Opinion
CIVIL ACTION 1:93-cv-1633-HTW
January 27, 1997
Harlan S. Miller, KIRWAN, PARKS, CHESIN MILLER, P.C., Atlanta, GA, Counsel for Plaintiff's.
Susan M. Hartwig, Office of the Fulton County Attorney, Atlanta, GA.
MEMORANDUM OPINION AND ORDER OF COURT
This case is before the court on (1) defendants' renewed motion for judgment as a matter of law under Fed.R.Civ.P. 50, (2) defendants' motion for a new trial, (3) defendants' request that the court issue a remittitur of the jury's compensatory and punitive damages awards, and (4) plaintiff's request for equitable relief (which will be handled in a separate order). On November 11, 1996, after a two-week trial, the jury entered a verdict for plaintiff on his Title VII and 42 U.S.C. § 1983/Fourteenth Amendment claims, and awarded him the following damages (totaling $1.8 million): $75,000 in compensatory damages for back pay and $ 725,000 in compensatory damages for mental pain and suffering against all defendants; $900,000 in punitive damages against defendant Michael Lomax; and $100,000 in punitive damages against defendant John Stanford.
FACTUAL STATEMENT
The following is a summary factual statement of this case. The plaintiff is Danny Bowman, a white male, who has been employed with the Fulton County Fire Department since its formation in 1977. The defendants are John Stanford, County Manager; Michael Lomax, Chairman of the Board of Commissioners; and Fulton County, Georgia. By early 1991, Mr. Bowman had risen in rank from lieutenant to deputy fire chief. In January, 1991, Fire Chief James Gibson announced his intention to retire effective in March, 1991. At that time, the Chief Administrative Officer of Fulton County was Acting County Manager Robert Regus, a white male, who had been appointed to this position on an interim basis, while a search for a permanent county manager was being conducted. Mr. Regus was a candidate for the position of county manager. The selection of county manager was to be made by the Fulton County Board of Commissioners. Mr. Regus instructed the personnel director of the County to advertise the fire chief position and appoint a committee of four (4) individuals to conduct interviews of the candidates. The committee subsequently interviewed the candidates, including the plaintiff. The panel sent its recommendation of five candidates to Mr. Regus, ranking the candidates, with the plaintiff being ranked fifth and R.T. Strong, a black male, being ranked first. Mr. Regus interviewed the candidates, but hesitated to make an appointment. At some point, he informed Chairman Lomax that if he had to make a selection, it would be the plaintiff. During this period, Chairman Lomax discouraged Regus from filling the fire chief position, suggesting that the decision be left for the permanent county manager soon to be appointed. Lomax further stated that this was a troubled department. However, during the same period of time, Mr. Regus actually appointed three black department heads, including Lewis Graham, a black male, to the position of Fulton County Police Chief. Mr. Graham had served as assistant chief for several years. Mr. Regus cleared his decision to appoint Graham and the other positions with Chairman Lomax and other members of the Board of Commissioners. At all times relevant to this case, Mr. Lomax was chairman of the Board of Commissioners of Fulton County, a position he held by virtue of being elected county-wide. The job is a part-time position and Lomax, possessing a Ph.D. degree, concurrently served as a professor of English at a local college. As Chairman of the Board of Commissioners, Mr. Lomax presided at meetings of the Board and had certain specific duties, but had no veto power. He had one vote and served primarily as first among equals. The Board of Commissioners is the governing body of Fulton County and formal actions of the Board are accomplished by a majority vote. In January, 1987, black persons, through the election process, secured a majority of the membership of the Board for the first time in the history of Fulton County. In August, 1991, John Stanford, a black male, was selected as the permanent county manager, taking office in September, 1991. John Stanford had recently retired as a Major General in the U.S. Army, this being his first civilian job. From the fall of 1991 and into the spring of 1992, County Manager Stanford personally interviewed the five candidates on the short list, and personally spoke to members on the interview panel. During this period of time, Mr. Stanford testified that he had contact with the plaintiff, personally observed the plaintiff in the work place, and received employee complaints about him. The plaintiff occupied the position of acting fire chief for about 18 months. During a period of about seven years ending in 1993, the majority of department heads in Fulton County changed from white persons to black persons. Many of the black department heads were appointed on recommendations of Sam Brownlee, a white male, while he was county manager. In August, 1992, Mr. Stanford selected R.T. Strong as the Fire Chief of Fulton County. Mr. Strong had been serving as Assistant Fire Chief for the City of Atlanta Fire Department in charge of that department's Atlanta airport division. Hereinafter, the parties and other key persons will generally be referred to by the last name.DISCUSSION
A. Defendants' Renewed Motion for Judgment as a Matter of Law
The court cautions plaintiff's attorney that there is a 25-page limit for response briefs — a limit of which plaintiff either is unaware or chose to disregard without explanation. See LR 220-1(d), NDGa. The brief, as filed, is allowed.
At the close of plaintiff's case, defendants made a motion for judgment as a matter of law on the following claims: (1) plaintiff's § 1983 claim, (2) plaintiff's Title VII claim, and (3) plaintiff's 42 U.S.C. § 1985/Conspiracy claim. The court denied without prejudice defendants' motion for judgment as a matter of law. After the close of defendants' case, defendants renewed their motion, which the court granted on the 42 U.S.C. § 1985/Conspiracy claim and denied as to the 42 U.S.C. § 1983/Fourteenth Amendment claim and the Title VII claim.
