Settlegoode v. Portland Public Schools

Full title: DR. PAMELLA E. SETTLEGOODE, Plaintiff, v. PORTLAND PUBLIC SCHOOLS…

Court: United States District Court, D. Oregon

Date published: Jan 31, 2002

CV-00-313-ST (D. Or. Jan. 31, 2002)

Opinion

CV-00-313-ST.

January 31, 2002

OPINION

STEWART, U.S. Magistrate Judge:

INTRODUCTION

Plaintiff, Dr. Pamella E. Settlegoode, was an Adaptive Physical Education ("APE") teacher who taught physical education to students with disabilities for defendant Portland Public Schools ("the District") for the 1998-99 and 1999-2000 school years. In June 1999, plaintiff began reporting incidents and situations of what she perceived to be discrimination against students with disabilities with respect to equipment, facilities, and services, as well as improper employee conduct, including falsified reports or lack of required reports, mismanagement of funds, and other violations of the law. In March 2000, the District declined to renew her probationary contract for the 2000-01 school year. By failing to renew her contract, plaintiff alleges that the District and its employees, Susan Winthrop ("Winthrop"), Robert Crebo ("Crebo") and Larry Whitson ("Whitson"), retaliated against her. Accordingly, plaintiff alleges that all defendants violated § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Claim One), and 42 U.S.C. § 1983 ("§ 1983") based on a violation of her First Amendment free speech rights (Claim Two). She also alleges that the District violated the Equal Pay Act (Claim Three) ORS 659. 530 and Oregon's Whistleblower Act, ORS 659. 530 (Claim Four).

Before trial, plaintiff voluntarily dismissed her claim for violation of the Equal Pay Act (Claim Three) and all claims against Whitson. The remaining claims were tried for eight days before a jury. On November 16, 2001, the jury returned a verdict in plaintiff's favor on all claims and awarded her the full amount of damages she sought on each claim, namely $500,000 non-economic damages, $402,000 economic damages, and $50,000 punitive damages against both Winthrop and Crebo for violating § 1983 (Claim Two).

Now pending before the court are defendants' Motions for Judgment as a Matter of Law, Mistrial, and New Trial (docket #156). For the reasons set forth below, those motions are granted in part and denied in part, and the court directs entry of judgment in favor of defendants.

ANALYSIS

Defendants have filed a total of 11 separate post-trial motions. The first seven of these motions request judgment as a matter of law on each claim for different reasons, on the punitive and non-economic damages, and on all claims due to the conduct of plaintiff's attorney. Three of the remaining four motions request, in the alternative, a new trial and the final motion requests, in the alternative, a limitation of the judgment on the Whistleblower Act Claim.

I. Legal Standards A. Motion for Judgment as a Matter of Law

Pursuant to FRCP 50(a), a court should render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. "A court may, however, reserve decision on the legal issues presented until after a jury renders its verdict when the motion may be renewed. FRCP 50(b).

The trial court can set aside the jury verdict and grant judgment as a matter of law "only if, under the governing law, there can be but one reasonable conclusion as to the verdict." Winarto v. Toshiba Am. Elec., Components, Inc., 274 F.3d 1276, 1282 (9th Cir 2001). In other words, judgment as a matter of law should not be granted unless:

(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair-minded [persons] could not arrive at a verdict against [it].

Meloff v. New York Life Ins. Co., 240 F.3d 138, 145 (2nd Cir 2001).

The Supreme Court has set forth the following standard for the court to apply when a losing party moves to set aside a jury verdict:

[I]n entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record. In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. . . . "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. . . . That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (citations omitted).

Thus, after reviewing all of the evidence and disregarding all evidence favorable to the moving party except that which the jury is required to believe, the court must ask:

whether a fair-minded jury could return a verdict on the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by [clear and convincing] evidence that the plaintiff is entitled to a verdict. . . .

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

B. Motion for New Trial

The party moving for judgment as a matter of law under FRCP 50(b) may join an alternative motion for a new trial under FRCP 59. Where both motions are before the court following a jury verdict, the court may either "(A) allow the judgment to stand; (B) order a new trial, or (C) direct entry of judgment as a matter of law. "FRCP 50(b)(1). If the court grants the renewed motion for judgment as a matter of law, then it "shall also rule on the motion for a new trial . . . and shall specify the grounds for granting or denying the motion for the new trial. "FRCP 50(c)(1).

A new trial may be granted "for any of the reasons for which new trials have heretofore been granted in actions at law. "FRCP 59(a). Although substantial evidence supporting the verdict bars a judgment as a matter of law, the court has a duty to grant a new trial if the verdict is against the clear weight of the evidence such that the court "is left with the definite and firm conviction that a mistake has been committed by the jury." Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir 1987). The court need not presume that the verdict is correct nor view the evidence in the light most favorable to the prevailing party. Id. Instead, the court must weigh the evidence and assess for itself the credibility of the witnesses. Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir 1990).

A new trial also may be granted based on the prejudicial misconduct of counsel during trial. Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345-47 (9th Cir 1995). In Anheuser-Busch, the Ninth Circuit affirmed the trial court's grant of a new trial because the opposing counsel violated the court's ruling on motions in limine which excluded certain evidence and using inadmissible evidence in the closing argument in an inflammatory manner. The violation of the evidentiary rulings left the unrebutted impression that the defendant continued to wrongfully interfere in business contracts and prejudiced the jury. See also Sasaki v. Class, 92 F.3d 232, 236-38 (4th Cir 1996) (ordering new trial because of improper reference by the plaintiff's counsel in closing argument to the federal statutory cap on non-economic damages that could have substantially influenced the jury verdict); Brown v. Royalty, 535 F.2d 1024, 1028 (8th Cir 1976) (holding that trial court erred in denying motion for new trial where counsel made references to evidence that the court had held in a pretrial order was inadmissible, despite giving a curative instruction).

Attorney misconduct warrants a new trial where the "`"flavor of misconduct . . . sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict."'" Anheuser-Busch, 69 F.3d at 346, quoting Kehr v. Smith Barney, Harris Upham Co., Inc., 736 F.2d 1283, 1286 (9th Cir 1984), quoting Standard Oil Co. of Cal. v. Perkins, 347 F.2d 379, 388 (9th Cir 1965). When the case is a close one, there is an enhanced possibility that improper conduct influenced the jury verdict. Silbergleit v. First Interstate Bank of Fargo, N.A., 37 F.3d 394, 398 (8th Cir 1994) (finding new trial warranted on the basis of a question by counsel that placed prejudicial information before the jury). Moreover, the court should focus "not only on counsel's conscious impropriety, but on the nature of the information that counsel attempted to bring before the jury." Id.

An objection prior to the jury's verdict is not required if the misconduct constitutes "a plain or fundamental error." Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148 (9th Cir 2001) ("We will review for plain or fundamental error, absent a contemporaneous objection or motion for a new trial before a jury has rendered its verdict, where the integrity or fundamental fairness of the proceedings in the trial court is called into serious question"). In fact, improper argument may be so inflammatory that admonishing the jury to disregard the argument cannot prevent prejudice because it cannot unring the bell. Ayoub v. Spencer, 550 F.2d 164, 170 (3rd Cir), cert denied, 432 U.S. 907 (1977).

II. Motion for Judgment as a Matter of Law on Claim One (Motion 1)

Pursuant to FRCP 50(b), the District moves for the entry of judgment as a matter of law in its favor on Claim One alleging retaliation in violation of the Rehabilitation Act because plaintiff has no standing and did not sufficiently prove that the District would have renewed her contract if she had not complained about the treatment of special education students. This court finds that plaintiff has standing under the Rehabilitation Act, but failed to prove causation.

A. Plaintiff's Standing

The Rehabilitation Act provides in § 504 that:

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .

29 U.S.C. § 794(a) (emphasis added).

Plaintiff is not an "individual with a disability" as defined by the Rehabilitation Act, but is a teacher of students with disabilities. However, another provision of the Rehabilitation Act states that its remedies "shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance." 29 U.S.C. § 794a(a)(2). Defendants argue that no Ninth Circuit authority grants a teacher of students with disabilities standing to bring a claim under the Rehabilitation Act under either provision.

The Ninth Circuit did allow an organization of deaf individuals to bring an action under the Rehabilitation Act related to a Los Angeles County court's refusal to provide sign-language interpreters to enable deaf citizens to serve as jurors. Greater Los Angeles Council on Deafness, Inc. ("GLAD") v. Zolin, 812 F.2d 1103 (9th Cir 1987). Although the Ninth Circuit agreed that the organization had standing, it explained in a footnote that the claim was "a question of GLAD's entitlement to relief under section 504 more than a question of Article III standing to sue." Id. 812 F.2d at 1115 n18. The court held that GLAD had standing based on its claim to recover for expenses incurred to secure an interpreter for a deaf person. Because GLAD was organized "for the benefit of hearing-impaired persons," it could maintain a claim for damages under § 504 of the Rehabilitation Act. Id. at 1115.

According to defendants, the same analysis does not apply in this case. Plaintiff is not seeking to recover any expenses she has incurred for the benefit of disabled students. Rather, her damages are personal, and as a result, she cannot seek to extend the bounds of the Rehabilitation Act to bring a personal claim.

In response, plaintiff points to cases from other circuits allowing individuals to bring claims under the Rehabilitation Act. Weber v. Cranston Sch. Comm., 212 F.3d 41 (1st Cir 2000) (granting standing to a mother to pursue her retaliation claim under § 504); Hoyt v. St. Mary's Rehab. Ctr., 711 F.2d 864, 865 (8th Cir 1983) (finding that plaintiff, as the "next friend and daily visitor" of the disabled patient, had standing to assert a claim of retaliation against her personally for her complaints to the hospital on behalf of the patient); Whitehead v. School Bd. for Hillsborough Cty., 918 F. Supp. 1515, 1522 (M. D. Fl 1996) (granting standing to the parents of a child with Down's Syndrome who sought damages under § 504 for retaliation against them in their capacity as parents); Ross v. Allen, 515 F. Supp. 972, 976(S. D. N.Y. 1981) (granting standing to a school psychologist who was dismissed after she complained to the Board of Education about the suspension of a deaf student for behavioral problems).

With respect to standing, this court is persuaded by the following analysis of the First Circuit:

The Rehabilitation Act extends its remedies to "any person aggrieved by any act or failure to act by any recipient of Federal assistance . . . under section 794 of this title." 29 U.S.C. § 794a(a)(2). Courts have construed the phrase "any person aggrieved" as an expression of Congressional intent to accord standing to the fullest extent permitted by the case and controversy provision of Article III. . . . Consistent with the broad construction of the statutory enforcement language of Title VI and the Rehabilitation Act, the anti-retaliation regulation applies to "any individual" who has been intimidated, threatened, coerced, or discriminated against "for the purpose of interfering with [protected rights]" under Title VI of the Civil Rights Act or the Rehabilitation Act. 34 C.F.R. § 100. 7(e); see id. § 104. 61 (incorporating the Title VI anti-retaliation regulation into the Rehabilitation Act).

* * *

Although Congress could have limited the remedial provisions of the Rehabilitation Act to claims brought by or on behalf of disabled individuals, it did not do so in apparent recognition of the fact that disabled individuals may need assistance in vindicating their rights from individuals who may have their own claim to relief under the Act. The anti-retaliation regulation set forth in 34 C.F.R. § 100. 7(e) is consistent with this recognition. It is a practical reality that recipients of federal funds sometimes respond to complaints about their treatment of a disabled child by retaliating against the disabled child, the initiator of the complaint (who is often a parent), or both.

Weber, 212 F.3d at 48-49 (citations omitted).

Considering the language of the Rehabilitation Act and the authorities cited above, this court concludes that plaintiff has standing to sue in her own capacity for retaliation suffered as a result of complaining about the treatment of students with disabilities. She is clearly a "person aggrieved" within the meaning of the Rehabilitation Act. Thus, defendants' motion for judgment as a matter of law on Claim One for lack of standing is denied.

B. Sufficiency of Proof

The Ninth Circuit has not determined whether the Title VII burden-shifting scheme applies to a claim brought by an individual without a disability complaining of retaliation under the Rehabilitation Act. However, as set forth in the Jury Instructions to which plaintiff took no exception, this court concluded that the Title VII standard applies to this claim. See Bennett v. Henderson, 15 F. Supp.2d 1097, 1112 (D Kan 1998), aff'd, 172 F.3d 62 (10th Cir 1999) ("The elements of the prima facie case of retaliation are the same whether a plaintiff proceeds under the Rehabilitation Act, ADA, ADEA, or Title VII").

As a result, plaintiff had the burden of proving:

1. She engaged in an activity protected by the Rehabilitation Act;

2. The District subjected her to an adverse employment action (the nonrenewal of the probationary contract); and

3. The District would have renewed the probationary contract but for plaintiff engaging in the protected activity.

The first two elements are the same as the first two elements necessary for a plaintiff's prima facie case under the traditional Title VII analysis, at which point, consistent with the McDonnell-Douglas analysis, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment decision. Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir 1986). The plaintiff must then prove "by a preponderance of the evidence that the proffered reasons are pretexts for retaliation or that a discriminatory reason more likely motivated the employer's action." Id.

If plaintiff succeeds at this point, a presumption is created that the adverse employment decision was the product of retaliatory intent. The defendant may rebut this presumption by showing by a preponderance of the evidence that the adverse action would have been taken even in the absence of discriminatory or retaliatory intent.

