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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELISSA McFADDEN, :

: Civil Action No. 2:18-cv-544

Plaintiff, :

:

v. : JUDGE: SARGUS

: MAGISTRATE JUDGE: JOLSON

CITY OF COLUMBUS, :

:

Defendant. :

PLAINTIFF MELISSA McFADDEN’S MOTION

FOR A NEW TRIAL ON DAMAGES ONLY

Plaintiff Lt. Melissa McFadden (“Lt. McFadden”) respectfully moves pursuant to 

Fed.R.Civ.P. 59 for a new trial on damages because the one-dollar award for discrimination and 

one-dollar award for retaliation are (1) against the clear weight of the evidence on her damages; 

(2) reflect that the jury failed to follow the following jury instructions (a) by giving improper 

weight to the allegations that led to her reassignment rather than the complained of illegal conduct 

reassigning Lt. McFadden to the property room to disassemble vests, and (b) describing the factors 

to be considered in awarding damages; (3) perpetuating the very discrimination and retaliation the 

jury found the City had committed by apparently being anchored in dislike for her because she too 

aggressively pursued claims against what she perceived – rightly in light of the jury verdict on her 

temporary assignment to menial duties in the Property Room – to be discrimination and retaliation; 

and/or (4) constitute an injustice that unacceptably undervalues the intangible harm inflicted on 

victims of discrimination or retaliation and unreasonably rejects corroborated testimony.

MEMORANDUM IN SUPPORT OF PLAINTIFF MELISSA

McFADDEN’S MOTION FOR A NEW TRIAL ON DAMAGES

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I. Background

On June 13, 2022, the jury found that the City of Columbus had discriminated and retaliated 

against Lt. McFadden when its Division of Police (CDP) temporarily assigned her during an 

investigation of equal employment opportunity charges to menial duties in the Property Room. Lt. 

McFadden testified in detail about her damages, including the emotional distress, mental anguish, 

and humiliation that being a victim of discrimination and retaliation inflicted, and the pain, 

suffering, and economic losses from a physical injury caused by the menial duties she was assigned 

and the deadlines under which they were performed. 

Her husband corroborated that testimony. She did not elicit expert medical testimony, nor 

was she required to do so. Miller v. Alldata Corp., 14 Fed. Appx. 457, 466–67 (6th Cir. 2001)

(emotional distress award of $300,000 for a plaintiff who provided no medical evidence but 

claimed to have sleepless nights and stomach problems was not excessive). The City did not elicit 

expert medical testimony to refute her claims, though it cross-examined her and her husband on 

other causes for her emotional distress and mental anguish and emphasized that the assignment to 

menial duties did not include instructions to lift a heavier number of ballistic vests than she could 

safely lift, despite the fact that testimony showed that no training was offered about how to safely 

lift the vests. 

The City elicited considerable testimony, however, about her leadership style, the equal 

employment opportunity charges against her, and her readiness to characterize as discrimination

or retaliation acts, omission, decisions, or statements by her superiors and other officers. All this 

“background evidence” did not prevent the jury from finding that Lt. McFadden had been a victim 

of discrimination, but it poisoned the jury’s attitude toward her, making her so unlikable that a 

total of $2.00 was awarded. No doubt the Court recalls sidebars when counsel for Lt. McFadden 

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futilely pursued the issue of character assassination. The award constituted an injustice that a new 

trial on damages can rectify.

II. Evidence Admitted at Trial

At trial, Lt. McFadden produced significant evidence that she was physically and 

emotionally harmed by the discriminatory and retaliatory actions of the City. 

Lt. McFadden testified on June 7, 2022, that she processed over 1,100 vests (Day two trial 

transcript at 142:5-9) Lt. McFadden explained to the jury the state of the vests. The vests “had 

mold on them. They were mildewed. They were stained, dirty. They had a really strong smell to 

them” (Id. at 131:7-11) Lt. McFadden estimated that of the 1,100 vests that she processed 20% 

were moldy, and that in order to deal with the mold and smell she was forced to wear gloves and 

take allergy medication. Despite her wearing gloves and taking medication to prevent adverse 

symptoms from her allergies, the mold from the vests still caused her “problems” while in the 

property room. (Id. at 131:1-14) To demonstrate just how moldy the vests were and the sheer 

number of vests, Lt. McFadden presented several photographs that she took of the vests and crates 

in which they were stored as Exhibit 14 to her trial evidence. The City had no objection to the 

admittance of the photographs, and presented no evidence that the photographs were not legitimate 

or were not in fact the vests that Lt. McFadden processed.

Lt. McFadden’s husband Charles McFadden corroborated Lt. McFadden’s testimony about 

the condition of the property room and its smell. Mr. McFadden testified that Lt. McFadden took 

him to the property room one time, and he described it as “a dark warehouse no windows, dirty, 

really dusty, . . . and just must odor just a typical type of old warehouse.” (Day three trial transcript 

85:22-86:1)

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Lt. McFadden testified that she was forced to process the vests in the stockroom of CDP’s 

property room in view of other CDP employees. She explained “the stockroom uniform office is 

located, it’s located in the property room building, but the property room is further up, and I didn't 

have access to the property room.” (Day two trial transcript at 144:20-25) She continued, that 

because of the location of the stockroom in the property room, that other officers and employees 

would have to walk by her work area when they were entering the rear of the property room 

warehouse. Lt. McFadden told the jury that when these officers and employees would walk by her 

work area “they would smirk at me. They would smirk at me and would act like -- they would say,

How is your day? They know good and well my day is not good because I'm in these crates. And 

it was so embarrassing that I didn't want to be there, because at any given moment they can come 

back and see me in these crates doing things that I shouldn't be doing as a lieutenant, or that I 

shouldn't be doing as an officer, anybody -- no officer should -- is required to do that, has ever 

been required to do that. (Id. at 145:1-25) Lt. McFadden continued that she felt humiliated because 

she “felt like they were punishing me, and I was set as an example to the rest of the Division to 

see and humiliate.” (Id. at 143:10-13)

