Jensen v. W. Jordan City

• Decision Date: 04 August 2020
• Docket Number: Nos. 17-4173 & 17-4181,No. 17-4196,s. 17-4173 & 17-4181,17-4196
• Citation: 968 F.3d 1187
• Parties: Aaron JENSEN, Plaintiff - Appellant/Cross-Appellee, v. WEST JORDAN CITY, a Utah municipal corporation, Defendant - Appellee/Cross-Appellant, and Robert Shober, in his official capacity, Defendant - Appellee. Aaron Jensen, Plaintiff - Appellee, v. West Jordan City, a Utah municipal corporation, Defendant - Appellant, and Robert Shober, in his official capacity, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

968 F.3d 1187

Aaron JENSEN, Plaintiff - Appellant/Cross-Appellee,

v.WEST JORDAN CITY, a Utah municipal corporation, Defendant - Appellee/Cross-Appellant,andRobert Shober, in his official capacity, Defendant - Appellee.

Aaron Jensen, Plaintiff - Appellee,

v.West Jordan City, a Utah municipal corporation, Defendant - Appellant,andRobert Shober, in his official capacity, Defendant.

Nos. 17-4173 & 17-4181

No. 17-4196

United States Court of Appeals, Tenth Circuit.

FILED August 4, 2020

April Hollingsworth, Hollingsworth Law Office, LLC, Salt Lake City, Utah, for Appellant/Cross-Appellee.

Dani N. Cepernich, Snow, Christensen & Martineau, Salt Lake City, Utah (Nathan R. Skeen and Maralyn M. English, Snow, Christensen & Martineau, Salt Lake City, Utah; Paul Dodd, West Jordan, Utah, with her on the briefs), for Appellees/Cross-Appellant

Before BRISCOE, MORITZ, and EID, Circuit Judges.

EID, Circuit Judge.

Plaintiff-appellant Aaron Jensen sued defendant-appellees West Jordan City and Robert Shober for Title VII retaliation, First Amendment retaliation, malicious prosecution, and breach of contract. At trial, the jury returned a verdict in favor of Jensen on all his claims and awarded $2.77 million in damages. The jury did not properly fill out the verdict form, however, so the district court instructed the jury to correct its error. When the jury returned the corrected verdict, it had apportioned most of the damages to Jensen's Title VII claim. Because the district court concluded that Title VII's statutory damages cap applied, the court reduced the total amount of the award to $344,000. Both parties appealed. They raise nine issues on appeal, but we conclude that none of them warrants reversal and affirm.

I. Factual Background

From 1996 to 2009, Jensen worked as a police officer for West Jordan City ("West Jordan"). S.A. at 923, 1553–57. On April 29, 2009, he voluntarily resigned as part of a settlement agreement with West Jordan. See S.A. at 1553–57. At the time of Jensen's resignation, his relationship with West Jordan had become strained. Jensen believed that he had been sexually harassed by superiors, and he complained of harassment on multiple occasions in 2008, the last being in September 2008. See S.A. at 945. That month, West Jordan opened an Internal Affairs ("IA") investigation into Jensen due to a concern that Jensen was not properly filling out his reports. See S.A. at 698, 1135.

The following month, in October 2008, West Jordan placed Jensen on administrative leave. See S.A. at 661, 702. On January 8, 2009, while he was still on administrative leave, Jensen filed a discrimination charge with the Utah Anti-Discrimination and Labor Division and the Equal Employment Opportunity Commission ("EEOC"). See S.A. at 960–61. Shortly thereafter, Jensen entered a settlement agreement with West Jordan. Under the agreement, Jensen received $80,000 in exchange for the resolution of his discrimination charges and his resignation from West Jordan. See S.A. at 1553–57, 1564–66; A. at 198. Jensen and West Jordan signed the settlement documents on April 29, 2009. The documents included the Settlement Agreement and the Negotiated Settlement Agreement. See A. at 198. The Utah Anti-Discrimination and Labor Division signed the Settlement Agreement but not the Negotiated Settlement Agreement. See id.

West Jordan's IA investigation had continued during Jensen's administrative leave. On November 17, 2008, West Jordan transferred the case to the Utah Attorney General's office. See A. at 197. The AG's office found what it believed to be evidence of criminal activity by Jensen and, pursuant to an existing agreement with the Salt Lake County District Attorney's Office, sent the case to the Salt Lake County DA. See S.A. at 1414–17. The DA eventually decided to prosecute the case. See S.A. at 670, 898–900. Although the Salt Lake County DA prosecuted the case, West Jordan's City Attorney, Jeff Robinson, attended events associated with Jensen's criminal case and offered to help draft documents. A. at 441.

