Rhoads v. F.D.I.C.

• Decision Date: 30 September 2003
• Docket Number: No. CIV.A. CCB-94-1548.,CIV.A. CCB-94-1548.
• Citation: 286 F.Supp.2d 532
• Parties: Lori D. RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION, in its Capacity as Receiver for Standard Federal Savings Bank and Standard Federal Savings Association
• Court: U.S. District Court — District of Maryland

286 F.Supp.2d 532

Lori D. RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION, in its Capacity as Receiver for Standard Federal Savings Bank and Standard Federal Savings Association

No. CIV.A. CCB-94-1548.

United States District Court, D. Maryland.

September 30, 2003.

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MEMORANDUM

BLAKE, District Judge.

The facts of this case have been recited in previous opinions, which are incorporated herein by reference. See Rhoads v. F.D.I.C., 257 F.3d 373 (4th Cir.2001); Rhoads v. F.D.I.C., No. CCB-94-1548, 2002 WL 31755427 (D.Md. Nov.7, 2002). Now pending before the court are the following post-trial motions: (1) motions by defendant Federal Deposit Insurance Corporation ("defendant" or "FDIC") for judgment as a matter of law after trial and to vacate verdict or for a new trial, and for a stay of enforcement of judgment; (2) motion by FDIC for judgment as a matter of law at the close of the evidence; (3) motions by plaintiff Lori D. Rhoads ("plaintiff" or "Rhoads") for attorney's fees, prejudgment interest, and costs; and (4) motion by Fred S. Sommer and Shulman, Rogers, Gandal, Pordy & Ecker (collectively "former counsel" or "movants") to intervene in the present case.

I. Motions for judgment as a matter of law and to vacate verdict or for a new trial, and for a stay of enforcement of judgment

The gravamen of FDIC's motions for judgment as a matter of law after trial and to vacate verdict or for new trial is that the court erroneously submitted the case to the jury. (Def.'s Mem. in Supp. of Mot. for J. as a Matter of Law After Trial at 2-3.) The court ruled before the trial commenced that compensatory damages were available to Rhoads on her Americans with Disabilities Act ("ADA") retaliation claim. See Rhoads, No. CCB-94-1548, 2002 WL 31755427, at *1-2. At the close of all the evidence at trial, however, the FDIC moved for judgment as a matter of law on the issue of compensatory damages on the grounds that Rhoads did not present any evidence whatsoever supporting her claim for such damages. (See Def.'s Mem. in Supp. of Mot. for J. as a Matter of Law at the Close of the Evidence at 5-7.) The court agreed with the FDIC and, hence, granted its motion on this basis.¹ The jury subsequently found that Rhoads proved "by a preponderance of the evidence that the reasons given by the FDIC for her termination were false and that retaliation for her protected conduct under the ADA was the true reason for that termination" and awarded her $120,006 in back pay. (Verdict Form.) The defendant contends that the court should have withdrawn the case from the jury because the only relief available to the plaintiff, given the court's ruling, was back pay, an equitable remedy. (Def.'s Mem. in Supp. of Mot. for J. as a Matter of Law After Trial at 2-3.) For the reasons that follow, the court will deny the defendant's motions for judgment as a matter of law after trial and to vacate verdict or for a new trial.

The court first notes that, in light of a recent Supreme Court opinion, it is not entirely clear whether back pay is a legal or equitable remedy. Although courts in this circuit commonly have regarded back pay in Title VII or ADA suits as an equitable remedy, see, e.g., Ford v. Rigidply Rafters, Inc., 984 F.Supp. 386, 392 (D.Md.1997), the Supreme Court of the United States recently reasoned that:

Congress "treated [backpay] as equitable" in Title VII [opinion of GINSBURG, J.], only in the narrow sense that it allowed backpay to be awarded together with equitable relief:

"[T]he court may ... order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ..., or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g)(1) (1994 ed.) (emphasis added).

If the referent of "other equitable relief" were "back pay," it could be said, in a sense relevant here, that Congress "treated" backpay as equitable relief. In fact, however, the referent is "reinstatement or hiring of employees," which is modified by the phrase "with or without back pay."

Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 218 n. 4, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002).² Lower courts have understood that Great-West Life "denied that back pay is a form of equitable relief, stating instead that back pay may be `made part of an equitable remedy' that includes the hiring or reinstatement of employees, but is not an equitable remedy in itself." Kishter v. Principal Life Ins. Co., 186 F.Supp.2d 438, 445 (S.D.N.Y.2002) (quoting Great-West Life, 534 U.S. at 218 n. 4, 122 S.Ct. 708). The Court's statements in Great-West Life are admittedly dicta, and the Fourth Circuit has not yet assessed their import. Nevertheless, if back pay under Title VII is properly considered a legal remedy, Rhoads was guaranteed a right to trial by jury, defeating the defendant's motions.

Even if back pay is rightly regarded as an equitable remedy, the court holds that the FDIC impliedly consented to have the jury decide the issue of back pay. In Title VII and ADA cases where numerous types of monetary relief are sought, juries frequently determine back pay awards. See, e.g., Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 540 (4th Cir.2003). In the instant case, Rhoads specifically sought a jury trial on "all counts." (Compl. at 22.) Although the FDIC asserted that Rhoads was not entitled to a jury trial at all (see Def.'s Mem. in Supp. of Mot. for Summ. J. and to Strike Pl.'s Jury Demand at 15-16), it never specifically objected to having the jury decide the issue of back pay; in other words, after the court ruled that compensatory damages were available to Rhoads and that she had a right to a jury trial, the defendant did not object to having the jury decide the issue of back pay. Indeed, the defendant proposed a jury instruction on the issue of back pay, strongly evidencing its expectation that the jury would decide the issue. (See Def.'s Proposed Jury Instructions at 14) ("If you decide to award the Plaintiff damages, you may award back pay based on the evidence introduced at trial, to compensate the Plaintiff justly and fairly for a financial loss as a result of her termination."). In light of the foregoing, the court holds that the FDIC impliedly consented to have the jury decide the issue of back pay.³ Cf. Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 501 (7th Cir.2000) (holding, in an ADA case, that a party's failure to object to the opponent's jury demand as to all issues amounted to implied consent to have the jury award back pay); Nissim v. McNeil Consumer Prods. Co., 957 F.Supp. 600, 602 n. 5 (E.D.Pa.1997) (concluding that "both parties ... consented to the submission of the back pay award to the jury" because "plaintiff's own proposed jury instructions included directions for determining the amount of back pay damages"); Knight v. Georgetown Univ., 725 A.2d 472, 483-85 (D.C.1999) (suggesting without deciding that a party which proposed jury instructions on the issue of promissory estoppel and waited until the end of all the evidence to move for a court ruling effectively waived any right it may have had to a decision by the bench).

Given that the issue was properly presented to the jury, the court declines to disturb the jury's verdict and back pay award. As the Fourth Circuit recently explained:

Under Fed.R.Civ.P. 50(b), the question is whether a jury, viewing the evidence in the light most favorable to [the prevailing party], could have properly reached the conclusion reached by this jury. If reasonable minds could differ about the result in this case, [the court] must affirm the jury's verdict.

Bryant, 333 F.3d at 543 (internal quotations and citations omitted); see also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir.2003) ("We view the evidence ... in the light most favorable to ... the nonmovant, drawing all reasonable inferences in her favor without weighing the evidence or assessing the witnesses' credibility. Judgment as a matter of law is proper only if there can be but one reasonable conclusion as to the verdict.") (internal quotations and citations omitted). That demanding standard is not met here because sufficient evidence supported the jury's conclusions.⁴

Of the many facts presented by Rhoads at trial, the following are the most significant: (1) Rhoads consulted with an attorney in order to determine whether she had legal recourse against her former employer for violations of its smoke-free work environment policies; (2) on or about August 18, 1993, Rhoads informed supervisors, including W. Marshall Jones, that she had consulted with an attorney; (3) Jones purportedly responded that Rhoads would regret her decision to meet with a lawyer; (4) Rhoads's employment was terminated on or about September 15, 1993; (5) Jones played some part in the decision to terminate Rhoads; (6) soon after Rhoads and her attorney began corresponding with her former employer, phrasing her complaints in legal terms, she was fired; and (7) although company policy allowed termination after ten or more days of unexcused absence, her former supervisors initiated termination proceedings before she accumulated ten such absences.

To succeed on an ADA retaliation claim, a plaintiff "must either offer sufficient direct and indirect evidence of retaliation, or proceed under a burden-shifting method." Rhoads, 257 F.3d at 391. Under the latter approach, the plaintiff must first show that: "(1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) her protected activity was causally connected to her employer's adverse action." Id. at 392. The employer "then has the burden to rebut the presumption of retaliation by articulating a legitimate, nonretaliatory reason for its actions. If the employer does so, the plaintiff must...