Lt. McFadden was asked about how the property room reassignment affected her 

emotionally. She told the jury “It was humiliating to me because I was the only one ever assigned 

to the property room to do any kind of task like that It caused me undue stress. Already dealing 

with an issue of my life in general, and then to have this thrown on me, it was very stressful. It 

caused problems in my marriage, intimacy from my husband. I was withdrawn from society, didn't 

want to go anywhere. Very depressed” (Id at 167:1-9)

Lt. McFadden explained to the jury that she took many days off work because she “didn’t 

want to be there” she took off as many days as she could, which totaled 22.75 days off work 

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between March 14, 2017, and June 6, 2017. (Day two trial transcript 143:5-13) She took this time 

off because she told the jury she just could not handle being there because of the humiliation of 

the reassignment. 

Mr. McFadden testified that when Lt. McFadden was reassigned to the property room in 

March 2017, that she changed. He explained “she was not happy to go to work at all . . . just very 

– just dejected and really focused on how she can get over this hump of being there, of being in 

the property room.” (Day three trial transcript 86:7-10) Mr. McFadden talked about how he and 

Lt. McFadden’s home life changed because of the reassignment, “well just all those things that we 

used to do, we stopped doing. We didn’t go out as much. She wasn’t interested in, you know, 

watching TV shows. Everything was about how she can prove that she hasn’t done anything 

wrong.” (Id. at 86:14-18) Mr. McFadden continued that the intimacy level in their marriage 

changed after the reassignment. “We just basically were as intimate as before; you know I guess 

the sex life was less. . . [she] seemed like she was in a different place. There wasn’t much hugging 

or you know cuddling or anything like that. Not [none] at all, but just a lot less. It was just a lot 

less.” (Id. at 86:22-87:1) Mr. McFadden testified that in the time after the reassignment he and Lt. 

McFadden who normally enjoy going out to eat did not go out to eat often or “at all.” (Id at 87:6-

8).

The reassignment to the property room did not only adversely impact Lt. McFadden’s 

marriage but also impacted her relationship with her son Isaiah. Mr. McFadden testified “she was 

always concerned with whatever Isaiah was—you know, just being a mother, always concerned 

with what he was doing. So now the focus is on her livelihood and how she can she – it wasn’t 

taken completely away from Isaiah, but just there was less communication between the two. And 

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just setting back and watching it, it wasn’t like you know, how it normally used to be.” (Day three 

trial transcript 87:9-19) 

Based on the humiliation and embarrassment of being reassigned to the property room, Lt. 

McFadden sought mental health treatment. At first, she saw Dr. Warren Bertner a psychologist 

where she “talked to him and just shared my stresses and frustrations, and he gave me different 

coping mechanisms to use to help me deal with the stress that I was going through.” (Id. at 167:17-

20) Lt. McFadden saw Dr. Bertner weekly from “immediately” after her reassignment until his 

retirement in July 2018. After treating with Dr. Bertner, Lt. McFadden began treatment with 

psychologist Dr. John Tarpey in July 2018. She testified that treating with both Dr. Bertner and 

Dr. Tarpey was “very helpful” to her emotional distress. (Id. at 168:14-169:4)

Finally, as to emotional distress, Lt. McFadden told the jury that the reassignment to the 

property room still affects her five years later. She described the affects as “I'm better now, but it 

still affects me. The fact that it happened, it still affects me. I'm not trusting of people like I was. 

I'm not (sic) [now] very cautious of people now. She went further to clarify about being cautious 

“but when you're cautious about your family and about people you know, it's not good.” (Day two 

trial transcript 169:5-15)

In addition to testimony from herself and her husband regarding the emotional impacts of 

her reassignment. Lt. McFadden also presented evidence that she was injured physically and 

financially by the reassignment.

On June 5, 2017, Lt. McFadden was “stacking the vests on the desk” and “went to pull 

them over” and she “pulled with my right and I'm left-handed, but I pulled with my right hand to

pull them over and I felt a little strain in my shoulder, but I didn't think much of on it, you know

So I picked up the stack and I put it in the basket, and that's when I hurt heard my shoulder. It was 

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really -- it was a sharp pain in my shoulder, and I hurt my shoulder.” (Day two trial transcript 

144:19-145:9) Lt. McFadden described the feeling when she tried to lift the stack of vests “I just 

felt a sharp pain in my shoulder, and then I couldn't move my arm above here, above this. Every 

time I moved my arm up, it would hurt.” (Id. at 146:14-20) Lt. McFadden explained that how she 

was moving the vests on June 5, 2017, was the same way that she had done in the months prior to 

her injury, and that she had never had an issue before. (Id. at 145: 10-14)

After feeling the sharp pain, Lt. McFadden sought medical treatment on June 6, 2017. Lt. 

McFadden saw Dr. Steven Altic at Grandview Family Practice who ordered an X-ray and MRI on 

her shoulder. Lt. McFadden was then diagnosed with a torn rotator cuff and herniated discs in her 

neck. (Day two trial transcript 147:3-15) Lt. McFadden described the pain of the injury in the first 

few days as “8 out of the 10 being the worst.” (Id. at 148:1) Lt. McFadden started treating with 

therapy for the injury and was prescribed “tramadol for pain medicine. I did electric stimulation, 

acupuncture. I did physical therapy with exercise band, massage therapy. And then I eventually 

got a cortisone shot in my shoulder.” (Id. at 148:7-10) 

