Czekalski v. Lahood

Citation589 F.3d 449
Decision Date29 December 2009
Docket NumberNo. 08-5431.,08-5431.
PartiesLoni CZEKALSKI, Appellant v. Raymond L. LaHOOD, Secretary, Department of Transportation, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 1:02-cv-01403).

Ellen K. Renaud argued the cause for the appellant. David H. Shapiro and Richard L. Swick were on brief.

Darrell C. Valdez, Assistant United States Attorney, argued the cause for the appellee. R. Craig Lawrence, Assistant United States Attorney, was on brief.

Before GINSBURG and HENDERSON, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

Loni Czekalski sued the Department of Transportation (DOT), alleging that her supervisor at the Federal Aviation Administration (FAA) discriminated against her on the basis of sex by reassigning her to an inferior position. Czekalski's claim went to trial and the jury found for the DOT. Czekalski now appeals the jury verdict as well as the district court's denial of her motion for a new trial. We affirm.

I.

Czekalski started working at the FAA in 1970. By 1995 she had risen to Director of the Office of Communications, Navigation, and Surveillance Systems—a Senior Executive Service (SES) position. According to Czekalski, that position supervised 269 federal employees and approximately 500 contractors, oversaw 96 programs and managed a budget of over $300 million. In June 1997, George Donohue—the FAA's Associate Administrator for Research and Acquisitions—reassigned Czekalski to the Office of Information Technology, where she was to serve as Program Manager for the Year 2000(Y2K) Project. According to Czekalski, the new position supervised four federal employees and four contractors, had no budget and reported to one of her former peers.

Donohue explained his reasons for the reassignment in a memorandum to Czekalski dated June 12, 1997. Pl.'s Trial Ex. 1. He cited, inter alia, "fail[ure] to provide . . . direction and support," "allowing [a] program to languish" and a general lack of "leadership qualities." Id. Despite these criticisms, Donohue assured Czekalski that the "reassignment is a lateral move involving no loss of pay or SES status." Id. Donohue said the move reflected his belief that Czekalski's "background and technical knowledge could be of substantial assistance" to the Y2K Project. Id.

Czekalski took early retirement at the end of 1997 after occupying her new position for only six months. According to multiple trial witnesses, the position proved vital. Czekalski herself acknowledged that it became a highly visible position, entailing contact and coordination with other agencies, the FAA Administrator and the Congress. Trial Tr. 57-60 (Nov. 8, 2007). One FAA employee described it as "probably . . . the single most significant office in the entire agency" and noted that the office-holder "was interviewed by everything; Wall Street Journal, New York Times; every magazine; every government publication." Trial Tr. 36-37 (Nov. 15, 2007). He explained that the position "had huge visibility because everyone was concerned about what was going to happen with aviation. No one wanted an airplane dropping on their house . . . at the stroke of midnight on 2000." Id. at 37.

Czekalski filed this lawsuit in July 2002, after exhausting her administrative remedies. See Czekalski v. Peters, 475 F.3d 360, 362 (D.C.Cir.2007) (Czekalski I). She alleged that her reassignment constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. In April 2005, the magistrate judge1 granted summary judgment to the DOT on the ground that Czekalski "cannot make out a prima facie case of discrimination."2 Czekalski v. Sec'y of Transp., C.A. No. 02-1403, 2005 WL 975679, at *12 (D.D.C. April 21, 2005). We reversed, concluding that a reasonable juror could find that she had suffered an adverse employment action and could infer that the reason for the action was discrimination. Czekalski I, 475 F.3d at 365, 369.

The parties tried the case before a jury for ten days in November 2007. At the close of evidence and after arguments the magistrate judge instructed the jury as to the relevant law and provided it with a written version of the charge, including the applicable standard for determining an adverse employment action. The jury found for the DOT. It returned a special verdict form stating that Czekalski had not "proved by a preponderance of the evidence that she suffered an adverse employment action as a result of her reassignment." Verdict Form, Czekalski v. Sec'y of Transp., C.A. No. 102-1403 (D.D.C. Nov. 20, 2007). Czekalski moved for a new trial on the grounds that "the jury's verdict was against the weight of the evidence" and "the Court deprived Plaintiff of a fair and impartial trial." Pl.'s Mot. for New Trial, Czekalski v. Sec'y of Transp., C.A. No. 02-1403, at 3 (D.D.C. Dec. 26, 2007). The magistrate judge denied the motion. This appeal timely followed.

