retaliation claims. The Eleventh Circuit affirmed, and found that Mr. Pennington had not presented sufficient circumstantial evidence to avoid summary judgment. Id. at 1265, 1269-70 ("Upon a thorough review of the record, we find no evidence that suggests that [Mr.] Liles' decision was tainted either by the previous Hughes' decision or by any other retaliatory animus towards [Mr.] Pennington."). The Eleventh Circuit focused on the fact that, upon learning that Mr. Hughes' earlier decision may have been tainted, Mr. Liles conducted his own evaluation and made an independent decision. Id. at 1269-70 (noting that Mr. Liles personally conducted a fresh set of writing tests and interviews, and that no one who had participated in the previous selection of Mr. Flanders participated in Mr. Liles' decision-making). Although Mr. Liles was "on notice" of the earlier discriminatory animus, that animus was not attributed to him because he conducted an independent interview and evaluation of Mr. Pennington.
Similarly, Director Spears' awareness of the retaliation alleged by Ms. Cooper is insufficient evidence to permit a factual inference that Director Spears' termination of Ms. Cooper was motivated by retaliation, given that she conducted an independent investigation, see Llampallas, 163 F.3d at 1249, and made a decision independently of the harassers' decisions and recommendations, see Pennington, 261 F.3d at 1270. Like Mr. Liles in Pennington, Director Spears' awareness of Ms. Cooper's retaliation and harassment claims do not create an issue of fact as to retaliatory motive. Id. at 1264.
Ms. Cooper attempts to distinguish her case from Llampallas and its progeny by arguing that Director Spears based her termination decision on disciplinary infractions that were the result of retaliatory action by Ms. Cooper's harassers (DARs 48-50). Ms. Cooper argues that she had placed Director Spears on notice that the disciplinary violations were the result of retaliatory actions against her, and that Director Spears' decision to rely on these violations was a tacit approval of the harassers' retaliatory course of action. But the termination was based primarily on DAR 50, the Madison incident. Ms. Cooper does not allege that Sergeant Parrish was linked to this incident in any way, and she admitted at trial that her failure to contact Corporal Blair before revoking Ms. Madison's visitor pass was in violation of the rules. Even assuming that the other disciplinary incidents were motivated by retaliation, Ms. Cooper herself acknowledges that DAR 50 was, to a large extent, attributable to her actions. Cf. Abel, 210 F.2d at 1339 (finding that plaintiff's termination was not motivated by discrimination where plaintiff had admitted to taking county funds for personal use).
At trial, Ms. Cooper testified under cross-examination, as follows:
Q: Prior to writing cancelled on the [visitor] card [issued to Ms. Madison], you did not confer in any manner with Corporal Blair. Correct?
A: That is correct and that was an error on my part. I should have picked up the telephone first, but I did not. I did it afterwards.
Q: You recognized you handled that situation incorrectly?
A: Yes, I recognized that I should have contacted the front booth and Corporal Blair that I had denied her visit earlier. He was not aware that she had come to the facility earlier at that point.
Q: Because you were countermanding an order that already had been given by your supervisor Corporal Blair, is that right?
A: No, I was not countermanding it. I was always under the circumstances when an officer makes decision regarding something like visitation, it is not generally questioned. It was only questioned because I had not made Corporal Blair aware of this visitor prior to him relieving me for my dinner break and that is why he told me, `Too late, Ms. Cooper, you should have told me beforehand I let her in already, I am approving it.'
Q: You would agree with me, at minimum, it would have been a more prudent action if you had called Corporal Blair before you cancelled Maria Madison's visit to see [her husband] Ruben Maddox, is that correct?
A: You are absolutely right, I should have consulted Corporal Blair first. Trial Transcript, at Day 2.
The record indicates that the most recent three disciplinary incidents (DARs 48-50) were not motivated by retaliation.