Lt. McFadden had to treat for the injury for nearly a year and a half before she was able to 

return to work. At the outset of the injury Lt. McFadden “was in therapy three days a week, and 

maintaining therapy helped with the pain ... just therapy was helping me a lot.” (Day two trial 

transcript: 148:17-20) Lt. McFadden continued going to physical therapy in person from the time 

of her injury until the Covid pandemic in early 2020, at that point she continued to do therapy 

exercises at home and “massaging my neck and shoulder I do at-home exercises that they taught 

me that’s how I maintain.” (Id at 151:21-24) Lt. McFadden testified that she still experiences pain 

in her neck and shoulder because of the injury, but that as long as she maintains her exercise and 

massage routine, she is able to work and function normally. (Id. at 151:24-152:6)

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While Lt. McFadden suffered significant physical pain from her injury, the injury also 

caused her a real financial burden. Lt. McFadden testified that she was on injury leave status with 

the City from June 2017, until December 2018. When on injury status “the Division allows injury 

leave to so many hours. Then once that runs out, I had to go on temporary total disability. And the 

problem with temporary toral disability they only pay like 70 percent of my income, so I had to 

use vacation and sick time to make up the other 30 percent.” (Day two trial transcript 152:14-19) 

Lt. McFadden displayed her paystubs to the jury from 2016-2018 as Exhibit 19, and that evidence 

showed that Lt. McFadden was forced to exhaust 263.556 hours of sick leave because of her injury 

and lost an additional $18,507.59 in actual pay based on the reduction in hours because of her 

injury. (Id at 154:23-156:21) 

Not only did Lt. McFadden present evidence that she lost significant pay because of her 

injury. She was also forced to take out a loan for tuition for law school that she was attending at 

the time of her injury. Lt. McFadden started law school in September 2014 enrolling, in Capital 

University Law School’s part time program. (Day two trial transcript 162:15-24) During the first 

three years of her legal studies, the City paid for her tuition through the employee tuition 

reimbursement program. (Id. at 164:13-14) However, when Lt. McFadden was on injury leave, 

she was not eligible for tuition reimbursement. Lt. McFadden presented Exhibit 18 to the jury 

which was an e-mail from Deputy Chief Michael Woods explaining that while she was injured,

she would not be able to receive any tuition reimbursement benefits. 

As the City would not continue to pay for her schooling while injured, Lt. McFadden was 

forced to take out a loan to pay for the remainder of the program. Lt. McFadden presented the jury 

with Exhibit 17, a loan disbursement document showing a $20,000 loan that was paid to Capital 

University Law School. (Day two trial transcript at 166:2-11) Based on the interest rate of the 

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student loan, Lt. McFadden will be required to pay a total of $25,000 that she would not have had 

to pay if she was not injured in the property room. (Id. at 166:12-19)

When the City cross examined Lt. McFadden about her damages they focused primarily 

on economic damages. The City asked Lt. McFadden if her rank remained the same, her seniority,

her pay rate, and medical benefits. The City pointed out that she received free parking in the 

property room and was able to change her shift if she desired. The City made sure to point out to 

the jury that the reassignment to the property room itself did not cause Lt. McFadden to lose her 

tuition reimbursement, but rather it was the injury that caused her to lose the reimbursement 

eligibility. The City also attacked Lt. McFadden’s claim of a physical injury eliciting testimony 

that no one required her to “pick up a certain number of vests” at a time, and explained to the jury 

that Lt. McFadden also received workers’ compensation benefits as a result of the injury. 

Despite going at length in cross examination on the nature of Lt. McFadden’s injury, and 

attempting to describe the reassignment to the property room as a plush assignment with better 

hours, better parking, and not having to wear a patrol uniform the City did not cross Lt. McFadden 

about her emotional distress. Rather, it left that to their cross examination of Mr. McFadden. 

During the cross of Mr. McFadden, he explained to the jury that he and Lt. McFadden 

continued to travel after she was reassigned to the property room, and watched shows together. 

The City also had Mr. McFadden identify other stressors in Lt. McFadden’s life during the time 

after the reassignment, such as issues with their son, moving, and the investigation into the 

allegations against Lt. McFadden. However, Mr. McFadden maintained that the crux of Lt. 

McFadden’s stress was in 2017 around the reassignment. Mr. McFadden testified on cross that the 

reassignment was Lt. McFadden’s “main concern at the time right when that happened, when she 

was being moved. So you know, there may have been some other stressors, but that was the main 

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stressor.” (Day three trial transcript 104:23-25) Mr. McFadden continued that the property room 

reassignment stress was different from other stresses that Lt. McFadden was facing “she handled 

stress well. I mean there’s the being removed from where you’re – where she was used to being[to 

the property room]. And I mean there’s other stressors, but there’s not – were able to separate 

that.” (Id. at 109 8-11) Mr. McFadden answered “no” in response to the City’s question “there 

were some [events] that were even more stressful than being assigned to the property room, 

correct?” (Id. at 109:15-17)

Throughout the trial the City did not present any contrary evidence about the cause of Lt. 

McFadden’s injury, or that she was not entitled to tuition reimbursement during her time on injury 

leave. There is no dispute that Lt. McFadden suffered both physically and emotionally based on 

her reassignment to the property room.

The City in its defense did not make any arguments that Lt. McFadden was not injured in 

the property room. Their defense on Lt. McFadden’s emotional toll was limited. Rather, the city 

focused on the e-mail allegations against Lt. McFadden and sought to sling mud at her throughout 

the trial. In their case in chief, the City called all three officers who made complaints against Lt. 

McFadden. They asked each of the officers to read aloud every word of the e-mails they wrote to 

Commander Grizzell, and then asked them to explain what they meant by those words. The jury 

sat for hours hearing the nature of the allegations against Lt. McFadden in graphic painstaking 

detail, despite the case not centering around the need for a reassignment or investigation, but rather 

where Lt. McFadden was reassigned. 

