Equal Employment Opportunity Comm'n v. McGee Bros. Co. Inc.

Decision Date26 May 2011
Docket NumberDOCKET NO. 3:10-cv-142-FDW-DSC
PartiesEQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. MCGEE BROTHERS CO., INC., Defendant.
CourtU.S. District Court — Western District of North Carolina
ORDER

THIS MATTER is before the Court on Plaintiff Equal Employment Opportunity Commission's ("EEOC" or "Commission") Motion for New Trial, or in the alternative, Renewed Motion for Mistrial (Doc. No. 64) and Defendant's Motion for Costs and Fees (Doc. No. 65). Having reviewed the Commission's Motion for New Trial, as well as the briefs in support and opposition, the record, and the relevant law, the Commission's Motion is DENIED. Likewise, Defendant's Motion for Attorney's Fees is also DENIED, but Defendant may seek taxation of costs from the Clerk in the ordinary course.

I. BACKGROUND
A. Motion for New Trial

On March 25, 2010, the Commission filed a complaint alleging Defendant subjected Jose Avelar and other similarly-situated Hispanics, through Defendant's foreman Neil Stallings, to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Shortly before discovery closed on December 2, 2010, the Commission informed Defendant via letter dated November 30, 2010, that it would not be seeking relief or damages on behalf of any potential class members, but it would continue to pursue relief on behalf of the charging party, Jose Avelar. (Doc.No. 36-1).

Prior to trial, which was originally scheduled to commence on March 21, 2011, the Court heard argument on a number of motions in limine, including motions filed by the Commission to exclude evidence and testimony relating to class allegations (Doc. No. 38) and to exclude the testimony of Commission investigators Melinda Caraballo and Melvin Hardy (Doc. No. 37), as well as a motion by Defendant to, inter alia, exclude testimony and evidence of disparate treatment of Hispanic employees by Defendant (Doc. No. 33). The Court excluded testimony of class allegations and allowed testimony and evidence of Defendant's treatment of Hispanics compared to non-Hispanics as being relevant to the Commission's prima facie case,1 but noted that there was no distinct claim for a disparate treatment cause of action contained in the Complaint. (Text Order denying Motion for Reconsideration (Doc. No. 53) dated April 21, 2011). Furthermore, the Court permitted the investigators' testimony but limited it to explicitly preclude "testimony regarding the Commission's investigative procedure or deliberative process." (Doc. No. 48).

After the Court temporarily stayed the case for the purpose of allowing the parties additional time to conciliate at the March 21 pre-trial motions hearing, trial in this matter was re-calendered for April 26, 2011. Prior to the new trial date, both parties filed motions for reconsideration of the Court's pre-trial evidentiary rulings, including Defendant's Motion for Reconsideration of the Court's order excluding testimony of class allegations but allowing testimony of "comparative treatment" (Doc. No. 53), and the Commission's Motion for Reconsideration of the Court's orderpermitting testimony by the Commission investigators (Doc. No. 51). The Court denied each of these motions. (Text Oder denying Motion for Reconsideration (Doc. No. 51) dated April 21, 2011; Text Order denying Motion for Reconsideration (Doc. No. 53) dated April 21, 2011).

In advance of trial, the parties agreed on a number of exhibits to be introduced at trial as "joint exhibits." Among these was Joint Ex. 1, Avelar's initial Charge of Discrimination, filed on October 18, 2007, with the Commission, which included allegations that Stallings made Hispanics lay brick at a faster rate than non-Hispanics and treated Hispanics that arrived late to the job-site differently than late-arriving non-Hispanics. The parties stipulated to the authenticity and admissibility of Joint Ex. 1. Over the course of the trial itself, there were a number of arguments made outside the presence of the jury to determine the contours of the Court's evidentiary rulings regarding testimony relating to allegations made by Avelar that were not pursued by the Commission. Repeatedly, the Court ruled that the question before the jury was whether Defendant had subjected Avelar to a hostile work environment and allowed evidence that was relevant to that question, including that pertaining to Avelar's credibility, and excluded evidence that only related to the Commission's pre-Complaint investigation or determination as to the disparate treatment allegation made by Avelar. Specifically, the Court heard argument as to the extent, if any, Joint Ex. 1 should be redacted to exclude the allegations of disparate treatment among Hispanics. Consistent with the Court's earlier rulings, the Court ordered that Joint Ex. 1 should not be redacted as the allegations were relevant to the Commission's prima facie case and could be referenced by Defendant for impeachment purposes. Joint Ex. 1 was admitted at trial and referenced by both parties throughout the course of trial.