DAR 48 involved a violation of restricted duty policy (failure to wear her uniform) and was issued by Sergeant Parrish. The fact that Sergeant Parrish issued the DAR would normally be problematic, but Ms. Cooper voluntarily entered into a settlement agreement regarding DAR 48 in which she acknowledged that some disciplinary action was warranted. Thus, DAR 48, which resulted in a 12-day suspension in October 1999, was later amended in April of 2000 to seven days. It is difficult for Ms. Cooper to challenge DAR 48 when she admitted that some discipline was warranted.
DAR 49 involved Ms. Cooper's refusal to accept her shift assignment because she did not want to drive to Ward "D" while on prescription medication. DAR 49 was issued by the supervisor on her shift, Sergeant Joyce Holmes, and not by Sergeant Parrish. Ms. Cooper does not allege that Sergeant Holmes was motivated by retaliatory animus — she was not one of the supervisors overhead by Ms. Mizell — nor does the record indicate that Sergeant Holmes was involved in any retaliation.
DAR 50 involved the Madison incident. Ms. Cooper has not alleged that Sergeant Parrish was involved in this incident. She instead argues that Corporal Blair, who harbored retaliatory animus, was improperly assigned to investigate this incident and issued a biased report and recommendation. Critically, however, Ms. Cooper does acknowledge, in her own testimony, that she had violated departmental rules by disobeying orders.
Ms. Cooper alleges that retaliation played a part in the issuance of DAR 50, specifically that there were procedural irregularities in the investigation, and that some of the witnesses had retaliatory motives. However, her concerns go to the allegation of whether she was rude to Ms. Madison, which I do not focus on. DAR 50 was issued on two grounds: her treatment of Ms. Madison and her failure to follow departmental rules regarding cancellation of visitor passes. Ms. Cooper does not contest the second ground.
Ms. Cooper also argues that there is circumstantial evidence to disbelieve Director Spears' reasons for termination (DAR 50 and her disciplinary history) because no one had ever been terminated for being rude to a visitor, and the last formal disciplinary action she had received was in 1995. Director Spears acknowledged that, in her 27 years of employment with the Department of Corrections, she could not recall any employee who had been terminated for a single instance of being rude to a visitor. Director Spears also stated that she would not terminate someone solely for rudeness to a visitor. The termination, however, was also based on Ms. Cooper's prior disciplinary history, including write-ups that never became formal disciplinary reports, according to Director Spears. Ms. Cooper cannot prove pretext merely by questioning the wisdom of Director Spears' decision, as long as "the reason is one that might motivate a reasonable employer." Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997) ("[F]ederal courts do not sit to second-guess the business judgment of employers."). A disciplinary record such as Ms. Cooper's (which was undisputed at trial), coupled with DAR 50, could reasonably motivate Director Spears to terminate Ms. Cooper's employment.
Finally, Ms. Cooper argues that there is circumstantial evidence that Director Spears herself harbored retaliatory animus: (1) she knew that Ms. Cooper had filed both an internal complaint (in January of 1999) and an EEOC complaint (in April of 1999); (2) there was a long delay between the disciplinary incident (February of 1999) and the final termination decision in March of 2000; (3) she failed to return Ms. Cooper's and Corporal Weston's calls regarding the harassment Ms. Cooper was suffering; (4) there were deficiencies in her investigation; and (5) the Legal Unit concluded that Ms. Cooper's disciplinary history was too remote and irrelevant to the disciplinary proceedings. Director Spears' knowledge of the internal and EEOC complaints filed are not, by themselves, sufficient to allow an inference that she harbored a retaliatory motive, because 10 to 14 months elapsed between when she learned of the complaints and the termination. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273-274 (2001) ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close,' O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001). See, e.g., Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-1175 (7th Cir. 1992) (4-month period insufficient)."). Furthermore, by the time Director Spears terminated Ms. Cooper, Ms. Cooper's internal complaint of harassment and retaliation had been determined to be unfounded, and Director Spears was aware of this information.
Ms. Cooper alleges that Director Spears failed to interview anyone other than Corporal Blair, and that she may have improperly relied on DAR 48 in reaching her decision to terminate Ms. Cooper's employment although the settlement agreement prohibited it.