Then, the City called Commander Grizzell to testify, and again asked her to read the emails against Lt. McFadden and talk about the allegations against her. It got to the point where the 

Court during Commander Grizzell’s testimony the Court reminded the jury that the case was not 

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about what type of manager or co-worker Lt. McFadden was. “Let me explain again what you’ll 

be deciding, because you’re hearing some evidence now that goes to issues in the case, but also 

goes beyond that. That’s what I want to explain to you. So I think you understand this is a case 

about a claim of racial discrimination and a claim of retaliation for protected activity. That’s the 

core of the case. So in a general sense it’s not about whether the plaintiff was a good manager, bad

manager, good co-worker, bad co-worker. You can get that too. Where the case becomes more 

difficult is the defendant’s side gets to explain motivation in a way that their claim is different than 

the plaintiff’s. Their claim is that there was no racial bias here, that this was for other reasons. 

Well, the other reasons turn into management questions, turn into co-worker questions. So my 

admonition to us is consider this as you consider whether this negates or doesn’t negate claims of 

racial discrimination, but we’re not here to determine whether plaintiff was a good or bad manager. 

So if you can keep that separate, then you’ll be right on the issues that you’ll be deciding in the 

end. (Day three trial transcript 52:8-5)

Even in closing arguments the City focused on slinging mud at Lt. McFadden rather than 

why she was reassigned to the property room to disassemble vests. The City again read the 

allegations of the e-mails, and counsel for the City stated that the words in the e-mails were so 

strong that Lt. McFadden’s counsel would not use the full words but abbreviated the “n” word or 

“mf” rather than read the quotes of the e-mails. The City obviously wanted to make Lt. McFadden 

look like such a bad person that the jury would not follow the Court’s instructions and award only 

$2.00 despite significant evidence regarding Lt. McFadden’s damages. The City got what it 

wanted—it so tarnished Lt. McFadden through those hours of testimony that the jury deemed her 

unworthy of compensation. 

III. Jury Instructions on Issues and Damages

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The jury instructions were explicit in directing the jury that they should not hold Lt. 

McFadden’s management style or the nature of the allegations against her. Instruction Number 7 

reads:

As I mentioned during trial, and as I will discuss further in a moment, this 

case is about what motivated the City to reassign Lt. McFadden to the property 

room to disassemble vests. Some of the testimony and exhibits offered at trial bore 

upon this issue, but also addressed other matters—for example, Lt. McFadden’s 

managerial style. Again, you are only to consider this evidence to the extent it sheds 

light on the City’s actual motivation for reassigning Lt. McFadden to the property 

room to disassemble vests.

(Doc # 106 PAGEID 5753)

While Jury instruction 19 directed the jury “in calculating a damages award, you 

should only consider the following types of compensatory damages, and no others: 1 lost 

wages, and 2 any physical, mental and/or emotional pain and suffering- including 

humiliation, anguish, frustration, and sadness—experienced by Lt. McFadden because of 

her reassignment to the property room” (Doc # 106 PAGEID 5767) This instruction also 

did not allow the jury to consider Lt. McFadden’s out of pocket expenses such as her 

$25,000 in law school loans that she would not have had to take but for the City’s 

discriminatory and retaliatory conduct. 

It is clear that the jury disregarded both of these charges, and rather than awarding 

Lt. McFadden fair compensation for the lost wages that she demonstrated, and the 

“physical, mental and/or emotional pain and suffering- including humiliation, anguish, 

frustration, and sadness” that she and her husband testified to, they were so poisoned by 

the testimony that they were unwilling to compensate her even modestly for damages she 

clearly and undisputedly suffered. 

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IV. Argument

A. Lt. McFadden Has Carried the Burden of Justifying a New Trial on Damages.

Fed.R.Civ.P. 59(a)(1)(A) empowers the Court to exercise its discretion to “grant 

a new trial on all or some 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 an action at law in federal 

court.” See, generally, Davis ex rel. Davis v. Jellico Cmty. Hosp. Inc., 912 F.2d 129, 132-33 (6th

Cir. 1990). 

One reason that historically has sufficed was a jury’s unreasonable damages verdict. See, 

e.g., TCP Indus., Inc. v. Uniroyal, Inc., 661 F.2d 542, 546 (6th Cir. 1981). More generally, a new 

trial should be granted “if the verdict is against the weight of the evidence, if the damages award 

is excessive, or if the trial was influenced by prejudice or bias, or otherwise unfair to the moving 

party.” Conte v. Gen. Housewares Corp., 215. F. 3d 628, 637 (6th Cir. 2000). At bar, rather than 

an excessive damages award, the award was patently inadequate given the weight of the evidence, 

was prejudice or bias, and unfair.

In the Sixth Circuit, “the governing principle in the district court's consideration of 

a Motion for a New Trial is whether in the judgment of the trial court such course is required to 

prevent an injustice.” Park West Galleries v. Hochman, 692 F. 3d 539, 544 (6th Cir. 2012)

(quoting Davis, 912 F. 2d at 133 (internal quotation marks omitted)). The “injustice” of a twodollar award to a victim of discrimination and retaliation is palpable. Just on the injuries of 

emotional distress, mental anguish, and humiliation, the award is woefully insufficient. Even if a 

jury could reasonably reject compensation for the shoulder injury, no reasonable jury could find 

on the evidence that she suffered trivial emotional distress, mental anguish, and humiliation. 

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Lt. McFadden understands that she bears the burden of demonstrating the necessity for a 

new trial and that the Court will exercise sound discretion in deciding whether she has carried that 

burden. Clarksville–Montgomery Co. Sch. Sys. v. U.S. Gypsum Co., 925 F. 2d 993, 1002 (6th Cir. 