Rule 50 provides that a motion for judgment as a matter of law may be renewed after trial; such a motion may be granted as to a given issue where "there is no legally sufficient evidentiary basis for a reasonable jury" to make the finding it made on the issue. All reasonable inferences, however, must be viewed in the light most favorable to the non-moving party — in this case, plaintiff.Oxford Furniture Companies, Inc. v. Drexel Heritage Furnishings, Inc., 984 F.2d 1118, 1122 (11th Cir. 1993). Similarly,
The district court properly grants a [judgment as a matter of law] only if the facts and inferences are so strong that the court believes that reasonable persons in the exercise of impartial judgment could not arrive at a contrary verdict. . . . If, however, the evidence allows reasonable persons to reach different conclusions, the district court should deny a [motion for judgment as a matter of law].Id. (citations omitted).
The Oxford case describes the standard for a directed verdict, which is now known as judgment as a matter of law. Technically, defendants have made a post-trial renewed motion for judgment as a matter of law — which was formerly known as a motion for judgment notwithstanding the verdict ("JNOV"). The parties agree that the same standard applies to motions for a directed verdict, JNOV, and judgment as a matter of law.
1. Disparate Treatment under Title VII and § 1983
Defendants contend that they are entitled to judgment as a matter of law on plaintiffs Title VII and § 1983 claims because plaintiff failed to show that defendants intentionally discriminated against him on the basis of race and that race was a motivating factor in the fire chief selection process. The court disagrees.
The evidence submitted in support of plaintiffs claim was circumstantial evidence. Thus, the court instructed the jury as to the burden-shifting analysis of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) (prima facie case, nondiscriminatory reason, pretext analysis). The parties agreed that this analysis applied to both the Title VII and § 1983 claims. In the instant case, it was reasonable for the jury to determine that the plaintiff made a prima facie case and that defendants set forth a legitimate non-discriminatory reason for not selecting him. Further, the court concludes that there was sufficient evidence for the jury acting reasonably to find that defendants' explanation — that the plaintiff was not qualified or that Chief Strong was more qualified — to be pretextual or not credible. In other words, a jury could have properly found that the true reason for plaintiff not being selected as fire chief was his race (white); that if he had been black under similar facts he would have been promoted. Thus, defendants are not entitled to judgment as a matter of law on this issue.
in making this ruling on the failure to appoint Bowman as fire chief, the court is not ruling that the evidence showed that Strong was not qualified for the position of fire chief.
There were many matters raised in the evidence which could have supported a jury's finding of pretext. A few are listed as follows: the difference in the handling of appointment of the police chief s position from the fire chief s position; the interference of the Chairman of the Board with Regus regarding the appointment of a fire chief; the fact that the fire department was a majority white department; waiting eighteen (18) months to fill the position while plaintiff served as acting chief, and conflicting statements by Mr. Stanford and others about the information contained on the candidate list sheet (i.e., politics).
2. Policy, Practice, or Custom of Racial Discrimination
Defendants contend that — in order to hold Fulton County liable under § 1983 — plaintiff must show a policy, practice, or custom of racial discrimination against white employees. This court disagrees, as final policy- or decision-makers (including defendant Stanford) may bind the county. Given the liability finding against defendant Stanford on this claim, the county also is liable under § 1983. The County also was found liable under Title VII, which does not require a finding of a policy, practice, or custom of racial discrimination for the County to be held liable.
The court is in agreement with defendants, though, that the evidence is insufficient to support the jury finding that Fulton County maintained a policy, practice, or custom of reverse racial discrimination at the time Strong was appointed. As the court charged the jury — and as the parties agree — to find such a policy, practice, or custom, the jury must find a persistent and widespread practice that, although not authorized by written law or express policy, is so permanent, deeply-embedded, and well-settled as to constitute a custom or usage with the force of law.
In the instant case, the court concludes that the evidence presented is insufficient for the jury acting reasonably to find that Fulton County maintained a policy, practice, or custom of discrimination against white persons in the appointment of department heads at the time Bowman was passed over. The evidence presented by the plaintiff in support of this issue included testimony regarding the dismissal of Alice Smith as Clerk of the Commission, the testimony of former County Manager Sam Brownlee and Lee Roach a former county commissioner. While the testimony of Brownlee and Roach dealt with race in the affairs of Fulton County, the major portion of their testimony consisted of an attack on Lomax and his political agenda. Also heavily relied upon by the plaintiff was the rapid increase of black department heads in the late 1980's, in relation to the corresponding decrease in the number of white department heads. It appears that for a period of about seven years ending in 1993, black department heads in Fulton County increased from one-third to two-thirds of the total number.
The one concrete example of possible reverse discrimination is the matter of Alice Smith, a white female, who after serving as clerk of the board of commissioners was not reelected by the board in 1989. The board of commissioners, then having a black majority thereon, selected a black female to replace Alice Smith. Another possible consideration is the removal of Sam Brownlee as county manager, a move which the evidence indicates was initiated by Lomax. While the county manager position was ultimately filled by a black male, the evidence does not conclusively show that Brownlee was forced out because of his race. It would be equally possible to conclude that the move against Brownlee was political in nature.