This final stage in the allocation of proof allows a defendant to show that the plaintiff would not have been hired, or would have been fired, regardless of the retaliatory motives of the employer. This is essentially a question of causation, the courts having recognized that a plaintiff garners a windfall if she receives the panoply of Title VII compensatory remedies without proof that she would have obtained the job. Engaging in protected activities or protected conduct should not put the plaintiff in a better position than she would be in otherwise. . . . This rule of causation has been applied to employment decisions involving First Amendment claims of protection, . . . as well as to discrimination claims under Title VII. It applies equally to retaliation claims under Title VII.

Id. (citations omitted).

This question of causation is the third element that plaintiff must prove in order to prevail on Claim One. The District concedes that plaintiff proved the first two prongs of a Title VII analysis, but contends that she failed to prove the third. On the issue of causation, the District points to its Final Report on Probationary Teacher (Exhibit 525) which gave the following three reasons for not renewing plaintiff's probationary contract:(1) her inability to write IEPs; (2) her inability to teach to a group; and (3) her communication style, which was marked by personal attacks, insults, and sarcasm. On their face, each of these reasons is legitimate and nondiscriminatory.

Both Winthrop and Carol Matarazzo (former Assistant Superintendent for the District) ("Matarazzo") testified that each of these reasons on its own was sufficient for the District to decide not to renew plaintiff's contract. On that point, their testimony was unrebutted by any cross-examination or by any other witness. Although Winthrop is a defendant and therefore an interested witness whom the jury was not required to believe, Matarazzo is not. Since she retired from the District in June 2000, she no longer has any personal interest in the outcome of this case. In fact, some of her testimony was favorable to plaintiff. Because her testimony on this point stands unrebutted and unimpeached, it cannot be disregarded. Thus, the issue with respect to causation is whether plaintiff produced sufficient evidence to rebut all three of the District's legitimate nondiscriminatory reasons.

1. Inability to Write IEPs

The District submitted evidence of plaintiff's failure to write adequate IEPs, both during her first year before her written complaints of June 11 and 16, 1999 (Exhibits 608-610) and during her second year (Exhibits 611-621). Plaintiff's supervisor, Winthrop, as well as plaintiff's own witness Jane Hubbard ("Hubbard"), another APE, testified that the standard for measurable levels of educational performance, goals, and objectives that the District sets for writing IEPs has existed since at least 1997. Winthrop gave these guidelines in writing to plaintiff (Exhibit 624) and also testified that she met with plaintiff to attempt to improve her ability to write IEPs, gave her access to a bank of IEPs, and even provided her with sample IEPs, which plaintiff confirmed.

Several witnesses, including plaintiff's witnesses, described IEPs as the cornerstone of special education and stated that in APE, the need for clarity in writing IEPs was especially important because APE teachers are itinerant, and on the days when plaintiff was not in the schools, the APE curriculum was continued by the classroom special education teachers, as well as by the Educational Assistants ("EAs"). By referring to a number of examples, Winthrop explained why plaintiff's drafting of IEPs was deficient. Her exhaustive trial testimony reviewing the IEPs prepared by plaintiff was completely uncontradicted. Plaintiff's counsel asked her no questions concerning plaintiff's IEPs which she criticized.

Because Winthrop is a defendant and therefore an interested witness, the jury was entitled to disbelieve her. However, plaintiff still had the burden to prove that Winthrop's criticism of her IEPs was retaliation for plaintiff's protected activities. Yet she offered no evidence that Winthrop's evaluations and conclusions related to the IEPs were a mere pretext. The only evidence that plaintiff presented was that IEPs are difficult to write and that if someone wanted to find an aspect on which to criticize an individual, the drafting of IEPs could be one. She presented no expert witness or supervisor or other qualified witness who, based upon a review of the IEPs drafted by plaintiff, could testify that they met acceptable standards. Although plaintiff points to the closing argument of her counsel characterizing the testimony of Hubbard (who was neither a supervisor nor an expert related to IEPs) as providing support for plaintiff's IEPs being "good," the actual trial transcript reveals that Hubbard did not comment at all on plaintiffs ability to write IEPs. Excerpt 21, Testimony of Jane Hubbard, pp. 8-12.

To overcome this lack of evidence, plaintiff makes several arguments. First, she points to her performance evaluations to show a lack of written criticism of her ability to write IEPs. She received two performance evaluations from Winthrop during her first year before she made her complaints in June 1999:the first dated November 30, 1998 (Exhibit 511) and the second dated February 22, 1999 (Exhibit 513). In both evaluations, plaintiff met all minimum standards, including Section 1(3) which reads:"Plans, develops and completes IEPs according to District and State guidelines and policies." Winthrop's explanatory comment to the first evaluation states that plaintiff "is working to develop her skills in writing IEP goals and objectives which are measurable. She has not yet had opportunities to prepare evaluation reports. "Her comment to the second evaluation states that plaintiff "accurately relays gross motor information in her evaluation reports. She is working on reporting information in a more succinct manner."

Yet in her performance evaluation dated February 23, 2000 (Exhibit 525), during her second year of teaching after plaintiff began making complaints, Winthrop found plaintiff deficient in Section 1(3). Winthrop's comment states that plaintiff "continues to write IEP goals that are not measurable. Present Levels of Performance (PLOP) do not consistently include baseline information and goals do not indicate degree of improvement. "Despite this supposed deficiency, plaintiff notes that she met minimum standards overall for Section 1 and argues that criticism of her IEPs in her second year can only be ascribed to Winthrop's retaliatory motive.

The problem with this argument is that Winthrop did criticize plaintiff's IEPs during her first year. In fact, Winthrop's explanatory comment on the first evaluation confirms that plaintiff was not yet proficient in writing IEP goals and objectives which were measurable. Winthrop and Matarazzo also testified without contradiction that first year teachers are given a great deal of support and the benefit of any doubt, but are evaluated much more closely during the second year. Furthermore, the record contains observation notes by Winthrop dated October 26, 1998 (Exhibit 508), listing four areas for plaintiff to work on, including "writing measurable goals/objectives" to be discussed at a meeting the next day. The record also contains three IEPs written by plaintiff during her first year (Exhibits 608-610), one of which contains Winthrop's critical notes. Plaintiff's IEPs changed little during her second year (Exhibits 611-620) and Winthrop's notes continue to be critical of the same problems in both years. In other words, the documents themselves reveal insubstantial improvement in plaintiff's IEPs from her first year to her second year.

Second, plaintiff reasons that if her IEPs were crucial for her, then they were equally crucial for the students. Thus, if they were as inadequate as Winthrop claims, then defendants would have produced evidence that they disregarded them or corrected them by calling another IEP meeting. This argument improperly attempts to shift the burden of persuasion from plaintiff to defendants. Plaintiff, not defendants, must prove that her inability to write IEPs was a pretext for her nonrenewal.

Third, plaintiff contends that the only evidence critical of her IEPs was Winthrop's testimony which must be disregarded in its entirety. Because Winthrop is an interested witness, the jury clearly was entitled to disbelieve her, and this court must disregard her testimony to decide a motion for judgment as a matter of law. Reeves, 530 U.S. at 150-51. Nevertheless, merely disregarding Winthrop's testimony does not mean that plaintiff prevails. As recognized by the Supreme Court:

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. . . . To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50, and we have reiterated that trial courts should not "treat discrimination differently from other ultimate questions of fact."

Id. at 147 (emphasis in original; citations omitted)

The facts of this case are clearly distinguishable from the facts in Reeves. In Reeves, the Supreme Court reversed on the basis that the appellate panel failed to take into account the plaintiff's evidence supporting his prima facie case when considering the overall sufficiency of the evidence to support his age discrimination claim. The Supreme Court found substantial evidence demonstrating that the employer's explanation for his firing was patently false and pointed to comments and conduct of the defendant's supervisor reflecting age-related animus. Here, there is no comparable evidence supporting plaintiff's prima facie case or any other evidence to call into question the District's criticism of plaintiff's IEPs. Indeed, this case falls squarely within the exception noted in Reeves in which the plaintiff fails to carry her "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Id. at 148.

Even disregarding Winthrop's testimony, the District is nonetheless entitled to judgment as a matter of law "if the record conclusively reveal[s] some other, nondiscriminatory reason for [its] decision." Id. The record here does just that.

The District's IEP guidelines state that the "assessment information stated in the PLOP [Present Level of Educational Performance section] becomes the baseline data for establishing the annual goal." Exhibit 624. In addition, those guidelines specify that both the "Annual Goal" and "Objectives" sections in IEPs must be "measurable." Id. The "Annual Goal" is also required to be "easy for parents to understand and must reflect what a student can reasonably achieve in ONE YEAR." Id. (emphasis in original). The guidelines give a model for the Annual Goal, which includes four parts, namely: (1) direction of progress (increase/decrease); (2) behavior or skill; (3) degree (grade/achievement) to which student will achieve; and (4) the evaluation tool. Id. The guidelines give a similar model for Objectives, which includes four parts:(1) an observable behavior; (2) the condition under which the behavior will occur (listed as "optional"); (3) the criteria for performing the behavior; and (4) the evaluation schedule. Id.

The guidelines obviously require the person preparing the IEP to document in the PLOP the student's baseline ability in the particular skill. Without such baseline information, it is impossible to track the improvement in the specified area. The Annual Goal and Short-Term Objectives for the student must be "measurable. "In other words, just by reading the baseline information given in the PLOP, and then reviewing the "measurable" Annual Goal and Short-Term Objectives sections of the IEP, a reader should be informed of both the student's current skill level as well as the measurable goals for both short-term and annual improvement by that student.

The IEP prepared by plaintiff on or about November 23, 1998, for student "N. J." clearly does not meet that standard. The PLOP section states:

[Student] enjoys sharing and engaging in physical activities; [student] likes to be of help to others; in many activities [student] exhibits good skills. [Student's] time [and] attention on-task oftentimes interferes with progress [and] accuracy; needs pos[itive] reinforcers (e. g. praise) freq[uently]; social-conflicts disrupt performances; seeks out one on one repetitions.

Exhibit 608.

The Annual Goal in the same IEP states:

[Student] will develop the skills needed to participate in 3 lifetime activities instructed, including one that is fitness-based as demonstrated during practical examination (tennis, [weight] train[ing] [and] self defense).

Id.

Those descriptions do not provide any information concerning the student's present abilities, the means by which to measure improvement, or the goal for the ensuing year. Similarly, the IEP prepared by plaintiff on or about June 9, 1999, is lacking this information. The PLOP section states:

[Student] continues to be enthusiastic about participating in PE with [student's] peers; [student] particularly enjoys individual sports and sporting activities. The characteristics of [student's] CP and visual limits compromise [student's] successes in all aspects of gross motor coordination.

Exhibit 609.

The Annual Goal states:

[Student] will increase [student's] skills and participation (with minimal support) in 4 lifetime activities [and] sports as measured by practical examinations.

Id.

Again, this PLOP and Annual Goal fail to indicate the student's current skills level or an annual goal for the student.

Finally, the IEP prepared for student "A. M." on or about June 11, 1999, gives the following PLOP narrative:

[Student] desires to participate in Physical Education with [student's] peers; [student] enjoys individual sports [and] athletic competition (track and field), however, the characteristics of [student's] MR limit her successes in the regular PE curriculum.

Exhibit 610.

The Annual Goal in that IEP is nearly identical to the Annual Goal in Exhibit 609 and states:

[Student] will increase [student's] skills [and] knowledge through participation (with minimal support), in 4 lifetime activities [and] sports as measured by practical examinations.

Id.

None of these PLOP or Annual Goal narratives gives any information concerning the student's abilities in a particular skill area or any "measurable" annual goal identifying what the student "can reasonably achieve in one year."

While the Objectives section in Exhibit 608 contains several specific activities with "measurable" goals (one exception is that "speed force accuracy target" is not "measurable" without defining "target"), i.e., 8 out of 10, accuracy of 5 parts etc, for the most part, Exhibits 609 and 610 do not. Instead, they give general categories of activities, i.e., "regime of activities," "movement activities," "track and field activities," "hiking activities," "tennis," "weight training," etc., and list target percentages of "increase," "accuracy," and "participation. "These Objectives thus never identify the specific "observable behavior" called for in the guidelines, and without information on the student's baseline abilities, are meaningless when speaking in terms of "increase."

A comparison of the IEPs for student "S. H." at Grant High School, one prepared by Judy Wright ("Wright") with input from S. H.'s mother and others on or about December 8, 1998 (Exhibit 621), and one prepared by plaintiff on or about February 19, 1999 (Exhibit 620), highlights the shortcomings of the IEP prepared by plaintiff. The PLOP in the IEP prepared by plaintiff states:

[Student] exhibits enthusiasm for participating in Phsyical Education [and] being with his peers; he also enjoys being helpful (e. g. carrying equipment). Classroom observations indicate that characteristics of [student's] autism conflict with [student's] capacity to express [and] follow instructions; needs frequent reinforcement to stay on-task.

Exhibit 620.

The Annual Goal in that same IEP provides:

[Student] will increase his participation and practice at locomotion [and] object control skills as demonstrated by time on task [and] completion of request to 70%.

Id.

