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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 REPLY TO DEFENDANT’S 

MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR NEW 

TRIAL ON DAMAGES ONLY 

I Summary

The opposition from Defendant City of Columbus (“Defendant” or “City”) highlights 

evidence from which a reasonable jury could conclude that Plaintiff Lieutenant Melissa McFadden

(“Lt. McFadden”) suffered no economic injury because of its discrimination and retaliation. The 

opposition omits, however, evidence about her physical injury and humiliation and instead directs 

the Court to other stressors in her life and activities that she enjoyed, including focusing on events 

years after her reassignment. Lt. McFadden took the bar for the first time in February 2019, her 

son moved to Arizona in November 2018, and Lt. McFadden moved and wrote her book in 2020, 

well after the trauma of the illegal reassignment. The question posed by her motion for a new trial 

is whether a reasonable jury could have ignored evidence about her physical injury and 

humiliation, nearly all corroborated and left unrebutted, and concluded that her damages were 

capped at a dollar per count.

Completely missing from the City’s opposition is a response to the character assassination 

she alleged it committed. By emphasizing her personality, leadership style, and different 

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approaches, the City convinced the jury to make only a nominal damages award. The City’s one 

rejoinder is that the leaders of the police department lacked any intent to injure Lt. McFadden. On 

the evidence, argument, and instructions, though, the finding of discrimination and retaliation 

rested firmly on the proposition that she was reassigned to menial, physical tasks in the Property 

Room and by that decision intentionally discriminated and retaliated against her. To paraphrase 

the Bard,1 was there any evidence a reasonable jury could find that Lt. McFadden was immune to 

humiliation or invulnerable to suffering from being a victim of discrimination and retaliation? The 

testimony and documents demonstrated that she was neither immune nor invulnerable and, 

therefore, non-nominal damages should have been awarded.

II. Evidence, Arguments, and Instructions at Trial

A. Lt. McFadden’s Physical Injury and Its Cause Were Overwhelmingly Proven.

The City argues that Lt. McFadden’s shoulder injury was not caused by its illegally

reassigning her to the Property Room. However, the City misrepresents what the jury actually 

found. The City says that Chief Jacobs and Deputy Chief Kuebler had no idea what she would be 

doing or how she would be doing it. That is simply not so.

The Jury Instructions inform the jury that the question about liability hangs on whether it 

was illegal for the City to “reassign Lt. McFadden to the property room to disassemble vests.” 

(emphasis added) (See Doc # 106 generally). The Jury was well aware that the City assigned Lt. 

McFadden to engage in physical labor while in the property room. 

1 W. Shakespeare, THE MERCHANT OF VENICE, act 3, sc. 1 (“Hath not a Jew eyes? Hath not a Jew hands, organs, 

dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same 

diseases, healed by the same means, warmed and cooled by the same winter and summer, as a Christian is? If you 

prick us, do we not bleed? If you tickle us, do we not laugh?”).

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Furthermore, Lt. McFadden put on evidence through exhibits and testimony that she 

disassembled more than 1,000 vests and went into graphic detail about how she was injured. On 

June 5, 2017, Lt. McFadden testified that she 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 

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 

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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)

The City points to no evidence that Lt. McFadden was not injured in exactly the way she 

described. The City did not question Lt. McFadden about her medical records, did not ask her to 

submit to an independent medical evaluation, did not accuse her of confabulation or faking her 

injury or the seriousness of it, nor did the City contest that lifting vests was the reason she was 

hurt. Rather, she was asked a handful of questions about if she was told to lift a specific number

of vests at a time. The idea that Lt. McFadden was not injured as a result of being reassigned to 

the property room to dissemble vests holds no water.

In addition to this argument, the City attempts to show that Lt. McFadden did not dissemble 

many vests based on the testimony of Commander Gardner who stated that Lt. McFadden only 

processed 16-20 vests. The City ignores the notebook pages showing hundreds of vests processed 

by Lt. McFadden, or the photographs of vests processed by Lt. McFadden, which by Commander 

Gardner’s own admission showed hundreds of processed vests. But instead, they rely on 

Commander Gardner who saw Lt. McFadden on her phone twice in the same day several hours 

apart, without asking if she disassembled vests in between the times on the phone or asking how 

many vests she dissembled on days he did not visit her. This argument that Lt. McFadden only 

processed a handful of vests is unsupported by the manifest weight of the evidence. 

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Lt. McFadden informed the jury that she was not offered any real training on how to 

perform the task of disassembling the vests. Lt. McFadden testified that she was not trained on 

“any particular method of doing this in terms of moving the panel” nor was Lt. McFadden given 

“any direction about how much to lift or not lift.” In fact, “other than the direction of you need to 

try to get 100 [vests] a day done” and a civilian clerk “showing [her[ how to take it apart” Lt. 

McFadden was provided no guidance on this task. (Day two trial testimony 145:20-146:7)

The work that Lt. McFadden was assigned without training to do in the property room 

consisted of repetitive physical labor in disassembling vests. That work was not typical of what a 

patrol Lieutenant would be doing for the City. Chief Jacobs testified that “engaging in repetitive 

physical labor of the sort done with vest processing” would “not be her responsibility” and that Lt. 

McFadden would not be dealing with “any sort of body armor” in her day-to-day activities. (Day 

three trial testimony 55:13-19) Chief Jacobs explained that the physical nature of a patrol 

lieutenant at the Division consisted of “just getting out of the car, in and out of the cruiser to 

perform their patrol duties.” A far cry from repetitive physical labor. (Id. at 55:21-24)

Commander Gardner agreed that the process of taking apart a vest was physical. He 

testified that taking apart a vest: “it was physical. As an officer, we take apart our ballistic vest 

once a week to wash them and put them into a clean carrier. But it is physical. I mean you have to 

unzip or pull Velcro apart.” (Day four trial testimony 20:4-8)

B. Regardless of Other Stressors in her Life, the Evidence Demonstrates that Lt. 

McFadden Suffered Cognizable Emotional Distress Because of Being a Victim 

of Discrimination and Retaliation.