Moreover, the evidence relating to the racial composition of the other department heads, while relevant, was not developed sufficiently to support a policy, practice, or custom of racial discrimination against white persons. For example, there was no evidence as to the number, race, and qualifications of the applicants for these positions, or the job duties of these positions. It is quite true as testified by Lomax that this was a dramatic change in department head positions. It should be noted that many of the new black department heads were appointed by Sam Brownlee while he was the county manager. He did not testify at trial that they were not qualified for the job. The evidence showed that John Stanford had appointed more white persons than black persons as department heads while he served as county manager. In contrast to the testimony of Brownlee and Roach, Tom Lowe, a current member of the board of commissioners, testified that based on his over twenty years of experience on the board, he did not believe that either Brownlee, Regus or Stanford had selected department heads solely on the basis of race. If, a custom or practice as contended by the plaintiff existed, it did not block Robert Regus (a white male) from being elected county manager when John Stanford resigned. At the time that Regus was selected there was a black majority on the board. Further, at the time of the trial of this case of the three department heads open to the board for selection, (county manager, county attorney and clerk of the commission), two of the three positions were held by white persons.
Thus, defendants are entitled to judgment as a matter of law in that the evidence presented in this case was insufficient for a jury acting reasonably to find the existence of a policy, custom, or practice of racial discrimination by Fulton County against white persons in the appointment of department heads at the time of the appointment of Strong as Fire Chief.
3. Individual Defendants
As pointed out herein above, the court has concluded that the evidence presented supports a jury finding of liability under Title VII. While there is no legal requirement that the individual defendants be found personally liable under Title VII in order to bind Fulton County, it is appropriate to consider the acts and conduct of all appropriate managers involved in discriminatory practice. In this case that would include Michael Lomax, John Stanford and Robert Regus. The acts and conduct of defendant Lomax regarding the plaintiff's efforts to become Fire Chief are sufficient to hold him responsible in spite of his lack of full authority to appoint the Fire Chief The key period of time in this regard is while Regus was Acting County Manager. Lomax along with Regus met with black fire fighters who complained about Bowman and his position as Acting Fire Chief. It does not appear from the evidence that Lomax or Regus fully investigated these charges or interviewed Bowman about them. During this period of time, it appears that Regus considered appointing Bowman as Fire Chief but Lomax instructed him to delay a selection until a permanent County Manager was appointed, stating that the Fire Department was a troubled department. It is the courts view, that it would have been reasonable for the jury to find in favor of the plaintiff on the basis of the conduct of Lomax and Regus prior to the appointment of Stanford, especially taking into consideration the different method and time table used in the appointment of Graham as Police Chief and two other department heads.
When John Stanford was appointed to the position of County Manager in August 1991, he was confronted with the Fire Chief appointment matter which was still pending. Over a protracted period of time Stanford interviewed the five candidates for the Fire Chief position including Bowman and Strong. He also interviewed and had discussions with the interview panel who selected the five candidates. He talked with two black fire fighters about the Fire Department but the evidence is disputed as to what actually happened in the meeting. Stanford testified that for a while Bowman was his choice for the Fire Chief position but he changed his mind after receiving complaints. The evidence revealed that Stanford reinterviewed Strong and subsequently selected him Fire Chief of Fulton County. Possibly among the factors for the jury in reaching its decision, is that Stanford took almost a year to make a decision on the Fire Chief position while maintaining Bowman as the Acting Fire Chief Also, there is the conflict in the evidence as between the testimony of Stanford and Strong as to why Stanford changed his mind. Another factor might have been the conflicting testimony relating to the information handwritten on the candidate rating sheet as to how the information got there and its meaning. It was fully within the province of the jury to make credibility choices and to find againt Stanford. The court finds no legal basis to challenge the jury's finding that the act of Stanford in failing to select Bowman Fire Chief was in violation of § 1983.
4. Procedural Bar to Title VII Claim
Next, defendants state that they are entitled to judgment as a matter of law on plaintiffs Title VII claim because plaintiff failed to introduce into evidence his EEOC "right to sue" letter. In response, plaintiff contends that this argument — essentially an allegation that plaintiff has failed to exhaust his administrative remedies — is an affirmative defense on which defendants have the burden of proof. Plaintiff also states that the "right to sue" issue was covered in his complaint, and that defendants never specifically answered these Title VII allegations. Also, after defendants moved for a directed verdict on this issue, the court reopened the evidence and allowed plaintiff to testify as to the right to sue letter. Thus, the court agrees with plaintiff that defendants' technical argument here lacks merit.
5. Compensatory and Punitive Damages
While the court believes that the jury's awarding of $1.8 million in damages was grossly excessive in certain aspects and has issued a remittitur (see infra), the court declines to consider defendants' post-trial request for judgment as a matter of law on damages — most notably because defendants' failed to specifically move for a motion for judgment as a matter of law at trial on the issues of damages claimed. While a motion for judgment as a matter of law may be renewed after trial, it must have been brought initially before the case was submitted to the jury. Fed.R.Civ.P. 50. Thus, defendants' argument that punitive damages should not have been presented to the jury is without merit.
6. Qualified Immunity
Defendants' qualified immunity argument also lacks merit. In 1991 or 1992, reasonable public officials would have understood that it is unlawful to discriminate on the basis of race, which is what the jury found defendants did. Moreover, since the Fire Chief appointment was not made pursuant to an affirmative action plan, defendants cannot — and do not — argue that they believed they were acting under such a plan.