In comparison, Wright's PLOPs and Annual Goals identify the specific skill, the student's current ability in that skill, and a measurable annual goal:

PLOP:

[Student] has difficulty balancing on one foot for more than 15 seconds. [Student] is unable to walk heel to toe. [Student] is unable to walk on the insides of his feet or on the outsides of his feet to complete warm-up exercises for Track. [Student] needs a model, physical assist, and verbal cues.

Exhibit 621, p. 2.

Annual Goal:

[Student] will perform balance activities increasing the time/distance by 10% intervals and the independence level by 25% intervals until mastery.

Id.

PLOP:

[Student] is able to skip and able to raise his knee to hip level, but cannot do both at once. [Student] is unable to do Karaoke steps (alternating steps sideways with foot placed behind each time). [Student] is able to run on [student's] toes (quick step) but not fast enough to complete Track/C. C. warm-ups. [Student] needs a model, physical assist and verbal cues.

Id. at 3.

Annual Goal:

[Student] will exhibit agility by executing motor coordination activities increasing speed/steps by 10% intervals and the independence level by 25% until mastery.

Id. at 4.

PLOP:

[Student] is able to jog 60 minutes continuously, but complains frequently.

Id.

Annual Goal:

[Student] will exhibit cardio-respiratory endurance by maintaining a jog pace for 60 minutes continuously to demonstrate stamina and endurance, while decreasing complaints.

Id.

The remaining pages of Exhibit 621 are similar.

There is an even sharper contrast between the Objectives sections of those same IEPs. Plaintiff's IEP states that the student will "stay within defined areas of the gym or playing field" 100% of the time. Exhibit 620. The remaining activities, for which the criteria is "80% of the time" or "80% with prompt" are that the student will:

• "participate in each section of instruction";

• "comply with teacher or peer request to join activity";

• "help hand out equipment and in putting it away";

• increase time on task and completion of drills"; and

• increase practice of locomotion skills. " Id.

In contrast, Wright sets forth numerous specific activities such as:

• "maintain balance while standing on one foot for 2 minutes" (Exhibit 621, p. 2);

• "[p]erform `quick step' (run on toes — very rapid)" ( id. at 3);

• "[j]og continuously for 60 minutes with decreasing complaints" ( id. at 4);

• "[p]erform stretch of hamstring and Achilles heel tendon, adapted as necessary, with correct form" ( id.);

• "[j]ump forward with 2 feet 48 in[ches]" ( id. at 7).

Each individual activity gives a specific percentage goal for independence (0% to 100% independently) for a particular activity. Id. at 2-7.

Plaintiff argues that the measurement of proficiency in areas such as dance, Tai Chi, and self-defense is qualitative. However, not one of the areas identified by plaintiff is incapable of being objectively measured. Dance, Tai Chi, and self-defense all can be broken down into specific movements. It does not take special training in APE to know that a child's initial ability can be documented by a skills test, and measurable goals can be set by requiring a specific number or type of movements over a particular time frame. Plaintiff's own IEP suggests that self-defense can be broken down. See Exhibit 608("self defense skill — performing 3 kicks, 3 handstrikes [and] 3 escapes").

Plaintiff proffers reasons as to why she could not and did not sufficiently write IEPs. She blames her newness to the position, inadequacy of current curriculum, inadequate IEPs written by previous teachers, and the uniqueness of the programs she taught. However, plaintiff testified to none of these excuses during trial.

Plaintiff's counsel also attempted to explain at oral argument that plaintiff's IEPs were adequate because she instituted new programs with an implied baseline of zero, could use percentage of accuracy as a measure, and had difficulty providing IEPs that received approval of the IEP team. However, this argument is not supported by any testimony from plaintiff or any other witness. Furthermore, if the level of skill the student initially possesses is assumed to be zero, the initial measurement of "improvement" will appear dramatically higher than later measures of "improvement."¹

1 For example, if the student is assumed to be unable to perform any self defense movements at all, and then after instruction at the first class successfully performs 10 out of 20 blocking movements, the initial "improvement" will be 50%, and if the student performs 12 blocking movements at the next class, the "improvement" will only be 10%.

Moreover, many of the specific skills in each of these areas ( i.e., the "kicks" identified as a self-defense move by plaintiff) are skills the student may naturally know how to do, or may have learned without any specific training. It defies logic that students would have absolutely no skills in several of these areas. If they can identify basic body parts and follow simple instructions, many of the very basic first things learned in a dance, Tai Chi, or self-defense class would be ones they could do. Presumably, the purpose for identifying the student's initial level of performance is to make it possible to track the student's performance over time. This goal is thwarted (or perhaps can only be achieved) by using the initial measure of "improvement" as a baseline.

In sum, a comparison of these two IEPs, particularly in light of the District's guidelines, amply demonstrates how IEPs can and should be written with measurable goals that anyone, even parents, can understand and apply. No rational factfinder could compare these two documents based on the evidence presented at trial and conclude that plaintiff's IEPs were adequate.

Plaintiff asks this court to assess her IEPs as a legal matter. Such an analysis is misplaced. First, despite the legal baseline required for IEPs, an individual school district may impose more stringent guidelines and review of IEPs than the federal requirements, as in Exhibit 624. Second, the legal sufficiency of the IEPs is not relevant to the claim for retaliation, and this court is not required to determine the sufficiency as a legal matter. The only issue in this case is whether plaintiff's IEPs failed to meet the District's standards and guidelines and therefore provided a legitimate reason for the nonrenewal of plaintiff's contract.

Although plaintiff presented no evidence at trial related to the legal requirements of an IEP, she now points to the standard established by O'Toole v. Olathe Dist. Sch. Unified Sch. Dist. No. 233, 144 F.3d 692, 701 (10th Cir 1998) (citations omitted), that "[t]echnical deviations from the requirements of section 1401(a)(2) . . . do not render an IEP entirely invalid; to hold otherwise would exalt form over substance. "Notwithstanding this standard, plaintiff's IEPs were deficient. O'Toole echoes the standards of the District that IEPs are "`a way for the child's teacher(s) and parents to be able to track the child's progress in special education'" and requires that instructional goals be "`measurable, intermediate steps between the present levels of educational performance'" and annual goals "`serve as milestones for measuring progress toward meeting the goals.'" Id. at 703, quoting 34 C.F.R. § 300 App. C, questions 37 39. Based on the uncontradicted evidence discussed above, plaintiff's IEPs do not meet this standard.

Nor may plaintiff rely on Exhibit 62, the IEP for student "D. K." in which Whitson substituted a page to replace what plaintiff had drafted in Exhibit 612. Whitson's unrebutted testimony explained that the lack of measurable goals in the page he substituted was directly attributed to the deficiencies in the IEP written by plaintiff for that same student. Whitson could not make the information more measurable because plaintiff had failed to provide the necessary information. Even if Whitson's testimony is disregarded, the record is devoid of anything to assist plaintiff with respect to this particular IEP.

At the close of plaintiff's evidence when the District first moved for judgment as a matter of law on this claim, this court expressed concern that plaintiff had failed to prove that but for her protected activities, the District would have renewed her contract even if her IEPs were inadequate. Instead, the evidence revealed that her inadequate IEPs were a legitimate basis for not renewing her contract, regardless of any retaliatory motives of Winthrop and Credo. As a result, this court warned that it would likely grant a motion for judgment notwithstanding the verdict. Despite this warning, plaintiff did not offer any additional evidence by way of cross-examination or rebuttal testimony to counter this court's concern. Instead, she simply attacked Winthrop's credibility to prove that she had a retaliatory motive. Even assuming that Winthrop was generally motivated by a desire for retaliation, plaintiff still bore the burden to prove that Winthrop's criticism of her IEPs was unjustified and merely a pretext for getting rid of plaintiff because of her protected activities. The evidence on that point is lacking and certainly not "specific" and "substantial" as required to prove pretext. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir 1998).

After reviewing all of the evidence, this court concludes that the record conclusively reveals a legitimate, nondiscriminatory reason for the District's decision not to renew her contract, namely plaintiff's inability to write adequate IEPs. Plaintiff presented no evidence to counter the District's evidence of this deficiency. This deficiency was one of the three stated reasons sufficient in and of itself to cause her nonrenewal, even if the District was also motivated by her protected activities not to renew her contract. By prevailing on these facts, plaintiff would be placed in a better position for engaging in protected activities than she would be otherwise. That is not the purpose of the Rehabilitation Act.

Although the jury reached a contrary conclusion, this court is persuaded that the verdict is not supported by any evidence or by any reasonable inferences drawn in plaintiff's favor from the evidence and likely was improperly influenced by the conduct of plaintiff's counsel, as discussed below. Viewing the evidence, together with all reasonable inferences in favor of the verdict, a reasonable person could come to only one conclusion, namely that the District is entitled to a judgment as a matter of law on Claim One for violation of the Rehabilitation Act.

2. Inability to Teach to Students as a Group

The District also argues that plaintiff failed to rebut the evidence that her inability to teach students as a group fully justified the decision to not renew her probationary contract. Both Winthrop and Matarazzo testified, without contradiction, that in addition to her inadequate IEPs, plaintiff's inability to teach to students as a group was an independently sufficient reason to not renew the contract.

The exhibits contain Winthrop's observations that plaintiff repeatedly had difficulty engaging and teaching to students as a group and enabling the EAs to work with her to ensure that the students were sufficiently engaged. See Exhibits 508, 515, 517, 518, 519, 522, 523, 525. These observations about deficiencies in teaching to a group began in October 1998 and continued through 2000.² On cross-examination of Winthrop, plaintiff's counsel asked no questions about these observations.

2 The decision of the arbitrator does not preclude consideration of Winthrop's observation notes. As an initial matter, this limited part of the arbitrator's decision related to the December 1999 evaluation and the jottings that were revised into Winthrop's formal observation notes. The trial exhibits, however, included observations and evaluations not just from the period of time related to the 1999 evaluation, but throughout the two years of plaintiff's employment. See Exhibits 508-513, 521-523, 525. Moreover, the arbitrator found that the December 1999 evaluation, which concluded that plaintiff's teaching abilities were lacking, was made in good faith and was not retaliatory. Furthermore, Exhibit 525, the final evaluation of plaintiff, was not involved in the arbitration.

Although acknowledging that plaintiff did produce some evidence to contradict Winthrop's assertions, the District contends that it must be disregarded. Plaintiff's witness, Betty Zambrano (a special education teacher from Marshall High School), testified that she was present in a classroom and observed that plaintiff was teaching well. Excerpt 14, Testimony of Betty Zambrano, pp. 12-13. However, defendants correctly point out that the student-to-adult ratio was close to one-to-one. Similarly, Linda Owens (Vice Principal of Wilson High School) testified that at Winthrop's request, she evaluated plaintiff. However, as defendants again correctly note, the class she evaluated had a one-to-one student-adult ratio. Excerpt 15, Testimony of Linda Owens, p. 21. Thus, those ratios do not show that plaintiff was proficient in teaching to a group.

One witness did contradict Winthrop. Winthrop testified that she was hit in the head with a tennis ball during a group lesson at Applegate School taught by plaintiff. Elsie Weden, an EA ("Weden"), was present during that same class and testified that plaintiff had no problem teaching the group tennis lesson at Applegate School. The District discounts Weden's opinion pointing out that she was not trained to teach APE or to observe an APE class. In addition, plaintiff herself admits that she did not even notice that Winthrop had been hit with a tennis ball, indicating that she was at least somewhat deficient in monitoring the class.

If this were the sum total of the evidence, the District would have a strong argument that plaintiff's evidence was wholly insufficient to support the verdict. However, Winthrop did observe plaintiff teaching a self-defense class to group of students at Franklin High School in March 1999, which she described as an "excellent session. "Exhibit 23. This contradicts her conclusion that plaintiff had trouble teaching groups of students, at least in plaintiff's first year. Thus, unlike her conclusions concerning the IEPs, Winthrop's conclusions from her own observations of plaintiff's ability to teach a group of students conflict.

This conflicting evidence allows the reasonable inference that Winthrop's criticisms of plaintiff's teaching ability as a group may have been inaccurate and retaliatory. One isolated example of competent teaching is certainly a thin reed to question the overall conclusions Winthrop made based on her observations of plaintiff over a period of two years. However, the jury was entitled to disbelieve Winthrop and believe plaintiff and Weden on this issue. As a result, the District is not entitled to judgment as a matter of law against Claim One on this ground.

III. Motion for Judgment as Matter of Law on Claim Two (Motion 2)

Pursuant to FRCP 50(b), defendants move this court for the entry of judgment as a matter of law in their favor on Claim Two alleging retaliation in violation of civil rights under § 1983. Winthrop and Crebo argue that they are entitled to qualified immunity, and the District argues that plaintiff has not proven ratification or a pattern and practice of retaliation by the District. In addition, all defendants argue that plaintiff has not proven that the reasons to not renew her contract (deficient IEPs and inability to teach to a group) were pretextual. As discussed below, the motion is granted.

A. Qualified Immunity

When government officials are sued in their individual capacity, they are entitled to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800 (1982). A plaintiff can overcome qualified immunity only if a defendant's conduct violates a clearly established right of the plaintiff of which a reasonable person would have known. Brewster v. Board of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir 1998), cert denied, 526 U.S. 1018 (1999). "As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). To provide that ample protection, the employer's justification for the discipline must be taken into account in determining whether the defendants' conduct was objectively unreasonable, that is, whether "no reasonably competent officer would have concluded" that the discipline could be imposed without violating the employee's First Amendment rights. Id.

