Vialpando v. Johanns
| Decision Date | 12 February 2008 |
| Docket Number | Civil Action No. 05-cv-01904-MSK-BNB. |
| Citation | 619 F.Supp.2d 1107 |
| Parties | Wilma G. VIALPANDO, Plaintiff, v. Mike JOHANNS, Secretary, United States Dept. of Agriculture, Defendant. |
| Court | U.S. District Court — District of Colorado |
Marisa L. Williams, Rhonda Lynn Rhodes, Williams & Rhodes LLP, Englewood, CO, for Plaintiff.
William George Pharo, U.S. Attorney's Office, Denver, CO, for Defendant.
THIS MATTER comes before the Court pursuant to the Defendant's Renewed Motion for Judgment as a Matter of Law (# 53), the Plaintiff's response (# 57), and the Defendant's reply (# 63); the Plaintiff's Motion for New Trial (# 55), the Defendant's response (# 59), and the Plaintiff's reply (# 64); and the Plaintiff's Motion for Attorney's Fees and Costs (# 54), the Defendant's response (# 65), and the Plaintiff's reply (# 68).
In summary, the Plaintiff claimed that three adverse employment actions against her were the result of age discrimination, sex discrimination, discrimination based on her national origin, and/or retaliation for her having filed prior discrimination complaints against a former supervisor. The three adverse employment actions at issue were: (i) the alleged interference of her manager, Irving Thomas, in a 2001 "desk audit" of the Plaintiff's job that ultimately concluded that her work did not entitle her to be paid at a GS 14 level; (ii) an incident in 2004 when her immediate supervisor, Jim Everedge, recommended that she receive a $5,000 performance bonus, but which Thomas overruled, instead authorizing only a $2,000 bonus; and (iii) an incident in 2004, when a selection panel, including Thomas, rejected the Plaintiff's request for appointment to an open position for Deputy Director. The specific evidence supporting each claim is discussed in more detail below as necessary.
The case proceeded to trial before a jury in May 2007. During the course of trial, the Court granted the Defendant's oral motion pursuant to Fed.R.Civ.P. 50(a), dismissing the Plaintiff's claims of sex, national origin, and age discrimination in their entirety, and dismissing all claims relating to the desk audit (# 47). Thus, the jury was tasked only with deciding: (i) whether her non-selection for the open Deputy Director position was retaliatory; (ii) whether Thomas' reduction of the Plaintiff's recommended bonus was retaliatory; and (iii) if either act was retaliatory, what were the appropriate damages. The jury returned a partial verdict for the Plaintiff, finding that Thomas' reduction of her bonus was retaliatory, but that no retaliation had occurred regarding her non-selection for the vacant Deputy Director position. The jury also found that the damages sustained by the Plaintiff as a result of the retaliatory reduction of her bonus were $7,000.
Both parties filed post-verdict motions. The Defendant renews (# 53) its oral motion for judgment as a matter of law pursuant to Rule 50 with regard to the claim based on the denial of the bonus, contending that: (i) Thomas' reduction of her bonus from the $5,000, recommended by Everedge, to the $2,000 actually awarded to her does not constitute an adverse employment action; and (ii) there was insufficient evidence of a causal connection between the Plaintiff's protected activity in 1998 and 2003, and the denial of the bonus in 2004.
Separately, the Plaintiff moves for a new trial (# 55), arguing that: (i) the Court erred in instructing the jury that she must prove that "but for" her protected conduct, the Defendant would not have taken an adverse action against her; (ii) the Court failed to adequately define the term "pretext" in its instructions to the jury; and (iii) the Court improperly granted judgment as a matter of law to the Defendant on her discrimination claims as they related to the desk audit. In addition, the Plaintiff has moved for an award of attorney's fees (# 54).
Because the merits of the Plaintiff's motion also inform, to some extent, her arguments in opposition to the Defendant's motion, the Court turns first to the Plaintiff's motion for a new trial.