B. Defendants' Motion for a New Trial
Fed.R.Civ.P. 59(a) authorizes a district court to grant a new trial "to all or any of the parties and on all or part of the issues . . . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . ." In considering a motion for a new trial, "the Court may reweigh the evidence; it may set aside a verdict because it is against the clear weight of evidence, the damages are excessive or substantial trial errors have occurred. . . . Granting or denying a new trial is left to the sound discretion of the trial court."Neal v. Toyota Motor Corp., 823 F. Supp. 939, 942 (N.D.Ga. 1993) (citations omitted). "A court may also grant a motion for new trial upon a showing of certain substantial errors in the admission of evidence or the giving or refusal of instructions." Hall v. Norfolk Southern Ry. Co., 829 F. Supp. 1571, 1578 (N.D.Ga. 1993). A new trial should not be granted, though, for so-called harmless errors. Fed.R.Civ.P. 61.
Defendants contend that a new trial should be granted because (1) the jury's award of damages is unsupported by the evidence, and the jury was biased, prejudiced, and/or unduly swayed by passion; (2) the court erred by admitting certain evidence and excluding other evidence; and (3) the court erred in instructing the jury.
1. Jury's Award of Damages and the Weight of the Evidence/Jury Bias, Prejudice, and Passion
In general, the trial court should not substitute its judgment for that of the jury. Redd v. City ofPhenix City, Alabama, 934 F.2d 1211, 1214 (11th Cir. 1991). Defendants state that they are entitled to a new trial on all issues as a result of what they perceive as a jury that was unduly swayed by bias, passion, and prejudice — as evidenced by the $1.8 million verdict. In the alternative, defendants request a new trial or a remittitur on the issue of damages. The court will separately deal with the issue of damages and the remittitur in a subsequent portion of this order.
The court disagrees with defendants' position that they are entitled to a new trial on all issues. It does not appear that the verdict was so tainted with bias, prejudice, or undue passion that a new trial is mandated. The jury could have properly found defendants liable and could have properly awarded substantial damages, but not at the level awarded. More specifically, it was reasonable for a jury to conclude (1) that plaintiff was discriminated based on his race, and (2) as a result, he suffered emotional distress.
While it appeared to the court that the plaintiffs counsel's closing argument was overreaching in some regards, a consideration of said argument as a whole does not mandate the granting of a new trial on that issue — especially given defendants' failure to object and the court's cautionary instructions.
2. Evidentiary Rulings
Defendants argue that a new trial is warranted because of the court's admission of certain evidence defendants believe was irrelevant and/or unfairly prejudicial, and the court's exclusion of certain evidence defendants claim should have been admitted.
a. Data Regarding Changes in the Racial Composition of Department Heads
Defendants allege the court erred by admitting evidence of the changes in the racial composition of department heads in Fulton County during a seven-year period. Plaintiff called a number of witnesses — including Michael Cooper, Michael Lomax, Lee Roach and Sam Brownlee — in an attempt to show that the change in racial composition of the department heads evidences a custom, practice, pattern, or policy of racial discrimination against white persons. As the court noted in Section A, supra, the court has determined that the evidence is not sufficient to show such a custom, practice, pattern, or policy of racial discrimination. The court disagrees with plaintiff, though, that it was error — much less error requiring a new trial — to admit this evidence.
In an order filed the week before trial, the court rejected plaintiff s attempt to utilize certain general work force and population statistics on the grounds that the fire chief position was one that required special skills. The court allowed evidence showing that during a period of about five years ending in 1993, the department heads changed from two-thirds white persons to two-thirds black persons. The court agrees with plaintiffs position that this is not statistical evidence, per se, but instead a snapshot view of the racial composition of department heads for the relevant period of time.
Moreover, the cases cited by defendants regarding statistics contrast "applicant pool" statistics with general work force/population statistics. In the instant case, though, the evidence at issue was far more specific and narrow — the racial composition of certain department-head positions within Fulton County during a period of time. Defendants had the opportunity, though, to offer such evidence — including race-neutral explanations and other mitigating evidence — but chose not to do so. Simply put, the racial composition of other department-head positions was relevant to plaintiff's claims. And, while perhaps detrimental to defendants' defenses, the court cannot say that the evidence's probative value is substantially outweighed by any unfair prejudicial effect. Thus, the court determines that this evidence was properly admitted.
b. Evidence of Other Discriminatory Actions and Statements
Plaintiff sought to introduce a variety of allegedly discriminatory conduct and statements on the part of Fulton County relating to people other than plaintiff. The court disallowed some and admitted some of the evidence. Defendants contend that some alleged instances of discrimination should not have been admitted because the decision-makers were not the same as in the instant case. The court disagrees with defendants and determines that this evidence was admissible on plaintiff's claim of pattern and custom of discrimination by Fulton County. Except as to statements and actions regarding defendant Lomax, the court limited this type of evidence from 1987 forward.
