65 F. Supp.2d 353 (1999) | Cited 0 times | D. Maryland | September 3, 1999


Presently pending before the Court is Defendants' Motion forJudgment, or in the Alternative, for a New Trial, pursuant toRules 50(b) and 59 of the Federal Rules of Civil Procedure. OnApril 28, 1995, Trooper First Class ("TFC") Howard Kevin Knussmanand his wife, Kimberly Ann Knussman, filed a three-countcomplaint on behalf of themselves and their infant daughter,Riley Paige Knussman, against defendants State of Maryland("State"), Maryland State Police ("MSP"), Colonel David B.Mitchell, Captain David Czorapinski, First Sergeant Ronnie P.Creel, and Jill D. Mullineaux. Plaintiffs alleged violations ofthe Fourteenth Amendment and 42 U.S.C. § 1983 (Count I), theFamily and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601et seq., and 42 U.S.C. § 1983 (Count II), and the MarylandEqual Rights Amendment (Count III). Plaintiffs voluntarilydismissed Count III on November 8, 1995.

On August 2, 1996, the Court granted in part and denied in partdefendants' motion to dismiss. The Court found that Kimberly andRiley Knussman were not proper plaintiffs to the lawsuit and theCourt dismissed the MSP because it is not a "public agency" asdefined in § 2611(4)(A)(iii) of the FMLA. Knussman v. State ofMaryland, 935 F. Supp. 659, 662, 664-68 (D.Md. 1996). The Courtfurther dismissed Court I as to the State and the individualdefendants acting in their official capacities insofar as itsought monetary damages. Id. at 664.

On January 31, 1997, the Court granted plaintiff's motion toadd to his complaint (1) a claim of retaliation based on aninvoluntary transfer, and (2) a new defendant-Captain Donald G.Lewis-who ordered the allegedly retaliatory transfer. On August13, 1998, on cross-motions for summary judgment, the Court ruledthat Congress did not foreclose FMLA enforcement by actionsbrought under 42 U.S.C. § 1983,that qualified immunity is appropriate for all the individualdefendants on the FMLA claim, that qualified immunity is notappropriate on the Equal Protection claim, and that plaintifffailed to establish a prima facie case of retaliation under theFMLA.1 Knussman v. State of Maryland, 16 F. Supp.2d 601(D.Md. 1998).

The 11-day jury trial proceeded from January 19, 1999 toFebruary 2, 1999 on the Equal Protection count against theindividual defendants for both money damages and injunctive anddeclaratory relief and against all other defendants forinjunctive and declaratory relief only. The trial also proceededon the FMLA count against the State and the individual defendantsin their official capacities for both money damages andinjunctive and declaratory relief and against the individualdefendants in their personal capacities for injunctive anddeclaratory relief only. Consistent with the verdict of the jury,the Court entered judgment for $375,000, jointly and severally,against the State and Czorapinski, Creel, and Mullineaux in theirofficial capacities on the FMLA claim and against Mullineaux inher individual capacity on the Equal Protection claim. The Courtalso granted various injunctive and declaratory relief asrequested by the plaintiff.

Defendants present the following in their pending motion: (1)the damage award against the State is invalid because it isbeyond the scope of FMLA damages and there is no derivative §1983 claim available, the Court having previously ruled theEleventh Amendment bars a monetary damage award against the Stateunder Count I; (2) the damage award is excessive in light of theevidence presented and as a matter of law; and (3) defendantMullineaux is entitled to qualified immunity on Count I as amatter of law.


Defendants first argue that the damage award against the Stateunder the FMLA claim is invalid. Defendants assert that29 U.S.C. § 2617(a) lists the types of damages recoverable under the FMLAincluding lost wages, salary employment benefits, and actualmonetary losses. According to defendants, in enacting the FMLA,Congress did not intend to subject the states or their officialsin their official capacities to any additional monetary liabilityother than that provided for in § 2617(a).