On the day Jensen resigned, two of his co-workers, Reed Motzkus and Burdette Shumway, cleaned out his office and discovered an envelope containing heroin balloons and copies of two driver's licenses, all of which had been obtained during a traffic stop. A. at 198; see also S.A. at 477–78, 1494. After hearing about Motzkus and Shumway's discovery, Lieutenant Shober began "looking to find out where [the drugs] came from." S.A. at 737–38. Lt. Shober was Jensen's supervisor as well as one of the individuals against whom Jensen had complained. See S.A. at 945. Shober admitted that he had been "frustrated" by Jensen's complaints of sexual harassment. See S.A. at 699–700; see also A. at 197.

As part of Shober's investigation, he contacted the two individuals from whom the drugs had been seized. A. at 199. Through these discussions, Lt. Shober learned that Jensen had also taken money from these individuals, but West Jordan had no record of this. A. at 199; see also S.A. at 778–85. Lt. Shober communicated this information to Captain Gary Cox, who, in turn, gave it to the DA. A. at 199; see also S.A. at 784–85. Shober also spoke with Police Chief Ken McGuire "about the information that came to [him]" regarding the criminal allegations against Jensen. S.A. at 745.

Additionally, on April 24, 2008, while Jensen was still working for West Jordan, he returned "$583 in cash to the legal counsel of an individual who was booked into jail." A. at 199. But "$1,239 was documented as being taken from [this individual] and given to Mr. Jensen for handling." Id. ; see also S.A. at 1514–35. When the incarcerated individual asked for the rest of his money, Lt. Shober could not locate it, leaving West Jordan to cover the balance. See S.A. at 1514. At the direction of Chief McGuire, Shober reported this information to Captain Cox, A. at 728, and West Jordan ultimately forwarded this evidence to the DA. See A. at 199; see also S.A. at 731–32.

Jensen was arrested on May 6, 2010, and charged with two counts of misusing public money and one count of distribution of or arranging to distribute a controlled substance. See S.A. at 1490–94. Following a preliminary hearing in December 2010, the trial judge dismissed two of the three charges with prejudice after finding a lack of probable cause. See A. at 200. Despite this finding, the court concluded that the state had not brought the charges in bad faith. Id. Subsequently, the Salt Lake DA's office transferred the case to the Davis County DA's office. See id. The Davis County DA dismissed the remaining charge with prejudice on April 4, 2013. See id.

Between the time of his resignation and his arrest, Jensen had secured a new job. A. at 201; see also S.A. at 413–15. However, his new employer terminated him a few days after his arrest. A. at 201; see also S.A. at 981. Since then, Jensen has lost his marriage and his house. See S.A. at 1014–16, 1023–24. He has battled depression and anxiety. See id. And he alleges that he has been unable to get another job as a police officer.

II. Procedural History

In March 2011, Jensen filed a second EEOC charge of discrimination. A. at 200. In this charge, Jensen alleged that West Jordan retaliated against him for the earlier EEOC charge by fabricating the evidence of misconduct that led to his arrest. Id. After the EEOC issued a notice of rights, Jensen filed this lawsuit. A. at 200–01. The complaint asserted causes of action against West Jordan and, in their official capacities, Dan Gallagher, Lt. Shober, and Does 1–10. A. at 55.¹

The district court entered a stipulated scheduling order on October 23, 2014. A. at 93–96. The order indicated that the last date to file a motion to amend pleadings was February 16, 2015, and that the last date to file a motion to add additional parties had already passed. A. at 94. On February 15, 2015, Jensen filed a motion to amend his complaint. A. at 99. The magistrate judge recommended granting the motion generally but denying it to the extent that it sought to add new parties (since that deadline had passed). Relevant here, Jensen objected to the magistrate's recommendation "denying Mr. Jensen leave to add" Lt. Shober in his individual capacity. A. at 173. Over Jensen's objections, the district court adopted the magistrate's recommendation. A. at 178–79.

On May 15, 2017 (less than a month before trial), Jensen filed another motion to amend the complaint and add Lt. Shober in his individual capacity. See A. at 227. The district court denied the motion. Additionally, the district court granted the defendants’ motion to dismiss the claims against Lt. Shober in his official capacity. See A. at 254–55.

The case was tried before a jury in June 2017. See A. at 40–43. Prior to trial, both parties submitted proposed verdict forms. A. at 271, 279. Jensen's proposed form did not provide spaces for the jury to allocate damages among the remaining claims (at this point, the remaining claims were Title VII retaliation, First Amendment retaliation and malicious prosecution under § 1983, and breach of contract). A. at 279–81. By contrast, West Jordan's proposed verdict form included spaces for the jury to allocate specific damages to each claim. A. at 278.

Jensen objected to West Jordan's proposed verdict form because he thought there was no meaningful way for the jury to allocate damages among his claims. See A. at 295, 1073–74. He asserted that all the damages flowed from the same injury—that is, the alleged retaliatory fabrication of evidence. See id. The district court ultimately used a verdict form of its own design that had spaces for claim-specific damages but gave the jury an option to indicate if it thought the damages were indivisible. See A. at 345–50, 1080.

Jensen's counsel took issue with the option to allocate damages in the court's verdict form. In closing, she suggested to the jury that its total damages award "should apply for each of the causes of action, because [she didn...