If a public employee's speech involves a matter of public concern, then the state employer's interest in promoting workplace efficiency must outweigh the plaintiff's First Amendment rights to avoid liability. Pickering v. Board of Ed. of Township High Sch. Dist. 205, 391 U.S. 563, 568 (1988). "When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." Connick v. Myers, 461 U.S. 138, 151-52 (1983). However, the government's burden in justifying a termination depends on the nature of the employee's expression:the greater the protection afforded the whistleblower's speech, the greater the showing of disruption must be. Id. at 150. "[T]he determination whether an employee's expression is constitutionally protected requires a fact-sensitive, context-specific balancing of competing interests, [so] the law regarding public-employee free speech claims will rarely, if ever, be sufficiently `clearly established' to preclude qualified immunity under Harlow and its progeny." Brewster, 149 F.3d at 979-80 (internal quotations omitted), quoting Moran v. State of Wash., 147 F.3d 839, 847 (9th Cir 1998). Winthrop and Crebo first argue that the Pickering balancing inquiry need not be applied in this case because the content of plaintiff's speech was not the reason for the District's nonrenewal decision. Unlike the "but for" test derived from Title VII for the Rehabilitation Act retaliation claim discussed above, § 1983 requires only that a plaintiff prove that her speech was a "substantial or motivating factor" for the adverse employment action. Board of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996). Plaintiff presented substantial evidence that the content of her speech reporting violations of the law by the District was a factor, although not perhaps the determining factor, for the nonrenewal decision. That is sufficient to bring plaintiff's speech within the ambit of the First Amendment. Winthrop and Crebo next argue that they are entitled to qualified immunity under the Pickering balancing test between free speech and workplace disruption. This court must determine "whether the specific facts of this case present one of those rare instances in which Pickering rights are, despite balancing, clearly established." Brewster, 149 F.3d at 980. Because some anger or unhappiness necessarily accompanies speech on issues of public concern, the employer "must do more than show mere disruption," and instead "must show actual injury to its legitimate interests." Johnson v. Multnomah County, 48 F.3d 420, 427 (9th Cir), cert denied, 515 U.S. 1161 (1995). Noting that "`[w]histle blowing,' by its very nature . . . engender(s) some hostility and resistance," the Ninth Circuit has explained that:

For us to find that the government's interest as an employer in a smoothly-running office outweighs Roth's first amendment right, defendants must demonstrate actual, material and substantial disruption. . . . In evaluating any alleged disruption, we must "focus on the effective functioning of the public employer's enterprise." . . . We also recognize that the state may have a strong interest in avoiding disruption of "work, personnel relationships, or the speaker's job performance. . . ."

Roth v. Veteran's Admin. of Gov't of United States., 856 F.2d 1401, 1407 (9th Cir 1988) (citations omitted).

An employer "cannot justify retaliation against whistleblowers as a legitimate means of avoiding the disruption that necessarily accompanies such exposure." Johnson, 48 F.3d at 427. In Johnson, the County's showing of disruption was evidence that the plaintiff's statements interfered with her close working relationship with her boss and undermined her boss' relationship with his co-workers, subordinates and private vendors. The Ninth Circuit found this evidence insufficient to entitle the County to summary judgment on the ground that its legitimate administrative interests outweighed the plaintiff's First Amendment interest. The County's interests were not injured if the boss "was undermined by truthful statements exposing his own wrongdoing." Id.

The most recent Ninth Circuit case addressing the qualified immunity defense to a claim of retaliation for exercising free speech rights is Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741 (9th Cir 2001). In Keyser, the Ninth Circuit affirmed summary judgment granting qualified immunity to plaintiffs' supervisor because it was not clearly established that it was illegal to retaliate against plaintiffs for bringing charges of misuse of public funds to light. The court first discussed a series of Ninth Circuit cases "establishing that the public's interest in learning about illegal conduct by public officials and other matters at the core of First Amendment protection outweighs a state employer's interest in avoiding a mere potential disturbance in the workplace. "Id at 748 (emphasis in original). It then concluded that the facts in Keyser fell "precisely" within this precedent because there was "`no evidence of actual disruption,' caused by [plaintiffs'] speech, let alone any evidence of `actual injury to . . . legitimate interests' beyond the `disruption that necessarily accompanies' such speech." Id. at 749 (citations omitted).

Sweeney only argues in speculation that [plaintiffs'] speech must have significantly disrupted the provision of education services by the District. He does not cite to a single page in the record where either he or a Board member describes any disruption. Indeed, he cannot claim that [plaintiffs'] speech disrupted his relationship with them because he denies even knowing that they made the accusations of his misuse of public funds until this lawsuit was filed.

Id.

Keyser distinguished Brewster (also authored by Judge O'Scannlain) which reversed a denial of summary judgment to a government employer on qualified immunity grounds. "In Brewster, we decided that qualified immunity was warranted because the particular balance of free speech and workplace disruption in that case was both unprecedented and too close to call to say it was clearly established." Id. There was "testimony in the record where other employees stated that Brewsters' allegations of falsified attendance records had caused disruption at the workplace" and "`Brewster's allegations of erroneous record keeping were ultimately determined to be false,' which `weigh[ed] against [his] claim.'" Id. (citations omitted). Whether the speech is directed internally, as opposed to the public or the media, is not determinative. Id. at 724 n3. Keyser also declined to apply the high-level policymaking exception because plaintiffs' speech had nothing to do with "`legislative or administrative vision,' but instead charged [Sweeney] with illegally using federal money." Id. at 750. The issue here is whether the evidence, viewed solely in favor of plaintiff, reveals actual injury to the District's legitimate interests, as in Brewster, or a mere potential or insufficient workplace disturbance, as in Keyser and Johnson. Plaintiff's supervisors, Winthrop and Crebo, both testified that they responded to plaintiff as they did because plaintiff acted in a manner that frustrated their ability to do their own jobs and interfered with the teamwork approach to special education. However, even if their testimony is disregarded under Reeves, several of plaintiff's colleagues testified to the devastating effect that plaintiff's letter to Dr. Benjamin Canada, the Superintendent at the time (Exhibit 551), had on the cohesion of the APE teachers. The testimony of Gail Reynolds (who filed a complaint against plaintiff because of the letter), Bonnie Doyle, and Jan Standlea explaining the adverse impact of plaintiff's letter to Canada was unrebutted. After plaintiff's injurious letter, the APE staff was not able to work together and held a difficult meeting that attempted to turn that negative event into a more positive one. Also, high school administrators Opal Chancler-Moore, John Crooks, Linda Owens, and Carla Randall all testified to communication problems with plaintiff that dramatically interfered with their ability to manage their schools. In fact, plaintiff had an antagonistic relationship with staff at every school but one at which she worked and damaged the relationships between other staff and between other staff and parents.

The evidence in this case is much closer to Brewster than to Keyser because it goes well beyond the speculation and proves that plaintiff's speech did significantly disrupt the provision of educational services by the District. As in Brewster, other employees testified that plaintiff's behavior, as opposed to simply her complaints of violations, engendered disharmony in the schools in which she worked and upset the working relationship between plaintiff and her supervisors, as well as between the school administrators and her colleagues and among her colleagues. Unlike Brewster, it is unknown whether plaintiff's complaints were false; instead defendants stipulated that her complaints were made in good faith in order to avoid a lengthy trial on the merits of her complaints. However, the relative merits of the complaints is only one consideration among many in the balancing inquiry.

Admittedly, the undisputed evidence in this case is not nearly as strong as in Fales v. Garst, 235 F.3d 1122 (8th Cir 2001), which reversed the trial court's denial of summary judgment to the defendant-principal on qualified immunity. Three special education teachers complained about special education programs, which resulted in "school factions and disharmony among their coworkers," as evidenced by several other teachers verbally accosting one of them and "an on-going battle with the fifth-grade teachers concerning special education issues." Id. at 1124. This "school climate led the district's superintendent to recruit a consultant to mediate the issues," which proved unsuccessful. Id. Because "the middle school became polarized, dividing into pro- and anti-[defendant] groups," the Eighth Circuit concluded that "it is beyond peradventure that the plaintiffs' speech caused the school upheaval" and that "the teachers' interest in speaking on these matters was outweighed by the interest of efficient administration of the middle school." Id. at 1124.

Although plaintiff's speech did not require the hiring of a consultant to mediate the problem, as in Fales, it did require mediation to resolve Gail Reynolds' complaint and also caused polarization among the APE teachers, as well as upheaval in the schools where she taught. The testimony from a number of employees confirms that the style and tenor of plaintiff's speech, more than the substance, significantly disrupted efficient administration by the District. The District had to investigate and resolve several complaints from parents, as well as staff, arising from plaintiff's method of dissenting. For example, Gabby Frieder testified that plaintiff incited trouble at Wilson High School. This is evidence of actual, not potential, workplace disruption as in Brewster, is more than a minimal disruption as in Johnson, and thus is sufficient under the teachings of the Ninth Circuit to warrant qualified immunity.

This is simply not one of the rare occasions in which an employee's free speech claim is sufficiently "clearly established" to preclude qualified immunity. As explained in Brewster:

In view of the competing considerations on each side of the Pickering balance and the absence of specific direction from the relevant case law, it would, we think, be dubious indeed to conclude that Brewster's right to speak was sufficiently "clearly established" to defeat the school officials' assertion of qualified immunity.

Brewster, 149 F.3d at 981.

Accordingly, Winthrop and Crebo's motion for judgment as matter of law based on qualified immunity is granted.

B. Sufficiency of Proof of Ratification or Pattern and Practice

The District claims that plaintiff has not sufficiently proven ratification or a pattern and practice to establish liability under § 1983. This court agrees.

A governmental entity cannot be held vicariously liable for the unconstitutional acts of its employees based upon a respondeat superior theory. Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978). Instead, to impose § 1983 liability against a governmental entity, a plaintiff must rely on one of three theories:

First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy. . . . Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir 1996), cert denied, 520 U.S. 1117 (1997), citing Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir 1992), cert denied, 510 U.S. 932 (1993).

If relying on the first theory, a plaintiff must "demonstrate the existence of an official policy or widespread custom of illegal and injurious discrimination." Bryan County Comm'rs v. Brown, 520 U.S. 397, 403 (1997). The practices of the government officials must be "so permanent and well-settled as to constitute a `custom or usage' with the force of law." Monell, 436 U.S. at 690-91. Proof of random acts or isolated events are insufficient to establish a custom. Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir 1989). Governmental entities cannot be liable without more than one incidence of a constitutional violation of a non-policy maker. Davis v. City of Ellensburg, 869 F.2d 1230, 1234 (9th Cir 1989).

Plaintiff presented no evidence at all in this case of an official policy or widespread custom. Instead, she relies solely on a single instance of alleged misconduct which does not lead to liability under § 1983 unless ratified by the authorized policymaker for the entity. Ratification does not occur unless the authorized policymaker "approve[s] a subordinate's decision and the basis for it." City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (reversing the Eighth Circuit's affirmance of the trial court in a retaliation case because the supervisor's decision was not individually reviewed by the appropriate policymaker). State law determines who may ratify an allegedly illegal decision. Id. at 124. Under Oregon law, Oregon school boards have the authority to make renewal decisions with respect to probationary teachers. ORS 342.835. Therefore, to prove ratification, plaintiff had to prove not only that the District's Board approved of her nonrenewal, but also that it approved it on a retaliatory basis. Praprotnik, 485 U.S. at 124.

Despite plaintiff's argument to the contrary, it is not sufficient that Dr. Canada ratified the nonrenewal decision unless he was the appropriate policymaker. As the District's Superintendent, he certainly did not have the final authority under Oregon law to approve the nonrenewal, and plaintiff presented no evidence that the District's Board delegated its statutory authority to him. Nor did plaintiff present any evidence that any information was presented to the District's Board relating to any of the complaints she made related to special education. Thus, plaintiff's theory based on ratification suffers from a failure of proof and fails as a matter of law. Accordingly, the District's motion for judgment as a matter of law on Claim Two is granted.

C. Sufficiency of Proof of Pretext

As discussed above, this court has concluded that both Winthrop and Crebo are entitled to qualified immunity and that plaintiff failed to prove either ratification or a pattern or practice by the District sufficient to establish liability under § 1983. However, the § 1983 claim fails for another reason as well.

For the same reasons as discussed under Claim One, plaintiff has not proven that one of the reasons for the nonrenewal of her contract was pretextual. When a government employee alleges that she has been punished in retaliation for exercising First Amendment rights, courts must engage in a three-part inquiry:

To prevail, an employee must prove (1) that the conduct at issue is constitutionally protected, and (2) that it was a substantial or motivating factor in the [punishment]. If the employee discharges that burden, (3) the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct.

Keyser, 265 F.3d at 750, citing Umbehr, 518 U.S. at 675.

By this standard, the absence of defendants' liability is clear. As discussed above, even if plaintiff had not complained of matters related to the treatment of special education students, the District proved, without any contrary evidence by plaintiff, that her inability to write IEPs was sufficient for it to deny renewal of her probationary contract. Thus, the District would have taken the same action even in the absence of her protected speech.

IV. Motion for Judgment as a Matter of Law on Claim Four (Motion 3)

Pursuant to FRCP 50(b), the District moves this court for the entry of judgment as a matter of law in its favor on Claim Four alleging a violation of the Whistleblower Act under ORS 659. 530 because plaintiff made no disclosure and has not proven pretext. Although this court concludes that plaintiff did make protected disclosures, she failed to prove pretext.