The Plaintiff contends that the Court erred in instructing the jury that the Plaintiff must prove that the adverse employment actions would not have occurred "but for" her protected activity. The Plaintiff argues that the law only requires her to prove that her protected conduct was a "motivating factor" in the employer's decision to take the adverse actions.
Analysis of whether the correct standard is "but for" or a "motivating factor" is by no means clear or straightforward. The 10th Circuit has not spoken definitively on the question. Attempts to divine the correct rule of law from analogous caselaw is confounded by the use of casual or imprecise language. Recognizing that the resolution of this issue is likely to require further review by the 10th Circuit, the Court sets out its reasoning on this issue in some detail.
The Plaintiff's retaliation claim arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. That statute prohibits two major classes of unlawful acts. First, 42 U.S.C. § 2000e-2(a) provides that an "unlawful employment practice" occurs when an employer "fail[s] or refuse[s] to hire, or [ ] discharge[s] any individual, or [ ] otherwise discriminate[s] against any individual ... because of such individual's race, color, religion, sex, or national origin" (a "disparate treatment claim"). Second, 42 U.S.C. § 2000e-3(a) provides that an "unlawful employment practice" occurs when an employer "discriminate[s] against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation" (a "retaliation claim").
Before submission of the case to a factfinder, courts analyze retaliation claims under a modified version of the traditional burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).1 The employee is required to establish a prima facie case of retaliation by showing that he or she engaged in some form of protected activity, that he or she suffered an adverse employment action, and that there is some indication of a causal connection between these two events. If the employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse action, and the employee has the ultimate burden of proving that the employer's proffered reason is a pretext for illegal retaliation. Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir.2006). As discussed more fully below, the McDonnell Douglas analysis is sometimes called a "pretext analysis."
However, the McDonnell Douglas analysis is merely an analytical framework for the Court's use in adjudicating whether there is sufficient evidence to survive a challenge under Fed.R.Civ.P. 50(a) or 56 and submit the claim to a jury. When the case is submitted to the factfinder at trial, the McDonnell Douglas scheme "drops out" of the analysis, and the ultimate question for the factfinder is simply whether the adverse action occurred "because of" the protected conduct. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Because the McDonnell Douglas framework is a tool for the Court, not the jury, the vast bulk of the caselaw discussing retaliation claims—most of which arises in the context of summary judgment or a motion for judgment as a matter of law—is not particularly helpful in establishing what must be proven to the jury. Indeed, the parties have not cited, and the Court's own research has not revealed, any case in which the 10th Circuit has specifically approved or rejected a jury instruction explaining the how the phrase "because of" in Title VII should be applied. Nor, for that matter, has the Court located any precedent from this Circuit particularly addressing the quantum of proof that is necessary to support a jury verdict in a retaliation claim.
A handful of cases in other circuits have addressed that precise question. In Septimus v. University of Houston, 399 F.3d 601, 608 (5th Cir.2005), the court vacated a retaliation verdict in favor of an employee, finding that it was plain error for the trial court to instruct the jury that the employee had to prove that her protected conduct was a "motivating factor" of the employer's decision to take an adverse action against her. It explained that "[t]his court has consistently held that in retaliation cases where the defendant has proffered a nondiscriminatory purpose for the adverse employment action[,] the plaintiff has the burden of proving that `but for' the discriminatory purpose he would not have been terminated." Id. (internal quotes omitted), citing, inter alia, Pineda v. United Parcel Service, Inc., 360 F.3d 483, 487 (5th Cir.2004) and Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001).
The 3d Circuit reached the same conclusion after extensive analysis in Woodson v. Scott Paper Co., 109 F.3d 913, 932 (3d Cir.1997). The court found that the trial court's "motivating factor" instruction was inconsistent with Third Circuit precedent which "requires a district court to instruct the jury that it can hold a defendant liable only if the prohibited activity had a determinative effect2 on the decision to terminate the plaintiff." Id. Citing its prior opinions in Griffiths v. CIGNA Corp., 988 F.2d 457, 472 (3d Cir.1993) and Miller v. CIGNA Corp., 47 F.3d 586, 588 (3d Cir. 1995) (en banc), the court explained...
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