Redd v. City of Phenix City, Ala.

• Decision Date: 28 June 1991
• Docket Number: No. 90-7354,90-7354
• Citation: 934 F.2d 1211
• Parties: 56 Fair Empl.Prac.Cas. 412, 56 Empl. Prac. Dec. P 40,857, 20 Fed.R.Serv.3d 55 Reuben E. REDD, Plaintiff-Appellant, v. CITY OF PHENIX CITY, ALABAMA; Roy K. Culpepper, individually and in his capacity as Chief of Police of Phenix City, Alabama; John Franklin; Brad Baker; Bobby Kilcrease, Diana Swanton, Dan Redmon and Joseph Watson, individually and in their capacity as officials of Phenix City, Alabama, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1211

934 F.2d 1211

56 Fair Empl.Prac.Cas. 412,

56 Empl. Prac. Dec. P 40,857, 20 Fed.R.Serv.3d 55

Reuben E. REDD, Plaintiff-Appellant, v. CITY OF PHENIX CITY, ALABAMA; Roy K. Culpepper individually and in his capacity as Chief of Police of Phenix City, Alabama; John Franklin; Brad Baker; Bobby Kilcrease, Diana Swanton, Dan Redmon and Joseph Watson individually and in their capacity as officials of Phenix City, Alabama, Defendants-Appellees.

No. 90-7354.

United States Court of Appeals Eleventh Circuit.

June 28, 1991.

Gordon, Silberman, Wiggins & Childs, P.C., Robert L. Wiggins, Jr., Ann K. Norton, Birmingham, Ala., for plaintiff-appellant.

Charles E. Floyd, Phenix City, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before FAY and EDMONDSON, Circuit Judges and GARZA, ^* Senior Circuit Judge.

GARZA, Senior Circuit Judge:

Appellant sued Appellee City for discriminatorily not promoting him to Chief of Police and for discharging him. The judge directed a verdict against Appellant on his promotion claim after his case was presented. The jury found in Appellant's favor on the discharge claim. Though not renewing its motion for a directed verdict, the district judge granted Appellee a JNOV and in the alternative, a new trial. Finding the Appellee did not renew its request for a directed verdict at the close of its own case we REVERSE the JNOV. We also find the directed verdict at the close of Appellants case was improperly granted, therefore we REMAND for a new trial.

I. The Facts.

The Appellant, Reuben Redd, is an afro-american man hired by Phenix City, Alabama as a police officer in 1977. Beginning as a patrolman, he worked his way up to sergeant and then lieutenant. While in these supervisory positions, he was consistently ranked as good to excellent. His supervisors, and city officials, all told Redd he was doing an excellent job. Redd had no major problems with any of the Police Chiefs, until 1984 when Aubry Harbert was appointed. There was evidence introduced at the trial that Harbert was a racist. ¹

When Harbert abruptly retired as Police Chief in July 1987, the city appointed a white sergeant to the position of Acting Police Chief. This appointment was made despite the fact that plaintiff, a lieutenant, and two black captains were the senior most men on the force. No notice was given to anyone that Harbert was going to resign or that Sergeant Culpepper, a white, was going to become Acting Chief. There has never been a black Police Chief in Phenix City.

The City Manager admitted he hired Culpepper not so much on any set criteria but rather because he was an uncontroversial figure. Previous to Culpepper's selection, the City only hired from its lieutenants or captains. Two captains who Culpepper was promoted over were both black and had far greater experience and qualifications. The City Manager claims the offer was not made to Captain Roberson, the senior most black captain, because he did not believe he wanted the temporary position as Acting Chief. However, Roberson did make an application, never withdrew it, and later filed a charge with the Equal Employment Opportunity Commission. The City never asked the other black captain, though there was no reason to believe he did not want the position. Redd, however, had made it known that he wanted the position. Though Culpepper had never applied for the job, the City asked him to accept the position.

Evidence was introduced that Acting Chief Culpepper set up surveillance of Redd. An officer testified that there was a "set up" to get rid of Redd, and it was known where and when they would do this one week ahead of time. The day after Redd was discharged, Culpepper was appointed as permanent Chief of Police. Redd was terminated because he stopped at a lounge one night and was charged with loitering. The City introduced testimony to the effect that Redd was not well thought of by his subordinates and he was derelict in his duties on the night in question. ² Redd had testimony showing the only people who complained about him were some of the white officers. Evidence was shown that police often ate at places such as this lounge, he was not there longer than he should have been, and he was in an area where he was supposed to patrol. There are no allegations that Redd was drinking at the time. When Redd was leaving the lounge for a second time, Culpepper, who was keeping him under surveillance, drove up to him and scolded him for being at the lounge. Though discharges are generally made upon a Captain's recommendation, the next day Culpepper discharged him without the City Manager's knowledge. The City Manager admitted he did nothing to ascertain whether there was any truth in Culpepper's charges.