A. Disclosure

Here plaintiff complained internally to her supervisors, Winthrop, Crebo and Dr. Canada, and also to her union. Because she did not complain to some outside agency, the District argues that this is not a "disclosure" protected by the Whistleblower Act.

Pertinent sections of the Whistleblower Act provide that no public employee shall:

(b) Prohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of:

(A) A violation of any federal or state law, rule or regulation by the state, agency or political subdivision;

(B) Mismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from action of the state, agency or political subdivision.

* * *

(d)Discourage, restrain, dissuade, coerce, prevent or otherwise interfere with disclosure or discussions described in this section.

ORS 659. 510(1) (emphasis added).

Defendants assert that when read in context, the term "disclosure" means disclosure to an agency that could take some action. For example, ORS 659.510(1)(a) makes it an unlawful employment practice for employers to prohibit employees from having discussions "in response to an official request" with legislators regarding activities of the public body. This section suggests that disclosure is external to an agency or an entity that can take some action in response. In this case, "disclosure" within the meaning of the statute could have been to the Oregon Department of Education or the United States Department of Education, both of which oversee special education programs in Oregon's schools.

No Oregon cases brought under ORS 659.510(1)(b) have defined "disclosure. "In most cases, disclosure has been to an external regulatory agency that could take some action in response. See, e.g., Butler v. Department of Corrections, 138 Or. App. 190, 193, 909 P.2d 163, 166 (1995) (disclosure to the Accident Prevention Division). However, in at least one case, the disclosure was undefined public criticism and an internal debate with supervisors in an attempt to force compliance with the law. Demaray v. State of Oregon, Dept. of Envtl. Quality, 127 Or. App. 494, 873 P.2d 403, review denied, 319 Or. 625, 879 P.2d 1287 (1994).

Because Oregon's Whistleblower Act is very similar to the federal Whistleblower Protection Act of 1989 ("WPA"),³ decisions by federal courts of the WPA are helpful in defining the sufficiency of a disclosure. Recently addressing this precise issue, the Federal Circuit concluded that reports of wrongdoing to supervisors are protected if made to a person in a supervisory position:

3 The WPA prohibits a personnel action because of "any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences — (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. " 5 U.S.C. § 2302(b)(8)(A).

Any government employee, in a supervisory position, other than the wrongdoer himself, is in a position to "correct" or "remedy" the abuse by bringing the matter to the attention of a higher authority. To be consistent with the statute and its purposes, complaints to supervisors concerning wrongdoing by other employees or other matters within the scope of the WPA should be encouraged and not discouraged, even if the supervisor himself lacks authority to directly correct the wrongdoing.

Huffman v. Office of Personnel Mgmt., 263 F.3d 1341, 1351 (Fed Cir 2001).

This analysis is consistent with the broad remedial purposes of ORS 659.510. The Oregon Whistleblower Act seeks to create a workplace environment free from fear of retaliation. That intent would be thwarted by allowing someone in an employee's workplace to retaliate before the employee complained to someone outside the workplace. Contrary to defendants' contention, protecting disclosures to supervisors does not extend Oregon's Whistleblower Act to an undefined limit. A complaint to a supervisor must be more than the general griping that is typical in a workplace; it must be made in good faith and fall within one of the specific types of protected complaints, such as a disclosure of evidence of a violation of federal law, as in this case.

Therefore, defendants' motion for judgment as a matter of law against Claim Four is denied on this basis.

B. Sufficiency of Proof of Pretext

Even if plaintiff made an actionable disclosure, defendants argue that her claim fails as a matter of law because she has not sufficiently proven that she was terminated because of her disclosure. Because no Oregon case provides any guidance, this court applies the Title VII retaliation frame work to determine liability for retaliation under the Oregon Whistle blower Act. See Ryan v. Patterson Dental Supply, Inc., 2000 WL 640859, *13 (D Or May 12, 2000). In order to state a prima facie case of retaliation under Title VII, a plaintiff must establish: "(1) that she was engaging in a protected activity, (2) that she suffered an adverse employment decision, and (3) that there was a causal link between her activity and the employment decision." Trent v. Valley Elec. Ass'n, Inc., 41 F.3d 524, 526 (9th Cir 1994), citing EEOC v. Hacienda Hotel, 881 F.2d 1504, 1513-14 (9th Cir 1989). If the plaintiff makes out a prima facie case of retaliation, the burden then shifts to the defendant to articulate some legitimate, non-retaliatory reason for the adverse action. If the defendant does so, then the plaintiff must prove that the employer's reason is mere pretext and that the decision was made in retaliation for the protected activity. Id.

In Hardie v. Legacy Health Sys., 167 Or. App. 425, 435, 6 P.3d 531, 538 (2000), review denied, 332 Or. 656, 36 P.2d 973 (2001), the Oregon Court of Appeals clarified the causation analysis under Oregon law: "The crux of the standard, regardless of which phraseology is attached to it, is whether, in the absence of the discriminatory motive, the employee would have been treated differently."

In Price Waterhouse v. Hopkins, [ 490 U.S. 228, 240 (1989)], the United States Supreme Court explained: "But-for causation is a hypothetical construct. In determining whether a particular factor was a but-for cause of a given event, we begin by assuming that that factor was present at the time of the event, and then ask whether, even if that factor had been absent, the event nevertheless would have transpired in the same way." If an event would have transpired in the same way, a factor is not a "but for" cause.

Id. 167 Or App. at 435 n6, 6 P. 3d at 537 n6.

This causation element is the third step of a prima facie case that is the plaintiff's burden. Id. 167 Or App. at 433, 6 P. 3d at 536. As a result, plaintiff had the burden to show that she would have been renewed in the absence of the District's allegedly unlawful discriminatory motive. Id. 167 Or App. at 435, 6 P. 3d at 537.

As explained above, plaintiff has not sustained her burden to show causation. Because she did not rebut testimony related to her inability to write IEPs, she did not sufficiently show that but for her complaints about the mistreatment of special education students, her contract would have been renewed. Therefore, defendants' motion for judgment as a matter of law on Claim Four is granted for failure to prove causation.

V. Motion for Judgment as a Matter of Law on Punitive Damages (Motion 4)

Pursuant to FRCP 50(b), defendants Winthrop and Crebo separately move the court for judgment in their favor with respect to the punitive damages awarded by the jury on the § 1983 claim. Although this motion is denied as moot based on the disposition of Motion 2, defendants move in the alternative for a new trial on this basis (Motion 8). If defendants were not entitled to judgment as a matter of law or a new trial on the § 1983 claim, and the jury verdict were not set aside on the § 1983 claim, then this court would not grant judgment as a matter of law or a new trial solely on its award of punitive damages.

As the jury was instructed, punitive damages are not appropriate unless the defendants engaged in wanton conduct defined as a particular aggravated, deliberate, or reckless disregard of the rights of others. If Winthrop and Crebo retaliated against plaintiff because of her protected speech, they certainly did so deliberately. Whether their conduct was sufficiently aggravated to rise to the level of punitive damages is for a jury to decide.

VI. Motion for Judgment as a Matter of Law on Noneconomic Damages (Motion 5)

Pursuant to FRCP 50(b), defendants move the court for judgment as a matter of law on the issue of noneconomic damages. Although the court's rulings on Motions 1-3 render this motion moot, defendants move in the alternative for a new trial on this basis (Motion 8). If defendants were not entitled to judgment as a matter of law or a new trial on all claims, and the jury verdict were not set aside on all claims, then this court would not grant judgment as a matter of law or a new trial solely on its award of economic damages.

Although the parties agree that the court properly instructed the jury as to the law on noneconomic damages, defendants argue that the evidence did not support an award of any noneconomic damages. According to defendants, the sole basis for noneconomic damages were plaintiff's symptoms caused by Graves' Disease affecting her thyroid, which this court withdrew from the jury's consideration. Defendants contend that plaintiff presented no other specific evidence related to any pain and suffering.

However, defendants' argument overlooks plaintiff's testimony that she suffered stress caused by Winthrop before she began suffering any symptoms later diagnosed as Graves' Disease. Excerpt 11A, p. 4. Although she sought unsuccessfully to prove that her Graves' Disease was caused by stress, she did testify at several points that she suffered from stress caused by Winthrop, specifically with regard to the increased surveillance and request to stop writing letters. This testimony provides at least some factual basis for an award of emotional pain and suffering.

This court questions how the jury could have awarded plaintiff the maximum amount she sought of $500,000.00 based only on her minimal testimony without any corroborating evidence, even from her husband who was present throughout the trial, or without any medical or psychiatric treatment. If this court were writing on a clean slate, it would follow Hetzel v. County of Prince William, 89 F.3d 169, 171 (4th Cir), cert denied, 519 U.S. 1028 (1996), in which the Fourth Circuit ruled against an award of substantial compensatory damages in a similar case. In Hetzel, the plaintiff offered no corroborating evidence for her emotional damages and sought no counseling from anyone. However, the Ninth Circuit specifically rejected Hetzel in Passantino v. Johnson Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir 2000). In Passantino, the Ninth Circuit upheld a jury award of $1 million in compensatory emotional distress damages based on the plaintiff's testimony, corroborated by her husband and sister, that she experienced substantial anxiety as a result of her sense that she could no longer be promoted due to defendant's retaliation against her. Contrary to some other circuits, the Ninth Circuit rejected the suggestion that emotional damage awards must be supported by some objective evidence and expressly rejected Hetzel, explaining that "the Fourth Circuit's holding does not bind us, even when we are applying federal law, let alone when it is Washington law that guides us." Id. at 514.

Due to plaintiff's testimony, albeit minimal, that Winthrop caused her to suffer stress, this court is foreclosed by Passantino from granting defendants' motion for judgment as a matter of law against the award of noneconomic damages, even if any of plaintiff's claims survived defendants' motions for judgment as a matter of law.

VII. Motions for Judgment as a Matter of Law and New Trial based on Misconduct of Plaintiff's Counsel (Motions 6 and 7)

Because of the misconduct of plaintiff's counsel throughout the trial, and in particular in his closing rebuttal argument, defendants move for judgment as a matter of law in their favor on all claims (Motions 6 and 7). This court's prior rulings on Motions 1-3 render these motions moot. However, defendants also move, in the alternative, for a new trial on this basis (Motion 8) and, as noted above, this court is persuaded that the jury's verdict was contrary to the evidence due largely to the improper influence of plaintiff's counsel. Therefore, this court will address the merits of these motions.

A. Exclusion of Program Testimony

On no less than four separate occasions this court excluded testimony about whether or not the District's special education programs violated the law. First, it did so at the pleading stage. Findings and Recommendation, dated May 12, 2000 (docket #20). Second, at the discovery stage, the court confirmed during Crebo's deposition that there would be no evidence on whether the District had or had not violated the law. Rather, the only permissible evidence was whether plaintiff had been retaliated against for making "good faith" complaints. Crebo Depo, pp. 46-59. Third, this court granted defendants' motion in limine #1 to exclude "program" testimony, meaning testimony as to whether the District's special education programs violated the law (docket #123). Fourth, upon receiving plaintiff's witness statements, this court granted defendants' motion to strike all of the proposed testimony of parents, teachers, and former teachers about District programs and whether they violated the law (docket # 124).

This court could not have been more clear that the merits of the District's special education program were not at issue in this action. Despite these rulings, both in closing argument and throughout the trial, plaintiff's counsel, Greg Kafoury ("Kafoury"), repeatedly asked questions and made statements designed to convert sympathy for students with disabilities whose rights had been violated by the District into a verdict for plaintiff, reaching a crescendo in his final rebuttal argument. To this end, he succeeded.

During plaintiff's case, some testimony was remarkable for its plain violation of the court's pretrial rulings. For example, Kafoury announced that he planned to call Judy Backer, mother of a student at Marshall High School ("Backer"), as a rebuttal witness. Defendants moved to exclude her testimony based on this court's pre-trial ruling on the motion in limine that testimony about program issues was inadmissible. The court again ruled that such testimony was prohibited, but Kafoury assured the court that Backer would testify only that it was she, and not Winthrop, who secured the ramp for use with the Marshall High School tennis courts. Excerpt 23, p. 6. The court agreed to allow this limited testimony.

Kafoury's direct examination of Backer ignored both the court's specific ruling as to Backer and its general rulings excluding program testimony. Backer began her testimony by pointing out that her daughter was a "spastic paraplegic" and continued with an endearing explanation of her brave attempt to learn tennis. She described how her daughter received a tennis racket for Christmas and would boast about how, despite her severe handicaps, she would proudly proclaim "I am a tennis player," as she rolled on her wheelchair through the school hallways with the tennis racket perched in the back of her wheelchair for all to see. Backer, in fact, did not know how the ramp was secured. She knew only that Winthrop "had been working for some time to try to get the ramp," that "nothing had occurred," and that the ramp arrived about a week after she spoke to Mr. Wallick. Id. at 13-14. She did not know "if it was he who obtained the ramp or perhaps somebody else." Id. at 14. In short, Backer's testimony about the ramp was nothing more than rank speculation.

