Free Motion for New Trial - District Court of Arizona - Arizona

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David F. Gaona, State Bar No. 007391 Nicole Seder Cantelme, State Bar No. 021320 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MONICA ORTEGA-GUERIN, Plaintiff, vs. CITY OF PHOENIX, FRANK FAVELA, AND FRANK PERALTA Defendants. Pursuant to Rule 59, Federal Rules of Civil Procedure, the Defendants move this Court for a new trial on damages because the jury's award against the City under Title VII for $850,000, was excessive in light of the Plaintiff's minimal and largely uncorroborated evidence of compensatory damages. The verdict was not supported by the evidence. In the alternative, the Defendants move this court for a remittitur in exchange for a new trial on damages. a remittitur and/or new trial. A. Compensatory Damages The jury's verdict against the City, pursuant to Title VII, was not supported by the evidence in this case. See Chalmer v. City of Los Angeles, 762 F.2d 753, 760 (9th In addition, the award of punitive damages against the individual Defendants is equally unsupported by the evidence and warrants No. CV04-0289 PHX MHM DEFENDANTS' RULE 59 MOTION FOR NEW TRIAL ON DAMAGES OR ALTERNATIVELY REQUEST FOR REMITTITUR

Case 2:04-cv-00289-MHM

Document 82

Filed 12/29/2005

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Cir. 1985) (a reviewing court will not disturb a damages award unless it was clearly unsupported by the evidence); but see Oltz v. St. Peter's Community Hospital, 861 F.2d 1440, 1452 (9th Cir. 1988) (even where the verdict is supported by substantial evidence, the court can grant a new trial where in her judgment the trial judge finds that the amount of compensation awarded by the jury is excessive) (citing Hanson v. Shell Oil Co., 541 F.2d 1352, 1359 (9th Cir. 1976). The Court has two choices when it determines that jury's damages award was excessive, "[i]t may grant defendant's motion for a new trial or deny the motion conditional upon the prevailing party accepting a remittitur." Fenner v. Dependable Trucking Co., 716 F.2d 598, 603 (9th Cir. 1983) (citing Minthorne v. Seeburg Corp., 397 F.2d 237, 244-45 (9th Cir. 1968); Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 65-66 (1966)). Plaintiff's only claim against the City in this case was under Title VII. At trial, Plaintiff did not present any economic damages and she was not entitled to punitive damages against the City under Title VII. employment action. With regard to her compensatory damages, Plaintiff testified that she experienced anxiety and difficulty sleeping at night for a limited duration of time. She experienced brief hair loss that was never linked to stress or work place matters. Plaintiff's "corroborating" evidence consisted of a five visits to her primary care physician between November, 2002 and December, 2004, and, by her own testimony, she was on Buspar for one year and Wellbutrin for a period of three months. Plaintiff testified that her anxiety and sleepless nights were of short duration, and she would run the bath at night to "soothe" her anxiety as her husband worked the night shift. Plaintiff acknowledged that she never sought any form of professional counseling or mental health treatment, even though such was available through the City EAP (employee assistance program). See Defendant's Exhibit Nos. 25 (p.25) and 34,
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Indeed, Plaintiff suffered no tangible

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attached hereto.

