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Eschert v. City of Charlotte

United States District Court, W.D. North Carolina, Charlotte Division

August 23, 2017

CRYSTAL ESCHERT, Plaintiff,
v.
CITY OF CHARLOTTE, Defendant.

          ORDER

          Frank D. Whitney, United States District Judge

         THIS MATTER is before the Court upon Defendant's Motion for Judgment as a Matter of Law, or in the Alternative, Motion for a New Trial (Doc. No. 105). The motions are fully briefed and are ripe for review. In addition, the Court conducted a hearing on August 23, 2017, to receive argument on certain limited issues. For the reasons that follow, Defendant's motion for Judgment as a Matter of Law is DENIED, and Defendant's Alternative Motion for a New Trial is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         In the interests of judicial economy, the Court declines to provide a thorough recitation of the testimony, evidence, and arguments presented at the six-day trial before a jury in this matter. In sum, the causes of action centered on Defendant's termination of Plaintiff, a fire investigator for the Charlotte Fire Department (“CFD”). Defendant contended it terminated Plaintiff because she violated its social media policy by posting two racially inflammatory comments on Facebook (“Facebook Posts”). Plaintiff, on the other hand, claimed Defendant actually fired her because she complained to her father-in-law and City Councilwoman Claire Fallon about health and safety issues in a new CFD building and about Defendant's mismanagement of money related to that building (“Building Complaints”).

         Plaintiff brought various causes of action against Defendant, including: (1) First Amendment violation for terminating her in retaliation for her Building Complaints; (2) First Amendment violation for terminating her in retaliation for her Facebook Posts; (3) wrongful discharge in violation of public policy under the North Carolina Constitution; (4) violation of the North Carolina Retaliatory Employment Discrimination Act (“REDA”); (5) wrongful discharge in violation of public policy under REDA; (6) Title VII gender discrimination; (7) wrongful discharge in violation of public policy based on her biological sex; (8) and Title VII retaliation. (Doc. No. 24).

         At the close of evidence and upon Defendant's motion, the Court granted a directed verdict in favor of Defendant on Plaintiff's Title VII retaliation claim and her federal and State Constitution free speech claims based on the Facebook Posts. The Court ruled the Facebook Posts were not protected by the First Amendment because Plaintiff failed to establish that her interest in that speech outweighed Defendant's interest in providing effective and efficient services to the public. (Doc. No. 91-1, pp. 28-31). The Court submitted the six remaining issues to the jury.

         After a full day of deliberation, the jury returned a verdict in favor of Plaintiff on her First Amendment and State Constitution claims-Questions One and Two on the verdict form- finding: (a) Plaintiff's Building Complaints were a motivating factor in Defendant's decision to terminate her employment; (b) Defendant would not have terminated Plaintiff's employment in the absence of the Building Complaints; and (c) Plaintiff was entitled to $309, 692 on the First Amendment claim and $309, 692 on the State Constitution claim.[1] (Doc. No. 86, pp. 1-2). The jury also returned a verdict in favor of Plaintiff on her two state law claims under REDA- Questions Three and Four-and awarded her $464, 538 for each of those two claims. (Id. at 3). The jury did not find Defendant liable for gender discrimination. In sum, the jury found Defendant wrongfully terminated Plaintiff because of her Building Complaints in violation of the First Amendment, public policy under the North Carolina Constitution, REDA, and North Carolina's public policy expressed in REDA.

         Defendant subsequently renewed its motion for judgment as a matter of law, arguing the Building Complaints were not protected by the First Amendment, a question of law that the Court needed to resolve before it could enter judgment. Following briefing by the parties, the Court ruled the Building Complaints constituted protected speech and, therefore, denied Defendant's motion. (Doc. No. 92).

         The Clerk entered judgment consistent with the jury's verdict on June 2, 2017, (Doc. No. 93), and the parties timely filed the instant post-trial motions. Discussion of other background information and evidence is set forth more fully as needed to explain the Court's decision as to each motion below.

         II. ANALYSIS

         A. Standards of Review

         1. Motion for Judgment as a Matter of Law

         Pursuant to Rule 50 of the Federal Rules of Civil Procedure, a party that moved for judgment as a matter of law at trial may, within twenty-eight days of the entry of judgment, renew the request for judgment as a matter of law. In ruling on a renewed motion for judgment as a matter of law, a court may: (1) allow judgment on the verdict; (2) order a new trial; or (3) direct entry of judgment as a matter of law on the claims. Fed R. Civ. P. 50(b)(1)-(3). A “Rule 50(b) motion should be granted if a district court determines, without weighing the evidence or considering the credibility of the witnesses, that substantial evidence does not support the jury's findings.” Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir. 1999) (citing White v. Cnty. of Newberry, 985 F.2d 168, 172 (4th Cir. 1993)).

         2. Motion for a New Trial

         Rule 59(a) of the Federal Rules of Civil Procedure provides that courts may grant a new trial after a jury trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1). Under this standard, “[a] new trial will be granted if (1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.” Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (citation and internal quotation marks omitted). In making this determination, courts may “weigh the evidence and consider the credibility of witnesses.” Id. (citation omitted).

