Connelly v. Metro. Atlanta Rapid Transit Auth.

• Decision Date: 04 September 2014
• Docket Number: No. 13–14032.,13–14032.
• Citation: 764 F.3d 1358
• Parties: Darryl P. CONNELLY, Plaintiff–Appellant, v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY, Cheryl King, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

764 F.3d 1358

Darryl P. CONNELLY, Plaintiff–Appellant,

v.METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY, Cheryl King, Defendants–Appellees.

No. 13–14032.

United States Court of Appeals, Eleventh Circuit.

Sept. 4, 2014.

Daniel Marc Klein, Steven Eric Wolfe, The Buckley Law Firm, LLC, Atlanta, GA, for Plaintiff–Appellant.

John R. Lowery, Mozley Finlayson & Loggins, LLP, Lashanda Renae Dawkins, Marta Law Department, Atlanta, GA, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:11–cv–02108–TWT.

Before PRYOR, Circuit Judge, WOOD,^*Chief District Judge, and EDENFIELD,^** District Judge.

PRYOR, Circuit Judge:

The main issue in this appeal is whether the district court erred when it entered a judgment as a matter of law based on inconsistent jury verdicts. Darryl Connelly, a white male, appeals a judgment in favor of his former employer, the Metropolitan Atlanta Rapid Transit Authority, and against his complaint of racial discrimination and retaliation. Connelly worked for the Transit Authority for several years, but soon after the Transit Authority hired Cheryl King, a black female, as Connelly's supervisor, the Transit Authority fired Connelly on the ground that his services were no longer needed. Connelly sued the Transit Authority and King for racial discrimination and retaliation for protected activity. Before trial, the district court granted summary judgment against Connelly's claims of racial discrimination. At a trial of Connelly's claims of retaliation, the jury returned verdicts against the Transit Authority and in favor of King. The district court then granted judgment as a matter of law in favor of the Transit Authority on the ground that the jury verdicts were inconsistent. But the district court erred. To determine whether to grant a judgment as a matter of law, the district court should have considered only the sufficiency of the evidence in support of the verdict, not the consistency of that verdict with another. We vacate the judgment as a matter of law in favor of the Transit Authority and remand for the district court to reinstate the jury verdict against the Transit Authority for retaliation. We also affirm the summary judgment against Connelly's claim of discrimination against King.

I. BACKGROUND

We describe the facts by reviewing the evidence in the light most favorable to Connelly. Connelly became an employee of the Transit Authority as a manager of property development in 2002, and the Transit Authority promoted him to director of transit-oriented development in 2006. He held that position until the Transit Authority fired him in 2009.

Connelly worked for four different supervisors at the Transit Authority before King became his supervisor. Three of those four supervisors were black, and the fourth supervisor was Hispanic. Each supervisor evaluated Connelly's work performance as either satisfactory or above, and none expressed concerns about his work performance. One supervisor presented him with an appreciation award and a journal in which she and other supervisors complimented his work performance. And the Transit Authority awarded merit-based pay increases to Connelly beginning in 2007. Connelly's last evaluation before King became his supervisor praised his integrity, leadership ability, decision making, and communication.

But other employees criticized Connelly's work performance. Coworkers complained that Connelly was not prompt and that paperwork often sat on his desk for a long period of time. They also thought he had a hard time making decisions and that, when new management came to the Transit Authority, he was inflexible and resistant to change.

Connelly's work environment changed after Dr. Beverly Scott, a black female, became the new chief executive officer of the Transit Authority. As Connelly describes her management, Scott brought a “[r]acial [a]genda” to the Transit Authority. And when Scott hired King in 2008 as Connelly's supervisor, Connelly and King butted heads from the get-go. King pressured Connelly to complete assignments promptly and often chastised him for taking actions with which she disagreed. And she quickly began to hear complaints about Connelly from other employees and outside vendors.