Significantly, according to Plaintiff's medical records, prior to

September 23, 2002, Plaintiff reported that she was not experiencing any stress or anxiety at home or at work. Notwithstanding no evidence of counseling, poor job performance, affect on job performance, medical testimony linking any symptoms to a diagnosis, and, medical records only revealing doctor visits from January 1, 2002 to September 23, 2002 relating to sinus problems, and then on September 23, 2002, a doctor note indicating a denial of being depressed and a denial of stress at work, and thereafter, in the next two years two office notes about stress and three office notes reflecting Buspar refills, the jury still assessed $850,000 in compensatory damages against the City. Defendants acknowledge that compensable damages can include intangibles or non-economic damages such as Plaintiff's assertion of stress, anxiety, and trouble sleeping. Compensable damages, however, must still be proven and cannot be presumed, nor should they be speculative. Carey v. Piphus, 435 U.S. 247, 263-64 (1978). Other federal courts have recently surveyed a reasonable or permissible range of verdicts for non-economic damages and have found that range to be from $5,000 to $100,000 (majority of awards between $5,000.00 to $30,000.00). See Hill v. Airborne Freight Corp., 212 F.Supp.2d 59, 73-74 (E.D.N.Y. 2002) (based upon court's comparative analysis it ordered remittitur of emotional distress damages awarded to four plaintiffs ranging from $125,000 to $300,000 ­ reduced to $20,000 to $75,000); Epstein v. Kalvin Miller International, Inc., 139 F.Supp.2d 469, 480 (S.D.N.Y. 2001) (finding that a typical or garden variety emotional distress claim, jury awards have ranged from $5,000 to $30,000).1 In fact, the case law review reveals that the more
Due to the paucity of published opinions from the Ninth Circuit, the following is a sampling of those cases, and others, arranged by Circuit Court of Appeals: Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225, 1238 (D.C. Cir. 1984) (in § 1981 race discrimination case, court upheld $10,000 award for plaintiff's suffering "seventeen months of incessant humiliation, harassment, and feelings of isolation"); Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 (1st Cir. 1987) (award of $123,000 in racial discrimination case was not grossly excessive where plaintiff was subjected to several years of discrimination and a significant period of unemployment); Wade v. Orange County Sheriff's Office, 844 F.2d 951 (2nd Cir. 1988) (Title VII claim for racial discrimination, court awarded $50,000 in compensatory damages for emotional distress, plaintiff presented evidence that
1

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substantial verdicts for non-economic damages occur in those circumstances where tangible employment action has also taken place ­ loss of job, demotions, lack of promotions, all leading to and creating financial hardship as well to the Plaintiff. Such circumstances are not part of this case.

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he suffered repeated humiliation at work, racially motivated harassment, including an unwarranted disciplinary sanction based upon false testimony of a defendant); Delli Santi v. CNA Ins. Co., 88 F.3d 192, 207 (3d Cir. 1996) (retaliation case for plaintiff's complaints of age and sex discrimination ­ appellate court affirmed district court's remittitur of pain and suffering damage award from $300,000 to $5,000); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998) (wrongful demotion and termination claim based on handicap court found compensatory damage award of $117,500 not supported by the evidence and reduced to $10,000 (granting a new trial nisi remittitur) ­ although plaintiff's testimony established some degree of emotional trauma and anxiety as a result of his demotion, plaintiff provided no evidence that trauma persisted over time or that it affected plaintiff's ability to perform his job or cope with his medical condition; no evidence of counseling, medication, or physical symptoms); Hetzel v. County of Prince Williams, 89 F.3d 169, 171 (4th Cir. 1996) (court found $500,000 emotional distress award grossly excessive based upon the evidence presented and reduced to $15,000; plaintiff's evidence consisted of her brief and conclusory testimony that she had headaches, stress, trouble reading to her daughter, and problems with her family); Patterson v. PHP Healthcare Corp., 90 F.3d 927, 940-41 (5th Cir. 1996) (reversing $150,000 award for emotional harm under Title VII and remanded to district court to enter award for nominal damages for emotional harm under Title VII where plaintiff failed to provide anything but own testimony to support claim); Hernandez v. Hill Country Telephone Co-Op, Inc., 849 F.2d 139, 143-44 (5th Cir. 1988) (upholding $5,000 damage award for mental anguish where plaintiff established he had been discriminatorily denied several positions and had undergone medical treatment for his mental anguish); Meyers v. City of Cincinatti, 14 F.3d 1115 (6th Cir. 1994) (approved award of $25,000 for mental anguish, humiliation, and loss of reputation for wrongful termination and attendant publicity); David v. Caterpillar, 324 F.3d 851, 864 (7th Cir. 2003) (affirming district court's reduction from $100,000 to $50,000 for damages for embarrassment, disappointment, inconvenience, and frustration based plaintiff's testimony that she had stomach aches, difficulty sleeping due to anxiety and stress); United States EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1286 (7th Cir. 1995) (upholding award of $50,000 in emotional damages ­ plaintiff diagnosed with terminal cancer and had to watch family suffer not only emotionally, but financially due to plaintiff's wrongful termination); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1425 (7th Cir. 1986) (upholding award of $25,000 for humiliation and stress plaintiff suffered in Title VII discrimination and retaliation case); Ramsey v. American Air Filter, Co., 772 F.2d 1303, 1313-14 (7th Cir. 1985) (ordering new trial or remittitur from $75,000 to $35,000 where "there was a paucity of references to any emotional harm that plaintiff suffered as a result of defendant's discrimination"); Hall v. Gus Construction Co., Inc., 842 F.2d 1010 (8th Cir. 1988) (Title VII case for sexually hostile work environment and constructive discharge ­ plaintiffs received damage awards of $15,000 to $20,000 for emotional distress ­ plaintiffs were subjected to verbal sexual abuse, offensive and unwelcome physical touching, and shown pornographic materials ­ one defendant exposed himself, one defendant urinated in a plaintiff's water bottle, one urinated in a plaintiff's gas tank); Block v. R.H. Macy & Co., 712 F.2d 1241, 1245 (8th Cir. 1983) (upholding award of $12,402 for plaintiff's sleeplessness, anxiety, and embarrassment and depression); Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir. 1985) (upholding award of $12,500 for psychological harm where plaintiff testified regarding anguish, embarrassment, anxiety and humiliation suffered); Fitzgerald v. Mountain States Telephone & Telegraph Co., 68 F.3d 1257 (10th Cir. 1995) (trial court found $250,000 award for emotional distress excessive in § 1981 race discrimination case and ordered new trial on damages); Wulf v. City of Wichita, 883 F.2d 842, 874-75 (10th Cir. 1989) (appellate court found excessive a $250,000 award for emotional distress ­ plaintiff and his wife testified that he was stressed, angry, depressed and frustrated ­ remanded for award not to exceed $50,000); Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir. 1985) (court awarded plaintiff $100,000 in compensatory damages for humiliation and emotional distress; plaintiff provided evidence of suffering emotional stress, loss of sleep, marital strain, and humiliation ­ court noted that discrimination had persisted for several years (repeated denial of administrative positions due to race)); see also Terry v. Gallegos, 926 F. Supp. 679, 717 (W.D. Tenn. 1996) (awarding plaintiff $150,000 for proof of suffering over a period of many years significant emotional pain, stress, loss of enjoyment of life, and detrimental impact on his career).