Lt. McFadden presented compelling evidence about the humiliation and anguish she

suffered based on the reassignment to the Property Room to perform menial, physical tasks. Her 

husband Charles McFadden testified that, when she was reassigned to the property room in March 

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2017, that she changed. Mr. McFadden 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).

Lt. McFadden testified, 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 

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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’s testimony that she felt like the City was punishing her was shared by Police 

Practices Expert Lou Reiter. Mr. Reiter testified that based on his 60-plus years of law enforcement 

experience and expertise that he found Lt. McFadden’s reassignment to the property room to 

disassemble vests to be “demeaning.” He continued that it would “transmit and tarnish her 

reputation as a manager, and in my opinion a reasonable person - - police employee would believe 

she was being punished for some reason.” (Day two trial transcript 24:2-18)

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 also sought extensive treatment. At first, she treated with Dr. Warren Bertner 

a psychologist. 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

in March of 2017 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)

Despite this testimony, the City seems to think that Lt. McFadden’s reassignment to the 

Property Room was somehow of great value to her. The City points out that Lt. McFadden and her 

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husband moved into a nice new big house [and] sex life is better than ever before. (Doc # 117 

PAGEID 7069). Yes, Mr. McFadden did testify that he and Lt. McFadden’s life has improved in 

during the past five years. But the testimony at trial was clear that it was because years of necessary 

hard work—physical therapy, mental health treatment --and strength of character-- that got Lt. 

McFadden to a good place, more than five years after her 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 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) 

While the City attempts to argue that Lt. McFadden had so many other stressors in her life 

that the reassignment to the Property Room was not a compensable one, that is defeated by the 

unrebutted evidence of Mr. McFadden who said it was a separate and more serious stressor. Her 

motion seeks a new trial because no reasonable jury could discount to two dollars the evidence 

before it. Absent character assassination, the City might have convinced the jury that not all her 

emotional distress was compensable, but the jury lost its way in essentially negating all of her 

testimony and that of her expert on a record where the City did not rebut testimony that she suffered 

some emotional distress and would have been humiliated.

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Finally, the City makes the case that the Property Room assignment was not distressing to 

Lt. McFadden because she applied to work in the Property Room upon her return from injury 

leave. This argument must fail. Lt. McFadden, Commander Gardner, and Lou Reiter all testified 

that the role of the Property Room lieutenant for which Lt. McFadden applied was apples and 

oranges different than what she was illegally assigned to do. Lt. McFadden applied for an 

administrative position after her return, not repetitive physical labor.

Much like with her physical injury the City did not ask Lt. McFadden to submit to a medical 

or psychological evaluation. It did nothing to show that Lt. McFadden did not suffer from her 

reassignment. Rather, it is apparent that the City knew that if it could paint a negative picture of 

Lt. McFadden’s character, using the e-mails and testimony of Tate, Moorefield, and Johnson that 

the Jury would ignore all that happened to Lt. McFadden and award her nominal damages. The 

statements effectively prejudiced the Jury who did just that.

C. Any Conclusion that Police Supervisors Lacked an Intent to Punish

Unreasonably Conflicts with Jury Findings on Discrimination and Retaliation. 

The City argues that Lt. McFadden was awarded nominal damages because the jury 

somehow found that the City did not mean to punish her when reassigning her to the Property 

Room to dissemble vests. This argument was clearly rejected by the jury when it found in Lt. 

McFadden’s favor. 

In Jury Instruction Number 17, the Court instructed the jury that “Lt. McFadden claims 

that the City violated these laws when it reassigned her to the property room to disassemble vests. 

She contends, specifically, that her reassignment was meant to punish her for openly opposing 

employment practices which she sincerely and reasonably believed were racially discriminatory” 

(Doc # 106 PAGEID 5764) (emphasis added). By finding for Lt. McFadden on the retaliation 

claim, the jury specifically found that the City did in fact punish her for engaging in protected 

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activity. The City’s attempts to rehabilitate its illegal actions by using Chief Jacobs’ rejected 

testimony must fail.

III. Conclusion

The City’s plan in the trial of this case is clear. Knowing that the evidence of how

comparable white officers were treated was irrefutable and that the assignment they made for Lt. 

McFadden indefensibly retaliatory, they went the character assassination route: Use the e-mails 

sent by Moorefield, Johnson, and Tate, to smear Lt. McFadden with those words, over and over 

again. While some of that background evidence was proper, Lt. McFadden more than once at trial 

objected to the manner and extent of its use. For the most part, those objections were overruled.

As to damages, the City did little before or during trial to attack her damages testimony—

perhaps thinking that the jury would never reach that question because they had so tarnished her. 

The City was both right and wrong. The jury was able to see enough through the transparent 

attempts at character assassination against Lt. McFadden and found in her favor on liability. 

However, the City was successful in so damaging Lt. McFadden in the eyes of the jury that it 

decided not to award her significant damages. The only reasonable and just next step is to allow 

Lt. McFadden a new trial on damages where she can present evidence of her suffering both 

physically and emotionally without suffering an assault on her character. 

Respectfully submitted,

OF COUNSEL:

Louis A. Jacobs (002101)

(LAJOhio@aol.com)

177 19th St., Apt. 9C

Oakland, CA 94612

(614) 203-1255

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)

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Fax (510) 250-9007 (mrettig@marshallforman.com)

MARSHALL FORMAN AND SCHLEIN 

LLC

250 Civic Center Dr., Suite 480

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 20 day of 

July, 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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