Specifically, defendants assert that the claims of emotionaldistress and lack of bonding with his newborn child are notrecoverable under the FMLA and cannot be recovered by use of aderivative § 1983 action, but even if a § 1983 action isapplicable here, there is no express or implied abrogation ofsovereign immunity under the Eleventh Amendment beyond thosetypes of damages enumerated in the FMLA. Defendants maintain thatthe FMLA's detailed remedial scheme implies a congressionalintent to prohibit derivative § 1983 actions. Defendants contendthat since TFC Knussman did not prove any lost employmentbenefits or actual monetary damages, the damages awarded as toCount II are outside the scope of FMLA damages and should be setaside. Even if the § 1983 claim is not foreclosed by the FMLA,however, defendants also argue that § 1983 damages are barred bysovereign immunity against the State and the individualdefendants in their official capacities. Moreover, defendantsnote that although the damage award includes damages for genderdiscrimination under Count I, the State and its officials intheir official capacities are not liable for these damages.

Alternatively, defendants argue that the damage award should bereduced because it is excessive in light of the evidence and as amatter of law. Defendants contendthat the weight of the evidence of emotional distress does notsupport an award of $375,000 and that there was no evidence ofany impact on TFC Knussman's ability to bond with Riley due tolost time with her as a newborn.

Finally, defendants argue that defendant Mullineaux is entitledto qualified immunity as to Count I like the other individualdefendants because there is no settled law on the specific genderdiscrimination in this case, and that Mullineaux's particularactions in this case clearly violated Fourteenth Amendment rightsis unclear at best.


Because judgment as a matter of law deprives the non-movingparty of a determination of the facts by a jury, it should begranted sparingly. 9A Charles Alan Wright and Arthur R. Miller,Federal Practice and Procedure: Civil 2d § 2524, at 252 (1995).Indeed, the Fourth Circuit has held that a motion for judgmentnotwithstanding the verdict, made pursuant to Rule 50(b) of theFederal Rules of Civil Procedure, which is now entitled "Renewalof Motion for Judgment After Trial," "should not be grantedunless the evidence is so clear that reasonable men could reachno other conclusion than the one suggested by the moving party."Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185, 1189(4th Cir. 1990); see also Cline v. Wal-Mart Stores, Inc.,144 F.3d 294, 301 (4th Cir. 1998) (holding that denial of motion forjudgment after trial will be affirmed if "`giving [thenon-movant] the benefit of every legitimate inference in hisfavor, there was evidence upon which a jury could reasonablyreturn a verdict for him. . . .'" (internal quotations omitted)).

Rule 59 of the Federal Rules of Civil Procedure provides forthe granting of new trial in cases tried by jury:

A new trial may be granted to all or any of the parties and on all or part of the issues . . . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. . . .

Fed.R.Civ.P. 59(a). The Fourth Circuit has made clear that thegranting of a new trial under Rule 59 is a matter of discretionwith the trial court and will only be reversed for abuse ofdiscretion. Gill v. Rollins Protective Servs. Co.,836 F.2d 194, 196 & n. 1 (4th Cir. 1987). However, "[c]ourts do not grantnew trials unless it is reasonably clear that prejudicial errorhas crept into the record or that substantial justice has notbeen done, and the burden of showing harmful error rests on theparty seeking the new trial." 11 Charles A. Wright, Arthur R.Miller and Mary Kay Kane, Federal Practice and Procedure: Civil2d § 2803, at 46-47 (1995); see also Cline, 144 F.3d at 301("A new trial will be granted if (1) the verdict is against theclear weight of the evidence, or (2) is based upon evidence whichis false, or (3) will result in a miscarriage of justice. . . ."(internal quotations omitted)).


A. Count II Damages Issues

The Court will first address issues related to Count II. CountII was filed against the State and the individual defendants inboth their official and individual capacities for violations ofthe FMLA under both § 2617 of the FMLA and § 1983. On summaryjudgment, the Court dismissed Count II against Colonel Mitchelland granted qualified immunity to the three other individuals intheir individual capacities leaving the State and the threeremaining individuals in their official capacity subject toliability for damages and injunctive and declaratory relief.

