ANG EL MEDINA,

P laintif f,

v. DISTRICT OF COLUMBIA, Defendan t. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 97-594 (JM F )

MEMORAN DUM OP INION This case is before me for a ll purposes includingtrial. Currently pendingand re ady

for resolution is Defe ndant’s Notice of Refilingits Moti on for Judgment a s a Matter of L aw or

in the Alternative for Ne w Trial, f or Remittitur with R efe renc es [sic] to the Trial Rec ord [#153] . For the re asons stated be low, defe ndant’s motion will be denied. BACK GR OUND In 1997, plaintiff, a Hispa nic police of

fice r with the Washington, D.C. Metr opolitan Police Depa

rtment (“MPD” ), sued the D istrict of Columbia for employ ment discrimination and reta liation under Title VI Iof the Civil Ri g hts Act of 1964, 42 U.S.C. § 2000e et seq. , and the 1 D.C. Human Rights Ac t, D.C. Code § 2-1401.01, et seq . On J uly 29, 2008, followinga jury trial, judgme nt was ente red in fa vor of plaintiff a

nd he wa s awa

rded $180,000.00. Spec ifically , the jury found that plaintiff wa s not discriminated ag ainst either in 1994 whe n he wa s transfe rre d out of the Of fice of I nterna l Affa irs (“O I G”) upon his promotion from serg eant to lieutena nt or in

All refe renc es to the United States Code or the Code of F eder al Regulations are to the 1 elec tronic ver sions that appear in Westl aw or

L exis

.1998 when the MPD de nied his application to retur n to the OIA. The jury

did find, howeve r, that plaintiff was r etaliated a g ainst when the MPD fa iled to return him to full duty status following the dismissal of his criminal indictment and when he was not transf err ed to the OI

A upon his reque st. The jury

also conc luded that the MPD’s denia l of his application to return to the O I A in 1998 constituted an adve rse e mploy ment action. DISCUSSIO N I

. Def

endant’ s Motion for J udg ement as a Matter of L aw A. L eg al Standard Def endant moves f

or judg ment as a ma

tter of law

pursuant to Rule 50(b) of the Fe dera l Rules of Civil P roce dure, which allows for a post-trial findingby

the cour t that a re asonable jury did not have a le g ally

sufficie nt evidentiary

basis for its finding s. See 9B C H A R L E S A L A N W R I G H T & A R T H U R R. M I L L E R , F E D E R A L P R A C T I C E A N D P R O C E D U R E § 2521 (3d ed. 2009)

. “Judgeme nt as a matter

of law should only

be g rante d ‘if viewingthe evidenc e in the lig ht most favor able to the [non-moving pa rty ] and givinghim the advantag e of e very fair a nd rea sonable infere nce that the evidenc e may permit, there can be but one re asonable conclusion dra wn.’” Fox v. District of Columbia, 990 F. Supp. 13, 19 (D.D.C. 1997) ( quoting Richa rdson by Richardson v. Richardson-Me rre ll, I nc., 857 F .2d 823, 827 (D.C. Cir. 1988)). F inally , a Rule 50(b) motion is only permitted if the movant soug ht relief on the same g rounds under Rule 50(a) , befor e the c ase was sent to the jury . See id. at § 2537; Exx on Shipping Co. v. Baker, 128 S.Ct. 2605, 2617 n.5 (2008). B. Plaintiff’s Section 1983 Claim of Retaliation

1. The Parties’ Posit ions

2Def endant c ontends that the District is entitled to judgment a s a matter of law as to plaintiff’s Section 1983 cla im because there was insuffic ient evidenc e of a custom and policy within the MPD of retaliatingag ainst individuals who complained of discr imination on the basis of their national orig in. Defe ndant’s Memora ndum of Points and Authorities in S upport of its Motion for J udg ment as a Matter of L aw, or in the Alternative, for a