On three occasions soon after King joined the Transit Authority, King referred to herself as a “mean black bitch” in Connelly's presence. On the first occasion, Connelly and a white consultant briefed King on a project and explained that they were behind, but could still meet their deadline. King was upset by that news and stated, “I'll bet you think I'm a mean black bitch.” King later became frustrated by Connelly's use of expensive three-ring binders and again told Connelly that she was “a mean black bitch.” And on a third occasion, King instructed Connelly to inform an uncooperative developer that “she was a mean black bitch.”

After the first incident, Connelly became especially observant of how King treated white employees. He noticed that King often visited and joked with the black employees, but not the white ones. He also started a log of instances when he thought King was acting hostile or condescending, and he logged at least one incident when King was mean to another white employee. But most of the entries in Connelly's log had no racial overtones; for example, the first entry related to a criticism of the work of Connelly and Johnny Dunning, a black male.

On June 15, 2009, King and Connelly met to discuss some pending projects, and King brought up complaints that she had received about Connelly. She told Connelly that coworkers had complained that he was arrogant and failed to return phone calls. Connelly then asked King to provide him with specifics about the complaints, but she refused to provide names. He told King that she had been “railroading” him since she began working at the Transit Authority and that he intended to consult an attorney from the Department of Equal Opportunity, which handles claims of discrimination at the Transit Authority. King became “very angry, very upset,” and “told [Connelly] that she was going to write [him] up.”

Both Connelly and King took action after the meeting. Connelly drafted an internal complaint of racial discrimination on his work computer, but he never sent it because he was concerned about getting fired. For her part, King consulted Deborah Dawson, the assistant general manager for human resources at the Transit Authority. King and Dawson decided that King should draft a memo to Connelly. The memo raised performance issues and invited a response from Connelly.

After King wrote the memo, she directed her assistant to hand deliver it to Connelly in a sealed envelope. But Connelly never received it. Following his failure to respond and additional performance problems, King—who had the authority to terminate Connelly as a final and non-reviewable decision—decided together with Dawson to fire Connelly. King and Dawson then met with Elizabeth O'Neill, the chief legal counsel for the Transit Authority, to discuss that decision.

At some point between meetings, King sent an email to Dawson that stated that O'Neill was concerned that Connelly “has already started building his case and thinks we need to act quickly.” Dawson later agreed that they were all concerned about the potential of Connelly building a case against the Transit Authority.

On September 21, 2009, King, Dawson, and an in-house attorney fired Connelly. Connelly responded that he thought the termination was racially motivated and that King had been harassing him from the start. No one told Connelly that he was fired for cause.

The Transit Authority also reported to the Georgia Department of Labor that it discharged Connelly because “[h]is services were no longer needed; however, [Connelly] was NOT charged w[ith] violating any company policies or procedures.” King reviewed these responses with human resources before the Transit Authority submitted them to the Department of Labor, and Dawson agreed that this report was accurate. Internal records from the Transit Authority also stated that Connelly was not fired for unsatisfactory performance or insubordination.

Connelly's position at the Transit Authority remained vacant after he was fired. Then, in March 2011, the Transit Authority and King merged Connelly's former position, director of transit-oriented development, with the position of the director of regional services to create a new position, director of development and regional coordination. A white male filled that position.

A few months later, Connelly filed a complaint against the Transit Authority and King that alleged racial discrimination and retaliation for protected activity, 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Connelly demanded a jury trial and sought damages and attorney's fees.

In a pretrial deposition, counsel for Connelly asked O'Neill about the email from King to Dawson in which King stated that O'Neill thought Connelly was building a case and that they needed to act. Counsel for the Transit Authority instructed O'Neill not to answer on the ground that the information was privileged. The district court held a telephone hearing and found that the Transit Authority had not waived attorney-client privilege concerning testimony from O'Neill on that subject. As a result, the parties could not pursue discovery on that subject.

The Transit Authority and King moved for summary judgment. The district court granted summary judgment in favor of the Transit Authority and King and against Connelly's claims of racial discrimination, but denied summary judgment against his claims of retaliation.

Before trial, both parties listed O'Neill as a potential witness. The Transit Authority and King filed a motion to strike O'Neill from Connelly's witness list, and Connelly filed a motion in limine to bar the admission of privileged...