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The jury's verdict in this case is not within a reasonable or permissible range for such limited non-economic damages of a non-extended duration, when compared to other similar cases/awards for non-economic damages in Title VII and discrimination cases. See e.g. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998); Hetzel v. County of Prince Williams, 89 F.3d 169, 171 (4th Cir. 1996); David v. Caterpillar, 324 F.3d 851, 864 (7th Cir. 2003); Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir. 1985).Although the Ninth Circuit upheld a large award for emotional distress damages in Passantino v. Johnson & Johnson Consumer Products, 212 F.3d 493 (9th Cir. 2000), the facts and the proof provided in Passantino supported such a verdict, unlike the facts and the proof in this case. In Passantino, plaintiff provided proof that harassment and discrimination, based on her sex, persisted over several years (plaintiff worked for defendant for 18 years), that plaintiff suffered numerous denied promotions (adverse tangible employment action), and that she was subjected to repeated sexist remarks from supervisors and other co-workers. In addition, once the plaintiff complained of the discrimination in promotions and the sexist remarks, the conduct by her supervisors worsened and plaintiff provided proof that she suffered years of retaliatory conduct as well. Simply, the proof offered by the plaintiff in Passantino demonstrated far more severe and pervasive conduct than the conduct in this case. In addition, the severe and pervasive conduct, which the plaintiff in Passantino also endured for several years, was corroborated by the Plaintiff's husband and sister, a fact of importance to the Ninth Circuit in upholding a $1 million dollar emotional distress damage award that was coupled with a $2.1 million dollar front and back pay award. 212 F.3d at 513-14. Those awards were allocated to Plaintiff's state law claims and thus, the Passantino court evaluated the claims pursuant to Washington State law. When compared with the facts and proof offered in this case, however, the evidence is grossly insufficient to support a similarly high award as the one in Passantino.
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The cases surveyed by the