Now that the trial has concluded and a verdict rendered, theCourt finds that TFC Knussman did not prove any of the enumerateddamages in § 2617 of the FMLA. Rather, TFC Knussman presentedevidence of emotional distress and lost time with his newborndaughter as consequentialdamages resulting from the defendants' FMLA violations. Suchdamages, however, are not recoverable by way of the limited listof available damages in § 2617 of the FMLA and thus TFC's onlyrecourse for money damages is recovery under § 1983.

Defendants renew their argument that the FMLA forecloses aderivative § 1983 action and submit a 1999 Fourth Circuit opinionholding that the comprehensive remedial scheme in the Fair LaborStandards Act ("FLSA") prohibits enforcement of those rights by a§ 1983 action. See Kendall v. City of Chesapeake, Virginia,174 F.3d 437, 443 (4th Cir. 1999). Defendants rely on this new caseas further support for their argument that the FMLA forecloses a§ 1983 action because the remedial scheme of the FMLA issimilarly comprehensive as the FLSA's scheme. Defendants pointout that the Court relied on a previous comparison of the FMLA tothe FLSA to support its ruling that, in enacting the FMLA,Congress intended to abrogate the states' Eleventh Amendmentimmunity.

At the summary judgment stage in 1998, the Court ruled on thisissue, on the basis of the law as it existed at the time, thatthe FMLA does not foreclose a derivative § 1983 action. TheKendall case adds the FLSA to the small list of federalstatutes which prohibit derivative § 1983 actions. Although theCourt has compared the FMLA and the FLSA in a prior ruling, thecomparison was made in a distinctly different context. The Courtrecognizes that the two statutes are similar in some ways, butdissimilar in others such as in comparing the scopes of thesubstantive rights protected and Congress's intent with respectto available remedies outside the statutes themselves. The law isnot so clear in light of the Kendall case alone to warrant theCourt changing its opinion on this issue in which it carefullyanalyzed the various arguments and existing case law.

Nevertheless, money damages are not recoverable against a stateand its officials acting in their official capacities under §1983 alone because there is no abrogation of the states' EleventhAmendment immunity. See Will v. Michigan Dept. of State Police,491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holdingthat Congress did not intend to disturb the states' EleventhAmendment protection in passing § 1983).

As the Court discussed in its opinion of August 13, 1998, theEleventh Amendment bars suits against the state and its officialsin their official capacities for money damages absent waiver orabrogation of immunity by Congress. Knussman, 935 F. Supp. at662-63 (citing Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct.1347, 39 L.Ed.2d 662 (1974)). Moreover, the Supreme Court hasruled that "neither a State nor its officials acting in theirofficial capacities are `persons' under § 1983." Will, 491 71, 109 S.Ct. 2304. Consequently, states and their officialsacting in their official capacities cannot be sued for moneydamages under § 1983. See Lynn v. West, 134 F.3d 582, 587 (4thCir. 1998) (finding plaintiff barred from recovering monetarydamages in § 1983 suit from state officials acting in theirofficial capacities because the state treasury would be affectedand Eleventh Amendment immunity protects the states from § 1983suits), cert. denied, ___ U.S. ___, 119 S.Ct. 47, 142 L.Ed.2d36 (1998).

Plaintiff, however, vigorously argues that defendants havewaived their Eleventh Amendment immunity defense as to the § 1983claim in Count II. Specifically, according to plaintiff, failingto preserve their sovereign immunity position and submitting totrial on the claim after this Court ruled that plaintiff couldproceed on his derivative § 1983 claim in Count II constituted avalid waiver of immunity.

This case involved two claims brought under § 1983 — one forviolations of equal protection in Count I and another forviolations of the FMLA in Count II. Count II was also broughtdirectly under the private enforcement section of the FMLA. See§ 2617. In their answer to theamended complaint, defendants clearly asserted an affirmativedefense of Eleventh Amendment immunity to money damages soughtagainst the state and the individuals in their officialcapacities under § 1983.