Defendants also contend that the court should not have admitted certain alleged statements regarding the relevance of race to various department head positions. The court disagrees with defendants' position here. Plaintiff's theory was that the selection of many (if not all) of these positions turned primarily on the issue of race and not by chance. As noted by plaintiff, case law indicates that evidence of racially discriminatory acts against those other than plaintiff bears of the alleged discrimination against plaintiff. See, e.g., Vance v. Southern Bell, 863 F.2d 1503, 1511 n. 5 (11th Cir. 1989). Similarly, the jury was entitled to hear some of the alleged discrimination against others within the Fulton County government. Moreover, not all such actions and statements were admitted; most were not. The court attempted to arrive at a fair balance between excluding irrelevant, unfairly prejudicial, and cumulative evidence, yet allowing the jury to get a view of some conduct which, if true, was analogous and relevant to plaintiff's case.
The court also rejects defendants' argument that the court erred by admitting testimony from witnesses who knew nothing about the Fire Chief selection process or of plaintiff's legal claims. The testimony of these witnesses was relevant, inter alia, to certain employment practices within Fulton County — and the actions of defendants Lomax and/or Stanford in particular.
c. Exclusion of Allegations Against Plaintiff
Defendants also claim that the court erred by excluding evidence (1) of an allegation that plaintiff had allowed county employees to work on his house on county time, and (2) of an allegation that "plaintiff and/or the former fire chief' was involved in improperly giving certain candidates test questions in advance. The court ruled at trial that this evidence was both irrelevant and the prejudicial value outweighed its probable value. Fed.R.Evid. 403. As noted at trial, after these issues were investigated, plaintiff was not subjected to any discipline or finding of wrongdoing. Thus, these rulings were correct and are not grounds for a new trial.
d. 1989 Affirmative Action Plan
Defendants' position is that they are entitled to a new trial because the court allowed reference to the 1989 affirmative action plan, which was not introduced into evidence. The court instructed the jury that affirmative action plans are warranted under certain circumstances; the court also stated the Fire Chief appointment was not made pursuant to this plan. The court agrees with plaintiff that allowing reference to the plan is not grounds for a new trial.
3. Jury Charge
Defendants next claim that a new trial is appropriate because of this court's failing to give certain instructions to the jury. The United States Court of Appeals for the Eleventh Circuit stated that it uses a "deferential" standard in connection with claims that a court erred by failing to give a certain jury charge. Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1569 (11th Cir. 1991). The issue is "whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled." Id.
In the instant case, the court failed to give a charge submitted by defendants regarding conflicts in testimony. This issue was adequately addressed in other charges, though; thus, the failure to give the charge at issue is not grounds for a new trial.
With respect to defendants' proposed charges on final policy-maker/decision maker, it appears that defendants' are now arguing that the court should have instructed the jury that defendant Stanford, as county manager, was the final decision maker/policy maker as to the fire chief position, but defendant Lomax, as Chairman of the Commission, was not. The court agrees with the plaintiff that the charge as given by the court was defective in this regard, as defendant Lomax's authority was never defined. This was a responsibility of the court to determine and not the jury. See Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989). Under applicable law, Lomax did not have such authority, but he did have significant influence as was demonstrated in the evidence regarding acting county commissioner Robert Regus' failure to act on the fire chief position. It appears to the court the final policymaker/decision maker issue was primarily relevant on the issue of the liability of Fulton County under Section 1983, but not under the Title VII claim on which the plaintiff also prevailed. The court concludes that this error in the instructions to the jury does not demand the granting of a new trial. On the other hand, it might have had some impact on the amount of punitive damages the jury awarded against Lomax. As to defendant Stanford, there was no dispute that as county manager he had ample authority to appoint the fire chief. Defendants argued to the jury that he had such authority. The finding of Stanford's liability also subjects Fulton County to liability under Section 1983. Another factor that bears on this issue is the fact that county managers serving prior to Stanford (Brownlee and Regus) routinely presented their candidates for appointment as department heads to the county commission for approval. The evidence presented established that Stanford did not present his appointments to the Board for approval but simply informed the Board of his selection. Also, a few department heads, other than the fire chief were left to the Board of Commissioners to appoint by a majority vote.
See also Jett v. Dallas Independent School Dist., 109 S.Ct. 2702, 2723, (1989), where the court stated the following: "[T]he identification of those officials whose decisions represented the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury."
Finally, defendants argue that the court erred by not giving defendants' requested charge on the parties' respective burdens of proof. Specifically, defendants state that the court should have included their defense "that harsh treatment in the work place does not necessarily equal discrimination." While the court agrees that "harsh treatment" is not tantamount to discrimination, defendants do not even appear to contend that plaintiff was treated harshly; they simply allege that Chief Strong was more qualified than plaintiff. Thus, defendants' position here lacks merit. The court's charge adequately instructed the jury on burdens of proof.
C. Damages and Remittitur
Another major attack on the verdict and judgment in this case is directed against the damages award, compensatory, as well as punitive damages. In the alternative, defendants argue that in the event it is determined that liability of the defendants was properly determined, the court should grant a partial new trial on the issue of damages on the ground that this phase of the jury verdict was based on sympathy, passion or prejudice. It is clear that the court is authorized to grant a partial new trial solely on the issues of damages if it is determined that this course of action is demanded. Fed.R.Civ.P. 59(a); see also Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1242 (5th Cir. 1985). Further, the defendants argue, in the alternative, if the court determines that the damage award is not tainted by passion and prejudice, the court must nevertheless find that the amounts awarded were grossly excessive, and should, in its discretion, order a new trial as to damages, unless the plaintiff consents to a remittitur of a portion of such damages.