1991). She also realizes that, as the moving party, she has “a heavy burden,” Miller v. American

President Lines, Ltd., 989 F. 2d 1450, 1456 (6th Cir. 1993), and “the scope of review of a damage 

award is extremely narrow.” Anchor v. O'Toole, 94 F.3d 1014, 1021 (6th Cir. 1996). Only when 

the verdict on damages is one that a jury could not reasonably reach will a new trial be granted, 

and that assessment is based on the evidence, instructions, and argument, rather than whether 

different inferences and conclusions could have been drawn or higher damages would be more 

reasonable. Walker v. Bain, 257 F. 3d 660, 670 (6th Cir. 2001); Barnes v. Owens-Corning

Fiberglas Corp., 201 F.3d 815, 821 (6th Cir. 2000).

Still, courts “have interpreted this language to mean that a new trial is warranted when a 

jury has reached a ‘seriously erroneous result.’” Holmes v. City of Massillon, 78 F.3d 1041, 1045–

46 (6th Cir. 1996). The availability of a new trial on damages to prevent an injustice and correct a 

seriously erroneous result means that in the right case a new trial should be ordered. Lt. 

McFadden’s case is that exception to the rule. No matter how heavy her burden or narrow the 

court’s review, the award of $2.00 for the discrimination and retaliation against her fits the 

exception.

1. The Weight of the Evidence on Damages Precludes a Nominal Award. 

Lt. McFadden concedes that, in an appropriate case, nominal damages may be consistent 

with a finding of discrimination and/or retaliation. See, e.g., Randolph v. Metro. Transp. Auth., 

No. 17CV1433(DLC), 2019 WL 1567663, at *8 (S.D.N.Y. Apr. 11, 2019) (“There is no 

inconsistency . . . between a finding that a plaintiff's rights were violated and that the plaintiff 

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should only be awarded nominal damages.”). Thus, “[a] finding that the plaintiff has been 

deprived of a constitutional right does not automatically entitle him to a substantial award 

of damages.” Kerman v. City of New York, 374 F.3d 93, 123 (2nd Cir. 2004).

Beyond that, Lt. McFadden appreciates that, as a general matter, “courts are reluctant to 

overturn jury verdicts on the grounds of excessive or inadequate damages.” Bruner v. Dunaway, 

684 F.2d 422, 427 (6th Cir. 1982) (citing Cross v. Thomson, 298 F.2d 186 (6th Cir. 1962)). She 

does not quarrel with the observation that “[t]he assessment of damages in a case tried before a 

jury is peculiarly the function of the jury.” Pohrybienyk v. Kirchner, 410 F.2d 1114, 1115 (6th Cir. 

1969). She accepts that “the value of pain and suffering” is part of that assessment and, rather than 

a “measuring stick,” left “to the sound judgment of the jury.” Id. at 1115–16 (quotations and 

citations omitted). She relies, instead, on the equally well-established principle that “the ‘gross 

abuse’ of the jury's discretion permits a court to substitute its judgment for that of the jury. 

Davidson v. CSX Transportation, Inc., No. 1:15-CV-00528, 2017 WL 3422072, at *2 (S.D. Ohio 

Aug. 9, 2017) (quoting Pohrybienyk, 410 F.2d at 1115).

Rather than automatic damages, to “recover compensatory damages under Section 1983, a 

plaintiff must prove that his injuries were proximately caused by the constitutional 

violation.” Gibeau v. Nellis, 18 F.3d 107, 110 (2nd Cir. 1994). As a species of tort law,1proving 

proximate causation adheres to “[t]he cardinal principle of damages in Anglo-American law . . . 

of compensation for the injury causes to plaintiff by defendant’s breach of duty.” Carey v. Piphus, 

435 U.S. 247, 254-55 (1978).

Illustrating these principles is Carlton v. C.O. Pearson, 384 F. Supp. 3d 382, 388

(W.D.N.Y. 2019), where an inmate alleged deliberate indifference to an assault that delayed 

1 Carey v. Piphus, 435 U.S. 247, 253 (1978), quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976).

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opening his cell door to stop the assault. “A reasonable jury could have concluded that while 

Defendant violated Plaintiff's constitutional rights, Defendant's failure to act did not proximately 

cause Plaintiff's injuries.” Id. First, the assailant would have injured the inmate regardless of what 

the prison guards did. Second, injuries may have been sustained while guards were using justified 

force to stop the fight, rather than being deliberately indifferent. Third, “Plaintiff points to no 

evidence that would have required the jury to find that the injuries he sustained during the assault 

arose from Defendant's violation of his rights.” Id. Fourth, “the degree to which Defendant's 

wrongful conduct proximately caused Plaintiff's injuries hinged upon the jury's assessment of the 

witnesses' demeanor[.]” Id.

At bar, two discrete categories of evidence were offered about damages: Lt. McFadden 

suffered emotional distress, mental anguish, and humiliation from being a victim of discrimination 

and retaliation and she was injured as a result of being assigned to menial tasks in the Property 

Room. On both categories, she would not have suffered or been injured had she been assigned to 

non-menial tasks in the Property Room or elsewhere that were consistent with her rank, 

knowledge, and experience. There is no combination of lawful and unlawful acts by CDP. The 

City’s only evidence of other causes for her emotional distress and mental anguish were difficulties 

she was experiencing away from work, while the City completely lacked any evidence of other 

causes for her shoulder injury and the resulting economic loss of being on disability pay, and the 

loan that Lt. McFadden took to complete her law degree. Finally, proximate causation did not 

depend on credibility and weight determinations because she conceded that she was also 

experiencing difficulties and there was no evidence of other causes for her shoulder injury.