Defendants filed a motion to dismiss contemporaneous with theiranswer on October 16, 1995 also raising the Eleventh Amendmentimmunity defense to the § 1983 claims in Counts I and II. Inruling on defendants' motion to dismiss, the Court determinedthat Congress intended to abrogate the states' Eleventh Amendmentimmunity in enacting the FMLA and therefore "Count II as to theState of Maryland and the individuals in their officialcapacities for violations of the FMLA cannot be dismissed at thistime as barred by the Eleventh Amendment." Knussman, 935F. Supp. at 663. In addition, the Court ruled that "plaintiff'sclaims under § 1983 against the State of Maryland and theindividual defendants in their official capacities are barred bythe Eleventh Amendment to the extent they seek money damages."Id. The Court concluded, stating that "Count I . . . isdismissed insofar as it seeks anything other than prospectiverelief" because the § 1983 claim was the vehicle to recover moneydamages from defendants under Count I. Id. at 664. Count II wasleft undisturbed against all defendants for both money damagesand equitable relief because the Court ruled that damages underthe FMLA are not barred by the Eleventh Amendment. At the time ofthe motion to dismiss, it was not clear to the Court the natureof damages to be proven by plaintiff under Count II and thereforerecoverable damages could still be asserted against alldefendants.

In ruling on the parties' cross-motions for summary judgment onAugust 13, 1998, the Court held that in enacting the FMLA,Congress did not intend to foreclose a derivative § 1983 suit forconsequential damages.2 Knussman, 16 F. Supp.2d at 609-10.The Court thus permitted plaintiff to pursue its § 1983 claimunder Count II for damages. Id. Later in that same opinion,however, the Court found that the individual defendants in theirindividual capacities are entitled to qualified immunity for theFMLA violations. Id. at 610-11. The Court was then still unsureof the nature of damages to be proven by plaintiff under Count IIand whether they included recoverable damages from the State andthe individual defendants in their official capacities.

It is at this juncture in the proceedings that plaintiffsuggests that defendants should have preserved their EleventhAmendment immunity as to the § 1983 claim in Count II by someadditional affirmative act. The Court finds that such a furtherstep was not required. Defendants squarely raised the sovereignimmunity defense in their first responsive papers filed with theCourt and continued to assert a defense as to the § 1983 claim inCount II. In fact, by arguing that the FMLA forecloses a § 1983claim altogether, defendants actually asserted a broader defensethan sovereign immunity. The Court rejected this broader argumentand the case proceeded to trial on the FMLA claim in the face ofdefendants' clear and repeated opposition. Furthermore, theCourt's statement as to the Eleventh Amendment bar to damagesunder § 1983 against the State and the individuals in theirofficial capacities in its August 2, 1996 opinion was sufficientto give defendants a reasonable understanding that money damagescould not be recoverable against the State and the individualdefendants in their official capacities under § 1983 in eithercount.