In the closing argument to the jury, the attorney for the plaintiff urged to the jury to award plaintiff $750,000, as follows:
____ As lost wages, $75,000 based on the difference between the pay plaintiff actually received and the pay received by the fire chief of Fulton County.
____ For mental pain and suffering $425,000, to be determined by multiplying the salary of Chief Strong by a certain number of years.
____ As to punitive damages, $250,000 was requested to punish Mr. Lomax and General Stanford and should be leveled more heavily against Mr. Lomax.
In its verdict, the jury awarded more than double the amount of damages asked by the plaintiff. It awarded $75,000 lost wages; $725,000 for mental pain and suffering, and $1,000,000 in punitive damages; $900,000 against Lomax and $100,000 against Stanford. The court is clearly aware that a jury is not limited to the amount of damages requested by counsel with respect to those damages based on the enlightened conscience of fair and impartial jurors. See Eckman v. Bd. of Educ., 636 F. Supp. 1214 (N.D.Ill., 1986). It is also well established that a jury verdict should not be disturbed by the court if there is sufficient evidence in the record to support the verdict. Deakle v. John E. Graham Sons, 756 F.2d 821 (11th Cir. 1985).
The court has seriously considered defendants' argument that the award of damages is so tainted by sympathy, passion or prejudice that a new trial is mandated as to the whole case. The court disagrees, but does find that certain aspects of the damages awarded are grossly excessive, requiring that a remittitur issue.
1. Compensatory Damages
At appropriate stages during the trial, defendants presented extensive motions for judgment as a matter of law on several liability issues in the case, but did not separately move for judgment as a matter of law as to compensatory or punitive damages. However, it is still open to defendants in post-trial motions to request a new trial as to damages, and, in the alternative, a remittitur of a portion of the damages awarded. See Gasperini v. Center for Humanities, 116 S.Ct. 2211 1996;Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir. 1985);Butts v. Curtis Publishing Co., 225 F. Supp. 916 (N.D.Ga. 1964), aff'd, 351 F.2d 702 (5th Cir. 1965), aff'd, 388 U.S. 130, 87 S.Ct. 1975 (1967);Kemp v. Ervin, et al., 651 F. Supp. 495 (N.D.Ga. 1986).
Defendants argue in their motions that the jury award of $75,000 in lost wages is not supported by the evidence in the case, and no such award can be properly made absent sufficient evidence. Their argument deals with the fact that at some point Bowman took a voluntary demotion from deputy chief to the rank of battalion chief after Strong was appointed. The court disagrees with defendants' position that there was insufficient evidence on this issue. It appears that the jury based its findings on the difference between Chief Strong's salary and that of Bowman as a battalion chief. There was evidence as to the difference. The court agrees with the plaintiff's argument that the move made by Bowman was a reasonable move, given the consideration that it was impractical and infeasible for him to continue as deputy chief. In doing so, he would be required to work out of headquarters, along with the man who got the job that he was seeking for himself. Also, the plaintiff had filed his lawsuit challenging the appointment of the new fire chief. The defendants' action was just as much responsible for this move as Bowman, as they improperly denied him the top job.
The amount of the jury award to the plaintiff for mental pain and suffering is a more complex matter. Defendants argue that the amount awarded is a result of sympathy or improper bias and prejudice against the defendants. They further assert that at the trial plaintiff failed to carry his burden and provide sufficient evidence of emotional distress, in that his testimony was the sole evidence on this issue. Defendants further argue that plaintiff's testimony consisted of vague and conclusory statements without sufficient corroborating evidence. Plaintiff testified that he was shocked, outraged and humiliated when he was advised by Stanford that he would not be selected as fire chief. He further testified that being denied the position caused him to suffer stress, embarrassment and some physical disorders, and the denial interfered with his relationship with his family. Regus, in his testimony, stated that Bowman had shared with him some of his feelings about not being appointed fire chief and the effect on him; but this was before Bowman was actually denied the job. The court disagrees with the argument that plaintiff has not carried his burden on the issue of mental pain and suffering. It is clear in the law that a mental pain and suffering award can be based on a plaintiff's testimony alone. See Kinsey v. Salado Independent Sch. Dist., 916 F.2d 273 (5th Cir. 1990).
The court must now determine whether or not the jury award of $725,000 is subject to legal challenge as to the amount. In the court's view, it is, in that it is grossly excessive under the evidence in the case. The plaintiff did not lose his job, he was simply not promoted. He voluntarily stepped down from the position as deputy chief for reasons of his own. While the evidence does supports the plaintiff's claim the he suffered mental distress, it also reveals that he missed little, if any, time from work based on mental stress. Also, the time period of plaintiff's mental stress for damages purposes should be measured from the time he denied the job of fire chief; but should not cover the time he was serving as acting fire chief, as plaintiff's appears to contend.
Upon consideration of all relevant evidence on this issue, the court concludes that the maximum sum in terms of a reasonable range that should have been awarded for mental pain and suffering is $400,000. In reaching this amount, the court relies on the holding of Warren v. Ford Motor Credit Corp. 693 F.2d 1373 (11th Cir. 1982), which sets forth the "maximum recovery" rule. The court has noted with interest that plaintiff relied on the Kemp, supra, case regarding his claim for damages for mental stress and punitive damages. Kemp was a very different case, in that Dr. Jan Kemp was first demoted, and thereafter not rehired to herjob. Her mental pain and suffering was severe enough to require professional help.