The weight of the evidence is that, as a victim of discrimination and retaliation, she suffered 

some emotional distress, mental anguish, and humiliation, and a foreseeable cause of her shoulder 

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injury was the menial tasks she had to perform in hurried fashion to meet the deadline imposed by 

her supervisor. Tort law is settled that a tortfeasor takes the victim as it finds him or her. “The 

‘thin skull’ or ‘eggshell plaintiff’ rule is a creature of tort law, which states, ‘[A] defendant who 

negligently inflicts injury on another takes the injured party as he finds her, which means it is not 

a defense that some other person of greater strength, constitution, or emotional makeup might have 

been less injured, or differently injured, or quicker to recover.’ McDevitt v. Wenger, Tuscarawas 

App. No. 2002AP090071, 2003-Ohio-6096, 2003 WL 22700553, ¶ 34.” Fleckner v. Fleckner, 

177 Ohio App. 3d 706, 715, 895 N.E.2d 896, 902, 2008-Ohio-4000, ¶ 22. Accord Feterle v. 

Huettner, 28 Ohio St. 2d 54, 56 & n.2, 275 N.E.2d 340, 342 & n.2 (1971) (automobile accident 

victim had pre-existing heart condition).

A Seventh Circuit jury instruction captures this reality: “A tortfeasor takes his victim as he 

finds him, and if a special vulnerability (a thin skull, or here a ventricular hypertrophy) leads to an 

unusually large loss, the wrongdoer is fully liable.” Cobige v. City of Chicago, Ill., 651 F.3d 780, 

782 (7th Cir. 2011). Difficulties away from work that caused Lt. McFadden emotional distress and 

mental anguish are not compensable, Gibson v. County of Washoe, 290 F.3d 1175, 1193 (9th Cir.

2002) (damages “only for the extent to which the defendant's conduct has resulted in an 

aggravation of the pre-existing condition, and not for the condition as it was”) (quotation omitted), 

and the jury may have discounted her damages for those difficulties. But the discount to $2.00 is 

patently inadequate.

Lt. McFadden is not asking this Court to reweigh the evidence or draw different inferences 

from the evidence. Rather, $2.00 is a verdict that could not reasonably have been reached on the 

evidence before the jury: that “evidence indicates that the jury awarded damages in an amount 

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substantially less than unquestionably proved by the plaintiff’s uncontradicted and

undisputed evidence.” Anchor, 94 F.3d at 1021 (emphasis in original).

It is uncontradicted and undisputed that Lt. McFadden suffered some emotional distress, 

mental anguish, and humiliation from being a victim of discrimination and retaliation. It is totally 

unreasonable to remedy that emotional distress and mental anguish with $2.00. 

“[I]f the [damages] verdict is supported by some competent, credible evidence, a trial court 

will be deemed not to have abused its discretion in denying the motion.” Anchor, 94 F.3d at 1021. 

But there is no “competent, credible evidence” that Lt. McFadden was unfazed by the City’s 

discrimination and retaliation or that her shoulder injury was not a foreseeable result of being 

assigned menial tasks under the pressure of a deadline or was caused in any way other than her 

efforts to meet that deadline. Contrast Anchor, 94 F.3d at 1021 (“In this case, there was competent, 

credible evidence that plaintiffs may have suffered no loss at all. . . . Here, the jury chose to accept 

defendants' version of the relationship between the parties and apparently determined that, 

although the O'Tooles breached the contract, the Anchors received the benefit of their bargain.”). 

On a motion for a new trial, the Court must “compare the opposing proofs, weigh the 

evidence, and set aside the verdict only if it determines that the verdict is against the clear weight 

of the evidence.” McDonald v. Petree, 409 F.3d 724 (6th Cir. 2005) (internal quotation marks 

omitted). The City barely addressed the extent of the emotional distress, mental anguish, and 

humiliation Lt. McFadden suffered, offered no “opposing proofs” that she “suffered no loss at all,” 

and admitted that her shoulder was injured in the Property Room.

Lt. McFadden appreciates that “[n]o formula exists to determine with precision 

compensatory damages. The amount is left to the sound discretion of the fact finder.” King v.

Zamiara, 788 F.3d 207, 215 (6th Cir. 2015) (quoting Smith v. Heath, 691 F.2d 220, 227 (6th Cir. 

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1982)). “A jury sifts through the evidence and chooses what weight to give each piece.” Heard

v. Finco, 930 F.3d 772, 774–75 (6th Cir. 2019).

Lt. McFadden is not claiming that the City had to rebut the testimony, including partyadmissions, about her damages. See, e.g., Walker v. Bain, 257 F.3d 660, 674 (6th Cir. 2001) (“The 

fact that the defendants did not rebut Walker's testimony directly does not necessarily render the 

jury's determination on the issue of damages against the great weight of evidence. Walker had the 

burden of proving damages, and the only evidence of damages was Walker's self-serving testimony 

about his mental distress.”). She is claiming that she carried her burden of proof and the weight 

of the evidence was overwhelming: she suffered some emotional distress, mental anguish, and 

humiliation from the City’s discrimination and retaliation, as well as both pain and economic losses 

from her shoulder injury.

In Walker, the jury discarded the plaintiff’s description of his injuries, and the Court held 

that “[t]here is no error in upholding civil rights jury verdicts awarding no compensatory damages 

where the plaintiff's sole evidence of damages is his or her own testimony of subjective injuries.” 

Id. Lt. McFadden’s testimony was not, however, the “sole evidence of damages,” and there is no 

reasonable way of listening to all the evidence and reaching the conclusion that $2.00 suffices.

Indeed, there was barely any “conflicting evidence as to Plaintiff’s mental anguish and its 

cause,” Bresser v. Total Quality Logistics, Inc., No. 1:12CV720, 2015 WL 3608989, at *2 (S.D. 

Ohio Apr. 14, 2015), and, most importantly, there was no evidence that Lt. McFadden suffered 

nothing. A weight assessment or credibility determination on the evidence before the jury that she 

and her husband exaggerated her emotional distress and mental anguish from being the victim of 

discrimination and retaliation or ignored her own negligence in lifting too many heavy vests might 

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have justified a low damages award, but the evidence does not come close to justifying the unfair 

$2.00 award.