II.

Czekalski argues that the magistrate judge committed reversible error in (1) instructing the jury on the standard to be used in determining an adverse employment action vel non under Title VII; (2) not instructing the jury that it could draw an adverse inference from DOT's failure to produce certain evidence; (3) denying her motion for a new trial and (4) making biased statements and rulings that deprived her of a "fair and impartial" trial.

A. Jury Instructions Regarding Adverse Employment Action

"An alleged failure to submit a proper jury instruction is a question of law subject to de novo review; the choice of the language to be used in a particular instruction, however, is reviewed only for abuse of discretion." Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C.Cir.1993). The harmless error rule applies; to warrant reversal, "`the error must have been prejudicial: It must have affected the outcome of the district court proceedings.'" Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 168 (D.C.Cir.2007) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see Fed.R.Civ.P. 61.

Czekalski contends that the magistrate judge improperly instructed the jury on what constitutes an adverse employment action under Title VII. Jury instructions are proper if, "when viewed as a whole, `they fairly present the applicable legal principles and standards.'" Joy, 999 F.2d at 556 (quoting EEOC v. Atl. Cmty. Sch. Dist., 879 F.2d 434, 436 (8th Cir. 1989)). This circuit's standard for an adverse employment action is well-established: "[A]n employee suffers an adverse employment action if he experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir. 2002). The magistrate judge relayed this standard in the third paragraph of the relevant instructions.3 Thus, the jury had the guidance necessary to render its special verdict as to whether Czekalski suffered an adverse employment action.

It is true that the second paragraph of the charge wants for clarity. Most troubling is its first sentence, which, as punctuated in the transcript included in the Joint Appendix, reduces to the proposition that "changes in duties and working conditions . . . are not adverse actions." See Trial Tr. at 182. But we believe this perceived defect is simply the result of faulty punctuation—a mere comma corrects it4—and we therefore decline to read the instruction in such a manner as to give it a commonsensically false meaning. While the record does not contain the written charge that was sent to the jury, assuming that version has the same punctuation as the one we are reviewing, we are nevertheless assured that the jury did not misread its meaning, especially given its position in the charge. Indeed, regardless of its punctuation, the sentence is largely superfluous. As noted above, it is followed by a paragraph that lays out the adverse employment action standard as articulated in Forkkio. Further, the preceding sentence conveys much the same meaning, even though it refers to "[a]n employer's decision" instead of "changes in duties and working conditions" and it emphasizes the irrelevance of an employee's subjective reaction in place of reassignments per se.

Perhaps the magistrate judge could have focused more attention on what an adverse employment action is as opposed to what an adverse employment action is not. The first four sentences describing an adverse action are framed in the negative. Trial Tr. 181-82 (Nov. 16, 2007). Not until the end of the second paragraph does the instruction begin to equip the jury with a positive description of an adverse employment action. Id. Nevertheless, we believe that a juror who both heard and read the instructions in their entirety—especially the concluding paragraph—would have had a correct understanding of what constitutes an adverse employment action. "[W]hen viewed as a whole," therefore, the instructions "`fairly present the applicable legal principles and standards.'" Joy, 999 F.2d at 556 (quoting Atl. Cmty. Sch. Dist., 879 F.2d at 436).

Czekalski also argues that the magistrate judge erred in failing to include certain alternate articulations of the adverse employment action standard.5 She expressly relies on the concurring opinion in Lutkewitte v. Gonzales, which states that "[a] party is entitled to an instruction on any legal theory that has a basis in the law and the record." 436 F.3d 248, 255 (D.C.Cir.2006) (Brown, J., concurring) (citing Joy, 999 F.2d at 556). Her argument ignores the fact that "`[a]s long as a district judge's instructions are...

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