I have reviewed the Eleventh Circuit's recent decision in Cleveland v. Home Shopping Network, 369 F.3d 1189 (11th Cir. 2004), which reversed the granting of a Rule 50 motion. In Cleveland, the district court granted judgment as a matter of law to the Home Shopping Network ("HSN") after the jury returned a verdict finding that HSN had impermissibly fired Alice Cleveland from her television-hosting job because of her disability. The Eleventh Circuit reversed the district court, holding that "the evidence discrediting HSN's proffered reason for terminating Cleveland along with other evidence of discrimination provided a sufficient basis for the jury's verdict." Id. at 1194. At trial, Bill Concello, HSN's Executive Vice President of Broadcasting, "gave inconsistent reasons for [Ms. Cleveland's discharge]"; and "the shifting reasons [given by Concello] allowed the jury to question his credibility." Id. at 1192-93. Ms. Cleveland also presented additional evidence allowing for an inference of disability discrimination. Id. at 1195. The Eleventh Circuit held that there was a sufficient evidentiary basis for the jury's verdict because there was evidence discrediting HSN's proffered reason (shifting reasons given on the stand by Mr. Concello) and additional evidence allowing inferences of disability discrimination.
Unlike Cleveland, Director Spears' testimony on the stand was consistent, internally and with the termination letter. Throughout her testimony, she stated that Ms. Cooper was terminated because of the Madison incident, and because of her disciplinary history. Furthermore, even if Director Spears' testimony is called into question, Ms. Cooper did not present sufficient evidence that the termination was in retaliation for her filing a claim of sexual harassment. Ms. Cooper admitted that she was insubordinate in the Madison incident, acknowledged that she has an extensive disciplinary record, and did not present any evidence allowing for an inference that Director Spears shared the retaliatory motives of Sergeant Parrish or other supervisors.
I am not weighing evidence or determining credibility in granting a Rule 50 judgment for Miami Dade County. The undisputed relevant facts, as admitted by Ms. Cooper, are: (1) Ms. Cooper had a long history of disciplinary problems and insubordination; (2) Ms. Cooper's conduct in the Madison incident was improper (in that she failed to inform Corporal Blair before cancelling Ms. Madison's visitor pass); (3) Sergeant Parrish, her alleged harasser, was not involved in the Madison incident in any way; and (4) Director Spears allowed Ms. Cooper an opportunity to fully present her version of events. Moreover, there was no need for Director Spears to (re)investigate Ms. Cooper's retaliation claim because at the time of termination an internal investigation had already concluded that Ms. Cooper's retaliation claim was unfounded. This case is therefore governed by Llampallas and Pennington.
IV. MOTION FOR A NEW TRIAL
If I am wrong in granting the County's Rule 50 motion, I alternatively grant the County's motion for a new trial.A. STANDARD
A new trial may be granted if "the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course." Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) (internal footnotes omitted). "A new trial . . . is the appropriate remedy when a jury award results from passion and prejudice." Whitehead v. Food Max of Mississippi, Inc., 163 F.2d 265, 275 (5th Cir. 1998).B. "GOLDEN RULE" ARGUMENT
A new trial is warranted here because Ms. Cooper's counsel committed prejudicial error by making a golden rule argument. During closing argument, Ms. Cooper's counsel made the following plea to the jury: "And then you have the issue of emotional pain and suffering. Now, all of you said that was something that you could award. And I'm asking you to put yourself in her shoes." (emphasis added). Trial Transcript, Day 6, at 30. This comment is a classic golden rule argument — one where counsel asks the jurors to "put themselves in the shoes of the plaintiff and do unto him as they would have him do unto them under similar circumstances." Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1978). The Eleventh Circuit has recognized that this argument is "universally recognized as improper" because "it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence." Id. (citing cases from other circuits also holding that this argument is improper). See also Woods v. Burlington N.R.R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985), rev'd on other grounds, 480 U.S. 1 (1987), remanded, 818 F.2d 753 (11th Cir. 1987) ("The straight golden rule argument — `put yourself in the shoes of my client,' — clearly has been banned by binding precedent." (citations omitted)). A golden rule argument asks the jury to render an award based upon passion and prejudice, not the weight of the evidence, and ordering a new trial is, therefore the appropriate remedy. See, e.g., Ivy, 585 F.2d at 741. See also Dempsey v. Mac Towing, Inc., 876 F.2d 1538, 1540 n. 1 (11th Cir. 1989)
Ms. Cooper argues that "golden rule" arguments are impermissible only where the jury is exhorted to place itself in a party's shoes with respect to damages. See McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1071 fn. 1 (11th Cir. 1996) (citing Burrage v. Harrell, 537 F.2d 837, 839 (5th Cir. 1976)). Eleventh Circuit law is unclear as to whether the "golden rule" argument is impermissible only within the context of damages. See Woods v. Burlington N.R.R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985), rev'd on other grounds, 480 U.S. 1 (1987), remanded, 818 F.2d 753 (11th Cir. 1987). It is unnecessary to address this issue because Ms. Cooper's counsel did make this argument with respect to the damages to be awarded for emotional pain and suffering.