Kafoury elicited this testimony to inflame the jury to render a verdict for plaintiff by inducing sympathy for a student with a disability and plaintiff who taught her tennis. After trial, one of plaintiff's other attorneys (who also is her husband) publicly described Backer's testimony as follows:

The parent of the armless tennis player and her former school principal (now retired) testified about the disparate treatment received by children with disabilities. According to Mr. Goode, as the tennis story unfolded, "there was not a dry eye in the gallery."

http://www. wrightslaw. com/info/retaliate. settlegoode. htm (attached to Rawlinson Dec).

Kafoury then referred to Backer's testimony in his closing rebuttal argument by stating that: "This mother of a quadriplegic says, you know, they never help you. You can ask. Nothing ever happens. Doesn't know what goes on behind the walls inside. And she said, well, you know, people fear retaliation. Our kids are pretty vulnerable, and we worry about it. "Final Closing of Kafoury, p. 18 (docket #151) ("Rebuttal Closing").

Plaintiff now justifies Backer's testimony as rebutting defendants' witnesses who testified that they never saw any retaliation on the part of the District. This explanation is rejected. First, this is not the reason proffered to the court by Kafoury to allow her testimony. Second, even if it were, this court would not have allowed that testimony. The issue was retaliation by the District against plaintiff, one of its employees, for complaining about the District's purported violations of the law. Backer is a parent, not an employee of the District or one of plaintiff's colleagues, and had no relevant testimony on that issue.

Backer's description of her daughter's love of tennis also tied directly into another student with disabilities ("T. B. ") who was not allowed to play tennis and whose photograph Kafoury prominently incorporated into his closing argument. Excerpt 18, First Closing of Kafoury, pp. 12-13 (docket #176) ("First Closing"). Again emphasizing the theme that the jury should render a verdict out of sympathy for students with disabilities, Kafoury said the following regarding T. B. : "They [referring to Winthrop] took away the tennis program. Broke the heart of this brave little girl suffering from the most cruel of disabilities. Did it just — just out of spite toward my client. "Rebuttal Closing at 40. According to plaintiff, this comment simply explains how strongly motivated Winthrop was to get rid of plaintiff. However, it is difficult to discern how discontinuing a tennis program constitutes retaliation against plaintiff. Plaintiff believed it was retaliatory against her only because she believed that her students would suffer as a result. Whether or not her students suffered as a result has everything to do with the forbidden issue of the District mistreating students with disabilities and nothing to do with retaliation by Winthrop against plaintiff for making complaints.

Kafoury made several other statements in his rebuttal closing argument that violated previous court orders, appealed improperly to bias and sympathy, or intentionally misrepresented the evidence. In one of several statements aimed at obtaining a jury verdict based on impermissible considerations of whether the District provided adequate programs to children with disabilities, he said, referring to the phrase "back of the bus" used by plaintiff:"It is a rather obvious and accurate reference to one of the core issues of the civil rights movement, now, isn't it?I mean, don't these kids get the least and the last and the leftovers?"Id at 9-10. He also said: "Now, the weight room was filled with grossly inadequate stuff. Dr. Settlegoode testified to it. The weights start at ten pounds. You have a lot of kids that can't lift ten pounds. You've got equipment that's deteriorated or broken. "Id at 10. Regarding Opal Chancler-Moore, the principal at Franklin High School ("Chancler-Moore"), Kafoury made another appeal to sympathy based on allegedly inadequate District programs: "But shouldn't that have made her school a model school for disabled kids?I mean, if there's one principal that ought to be doing just a tremendous job, wouldn't you think it would be her?"Id at 11-12. Again using inappropriate argument regarding the adequacy of District programs at Franklin High School and seeking to elicit a verdict based on sympathy for special-needs children, plaintiff's counsel continued:

And, of course, you can't use the weights anymore because, well, now we can't have it anymore; we're bumped by the football team, an extracurricular activity, not a core teaching activity, and extracurricular activity bumping a regular class. And this is Chancler-Moore at Franklin.

Id. at 13.

People like football, and-and it makes the administration look good in the community. It helps the principal get support in the community to give the football players what they want.

And the dance team, well, you know, here you've got these tremendously able-bodied people, and they're all beautiful. They look great, you know. They're 15, 16 years old, and they can jump, and twirl, and dance, and do all kinds of cute, fun, stuff; and they get out there at halftime at the basketball games, and everybody loves them. Oh, that's our dance team.

And that's the kind of school, that's the kind of school we've got. We've got a great dance team. Nobody ever says, okay, it's halftime; we're going to have the handicapped kids come out and whack around the tennis ball in their-in their wheelchairs. You don't see that. It doesn't gain any points. I mean, it's just the way the world works. It's true.

So they're bumped by the football team, they're bumped by the dance team, two extracurriculars. And they finally get a place that is going to require moving a Pepsi machine.

Id. at 14.

Given Chancler-Moore's damaging testimony to plaintiff, it is not surprising that during closing arguments, Kafoury concentrated on program issues primarily at Franklin High School. Plaintiff argues that the remarks about football, dance and the Pepsi machine show that the allocation of space was indeed political, as she had complained to her supervisors, and also show why Chancelor-Moore valued dance and football more than APE, had a shallow commitment to students with disabilities, and provide a motive for her to rid herself of the troublesome plaintiff. However, Chancelor-Moore did not terminate plaintiff; Winthrop and Crebo made that decision. It is Winthrop and Crebo's motives that were at issue. Chancler-Moore's testimony was relevant only to confirm what information she communicated to Winthrop about plaintiff. It was not necessary to delve into the merits of plaintiff's complaints about the treatment of students with disabilities at Franklin High School, except to poison the minds of the jurors against the District.

Kafoury also misrepresented defense counsel's statement in final argument. She said that:

This case is not about the children, and even if you heard things in this case that bothered you, that you wish Portland Public Schools would do differently, there's nothing that you can do with your verdict today that will change those particular cases or things that you thought should have been different.

Plaintiff's Memorandum in Opposition to Defense Motions, p. 37.

That argument was consistent with this court's rulings and the Jury Instructions by emphasizing that the issue was employment retaliation, not whether the District violated the Rehabilitation Act. Yet in his rebuttal closing argument, Kafoury said: "Defense Counsel said this is not about the children. The first thing she said. The second thing she said was, there is nothing you can do. If you don't like what you've heard, we're going to keep doing what we're gonna keep doing, and you can't stop us." Rebuttal Closing, p. 20. Kafoury misrepresented what defense counsel had said and inappropriately implied that unless the jury returned a verdict for plaintiff, the District would continue to violate the Rehabilitation Act. He turned the issue from employment retaliation into the District's mistreatment of students with disabilities.

Similarly, Kafoury improperly extrapolated from the testimony of Doug Skille, a Wilson High School physical education teacher ("Skille"). Based on Skille's interchange with plaintiff related to the use of the weight room, Kafoury told the jury that Skille did not want plaintiff and her students to use the room because "the coach just didn't want his fine, young athletes having to share with all those people who are not so much fun to look at." Id at 25. There was no evidence to support this argument; it was merely an attempt to evoke sympathy and rage.

Again, improperly seeking to have the jury base its verdict on sympathy for students with disabilities, Kafoury said: "Is that the world we're going to live in? Is that kind of protection these kids nobod helps, the kind of protection we're going to give them?" Id. at 26.

Consistent with seeking to elicit sympathy for the children, he suggested that there was inappropriate physical conduct with respect to student "S.H." at Grant High School. "The Grant High School story. I want to run through it very quickly, just so we have our ducks in a row. It starts with this tickling business. Is it appropriate? Is it not appropriate for a 17-year-old autistic child? That's Mr. Sontag [sic]." Id. at 37-38.

In addition, in his rebuttal closing argument, Kafoury made the inappropriate "send a message" argument, urging the jury that its verdict should be to teach the District a lesson:

Counsel said, you know there's nothing you can do. That's really the message they give the teachers, isn't it?

But she's wrong because, you know, the teachers, and let's-you appreciate what's gone on in this case. You have some sense of how much time and money and effort has been spent outside this courtroom to bring this to you.

I mean, this is a small war we're fighting here. And believe me, the teachers are paying a lot of attention to how this turns out.

And some will be empowered, and some will lose some power as a result of what you do. There's going to be ripples going out from here a long ways and for a long time.

And the question is whether you want to use this opportunity not just to do justice in this case, which sorely needs some justice, but whether you want to use this opportunity to give some power, some breathing room to those who want to make things better, to those who want to be advocates for kids, or whether you want to strengthen the dead hand of this bureaucracy whose face you've seen.

Id. at 40-41.

The obvious target of this argument was the District against whom plaintiff could not and did not assert any claim for punitive damages. Although punitive damages may be allowed to serve as a deterrent effect, in this case the only conduct to be deterred would be retaliation against teachers-not inadequate programs for special education students. Appeals to the jury to act as a conscience of the community are not impermissible unless they are specifically designed to inflame the jury. See United States v. Kopituk, 690 F.2d 1289, 1342-43 (11th Cir. 1982), cert denied, 463 U.S. 1209 (1983). Here, by urging the jury to "send a message," Kafoury "cross[ed] the line `demarcating permissible oratorical flourish from impermissible comment calculated to incite the jury against the accused.'" United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984), quoting Kopituk, 690 F.2d at 1342-43; see also Strickland v. Owens-Corning, 142 F.3d 353, 358 (6th Cir 1998); Westbrook v. General Tire Rubber Co., 754 F.2d 1233, 1238, reh'g denied, 760 F.2d 269 (5th Cir 1985).

Plaintiff correctly notes that defendants made no objections during Kafoury's closing arguments, which would have permitted the court to examine the alleged prejudice and to admonish Kafoury or issue a curative instruction, if warranted. Here, however, an objection would have only highlighted the inappropriate statements which defendants had no opportunity to cure after Kafoury's rebuttal closing argument. Even a curative instruction to the jury from the court might not have enabled the members of the jury to remove from their memories Kafoury's inappropriate "message. "The type of misconduct at issue here was "fundamental error" not requiring an objection. Bird, 255 F.3d at 1148.

Plaintiff also correctly notes that defendants did not always object to evidence concerning forbidden program issues. However, when an attorney asks a question or makes a statement in front of the jury that violates an order granting a motion in limine, it is not a mere question of admissibility of evidence or permissibility of a statement. Referring to excluded matters either directly or indirectly is a violation of a court order. Sloane v. Jerry Scott Drilling Co., Inc., 918 F.2d 123, 138 (10th Cir 1990). It is not an obligation of the attorney who is victimized by the violation of the court order to make an objection. That was already done when a ruling granted the motion in limine.

Plaintiff also correctly notes that program issues could not be completely avoided during the course of this trial, since the alleged retaliation was caused by plaintiff's complaints concerning program issues, both generally and specifically. Although defendants stipulated that plaintiff complained in good faith, her communication style was one of the purported reasons for her termination. Therefore, plaintiff had to justify her communication style, which required her to testify to some extent as to what she observed in order to explain why and how she complained as she did.

Nevertheless, the issue of plaintiff's communication style did not open the door to plaintiff to show that all of her complaints had merit and to paint herself as the only person in the District who really cared about students with disabilities. This court made it very clear on several occasions to plaintiff that this trial would not be about students with disabilities, but about why plaintiff's contract was not renewed. The testimony elicited in violation of this court's rulings left the jury with the unrebutted impression that the District had in fact violated and would not comply with laws regarding students with disabilities unless the jury rendered a verdict in plaintiff's favor. The District was placed in the untenable situation that this court had sought to avoid with its pre-trial rulings because it was unable to prove that it had in fact not violated the laws regarding students with disabilities.

Moreover, plaintiff's counsel used the program issues in his closing arguments in an inflammatory manner. Plaintiff's counsel now tries to justify his attempts to evoke sympathy in the closing argument by explaining that any fact in evidence may be commented upon in argument. To the contrary, when evidence is admitted for a limited purpose, it may not be commented on for a general purpose. Waldron v. Waldron, 156 U.S. 361, 381 (1895) ("It is clear that where evidence is admitted for one certain purpose, and that only, the mere fact that its admission was not objected to at the time, does not authorize the use of it for other purposes for which it was and could not have been legally introduced"). As a result, to the limited extent that plaintiff was permitted to describe the conditions that she observed that formed the basis for her complaints to the District, these same conditions could not be used in closing argument in an attempt to sway the jury to render its verdict on sympathy for children with disabilities.

Eliciting evidence and emphasizing to the jury how the District mistreated students with disabilities violated the court's pre-trial rulings. Placing the District on trial for mistreating students with disabilities was clearly prejudicial to the District.

Sympathy for suffering and indignation at wrong are worthy sentiments, but they are not safe visitors in the courtroom, for they may blind the eyes of Justice. They may not enter the jury box, nor be heard on the witness stand, nor speak too loudly through the voice of counsel. In judicial inquiry the cold clear truth is to be sought and dispassionately analyzed under the colorless lenses of the law.

F.W. Woolworth Co. v. Wilson, 74 F.2d 439, 443 (5th Cir 1934); Klotz v. Sears, Roebuck Co., 267 F.2d 53, 55 (7th Cir), cert denied, 361 U.S. 877 (1959).

Kafoury's misconduct is particularly troubling since he appears to justify it by arguing that defendants' counsel is guilty of misconduct. Defendants' counsel did begin her closing argument with an inappropriate comment to which this court sustained plaintiff's objection. But one inappropriate comment by defense counsel does not excuse Kafoury's repeated misconduct.