         Bearing these principles in mind, the Court turns to the parties' arguments.

         B. Defendant's Motion for Judgment as a Matter of Law

         1. Motivating factor in decision to terminate Plaintiff

         Defendant argues throughout its post-trial filings that the jury incorrectly found Defendant would not have terminated Plaintiff absent her Building Complaints. In support of its argument, Defendant insists Plaintiff admitted in her Verified Amended Complaint and trial testimony that she was terminated for her Facebook Posts. As a result, Defendant asks the Court to find, as a matter of fact, that Plaintiff was terminated for her Facebook Posts, not her Building Complaints, or find as a matter of law that the Facebook Posts were a motivating factor in the decision to terminate her.

         To succeed on her two free speech claims and her two REDA claims-Questions One through Four on the verdict form-Plaintiff was required to establish that her Building Complaints constituted protected activity and that they were a motivating factor in Defendant's decision to terminate her. Grutzmacher v. Howard Cnty., 851 F.3d 332, 342 (4th Cir. 2017) (citations omitted); Wiley v. United Parcel Serv., Inc., 594 S.E.2d 809, 811 ( N.C. Ct. App. 2004). The burden then shifted to Defendant to prove, by a preponderance of the evidence, that it would have terminated Plaintiff regardless of her Building Complaints. See e.g., Peters v. Jenney, 327 F.3d 307, 323 (4th Cir. 2003); N.C. Gen. Stat. § 95-241(b). Logically then, in returning a verdict in favor of Plaintiff on those four claims, the jury necessarily found Defendant did not meet its burden of proving that it terminated Plaintiff because of her Facebook Posts. In other words, the jury found the Building Complaints were the “but for” cause of Plaintiff's termination.

         The Court summarily agrees with Plaintiff's arguments that more than sufficient evidence supports the jury's verdict on this issue. Furthermore, contrary to Defendant's argument, Plaintiff did not admit in her Amended Complaint that she was fired because of her Facebook Posts. Throughout this case, Plaintiff has consistently maintained Defendant used her Facebook Posts as pretext to terminate her for the Building Complaints. For example, Plaintiff alleged in her Amended Complaint:

341. The Fire Department claims that it terminated [Plaintiff's] employment because her Facebook postings violated the Fire Department's social media policy, but the Fire Department merely used the Facebook postings to create a pretextual reason to terminate [Plaintiff] in retaliation for her prior, protected expressions regarding concerns about risks to health and safety and also about financial mismanagement by the Fire Department.

(Doc. No. 24, ¶ 341). Likewise, in her brief in opposition to Defendant's motion for summary judgment, Plaintiff asserted “that her Facebook [P]osts serve as a mere pretext for the true reason” for her termination. (Doc. No. 49, p. 11). Defendant fails to point to any specific trial testimony by Plaintiff in which she admits her Facebook Posts were the reason for her termination. Indeed, Plaintiff spent much of her time at trial establishing she was terminated because of her Building Complaints and not her Facebook Posts. Accordingly, viewing the evidence in the light most favorable to Plaintiff, the evidence was sufficient for the jury to reasonably conclude Defendant did not meet its burden of establishing its affirmative defense.

         To the extent Defendant argues the Court should have found, or should now find, as a matter of fact that the Facebook Posts were a motivating factor in Plaintiff's termination, Defendant's argument is unavailing. To state a claim for First Amendment retaliation, a plaintiff must show she engaged in protected speech and that the “speech was a substantial factor in the employer's termination decision.” Grutzmacher, 851 F.3d at 342 (quoting McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998)). Whether the speech is protected by the First Amendment is a question of law for the Court, but the whether it was a substantial factor in the employer's termination decision is a question of fact for a jury. Lane v. Anderson, 660 F. App'x 185, 191 (4th Cir. 2016).

         In dismissing Plaintiff's First Amendment claim based on the Facebook Posts and the corresponding State Constitution claim at the close of evidence, the Court concluded as a matter of law that Plaintiff's Facebook Posts were not protected under the First Amendment. (Doc. No. 91-1, pp. 28-29, ll. 19-25, 1-2). As the Court explained in detail in its June 2, 2017, Order (Doc. No. 92), once the Court determined Plaintiff's speech was not protected, it was not required to address the factual issue of whether the Facebook Posts were a motivating factor in the decision to terminate Plaintiff. Grutzmacher, 851 F.3d at 348 (declining to reach the third prong of the McVey test after concluding the plaintiff's speech was not protected). Regardless, whether Plaintiff's speech was a motivating factor in the termination decision is a question of fact reserved for the jury, and in rejecting Defendant's affirmative defense for Questions One through Four on the verdict form, the jury unanimously found Defendant did not fire Plaintiff because of her Facebook Posts. Because substantial evidence supports the jury's finding, Defendant's Motion for Judgment as a Matter of Law is denied as to this issue.

         2. Protected ...


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