Although I did give a curative instruction upon the objection made by the counsel for the County, I conclude that the instruction did not adequately correct counsel's error. See Whitehead, 163 F.3d at 278. Cf. Roy v. Employers Mut. Cas. Co., 358 F.2d 902, 905 (5th Cir. 1966) ("[I]t is recognized that arguments may be so inherently and incurably prejudicial as to be incapable of removal."). Ms. Cooper's case was based on circumstantial evidence which, as I have discussed earlier, is insufficient to support the jury's verdict. Even if I am wrong on the Rule 50 issue, at best this is a thin and/or weak case for Ms. Cooper. In a close case such as this one, a "golden rule" argument, which appeals to passion and prejudice, is prejudicial error. See, e.g., Leathers v. General Motors Corp., 546 F.2d 1083, 1086 (4th Cir. 1976) (holding that use of the "golden rule" argument in a "thin" case was serious error).
I gave the following curative instruction to the jury: "Ladies and gentlemen, that is an improper consideration. You are not to decide the issue of damages, if you reach that issue or the issue of liability, by putting yourselves in the shoes of any party in this case. You are to decide the case based solely on the evidence that you have heard in this courtroom and based upon the legal instructions that I gave you. But you are not to decide this case in any way, shape or form by putting yourself in the place of any party." Trial Transcript, Day 6, at 30.
Ms. Cooper argues that any prejudice created by the "golden rule" argument is minimal because the jury only awarded $20,000 in emotional pain and suffering as opposed to the $300,000 requested in closing arguments. This argument ignores the possibility, indeed probability, that the golden rule argument also affected the jury's decision on liability. See Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 714 (11th Cir. 1967) ("The `golden rule' argument is supposed to be erroneous because it requests the jury to put itself in the plaintiff shoes in computing damages when the jury should compute the damages objectively. . . . The serious problem is not in the transmission of this method for computation of damages. We do not think that can be stopped. The real danger is that the sympathy and the feelings of the jury will be encouraged and aroused so that the jury will decide the case and award damages out of relation to actual fault and actual damage."). At one point during her testimony, Ms. Cooper broke down in tears and I excused her from the courtroom to allow her to compose herself. In an emotional trial such as this, composed primarily (if not exclusively) of circumstantial evidence, it would be erroneous to underestimate the impact of a "golden rule" argument on the issue of liability.
V. CONCLUSION
In sum, the evidence presented at trial, viewed in the light most favorable to Ms. Cooper, is insufficient to create a substantial question of fact as to whether Ms. Cooper was terminated in retaliation for her filing a sexual harassment complaint against Sergeant Parrish. Therefore, I grant Miami-Dade County's motion for judgment as a matter of law, pursuant to Rule 50(c) [D.E. 254].
Although I have granted judgment in favor of the County under Rule 50(c), I also alternatively grant the County's motion for a new trial if that judgment is vacated or reversed. Pursuant to Rule 50(c)(1), the motion for a new trial is conditionally granted, and this order does not affect the finality of my judgment in favor of Miami-Dade County. Cf. Bazile v. Bisso Marine Co., 606 F.2d 101, 104 (5th Cir. 1979).
DONE and ORDERED.