There was evidence introduced at trial that white employees who have done what the defendants claim Redd did were not discharged. Testimony suggested several white officers have violated a policy of going to the one and only lounge that is off limits and only received suspensions. Though white officers have been charged with insubordination none have been discharged. The City, however, showed it had subsequently changed its disciplinary policy and was now beginning to apply it uniformly.

There was also evidence that Redd did have some disciplinary action taken against him while he was on the force and several of the other officers did not like him.

A jury of 7 whites and one black found Redd was discharged because of his race. The jury awarded him compensatory and punitive damages and stated he was now entitled to reinstatement and injunctive protection. The defendants moved for a directed verdict at the close of the plaintiff's case; as to Redd's promotional claim it was granted and as to the discharge claim, it was denied. At the close of evidence, the defendants failed to renew their motion for a directed verdict. Once the jury came back with a verdict in favor of the plaintiff, the trial court granted the defendants a JNOV because the verdict was not supported by substantial evidence. Alternatively, he granted a new trial if the JNOV is reversed. Redd appeals the trial court's abuse of discretion in granting a JNOV when it was not properly asked for and alternatively because the verdict was supported by the evidence taken in a light most favorable to the prevailing party.

II. The Law.

The JNOV

The district judge granted the City's motion for a judgment notwithstanding the verdict even though at the close of all the evidence they failed to move for a directed verdict. This runs contrary to Fed.R.Civ.P. 50(b) and the case law. The advisory note to 50(b) unequivocally states a "motion for a judgment not withstanding the verdict will not lie unless it was preceded by a motion for a directed verdict made at the close of all the evidence." The district judge would have us believe this is a "purely technical reason" and since the City made the proper motion at the close of plaintiff's case, the motion for a JNOV should be considered. Mart Seitman & Assocs. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527 (11th Cir.1988) acknowledged Rule 50(b); Reynolds failed to move for a directed verdict at the close of evidence. The court held a district court had no authority to entertain the aggrieved party's motion for a JNOV and therefore there would be no decision concerning the sufficiency of the evidence. See also United States use and Benefit of Roper, IBG, Div. of Roper Corp. v. Reisz 718 F.2d 1004, 1007 (11th Cir.1983) (holding that in the absence of a motion for a directed verdict at the close of evidence the party is foreclosed from making a motion for a JNOV and the district court has no authority to entertain such a motion); Special Promotions, Inc. v. Southwest Photos, Ltd., 559 F.2d 430, 432 (5th Cir.1977) (stating even though the defendant moved for a directed verdict at the close of the plaintiff's case, it is insufficient unless it is renewed at the close of all evidence.) There is no doubt the district judge misconstrued Seitman. We are presented with a particularly clear and mechanical rule of law; the City did not comply and the district judge may not waive his magic wand dismissing a procedural requirement as a technicality. Therefore the district court's JNOV is reversed.

Granting a new trial

We need not address the sufficiency of the evidence in light of the JNOV, however, since the trial judge granted in the alternative of the JNOV a new trial based upon the same reasoning, we will consider the evidence. We review decisions about granting new trials under the abuse of discretion standard. MacPherson v. University of Montevallo, 922 F.2d 766 (11th Cir.1991). However, "to assure that the judge does not simply substitute his judgment for that of the jury, ... we have noted that new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great, not merely the greater weight of the evidence." Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.1984) (quoting Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir.1980)).

The district judge's order reads like a closing argument for the defense. It aptly, though mistakenly, points out contradictions the jury was entitled to draw. Since the City Manager, a defendant in this case, had previously helped Redd, why should he now turn against him. Though Redd was disciplined differently from two white police officers, it was justified because each case should be analyzed on its own merits. Additionally, the City decided to begin enforcing its disciplinary action more stringently and because Redd was a Lieutenant, more was expected of him. Besides this, the City had presented evidence showing it had reasonable cause to fire Redd. There were many complaints from Redd's subordinates which were not shown to be racially motivated, no evidence was shown that Culpepper acted...