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district court in New York, as cited above, are far more similar to this case and are, therefore, instructive in determining a reasonable and permissible verdict in this case. Relying upon those cases surveyed and others cited, the Defendants submit that this Court should reduce Plaintiff's compensatory damage award to a verdict in the range of $5,000 to $100,000.00. In addition, and as this Court is aware, the law prohibits any award of punitive damages pursuant to Title VII against the City. Although the jury instructions clarified this fact, the evidence before the jury, and indeed, in closing argument the thought articulated by Plaintiff's counsel was to send a message to the City of Phoenix. The excessiveness of the compensatory damage award, as set forth above, suggests that the jury, because there was not adequate support for a large non-economic compensatory damage award, did the next best thing and because it was unable to award punitive damages, awarded even more compensatory damages not supported by the evidence to compensate for an inability to award punitive damages. In essence, the jury's award is so excessive as to be punitive. Such action is not permissible and provides further support for the need to remit the excessive compensatory damage award or grant a new trial on the issue of damages. (11th Cir. 1999). B. Punitive Damages The jury awarded $35,000.00 in punitive damages against Mr. Favela, and $25,000.00 in punitive damages against Mr. Peralta. The jury instructions were quite clear concerning the circumstances permitting an appropriate award of punitive damages. Indeed, the Ninth Circuit jury instruction on punitive damages, first paragraph, instructs jurors that "the purpose of punitive damages is to punish a defendant and to deter a defendant and others from committing similar acts in the future". The instruction goes on to describe what constitutes malicious, oppressive or reckless conduct. In the instant case, the evidence was uncontroverted that Mr. Peralta,
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See U.S. v. City of Miami, 195 F.3d 1292, 1301-02

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following his suspension relating to his inappropriate actions that were found in the City of Phoenix investigation, did not return to work but rather, was determined to be medically disabled by the Veterans Administration and, was also determined to qualify for medical retirement from the City of Phoenix. Mr. Peralta testified that he is no longer able to hold down a job and thus, is out of the work place forever. Consequently, the evidence was uncontroverted that the very purpose of punitive damages, that is "punish a defendant and deter a defendant" could not in fact be honored based upon Mr. Peralta's lot in life and his inability to get back into the work place in any fashion to commit similar acts from an employment perspective is nonexistent. Because the evidentiary record is completely void of any evidence that the purpose behind punitive damages can be honored against Mr. Peralta, the evidence is simply insufficient to support any award of punitive damages against Mr. Peralta and the Court should void any award of punitive damages against Mr. Peralta. Likewise, the punitive damage award against Mr. Favela, the Plaintiff's supervisor during the material times in question, is also lacking in evidentiary support. The evidence was uncontroverted that Mr. Favela, following his suspension, has reported all incidents of inappropriate behavior up the chain to his supervisors; in other words, rather than try to handle matters on his own by counseling as he did relative to Mr. Peralta, he testified that all such matters are now automatically communicated to supervisors for handling. Due to the uncontroverted nature of that testimony, the purpose and foundation to award punitive damages against Mr. Favela, that is to punish him and to deter him, especially in light of the fact that he was punished already through administrative personnel action by the City of Phoenix and lost 3 weeks of pay and continuing merit increases over the balance of his career with the City of Phoenix, is not achievable and therefore, no awarded punitive damages can be supported by the evidentiary record. . . .
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C.

Conclusion Based on the foregoing, the Defendants respectfully request that (1) this Court

order a new trial on the issue of compensatory damages against the City of Phoenix or in the alternative, remit the Plaintiff's compensatory damage award to a verdict in the range of $5,000.00 to $100,000.00 in exchange for a new trial; (2) void the punitive damage award against Mr. Peralta; and, (3) void the punitive damage award against Mr. Favela. DATED this 29th day of December, 2005. GAONA LAW FIRM

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/s/ David F. Gaona David F. Gaona Nicole Seder Cantelme Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on December 29, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Stephen G. Montoya, Esq. MONTOYA JIMENEZ, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 I further certify that on December 29, 2005, the attached document was handdelivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 /s/ David F. Gaona

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