2. Punitive Damages
As pointed out hereinabove, defendants presented extensive motions for judgment as a matter of law on several liability issues in the case, but did not separately move the court to grant judgment as a matter of law to punitive damages. Consequently, defendants' argument that punitive damages should not have been presented to the jury is without merit. It is still open to defendants to request a new trial as to damages, and, in the alternative, a remittitur as to punitive damages awarded. See Gasperini v. Center for Humanities, 116 S.Ct. 2211 (1996);Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir. 1985); Buttsv. Curtis Publishing Co., 225 F. Supp. 916 (N.D.Ga. 1964), aff'd, 351 F.2d 702 (5th Cir. 1965), aff'd, 388 U.S. 130, 87 S.Ct. 1975 (1967); Kemp v. Ervin, et al., 651 F. Supp. 495 (N.D.Ga. 1986).
At the outset, it must be pointed out that all issues in this case, including punitive damages, are governed by the applicable principles of federal law rather than state law. However, punitive damages may only be awarded under the § 1983 action and only against the individual defendants.
In the case of Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983), the Supreme Court of the United States dealt with the issue of punitive damages in the context of a § 1983 action. In the Smith case, the Supreme Court held:
We hold that a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.
(Emphasis added.) Smith, 461 U.S. at 56; 103 S.Ct. at 1640.
The charge that the court gave on the issue of punitive damages which was objected to by the parties in pertinent parts stated:
In addition to actual damages, the jury may — but is not required to — award an injured person punitive damages, under certain circumstances, in order to punish the wrongdoer for extraordinary misconduct, and to serve as an example or warning to others not to engage in such conduct. You may not consider the issue of punitive damages unless plaintiff prevails on his Section 1983/Equal Protection claim against defendants Stanford and/or Lomax. If you find that he is entitled to recover this claim, punitive damages may be awarded for that claim if he proves — by "clear and convincing" evidence — that the individual defendants (or a certain individual defendant) acted maliciously or with reckless indifference to his rights.
In this case, plaintiff requested punitive damages against defendants Lomax and Stanford. As a political subdivision of the State of Georgia, Fulton County is immune from punitive damages under both § 1983 and Title VII.
Under the charge of the court, the jury was authorized to award punitive damages under two theories; a finding that either defendant "acted maliciously" or "with reckless indifference" to plaintiff's rights. This is a circumstantial evidence case and the evidence presented does not establish that either defendant acted with "ill will, spite or grudge." On the other hand, the court concludes that the evidence was sufficient for a jury acting reasonably to find that both defendants acted with reckless indifferences to the federal rights of the plaintiff as they disregarded the consequences of their actions toward him.
It is clear that a federal trial judge has the authority and the duty to require a remittitur of a portion of a punitive damages award if the award is deemed to be shockingly excessive.Butts v. Curtis Publishing Co., supra; Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571 (5th Cir. 1979); Matador Drilling Co. v. Post, 662 F.2d 1190 (5th Cir. 1981). In Curtis Publishing Co. v. Butts, supra, the district court determined that the punitive damages award in the amount of $3,000,000 was grossly excessive and required a remittitur of all punitive damages in excess of $400,000. In affirming the decision of the trial court, the Fifth Circuit stated the following:
What the "enlightened conscience" of one impartial jury might consider to be fair may not satisfy another impartial jury with an equally enlightened conscience. A wide variance in the amounts of such awards is inescapably inherent in any submission of the issue of punitive damages. But, of course, no one would suppose that it is left wholly and solely to the jury. As with every other issue traditionally for jury resolution, the trial judge must still determine whether, as a matter of law, the verdict comports with law. . . .
The trial judge had the duty of determining whether as a matter of law (a) any allowance for punitive damages could be made, and (b) what the maximum would be.Curtis Publishing Company v. Butts, 351 F.2d 702, 718 (5th Cir. 1965).
In recent years, legislative bodies and appellate courts have sought to limit the amount of punitive damages recoverable in certain cases. In BMW of North America, Inc. v. Gore, 116 S.Ct. 1589 (1996), the U.S. Supreme Court held that a punitive damages award should be in accordance with the "degree or reprehensibility" of defendant's conduct. In that case, the Court held that a state court award of punitive damages was grossly out of proportion to the severity of the offense and that it violated due process of law. In recent amendments to the Title VII Act, Congress limited the recovery of compensatory and punitive damages to a total of $300,000 in Title VII cases. See 42 U.S.C. § 1981a(b)(1). Also, it appears to the court that if a case of this type was tried under the laws of Georgia, the plaintiff's recovery would have been limited to a maximum of $250,000, as punitive damages. See O.C.G.A. 51-12-5.1. However, there is no such specific limitation applicable to an action brought under § 1983, which is governed by federal case law. Nevertheless, the court is bound to keep in mind the holding in the case of BMW of North America, Inc. v. Gore, supra, although it is not directly on point with this case.