The jury was properly instructed on the scope of damages, but it deviated from those 

instructions. “The injury in civil rights cases may be intangible. . . . It need not be financial or 

physical but may include damages for humiliation and emotional distress.” Stallworth v. Shuler, 

777 F.2d 1431, 1435 (11th Cir. 1985). Unlike the $552,000 emotional distress damages award 

remitted in Akouri v. State of Fla. Dept. of Transp., 408 F.3d 1338, 1345, n. 5 (11th Cir. 2005)

(emphasis in original), where the plaintiff “failed to show any evidence regarding emotional 

distress,” Lt. McFadden offered sufficient evidence. Considering humiliation alone, how could a 

Lieutenant assigned to menial tasks in the Property Room not be profoundly humiliated? 

Retaliation arises from resentment and leads to revenge. The City humiliated Lt. McFadden on 

purpose.2

Even the lowest level of emotional distress, described as “garden variety,” has been 

awarded actual, rather than nominal, damages. “‘Garden variety’ emotional distress claims 

lacking extraordinary circumstances and without medical corroboration generally merit $5,000 to 

$35,000 awards.” Munson v. Diamond, 15-CV-0425, 2017 WL 4863096 at *8 (S.D.N.Y. June 1, 

2017) (internal quotation marks omitted), report and recommendation adopted, 2017 WL 4862789 

(S.D.N.Y. Oct. 26, 2017); Antoine v. Brooklyn Maids 26, Inc., No. 19-CV-5676, 2020 WL 

5752186, at *16 (E.D.N.Y. Sept. 26, 2020) (“For ‘garden-variety’ emotional distress claims, 

where plaintiff ‘did not seek medical treatment but [ ] the evidence in the form of plaintiff's 

2

“Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and 

embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because 

of his race or color.” S. Rep. No. 872, 88th Cong., 2d Sess., 16 (1964). “Retaliation against a person because that 

person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title 

IX's private cause of action. Retaliation is, by definition, an intentional act. It is a form of ‘discrimination’ because the 

complainant is being subjected to differential treatment.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173–

74 (2005).

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testimony describes shock, nightmares, sleeplessness, humiliation, and other subjective distress,’ 

courts have awarded damages ranging from $5,000 to $35,000.”) (citations omitted); Perez v.

Jasper Trading, Inc., 05-CV-1725, 2007 WL 4441062 at *9 (E.D.N.Y. Dec. 17, 2007) 

(emotional distress claims in the employment context where the evidence of emotional distress 

“consists of plaintiff's own testimony describing the emotional distress, with little or no supporting

medical evidence” usually warrant awards of $5,000 to $30,000).

Courts have repeatedly held that a plaintiff may prove emotional distress and mental 

anguish without submitting medical evidence. See, e.g., Barrow v. City of Cleveland, 773 Fed.

Appx. 254, 265 (6th Cir. 2019); Betts v. Costco Wholesale Corp., 558 F.3d 461, 472 (6

th Cir. 2009)

(“[M]edical evidence is not necessary in order for a plaintiff to be compensated for 

emotional distress.”); Moorer v. Baptist Memorial Health Care System, 398 F.3d 469, 485 (6th Cir.

2005) (plaintiff’s own testimony and circumstances of case); Giles v. Gen. Elec. Co., 245 F.3d 

474, 488 (5th Cir. 2001) (approving $150,000 award for emotional distress based solely on lay

testimony); Miller, 14 Fed. Appx. at 466–67 (emotional distress award of $300,000 for a plaintiff 

who provided no medical evidence but claimed to have sleepless nights and stomach problems 

was not excessive); Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1215 (6th Cir. 1996); Moody v.

Pepsi–Cola Metro. Bottling Co., 915 F.2d 201, 210 (6th Cir.1990). See also Carey v. Piphus, 435 

U.S. 247, 263–64 (1978) (“Distress is a personal injury familiar to the law, customarily proved by

showing the nature and circumstances of the wrong and its effect on the plaintiff.”).

Congress provided in 42 U.S.C. § 1981a(3) for a range of damages for Title VII violations, 

and, as a large governmental employer, the City was susceptible to the highest level, $300,000, 

while constitutional violations prosecuted under 42 U.S.C. § 1983 lack any ceiling. The statute 

incorporated by Title VII explicitly refers to “emotional pain, suffering, inconvenience, mental 

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anguish, loss of enjoyment of life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(3). Under 

42 U.S.C. § 1983, damages include “personal humiliation . . . and mental anguish and suffering.” 

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986).

2. The Damages Award Reeks of Dislike for Lt. McFadden that Was 

Nurtured by “Background Evidence” the Jury Could Not Fairly 

Consider in Making that Award.

The City unloaded on Lt. McFadden to demonstrate that she deserved to be investigated, 

had to be isolated, and lacked the leadership style, personality, or temperament to be permitted to 

remain in the field during the investigation. The City utterly failed through any of its negative 

evidence to explain persuasively why it treated her differently from other officers who had 

allegedly engaged in contemptible conduct or assigned her to menial tasks inconsistent with her 

rank, knowledge, and experience. The jury’s finding of discrimination and retaliation rejected the 

City’s pretextual explanations.

Heard v. Finco, 930 F.3d 772, 775 (6th Cir. 2019), described testimony from inmates, their 

medical records, and the harm they suffered by being deprived of religious freedom. “The jury 

weighed all this evidence and concluded that each inmate suffered $150 worth of harm for each 

Ramadan the prison officials disrupted.” Appeal from denial of new trial on damages was 

unsuccessful because “[t]he district court had no good reason to second-guess this determination, 

and neither do we.” Id. The good reason missing there is present here: the City’s tactic of character 

assassination worked, the jury disliked Lt. McFadden and insulted her with a $2.00 verdict. That 

was blatantly unfair.