The Court finds that the case law on waiver of EleventhAmendment immunity does not extend a waiver doctrine to caseslike this one where defendants raised the defense at the earlieststage of the proceedingsand thereafter throughout the proceedings. In Atascadero StateHosp. v. Scanlon, the Supreme Court specifically stated that tofind constructive or implied waiver by conduct "we require anunequivocal indication that the State intends to consent tofederal jurisdiction that would otherwise be barred by theEleventh Amendment." 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 87L.Ed.2d 171 (1985) (emphasis added). Examples in some circuits ofthis "unequivocal indication" of consent to suit by a stateinclude: removing a case to federal court, Sutton v. Utah StateSch. for the Deaf & Blind, 173 F.3d 1226 (10th Cir. 1999);Newfield House, Inc. v. Massachusetts Dep't of Pub. Welfare,651 F.2d 32, 36 n. 3 (1st Cir.), cert. denied, 454 U.S. 1114,102 S.Ct. 690, 70 L.Ed.2d 653 (1981); voluntarily filing a claimin federal court, In re Platter, 140 F.3d 676, 680 (7th Cir.1998); and filing a counterclaim and third-party complaint infederal suit, Paul N. Howard Co. v. Puerto Rico Aqueduct SewerAuth., 744 F.2d 880, 886 (1st Cir. 1984). See Hill v. BlindIndustries and Services of Maryland, 179 F.3d 754, 756-57 (9thCir. 1999). These circumstances where some courts have found awaiver occurred involve affirmative actions taken by the statesfor their own benefit in the proceedings. Here, there is noaffirmative action taken by the defendants to take advantage ofthe suit for its own benefit and thus the circumstances of thiscase do not rise to waivable conduct under the foregoing caselaw. The Ninth Circuit has recently gone so far as to find an armof the State to have waived its Eleventh Amendment immunity bymere active litigation of an action on the merits in federalcourt where it did not assert the defense prior to trial. Hill,179 F.3d 754, 755; cf. Wichmann v. Bd. of Trustees of SouthernIllinois University, 180 F.3d 791, 797 (7th Cir. 1999) (holdingthat the sovereign immunity defense may be raised for the firsttime on appeal). Although based on a clear minority view, thatcase is also factually distinguishable from this case wheredefendants clearly raised the defense numerous times prior totrial.

At most, defendants' conduct could be interpreted as aninadvertent failure to renew their Eleventh Amendment immunitydefense, which no Court has held constitutes a valid waiver. Infact, there is no binding case law that interprets constructivewaiver to include anything remotely resembling the circumstancesin this case. Justice Kennedy in his concurrence to WisconsinDep't of Corrections v. Schacht, 524 U.S. 381, ___, 118 S.Ct.2047, 2054-55, 141 L.Ed.2d 364 (1998) encourages the SupremeCourt to adopt a rule that removal by a state defendantconstitutes waiver; however, he acknowledges that this issue hasnot been before the Court. Justice Kennedy states that theSupreme Court "has said the Eleventh Amendment bar may beasserted for the first time on appeal, so a State which is suedin federal court does not waive the Eleventh Amendment simply byappearing and defending on the merits." Id. 118 S.Ct. at 2055(citing Florida Dep't of State v. Treasure Salvors, Inc.,458 U.S. 670, 683 n. 18, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982)(plurality opinion); Calderon v. Ashmus, 523 U.S. 740, ___ n.2, 118 S.Ct. 1694, 1697 n. 2, 140 L.Ed.2d 970 (1998)). The law asit stands, in spite of Justice Kennedy's comments, is clear thatsubmitting to trial without raising the Eleventh Amendmentimmunity defense is not enough to constitute waiver. In light ofthe current state of Supreme Court law on this issue, defendantswho raise the sovereign immunity defense before trial3 willnot have waived it by merely submitting to trial in federalcourt, and accordingly the Court rejects plaintiff's argumentthat such a waiver occurred here.

In this case where TFC Knussman did not prove damages withinthe scope of the FMLA and where he is barred from recoveringmoney damages from the State and the individual defendants intheir official capacities under § 1983 by virtue of the EleventhAmendment, no damages are available against the remainingdefendants under Count II.

Accordingly, the Court will grant in part defendants' motionfor judgment after trial and amend the judgment to remove theState and the individual defendants in their official capacitiesfrom liability for money damages.

B. Excessiveness of Damages Issue

Defendants alternatively argue that the damage award isexcessive and should therefore be reduced. The Court finds itinappropriate to disturb the jury's damage award in this casewhere it is not against the clear weight of the evidence nor isit excessive as a matter of law. TFC Knussman presentedconsiderable evidence of the emotional damages he sustained. TFCKnussman himself testified to his damages including, interalia, difficulties interacting with co-workers, constantruminating, sporadic attention at work, sleeplessness, chestpains and heart palpitations, anxiety, and feelings ofhopelessness. This testimony was corroborated by his treatingpsychologist, Dr. Susan Toler. There is evidence in the recordthat TFC Knussman sought counseling and medical treatment fromseveral physicians and was prescribed medication for hisemotional condition. From the evidence presented, a jury couldreasonably find that defendants' conduct caused TFC Knussmansignificant damage. The Court is not in a position to impinge onthe province of the jury in this case and second guess theverdict where there was ample evidence of emotional damage.

