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Victoria Mccarthy, Katherine Schmitt v. R.J. Reynolds Tobacco Co.

September 7, 2011



On June 13, 2011, the jury returned a verdict in favor of plaintiffs Victoria McCarthy and Katherine Schmitt after a seven-day trial. (Docket No. 107.) Defendant R.J. Reynolds Tobacco Co. now renews its motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 and moves for a new trial or to alter or amend the judgment pursuant to Rule 59.

I. Factual and Procedural Background

This action arises out of plaintiffs' former employment with defendant. Plaintiffs brought claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3, for sexual harassment and retaliation, under California's Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940, for disability discrimination and failure to accommodate, and for tortious adverse employment actions in violation of public policy. The court granted summary judgment on plaintiffs' FEHA claims, (Docket No. 59), and plaintiffs abandoned their remaining state law claims before submitting the case to the jury. On June 9, 2011, the court denied defendant's motion for judgment as a matter of law. (Docket No. 98.) Plaintiffs went to the jury on their claims of sexual harassment and retaliation under Title VII. The jury found for plaintiffs on both claims, awarding $150,000 in compensatory damages and $250,000 in punitive damages to each plaintiff. (Docket No. 107.)

II. Discussion

A. Sexual Harassment Claim

Defendant moves for judgment as a matter of law under Rule 50, or in the alternative, for new trial under Rule 59. Defendant first argues that it is entitled to judgment on plaintiffs' sexual harassment claim because defendant took reasonable steps to prevent and correct harassment. This affirmative defense, however, known as the Ellerth/Faragher defense,*fn1 was available to defendant only if the jury did not find that plaintiffs suffered a tangible employment action as a result of the sexual harassment. See Penn. State Police v. Suders, 542 U.S. 129, 137-38 (2004). Here, on the special verdict form, the jury found that plaintiffs did suffer a tangible employment action as a result of the sexual harassment, and thus did not -- and was not entitled to - reach the question of whether defendant exercised reasonable care to prevent and promptly correct the sexually harassing behavior.

Second, defendant argues that there was no evidence that plaintiffs were harassed because of their sex and that the conduct of defendant's supervisor did not constitute sexual harassment. Rule 50 provides for the entry of judgment on any issue or claim as to which a "reasonable jury would not have a legally sufficient evidentiary basis" to find for the non-moving party. Fed. R. Civ. P. 50(a).

The verdict of the jury on plaintiffs' sexual harassment claim was not necessarily the verdict the court would have returned were it the trier of fact. Whenever a judge disagrees with a jury's verdict it is tempting to conclude that the verdict was unreasonable. Judges, however, must resist that temptation. There are good reasons why cases involving alleged workplace discrimination are best decided by juries rather than judges.

By the very nature of our job, judges tend to become isolated from the rest of the community. Our ethics tend to limit the persons with whom we can associate and the activities in which we can engage. The demands of our workload tend to confine us to our chambers and our courtrooms a great percentage of the time. We no longer have to interact, as we once did, with supervisors and fellow employees in the workplace. Conduct which may have been commonplace and generally accepted in the workplace in past years, with which we are most familiar, may have become unacceptable, or even intolerable, by contemporary standards.

Jurors, on the other hand, selected at random from a cross section of the community, can be expected to be more in touch with the expectations of employees in the modern working environment. A crucial question the trier of fact had to answer on plaintiffs' sexual harassment claim in this case was whether a "reasonable woman" in the plaintiffs' circumstances would consider the working environment to be sexually abusive or hostile. Who was best qualified to answer that question: a male judge, whose background and experience give him no more insight into the expectations of a reasonable person, much less a reasonable woman, than anyone else; or a randomly selected jury consisting of nine women and one man from the community? The answer should be obvious.

Defendant makes no claim of any defects in the jury selection process, nor does it claim any instructional error in connection with the issue of liability on plaintiffs' sexual harassment claim. Counsel were given a full opportunity to question the prospective jurors on voir dire and to exercise the peremptory challenges authorized by the rules. For this court to find the jury's verdict was unreasonable, it would have to conclude that the jury selection process mandated by the statutes and rules just happened to result in the empanelment of a jury consisting of nine unreasonable women and an unreasonable judge.*fn2

To do so in this case would be nothing short of calling the whole jury system into question.

While the court may not necessarily agree with the jury's decision, it was their decision to make. The court cannot say that the verdict was one that no reasonable juror could have reached. Accordingly, defendant is not entitled to judgment as a matter of law or ...

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