Rather than limit the City’s “background evidence” to a liability merits use about why

instead of discrimination or retaliation, Lt. McFadden was assigned temporarily to the Property 

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Room, the jury spilled over that evidence to use in calculating damages. She was painted to be 

unworthy of its respect, and they valued her damages accordingly.

The new trial ordered on remand in Pittington v. Great Smoky Mountain Lumberjack Feud,

LLC, 880 F.3d 791, 805 (6th Cir. 2018), began with the jury’s province: “This is not to suggest that 

a jury is precluded from making credibility determinations when assessing damages in a 

discrimination case.” The Court gave an example: cross-examination showing that the plaintiff 

had failed to use reasonable diligence in seeking employment and thereby mitigating a backpay 

amount. Id. (citation omitted). Then, the Court distinguished the trial there because “the defendant 

here did not controvert or undermine Pittington's testimony with regard to damages.” Id.

Rather than a credibility determination, the jury was improperly instructed about the burden 

of proof on mitigation: the employer, not the plaintiff, had to prove unreasonable diligence. Id. 

The jury here did not follow instructions on what claims were before it and how damages should 

be calculated. The $2.00 award was based on evidence that the jury should not have used for that 

purpose.

Nor were there circumstances that the jury “quite reasonably perceived to be a happy 

ending” justifying pain and suffering damages of $2,000. Davidson, 2017 WL 3422072, at *3

(painful rehabilitation, but good result from surgery, got along without using right hand during 

rehabilitation; praised surgeon and on-the-job supervisor). Neither weight assessment nor 

credibility determination explain the $2.00.

B. A New Trial on Liability Is Unnecessary.

New trials confined to damages are appropriate when the liability verdict is “conceptually 

distinct” from the issue of damages. See, e.g., Crockett v. Long Island R.R., 65 F.3d 274, 279 (2nd

Cir. 1995). So long as “the error infecting the damages award [was] entirely separable from the 

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underlying finding of liability, . . . retrial of damages alone [will be] appropriate.” Banks v.

Travelers Cos., 180 F.3d 358, 364 (2nd Cir. 1999). 

How much Lt. McFadden should be awarded for being the victim of discrimination and 

retaliation focuses on her reaction to that experience and the injury proximately caused by the 

discrimination and retaliation. Had an excessive damages award been made, the Court would have 

ordered remittitur or, in the alternative, a new trial. The City’s right to a jury under the Seventh 

Amendment to the United States Constitution blocks the remedy of additur for a patently 

inadequate damages award. Dimick v. Schiedt, 293 U.S. 474, 482 (1935) (“[T]he established 

practice and the rule of the common law, as it existed in England at the time of the adoption of the 

Constitution, forbade the court to increase the amount of damages awarded by a jury in actions 

such as that here under consideration.”). Consequently, a new trial on damages is the only 

available remedy.3

None of the “background evidence” submitted by the City about the reasons for 

investigating Lt. McFadden, denouncing her leadership style, or deeming her litigious would be 

admitted at a new trial on damages only. The jury would be instructed that they must accept as 

established that the City discriminated and retaliated against Lt. McFadden and may only 

determine whether she sustained any injuries because of that discrimination or retaliation and the 

amount of damages, if any, for those injuries. A two-day trial would likely suffice. 

IV. Conclusion

The damages award was a surprise to everyone outside the jury box. The findings of 

discrimination and retaliation were anticipated because the evidence demonstrated differential 

3 Additur may only be indirectly done, for example, “when the parties would prefer to consent to an 

increased damages figure rather than proceed to a new trial as to damages” or the damages amount is definite and

incontrovertible. Pittington v. Great Smoky Mountain Lumberjack Feud, LLC, 880 F.3d 791, 806 (6th Cir. 2018) 

(citations omitted).

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treatment of similarly situated officers when they were under investigation and assignment of 

menial tasks flatly inconsistent with Lt. McFadden’s rank, experience, knowledge. But the dollar 

award on each finding was a shock.

Reconstructing where the jury went astray can be done with certainty on at least the 

emotional distress and mental anguish Lt. McFadden suffered and with probability on the shoulder 

jury. The jury disregarded jury instructions and instead acted out of antipathy towards Lt. 

McFadden, a feeling nurtured by the relentless attack through “background evidence” that did not 

join the only issues left for trial: whether she was treated differently because of her race and/or her 

constitutionally and statutorily protected sincere opposition to discrimination she sincerely 

perceived had occurred.

The jury instructions did not free the jury to consider whether Lt. McFadden deserved to 

be charged with EEO violations or had a likeable management style. To the jury’s credit, its 

findings of liability maintained the proper focus. To its discredit, its award of damages was tainted 

by “background evidence” that made her appear unworthy of an award consistent with the 

unrefuted evidence. A new trial on damages should, therefore, be granted. 

Respectfully submitted,

OF COUNSEL:

Louis A. Jacobs (002101)

(LAJOhio@aol.com)

177 19th St., Apt. 9C

Oakland, CA 94612

(614) 203-1255

Fax (510) 250-9007

By: /s/ Samuel M. Schlein

Samuel M. Schlein (0092194)

(sschlein@marshallforman.com)

John S. Marshall (0015160)

(jmarshall@marshallforman.com)

Edward R. Forman (0076651)

(eforman@marshallforman.com)

Helen M. Robinson (0097070)

(hrobinson@marshallforman.com)

Madeline J. Rettig (0098816)

(mrettig@marshallforman.com)

MARSHALL FORMAN AND SCHLEIN 

LLC

250 Civic Center Dr., Suite 480

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Columbus, Ohio 43215-5296

(614) 463-9790

Fax (614) 463-9780

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was filed with the Court on this 27 day of 

June, 2022, using the CM/ECF system, which will send notification of such filing to all counsel 

of record. Parties may access this filing through the court’s filing system.

By: /s/ Samuel M. Schlein

Samuel M. Schlein (0092194)

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