During closing argument, Defendant's counsel made two statements that the Commission argued at sidebar constituted prejudice and/or bias to the Commission necessitating an order ofmistrial. Specifically, the Commission argued that counsel for Defendant prejudiced the Commission when it referred to allegations made by Avelar that the Commission "discarded," in contravention of the Court's evidentiary rulings. (Tr. 23:12-16). The Commission argued that Defendant's counsel also misstated the law with regard to what the jury needed to find in order for there to be a hostile work environment. (Tr. 20:23-25, 21:3-5). The Court denied the Commission's motion for mistrial, but gave the jury a curative instruction. When the jury returned a verdict in favor of Defendant after deliberating for approximately thirty-five (35) minutes, the Commission renewed its motion for mistrial. The Court permitted the Commission additional opportunity for briefing. The Commission's Motion for New Trial has now been fully briefed and is ripe for disposition.

B. Motion for Costs and Fees

In Defendant's Trial Brief (Doc. No. 32), Defendant signaled its intention to move for attorney's fees at the conclusion of the trial, arguing: (1) the Commission failed to conciliate in good faith2; (2) the Commission took legally unfounded positions in asserting privileges against Defendant's discovery attempts; (3) the Commission failed to properly investigate the class action allegations to give proper notice to Defendant and to render a Determination not to pursue class allegations prior to filing suit; and (4) the Commission continued to prosecute the case against Defendant "after it became apparent there was little or no basis for doing so." (Id.)

At the March 21, 2011 pre-trial motions hearing, the Court sua sponte addressed the issue of attorney's fees and concluded that, because the Commission's hostile work environment claim had survived summary judgment, attorney's fees would not be rewarded should Defendant prevail.Defendant filed a Motion for Reconsideration (Doc. No. 52) and orally moved for an assessment of costs and fees after the jury returned its verdict. The Court heard argument on Defendant's Motion after the jury returned its verdict, but ordered additional briefing by the parties and took Defendant's Motion under advisement until resolution of the Commission's Motion for New Trial. Defendant's brief has now been fully briefed and is also ripe for disposition.

II. DISCUSSION
A. Motion for New Trial
1. Standard

Pursuant to Fed. R. Civ. P. 59, the Court may grant a new trial "for any reason for which a new trial has heretofore been granted in an action at law." Rule 59(a)(1)(A). The decision to grant or deny a motion for new trial ultimately "rests with the sound discretion of the district court" and is reviewed for a "clear abuse of discretion." Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994) (citations omitted).

In considering a motion for a new trial, the Court "may weigh the evidence and should grant a new trial only if '1) the verdict is against the clear weight of the evidence, 2) is based on evidence which is false, or 3) will result in a miscarriage of justice.'" Bryant v. Aiken Regional Med. Ctrs. Inc., 333 F.3d 536, 543 (4th Cir. 2003) (quoting Dennis v. Columbia Colleton Med. Ctr., 290 F.3d 639, 644-45 (4th Cir. 2002)). A new trial is warranted "when a jury has reached a seriously erroneous result as evidenced by . . . the trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias." Mike's Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 405 (6th Cir. 2006) (quotation omitted).

Courts have ordered new trials "when opposing counsel's conduct causes prejudice to [the moving] party . . . thereby unfairly influencing [the] verdict." Greenway v. Buffalo Hilton Hotel,143 F.3d 47, 51 (2d Cir. 1998) (citing Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520, 521 (1931)). However, where "such prejudice is cured by instructions of the court, the motion for a new trial should be denied." Clarksville-Montgomery Cnty. School Sys. v. United States Gypsum Co., 925 F.2d 993, 1002 (6th Cir. 1991) (citing Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988)).

2. Analysis

The Commission argues that counsel for Defendant committed prejudicial error in two ways during his closing argument. The Court will address each in turn.

First, the Commission argues that "Defendant violated the Court's rulings excluding the admissibility of the underlying Commission investigation and evidence there were other claims alleged by Mr. Avelar that were not pursued by the EEOC." (Doc. No. 64 at 2). During closing argument, Defendant's counsel made the following comment to the jury:

In the interest of time, I won't talk about all the other
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