MEMORANDUM OF DECISION ON DEFENDANT JESSE BROWN'S MOTION FOR NEW TRIAL 1
Judgment having entered in favor of Plaintiff as against the federal Defendant on the basis of a jury verdict rendered in this action on January 21, 1997, Defendant now moves for a new trial pursuant to Federal Rule of Civil Procedure 59(a). Defendant raises two grounds for relief under Rule 59. First, Defendant asserts that a new trial should be ordered in light of an intervening change in the law regarding sexual harassment in the workplace. Second, Defendant argues that the evidence was insufficient to support the verdict. In the alternative, Defendant asks the Court to condition the denial of a new trial on Plaintiff's acceptance of a remittitur.
I have carefully considered the submissions of both parties on these issues. 2 I hereby DENY the Motion for New Trial or for Remittitur. I am satisfied that the changes rendered in the controlling law by the Supreme Court decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), apply only to cases where a direct supervisor is the harasser. Todd v. Ortho Biotech, Inc., 175 F.3d 595, 598 (8th Cir. 1999); Burley v. Atlantic City Police Dept., 174 F.3d 95, 119 (3d Cir. 1999). Although this factual question was apparently never resolved, Defendant's position has consistently been that Dr. Pathak did not have supervisory authority over Plaintiff. As Defendant points out in its Motion, "The management channel of authority for [Plaintiff] 'went up the channel' of command, initially to the Charge Nurse, Head Nurse, Asst. Chief Nurse, then Chief Nurse." Memo. at 2 (docket no. 213). Dr. Pathak was in a different "channel of command."
In any event, the Court's jury instructions in this case, while not as thorough a rendition of the law as displayed in Defendant's Proposed Instruction Number 19, accurately reflected the law in effect in this circuit at the time, which in turn fairly accurately forecasted the Ellerth/Faragher standard. Specifically, as Defendant cited it in its Motion, the Court instructed that "'[i]f you determine there was a hostile work environment, the VA can be liable only if you determine that the VA knew or should have known of a hostile environment and failed to promptly act to correct the environment.'" Memo. at 22. These requirements of actual or constructive knowledge and a failure to remediate were required in cases of supervisory harassment in the First Circuit, Morrison v. Carleton Woolen Mills, 108 F.3d 429, 437 (1st Cir. 1997) (citing Lipsett v. University of Puerto Rico, 864 F.2d 881, 897-98 (1st Cir. 1988)), even when other jurisdictions applied the standard only in cases of co-worker harassment. Faragher, 524 U.S. at 799-800 (collecting cases).
The Ellerth/Faragher affirmative defense "comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807.
While the Court's instruction did not exactly track this language, the evidence Defendant would seek to present, and the argument that would arise from it, would be the same. Further, the Court's instruction kept the burden of proof with Plaintiff, and so was more beneficial to the Government than the new affirmative defense Defendant seeks to utilize. Defendant is not entitled to a new trial on this basis.
Finally, I conclude that the evidence presented at trial was sufficient to permit a factfinder to find in Plaintiff's favor, and I further decline Defendant's request that I reduce Plaintiff's damage award.
Assigned to: MAG. JUDGE MARGARET J. KRAVCHUK
Jury demand: Plaintiff
Nature of Suit: 442
Jurisdiction: US Defendant
Cause: 42:2003 Job Discrimination
1. Pursuant to Federal Rule of Civil Procedure 73(b), the parties have consented to allow the United States Magistrate Judge to conduct any and all proceedings in this matter.
2. Initially, I agree that Defendant's Motion fails to comply with the Court's local rule regarding the length of supporting memoranda. D. Me. R. 7(e). In light of my conclusions regarding the merits of Defendant's arguments, there is no need to belabor the point at this time. Defendant's Motions for Leave to File a Memo in Excess Page Limits, filed with respect to both the original Motion, and the Reply Memorandum, are both GRANTED.