B. Dr. Melvin's Testimony

Dr. Melvin, plaintiff's treating doctor, was called as one of plaintiff's witnesses. After reviewing Dr. Melvin's credentials, Kafoury asked him whether he agreed with the opinion of Dr. Greer, defendants' expert witness, that the scientific evidence is not sufficiently convincing to prove that stress causes Graves' Disease. Defendants' objection was sustained and the answer ("I agree") was stricken.⁴ Melvin Transcript, pp. 6:13-7:9. In an effort to establish some link between Graves' Disease and stress, Kafoury later tried to ask the question again, which this court prevented. Id. at 8:13-20. As the court later pointed out to Kafoury, that question should never have been asked in the first place.

4 Although Dr. Melvin's answer, which was stricken, seemed to favor defendants, some jurors may not have heard it. In any event, the clear purport of the entirety of Dr. Melvin's testimony was that he believed that plaintiff's Graves' Disease had been brought about by stress.

Again, the court had already explicitly ruled, in granting defendants' motion in limine before trial, that Dr. Melvin could testify only to opinions he had reached in his diagnosis and treatment of plaintiff and not as an expert witness. It is improper to refer to excluded matters either directly or indirectly. Slane, 918 F.2d at 128.

Although this court removed damages allegedly stemming from Graves' Disease from consideration by the jury, the jury awarded plaintiff her full prayer for noneconomic damages. Other than her few vague references to stress caused by Winthrop, plaintiff's only testimony of her symptoms were the symptoms of Graves' Disease. Excerpt 11A, pp. 3-4. This leads to the reasonable inference that the jury was improperly influenced by Kafoury's mere asking of the question. There was no testimony (although Kafoury said otherwise to the jury in his closing argument) to suggest that plaintiff's career in special education had been "crushed" or that her nonrenewal by the District had anything to do with her failure to attain other employment after she taught at Linfield College in the 2000-2001 school year.

C. Chancler-Moore

In both her deposition and the arbitration, plaintiff had praised Chancler-Moore as one of her supporters and described Franklin High School as the one high school where plaintiff believed she had make significant inroads in improving access to facilities. Yet Chancler-Moore testified that plaintiff was a disruptive influence at Franklin High School and that she wanted plaintiff out of Franklin High School. She described plaintiff as a panderer and sycophant and supported these observations through plaintiff's letters. She said that plaintiff suffered from an "alternate view of reality."

On cross-examination, plaintiff's counsel first tried to impeach Chancler-Moore by asking about a "Franklin High Board" that purportedly criticized her performance at Franklin. When the court sustained this objection as collateral, plaintiff's counsel asked essentially identical questions about plaintiff's previous tenure at Jefferson High School, a school well known to the public in the greater Portland area (where all the jurors resided) for academic problems and for the "reconstituting" of its faculty. The court also sustained objection to these questions. Kafoury should have known from the sustained objection about the "Franklin Board" that the questions about Jefferson High School were even more inappropriate. However, when Kafoury called plaintiff as a rebuttal witness, he once again sought to present this inadmissible, collateral testimony, and once again the court ruled that he could not. These repeated attempts to introduce a collateral issue were highly inappropriate.

D. Accusations about Defendants' Trial Counsel

During his rebuttal closing argument, this court observed Kafoury repeatedly point to and stare at defendants' trial counsel as he suggested that they were actors in the alleged retaliation and had, in effect, given witnesses scripts to continue the alleged cover-up in trial by acting out false testimony. There was some evidence that the District's lawyers were involved at some point in giving advice to District employees concerning plaintiff. Winthrop testified that on advice of counsel, whom she did not identify, she tape-recorded telephone messages from plaintiff, and Dr. Canada testified that when he received plaintiff's November 21, 1999 letter (Exhibit 551), he referred it to both Crebo and legal counsel.⁵ Yet based only on this evidence, Kafoury stood before the jury, repeatedly pointed at defendants' trial counsel and accused them of conspiring to get rid of plaintiff and creating false evidence. He stated as follows:

5 Dr. Canada also testified that Crebo was authorized to seek legal counsel, including outside counsel, if he needed it, but there was no evidence that Crebo did so.

1. Regarding Chancler-Moore:

She said that this phrase "back of the bus," describing how the kids with disabilities are treated was an attempt to pander to her because of her race.

Uhm, this was prepared testimony. Counsel has a list of questions. He's reading them. She's on the stand. Everybody knows, knows what's coming. This is prepared testimony, direct testimony.

Rebuttal Closing, pp. 8-9.

Now, maybe Opal Chancler-Moore didn't know that this phrase [back of the bus] had been rattling around for a year and appeared in writing in other places when she testified, but, you know, they're-they've got a team effort over here, and they know it, and they chose to take a shot at my client as pandering to this woman on a racial basis, when they knew better. And that's not fair. And that shouldn't have happened.

Id. at 9.

2. Regarding former Assistant Superintendent Carol Matarazzo:

This suggests that rather having-rather than having deep and thoughtful opinions on any of this stuff she's just got a script which is about that thick, and once she's up there she can't begin to defend this stuff. She's just reading stuff somebody else has written. Boy, does it show?

Id. at 35.⁶

6 Plaintiff argues that on cross-examination, Matarazzo retreated from every criticism of plaintiff that she had made on direct examination. That is not the way this court heard or understood her testimony. For example, although she testified that it was not inappropriate for plaintiff to call Winthrop incompetent or irresponsible, she explained that such an approach was not the way to try and solve problems.

3. Regarding Dr. Canada:

Remember Ben Canada's testimony?He said that at least by the time he got my client's letter counsel for the District was involved. Now, read through that. Think about how the world works. What it means is that there was a decision made that she was toast, and now the question is how can we create a paper trail that will withstand scrutiny.

Now, they'd already botched it by having Winthrop continue to evaluate my client and having Winthrop be her own investigator. I mean, how bad does that look?

But now that the lawyers are involved, what do you do?How do you make it look good?Well, there are certain obvious techniques. It's not brain surgery, but it's helpful to have a lawyer here to walk you through it.

Number one, you don't want to create something entirely new. You don't want to say, wait a minute. All of a sudden she's this way or that way, because the question will be, well, why didn't you notice that the first year?

So what you do is you go back to the first year evaluations and try to find something where there was some thread of criticism. You say, okay. That's something we can work with; we've got a paper trail before she writes a letter.

Now, as we start making our new paper trail, we're going to build on that; we're going to strengthen that. We're going to use those same themes, only now we're going to heighten them into — into unfitness to teach. Poor girl. She just — she just tried, but she just couldn't hack it; just couldn't look up and look around. Whatever.

Why do you put in some stuff that's favorable?Because you're not trying to look like a fool. You want to put in just enough to do the job. How many "I"s [needs improvement] do you need?How many of this do you need?All right?But you don't want it to make it look like a grotesque hatchet job, where you said wonderful things, and then when the letter comes out, and then everything is terrible and negative. There's a little art to this, okay?

The flattering stuff is written there so that one day a lawyer can say well, why would she say stuff that's nice about her?That just proves our credibility. That argument was crafted years ago. That's how it works.

Id. at 20-22.

4. Regarding Linda Owens, vice principal of Wilson High School:

Linda Owens, the vice principal, a beautifully dressed lady, at Wilson High School. She was contacted by Ms. Winthrop.

This is another thing that one can sense a lawyerly hand on.

After the decision's made, and my client is gone, and the paperwork is very well advanced, and we're into January of 2000, a couple of days before this letter to Ben Canada goes out saying don't worry, we got her — her — her — her — her — her file is papered; we're ready to get rid of her.

Just a few days before that Winthrop calls Linda Owens and says, I want you to observe my APE teacher, just to get an independent opinion, just in case anybody should ever suggest I'm biased. Does that have a lawyer's hand in it?I would say, well, it looks that way.

Id. at 31.

In sum, although never directly accusing them in words, Kafoury clearly accused defendants' trial counsel by gesturing towards them and arguing that:

1. "The lawyers" got involved in building a paper record to justify legal action;

2. "The lawyers" advised the District personnel to continue to mix positive comments with negative ones in observations and evaluations of plaintiff to mask deliberately retaliatory conduct; and

3. "The lawyers" gave scripts to defense witnesses about what to say to the jury, and in particular Chancler-Moore and Matarazzo.

There was nothing subtle about this tactic to persuade the jury to distrust defendants' trial counsel because they gave their witnesses scripts for dishonest testimony and participated in the alleged retaliatory conduct themselves. Despite Kafoury's rhetoric, there was no evidence that defendants' trial counsel were involved in any proceedings commenced by plaintiff until after this lawsuit was filed.

It is not improper to suggest that Winthrop may have given plaintiff positive comments in order to hide her retaliatory motive or that she received legal advice at one point that may have influenced her actions. However, it is improper to suggest that defendants' trial counsel gave such advice or even to suggest an imaginary thought process to explain how they master-minded this illegal retaliation against plaintiff. Counsel may argue legitimate and reasonable inferences, but inferences unsupported by the evidence are improper. Walden v. Illinois Central Gulf R.R., 975 F.2d 361, 365-66 (7th Cir 1992). A jury verdict cannot be based on mere speculation.

Plaintiff's counsel explains that saying witnesses were given a "script" was merely an innocuous reference to his understanding that they were prepared for trial. However, he succeeded in sending a far different message to the jury. Kafoury told the jury nothing less than that defendants' trial counsel had created a fictional script and directed their witnesses to act it out. Attempting to prejudice the jury by vilifying the adversary is improper. Draper v. Airco, Inc., 580 F.2d 91, 96-97 (3rd Cir 1978).

E. Arbitration Transcript

Plaintiff's counsel twice told the jury that the length of testimony in plaintiff's deposition and arbitration was 1,400 pages:

I guess counsel wants to compare witnesses on their effectiveness and their accuracy and their steadfastness. I'm willing to do that. She mentioned Pamella Settlegoode, whose prior testimony consists of, if my addition is correct, some 1400 pages, 800 of which she hasn't seen except when she's on the stand and something is handed to her.

* * *

And-and-and that was worth something, I guess, out of-was it five and a half hours on the stand?1400 pages?I think it was over two days.

Rebuttal Closing, pp. 33-34.

The trial court record reveals many instances where plaintiff refused to testify consistently at trial to identical questions asked of her in her deposition (Exhibits 655-57) and in her arbitration testimony (Exhibits 658-59). These impeachment exhibits were revealed during plaintiff's cross-examination, so Kafoury was aware of them by then, if not before.

On redirect examination (after it could not be corrected by defendants) to rehabilitate her cross-examination, Kafoury elicted plaintiff's testimony that the transcript of her cross-examination in the arbitration was approximately 800 pages. As shown by Exhibits 658 and 659, plaintiff's arbitration testimony was a total of 272 pages, and of that, only 110 pages was cross-examination. Defendants' counsel explained to the court and plaintiff's counsel (outside the presence of the jury) at this stage of the trial the correct length of plaintiff's arbitration testimony.

But in the final argument, after defendants' counsel had reminded the jury that plaintiff failed to testify under oath consistently, Kafoury again misrepresented the total of plaintiff's cross-examination by defendant's counsel at the arbitration and deposition, saying it was 1,400 pages. This was false, and Kafoury either knew or should have known it. The deposition and arbitration testimony of plaintiff was 876 pages.

To be sure, a jury could find the length of inquiry under oath to be an insufficient excuse for plaintiff's inability to testify consistently. On the other hand, Kafoury either recklessly or intentionally misled the jury on a critical issue, namely plaintiff's credibility. If he did not know the actual length, as he contends, then he had no justification for stating the length to the jury. Moreover, it is incomprehensible that plaintiff's lead trial lawyer would not have reviewed her deposition or the arbitration transcripts, especially after claiming in the trial during the cross-examination of plaintiff in her case-in-chief that he was not previously aware of the testimony.

F. Arbitration Award

Kafoury also mischaracterized the arbitration award:

What it doesn't-what the arbitrator was not asked was:Was this done in retaliation for her free-speech activities, for her criticisms of the District, for her criticisms of administrators, for her pointing out that they were in violation of the law, for trying to protect the most helpless of their students, the weakest and neediest of her students.

Id. at 36.

In fact, as Exhibit 501 plainly demonstrates, the arbitrator considered and rejected plaintiff's assertion that her evaluations were retaliatory. It is clearly improper to misstate evidence during closing argument. Thomure v. Truck Ins. Exch., 781 F.2d 141, 143 (8th Cir 1986).

G. Remedy

As noted above, a new trial is appropriate if an attorney's misconduct has so permeated an entire proceeding that the jury was influenced by passion and prejudice in reaching its verdict. Anheuser-Busch, 69 F.3d at 348; also see Blanche Road Corp. v. Bensalem Township., 57 F.3d 253, 264 (3rd Cir), cert denied, 516 U.S. 915 (1995). Reversible error is committed when counsel's closing argument introduces extraneous matter that has a reasonable probability of influencing the verdict. Edwards v. Sears, Roebuck Co., 512 F.2d 276, 285 (5th Cir 1975); Rommel-McFerran Co. v. Local No. 369, Int'l Bhd. of Elec. Wkrs., 361 F.2d 658, 661 (6th Cir 1966).

This court has no trouble concluding that the conduct by plaintiff's counsel was improper. This was not a case of a single, isolated, or inadvertent incident. Rather, Kafoury's improprieties occurred throughout the entire trial including closing argument. Courts usually permit counsel reasonable latitude in final arguments to the jury. After all, an ability to sway doubtful minds during jury argument is important not only to successful advocacy, but also to effective representation. But advocacy is circumscribed both by an attorney's own professional responsibility and the court's obligation to provide a fair trial. The only question is whether Kafoury's argument and other instances of misconduct exceeded proper bounds and was so conducive to prejudicing the jury's verdict that it substantially affected the total fairness of the trial.