Moreover, the cases cited by defendants to support theirrequest for a reduction in damages are not persuasive as they arenot sufficiently similar in circumstances to this case. In thosecases, the evidence presented fell significantly short of thequality and quantity of evidence presented by TFC Knussman of hisemotional damages. See Cline v. Wal-Mart Stores, Inc.144 F.3d 294 (4th Cir. 1998) (reducing award from $117,500 to $10,000 foremotional pain and mental anguish where plaintiff found to bemerely "very upset" about demotion and plaintiff had not requiredcounseling or medication of any sort); Hetzel v. County ofPrince William, 89 F.3d 169 (4th Cir. 1996) (setting aside awardof $500,000 where emotional damages were based on plaintiff's ownconclusory statements and plaintiff did not seek medical care).

The Court is persuaded that the jury award is not excessive inlight of the evidence and the law, and accordingly, the Courtwill deny defendants' motion on this ground.

C. Qualified Immunity on Count I

Finally, defendants renew their argument that Mullineaux shouldbe entitled to qualified immunity on Count I. The Court finds noreason to disturb the jury's findings in this regard. A jurycould have reasonably concluded from the evidence thatMullineaux, as the personnel officer in the State's PersonnelManagement Division, should have recognized that she was applyinga gender neutral leave statute in a discriminatory manner bymaking only men prove they are the primary care givers to anewborn or adopted child. Relying on an administrative specialistin the Maryland State Department of Personnel, rather than theDirector, for the critical interpretation of a new state leavelaw and by applying gender-based presumptions supports a findingof unreasonable action by a personnel administrator.

Moreover, the evidence supports the jury's distinction betweenMullineaux andthe other supervisory defendants because it was reasonable forthe MSP officers to rely on the advice of their personnelofficer. A jury could have found that Mullineaux actedunreasonably and misled the other defendants to follow adiscriminatory policy. Finally, the jury could have believed TFCKnussman's testimony regarding the insensitive comments allegedlymade by Mullineaux. The fact that Mullineaux may have appliedwidely-held stereotypical assumptions and understandings ofparenting does not make it reasonable to act according to thoseassumptions and violate the basic tenants of equal protectionlaw. The Court finds that the jury's verdict on Count I as toMullineaux is reasonably supported by the evidence, andaccordingly, the Court will deny defendants' motion on thisground.4


For all the foregoing reasons the Court will grant in part anddeny in part defendants' Motion for Judgment, or in theAlternative, for a New Trial. A formal Order and an Amended Orderof Judgment will be entered in conformity with this Opinion.

1. As a result of the Court's ruling on the retaliation claim,Captain Lewis was dismissed from the suit.

2. The FMLA provides damages limited to lost wages, salary,employment benefits or "any actual monetary losses sustained bythe employee as a direct result of the violation" plus interestand liquidated damages if appropriate. § 2617(a)(1)(A).

3. Moreover, defendants raised the issue again in their Rule50 motion for judgment at the conclusion of the trial, arguingthat plaintiff did not prove any damages recoverable under theFMLA and thus cannot recover damages for FMLA violations by means§ 1983 because § 1983 damages are barred against the State andthe individuals in their official capacities by the EleventhAmendment. The Court denied their motion and submitted the caseto the jury.

4. The Court entered judgment for damages jointly andseverally as to both counts in accordance with the jury's specialverdict, and accordingly, in light of the Court's ruling barringdamages against the remaining defendants under Count II,Mullineaux is liable alone for the entire $375,000 verdict.

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