In accordance with the prevailing case authority, the trial court has a duty to endeavor to keep an award of punitive damages within reasonable bounds considering the role of punitive damages and the relevant facts and circumstances of the case. Upon due consideration of the evidence and the law, the court concludes that the total amount of punitive damages in this case was grossly excessive; so shocking as to Lomax. While the evidence does support a finding that Lomax interfered with Regus regarding the appointment of Bowman, there is no evidence to establish that Lomax directed or influenced Stanford in his failure to appoint Bowman as fire chief. Whatever his political agenda was, Lomax did not have the authority, acting alone, to appoint a department head. While he had significant influence, the evidence does not support a finding that Lomax had control over a majority of the Board of Commissioners.
There are several factors which possibly persuaded the jury to assess the extraordinarily high amount of punitive damages against Lomax. First, a large portion of plaintiff's case was directed at Lomax, his political agenda, and his effort to become Mayor of Atlanta. Second, the closing argument of plaintiff's counsel to the effect that he was the main culprit is another factor. The following statement is noted:
Seems to me Mr. Lomax is more responsible. He is the one to set the agenda. He is the one who influenced Mr. Stanford. He is the one who had power. He is the one that was trying to be Mayor. (Based on the court reporter's notes).
Third, the court's instruction to the jury was defective in that it did not define the authority of Lomax as a policy maker/decision maker regarding the fire chief appointment. This might very well have allowed the jury to find that Lomax had more authority than he actually possessed under the law. Finally, the jury probably perceived widespread discrimination against white persons in the selection of department heads, as demonstrated by the jury's finding that a policy, practice or custom existed. The jury thus determined to send a message that this practice should be discontinued; but the aim of the message was primarily against defendant Lomax. Even if such a custom or practice existed, it would not have been within the power of Lomax as chairman of the commission, acting alone, to create or maintain it. Initially, when this lawsuit was filed, all of the black county commissioners serving at the time of the Bowman matter were named parties, but all except chairman Lomax were dismissed on summary judgment.
The jury also levied punitive damages against John Stanford based on his action and conduct in failing to appoint Bowman fire chief, but at a lesser amount. As pointed out herein above, the fire chief appointment matter was presented to him about six months after it was initiated. There is no question that he had the authority to act. He jury found that his failure to appoint Bowman as the fire chief was intentional racial discrimination. Upon further review, the court is unable to conclude that the jury's finding of punitive damages against Stanford was inappropriate under the reckless disregard test.
In reaching a decision on the issue of damages and a remittitur of a portion thereof, the court has also reviewed prior court decisions cited by the plaintiff regarding prior awards of damages, including the case of Cross v. State of Alabama, 49 F.3d 1490 (11th Cir. 1995). The court has made a limited case search on its own on this matter. The court's review does not reveal any similar case wherein a damage award in an employment discrimination case (or other similar case) with a jury award as large as the one in the instant case which was approved by a trial court or an appellate court. The case of Cross v. The State of Alabama involved sexual harassment of several female employees and against several state male employees. It appears that a punitive damages award in the amount of $100,000.00 was made against each of seven defendants, with the total award of punitive damages being $700,000.00. While prior court decisions showing approved jury awards of damages in similar civil rights cases are not binding, these decisions do provide some guideline of the approved range of damages that might be considered.
Upon a consideration of all the relevant evidence produced at the trial, the court concludes that the maximum sum in terms of a reasonable range that should have been awarded against the two defendants as a total amount is $200,000. In reaching this amount, the court has followed the rule as set forth in Warren v. Ford Motor Credit Co., supra. In regard to the individual defendants and the amount of punitive damages that should have been reasonably awarded against each, the court finds no rational justification in the evidence to warrant such a substantially larger amount of punitive damages against defendant Lomax than against defendant Stanford. What the evidence does establish is that both defendants were involved in the adverse employment decision regarding the plaintiff, but in different ways and times. Consequently, it is concluded that the punitive damages award should not have reasonably exceeded $100,000 as to Lomax. Although the amount awarded against Stanford ($100,000) is somewhat high, the court does not find it to be grossly excessive; consequently, it will not be disturbed.
D. Other Relief
As indicated hereinabove, in a separate motion, the plaintiff moved the court to grant equitable relief in the form of reinstatement, and, in the alternative, requested that in the event the court determined otherwise, that he be awarded front pay. That motion will be ruled on in a separate order. The plaintiff has also filed a request for reasonable attorneys' fees and expenses of litigation. This motion will be ruled upon after the plaintiff takes a position on the remittitur Order.
ORDER
In accordance with the above memorandum opinion, it is hereby ORDERED and ADJUDGED as follows:
1. Defendants' motion for judgment as a matter of law is GRANTED as to the plaintiff's claim that Fulton County maintained a pattern and practice of discrimination against white employees in appointment of department heads, and said motion is DENIED in all other aspects;
2. The motion of the defendants for a new trial as to liability and damages is OVERRULED;
3. The defendants' motion for a new trial as to all damages is OVERRULED, meaning that the compensatory damages awarded in this case in the amount of $75,000 as lost wages shall remain in full force and effect;
4. it is further ORDERED that the motion of the defendants for a new trial as to mental pain and suffering and punitive damages is GRANTED, unless the plaintiff, Danny Bowman, within twenty (20) days after the date of this Order, shall, in writing, file with the clerk of this court a remittitur of all damages for pain and suffering awarded above the sum of $400,000 as to all defendants and all punitive damages above $100,000 as to Michael Lomax.
As a courtesy to the clerk, the court notes that this order terminates entries 92, 96 and 97 on the docket sheet.
SO ORDERED, this 27th day of January, 1997.