Kafoury's conduct is even more significant in light of the factual question of causation and the excessive size of the verdict. The jury not only awarded plaintiff every penny of economic damages that she sought (based upon her alleged inability to find a job paying more than about $20,000 a year for the next 13 years until her retirement), but also awarded every penny of non-economic damages that she sought with only the barest of evidence. This court is convinced that the amount of the verdict was due to passion and prejudice caused by the appeal of plaintiff's counsel to the jurors' sympathy for students with disabilities.

Although the basis for the jury's decision can never be known to a certainty, the verdict awarding plaintiff all the damages she sought indicates strongly that Kafoury's misconduct was a substantial influence. The cumulative effect of numerous and serious violations of the rules of proper argument as occurred here leads this court to conclude that it is more than reasonably probable that the verdict was influenced by his prejudicial statements. Kafoury's line of questions and comments emphasized irrelevant information having no bearing on the issues of the case and demonstrated a persistent effort to distract the jury from considering the evidence on the material issues before it. The cumulative effect of the misconduct was not harmless, sufficiently prejudiced the jury, and denied defendants a fair trial. Cautionary instructions could not have cured the unfair prejudice.

Defendants seek dismissal of the entire case or, in the alternative, a new trial. Dismissal of the case is an available remedy for attorney misconduct under some circumstances, such as repeated discovery violations under FRCP 41 and 37. Gratton v. Great Am. Communications, 178 F.3d 1373, 1375 (11th Cir 1999) ("a court should be reluctant to impose the harsh sanction of dismissal with prejudice where the plaintiff is not actually culpable, but where any other sanction would fail to cure the harm that the attorney's misconduct would cause to the defendant, dismissal may be appropriate"). However, defendants have cited no case affirming dismissal of a case based solely on misconduct of counsel during trial.

Granting judgment as a matter of law seems too harsh a remedy in this case. After all, plaintiff did submit evidence supporting her claim of retaliation. Had she heeded this court's warning when defendants orally moved for judgment as a matter of law at the close of her case-in-chief, she may have been able to cure the lack of evidence on causation. To dismiss this case based solely on the misconduct of her counsel would unduly punish plaintiff by denying her the opportunity to prove her case without unduly prejudicing the jury. Thus, this court concludes that had any of plaintiff's claims survived defendants' other motions for judgment as a matter of law, this court would grant a new trial to assure fairness and due process to defendants.

VII. Motion for New Trial on All Claims (Motion 8)

In the alternative to motions 1-7, defendants request a new trial on all claims. Although this court has granted defendants' motions for judgment as a matter of law on all claims, this court must also rule on the alternative motion for a new trial on all claims. FRCP 50(c)(1).

For the same reasons that this court has granted defendants' Motions 1-3 for judgment as a matter of law on all claims, defendants' motion for a new trial on all claims is conditionally granted. Adding the testimony of Winthrop and other interested witnesses to the mix of evidence for consideration by the court on a motion for a new trial supports even more strongly the error of the jury verdict. Also, as discussed above, the misconduct of plaintiff's counsel during closing argument and throughout the trial already addressed under Motions 6 and 7 also justifies a new trial if this court erred in granting Motions 1-3. However, a new trial is conditionally denied in the alternative for Motions 4 and 5 for the same reasons that judgment as a matter of law is denied.

VIII. Motion for Mistrial or New Trial based on Jury Misconduct (Motion 9)

In the alternative to motions 1-8, because of jury's mistaken understanding of the jury instructions and award of damages using external information, defendants separately move this court for a mistrial and a new trial or, alternatively, further investigation of the entire jury by the court. Although this court has granted defendants' motions for judgment as a matter of law on all claims, this court must also rule on this alternative motion for a new trial. FRCP 50(c)(1).

On the Monday after the jury returned its verdict, one of the jurors telephoned the court to relay her concern that the jurors did not understand the instructions on damages. The juror reported that the jurors simply placed an upper limit on damages because some jurors were telling other jurors that the judge can adjust the damages down if they are excessive. Transcript of Proceeding, November 19, 2001 (docket # 174). In other words, the jury did not determine plaintiff's actual damages, but only the maximum amount of damages that the court could award. This misunderstanding apparently arose from the portion of the jury instructions that read:"Do not be concerned about potential multiple recovery for Dr. Settlegoode. If necessary, I will make the appropriate adjustments when entering the final Judgment in this case."

The ability to question jurors about their decisions after they have been discharged is governed by FRE 606(b):

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

This rule strikes a balance between protecting the privacy of deliberation and mitigating against injustice. "The values promoted by the exclusion of the evidence include `freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment.' However, the [Advisory] Committee noted that `putting verdicts beyond effective reach can only promote irregularity and injustice.'" McCullough v. Consolidated Rail Corp., 937 F.2d 1167, 1169 (6th Cir 1991), quoting FRE 606(b) Advisory Committee Notes.

Defendants argue that the policy concerns underlying FRE 606(b) are not implicated by the present case for several reasons. First, they contend that the juror did not report about the process of reflection in a way that threatens the sanctity of jury deliberation. The juror reported only that the jury had deliberated under the mistaken belief, derived externally as a result of information provided by members of the jury based on their understanding acquired before they were ever selected as jurors, that their damage award would be adjusted. Second, defendants assert that the facts do not indicate that any juror has been harassed into further service. In fact, the juror who called the judge had not been contacted by either party before calling. Finally, defendants note that a situation in which a jury did not understand the effect of its verdict is precisely one in which "putting verdicts beyond effective reach can only promote irregularity and injustice. "FRE 606(b) Advisory Committee Notes.

The Ninth Circuit has yet to issue an opinion in a civil case about when and how the verdict of a jury can be questioned in light of a reported mistake. In a Ninth Circuit criminal case, however, the court upheld the lower court's decision to correct a jury verdict after the jury was discharged because the defendant's counsel discovered a clerical error on the verdict form. In United States v. Stauffer, 922 F.2d 508 (9th Cir 1990), the jury had made an error in filling out the verdict form, causing them to convict on a charge for which they intended to acquit and to acquit on a charge for which they intended to convict. In upholding the lower court's post-trial decision to correct the jury's mistake, Stauffer reasoned that:

The district court did not alter the jury's verdict itself; it simply corrected the verdict form to reflect the jury's true intent. Clearly, decreasing the impact of a judgment is less problematic to a defendant than expanding its impact. Still, this Court is convinced that no possible unfairness can be found in a judgment that reflects the jury's true intent.

Id. at 514.

Here, in contrast, the jury did not make a clerical mistake. They simply misunderstood the jury instructions. Since this court has no idea what amount the jury would have awarded had it properly discharged their duty, it cannot give effect to the jury's actual intention.

Other courts have reached different conclusions when applying FRE 606. In Robles v. Exxon Corp., 862 F.2d 1201 (5th Cir), cert denied, 490 U.S. 1051 (1989), the Fifth Circuit refused to change a reported jury verdict. The presiding juror told the judge immediately after the verdict was announced that there had been a misunderstanding and that the jury had not understood the instructions, which specified that by finding the plaintiff more than 50% negligent they had determined that the plaintiff would recover nothing. Instead, the jury thought that finding the plaintiff more than 50% negligent would result in the judge's determining damages. The Fifth Circuit reasoned that there had to be a clerical error before the court could set aside the verdict:

The category of "clerical" errors . . . can be understood to refer only to discrepancies between the verdict delivered in court and the precise verdict physically or verbally agreed to in the jury room, not to discrepancies between the verdict delivered in court and the verdict or general result which the jury testifies it "intended" to reach.

Id. at 1208 n9.

"[T]he only evidence that the jury misunderstood its instructions is deemed incompetent and inadmissible by Rule 606(b), and should not have been heard or considered by the district court". Id. at 1208. See also Karl v. Burlington N.R. Co., 880 F.2d 68, 75 (8th Cir 1989) ("The admission of a juror's testimony is proper to indicate the possibility of a `clerical error' in the verdict, but not the `validity' of the verdict"); Continental Cas. Co. v. Howard, 775 F.2d 876 (7th Cir 1985), cert denied, 475 U.S. 1122 (1986).

Defendants urge this court to follow the reasoning of other circuits construing FRE 606. For example, in Attridge v. Cencorp Div. of Dover Tech. Int'l, Inc., 836 F.2d 113, 115-16 (2nd Cir 1987), rejected by Robles, the jury intended that the plaintiffs receive a net recovery of $150,000, an amount reached after subtracting the plaintiffs' negligence from a total award of $500,000. The jury reported $150,000 as their award, but the court deducted contributory negligence from that amount and awarded only $30,000. The Second Circuit held that the lower court had not erred when it interviewed jurors, and the initial verdict was not allowed to become the judgment.

Eastridge Dev. Co. v. Halpert Assocs., Inc., 853 F.2d 772 (10th Cir 1988), affirmed the trial court's decision to correct the verdict when it was discovered that the jurors had reduced their verdict by the percentage of the plaintiff's negligence before reporting it to the court. The Tenth Circuit held that FRE 606(b) did not preclude the court from interrogating the jury concerning its verdict to determine that the verdict did not accurately reflect the decision of the jury.

Also, McCullough upheld the lower court's decision to change a verdict when, once again, jurors made the post-trial discovery that they had mistakenly reduced their verdict by the percentage of contributory negligence. In both Attridge and McCullough, the courts discussed the specific post-verdict questions asked of the jury and determined that the questions did not intrude into the substance of deliberations. Rather, the questions "were intended to resolve doubts regarding the accuracy of the verdict announced, and not to question the process by which those verdicts were reached." Attridge, 836 F.2d at 117. While protecting the sanctity of the jury room is important, "[t]his practice, of course, requires the verdict to reflect the true intent of the jury. Unyielding refusal to question jurors is without sound judgment where the court surmises that the verdict announced differs from the result intended." Id. at 114.

Defendants assert that this court must grant a new trial because the amount that the jurors actually intended plaintiff to receive remains unknown. See TeeVee Toons, Inc. v. MP3. com, Inc., 148 F. Supp.2d 276, 278-79 (S. D. N.Y. 2001) (granting a new trial because all jurors reported that the damages figure they intended was far different from what was entered due to a mathematical error, but no one could remember the precise figure they had decided on). Based on the one juror's report to this court, the jury clearly made an error as to its role in determining damages. However, to ascertain the jury's true intent, this court would violate FRE 606 by asking about the process by which the jury reached its verdict. What amount a jury intended to award, as in Attridge, Eastridge Dev. Co., and McCullough, differs dramatically from why the jury arrived at their award. Such a forbidden inquiry can be avoided only if the jurors are asked "whether extraneous prejudicial information was improperly brought to the jury's attention. "However, a juror's misunderstanding of jury instructions is simply not "extraneous prejudicial information. "The misunderstanding did not come from outside the jury room, but apparently arose from information provided by some members of the jury to other members of the jury based on misinformation acquired prior to jury selection in this case.

This court agrees with defendants that without further inquiry, the amount that the jurors intended plaintiff to receive remains unknown and justice is thwarted. However, FRE 606 precludes this court from making any further inquiry. Thus, Motion 9 is conditionally denied.

IX. Motion for New Trial because Verdict as Contrary to the Evidence (Motion 10)

In the alternative to Motions 1-9, defendants request a new trial because the verdict is against the clear weight of the evidence. Although this court has granted defendants' motions for judgment as a matter of law on all claims, this court must also rule on the alternative motion for a new trial. FRCP 50(c)(1).

For the same reasons that this court has granted defendants' Motions 1-3 for judgment as a matter of law on all claims, defendants' motion for new trial on all claims is conditionally granted. Adding the testimony of Winthrop and other interested witnesses to the mix of evidence for consideration by the court on a motion for a new trial supports even more strongly that the jury verdict was against the clear weight of the evidence. Also, as discussed above, the misconduct of plaintiff's counsel during closing argument and throughout the trial addressed under Motions 6 and 7 further justifies a new trial if this court erred in granting Motions 1-3.

However, a new trial is conditionally denied in the alternative for Motions 4, 5, and 9 for the same reasons that judgment as a matter of law is denied. Because it is redundant, Motion 10 is denied as moot with respect to Motion 8.

X. Motion to Limit Damages on Whistleblower Claim (Motion 11)

In the alternative to Motion 3 regarding the claim under Oregon's Whistleblower Act, defendants move the court for judgment limited to the amounts available under the Oregon Tort Claims Act, ORS 30. 270. Although this court has granted Motion 3 for judgment as a matter of law on the claim for violation of Oregon's Whistleblower Act, this court must also rule on this alternative motion for a new trial. FRCP 50(c)(1).

This court previously addressed and rejected this same argument in Draper v. Astoria School Dist. No. 1C, 995 F. Supp. 1122, 1140 (D Or 1998), concluding that a "claim for violation of ORS 659.510 is exempt from the cap upon compensatory damages in ORS 30.270." See also Rabkin v. Oregon Heath Science Univ., CV No. 01-943-PA (D Or November 27, 2001). For the same reasons, defendants' motion to limit damages on the Oregon Whistleblower Act claim in this case lacks merit. Thus, Motion 11 is conditionally denied.