New T rial or Remittitur (“D efs. Me m.”) at 8. First, def endant a rgues that plaintiff’s own testimony was insuffic ient in that he fa iled to provide any examples of other Hispanic office rs who complaine d of national orig in discrimination and wer e subseque ntly reta liated ag ainst. I d. at 10. Second, de fenda nt argues that the testimony

of Off icer Hiram Rosario a lso lacked spe cificity in that even thoug h Offic er Rosar io testified that, as President of the Hispanic Police Assoc iation, he had oc casion to meet with all of the MPD Chiefs of Police to discuss the c oncer ns of the Hispanic office rs, he, like plaintiff, fa iled to provide any concr ete e x amples of c omplaints made by other Hispanic office rs. I d. Third, def

endant a rgues that Judge He nnessy ’s testimony was e ven more g ener alized than Off icer Rosario’s. I d. at 11. Acc ordingto defe ndant, while Judge H ennessy testified that office rs who complaine d wer e not viewe d as team play ers a nd wer e g iven less favorable assig nments, he made no mention of Hispanic of fice rs in this contex t. I d. Finally , defe ndant argues that plaintiff’s introduc tion into evidence of only three pag es of a

one hundre d and thre e pag e docume nt, the MPD Affirmative A ction Plan, was misleadingbeca use the Plan wa s cre ated five y ear s prior to the alleg ed re taliatory behavior in this case and be cause , while the data table plaintiff introduce d contains the tra nsfer rate s of B lacks, Whites, and Hispanics, it g ives no explanation for why

the var ious gr oups rec eived tra nsfer s. I d. In other wor ds, defe ndant ar g ues that the table doe s not show that Hispanics wer e denie d transfe rs in reta liation for complainingof

3discrimination based on their na tional orig in. I d. Plaintiff offer s two arguments in oppositi on. First, plaintiff notes that, although not common, “a municipa lity can be held liable under

Section 1983 for a

single bad ac t if the ac t was order ed or sa

nctioned by

a municipal off

icial with final policy

making authority .” Memora ndum in Opposition t o Def

endant’ s Motion for J udg ment as a Matter of L aw, or in the Alternative, for a Ne w Trial, or

for Remittitur (“Plains. Opp.”) at 5. Plaintiff then ar g ues that the c ase a t bar is just such a ca se bec ause the individual directly responsible for

the illeg al discrimination was the Chief of Police, the of

ficial with final policy

making authority

for the MPD a

nd the offic ial who denied plaintiff’ s reque st to transfer back to the O I A in 1998. I d. Second, plaintiff a

rgues that eve n if the Chief of Police w as not the final policy maker , the evidenc e amply

supported the jury ’s conc lusion that there wa s a custom and pr actice of reta liation ag ainst Hispanic off icer s at the MPD who complained of discrimination. Plains. Opp. at 6-7. In support of his contention, plaintiff cites the following evidenc e: 1) Of fice r Rosario’s testimony that he wa s demoted and subjec ted to adver se employ ment actions af

ter he filed a claim of discr imination, 2) J udg e He nnessy ’s testimony that Hispanic off

icer s who cha lleng ed authority lost out on promoti onal opportunities, 3) Judge He nnessy ’s testimony that the MPD fostere d a culture that neg atively targ eted those who wer e not team play ers, suc h as Hispanic office rs who filed EE O claims, 4) Of fice r Chery

l Peacoc k’s testimony

that she wa s asked to apply for va rious positions and only

spent seven da

y s at the ra

nk of Captain bef

ore she was promoted to Inspector, two r anks hig her, a nd 5) the lac k of evide nce of any rec ords desc ribing the dec ision making or pr omotion process as f urther pr oof that the MPD discriminated a nd reta liated ag ainst Hispanic off icer s. I d. at 7-8.

42. Analy sis

Section 1983 of Title 42 of the United States Code states the following : Every person who, unde r color of any statute, ordinanc e, regulation, custom, or usag e, of a ny State or Ter

ritory or the District of Columbia, subjects, or ca uses to be subjec ted, any citizen of the United States or other person within the jurisdiction there of to the depr ivation of any rig hts, privilege s, or immuniti es secur ed by

the Constitut ion and laws, shall be liable to the party injured in an a ction at law, suit in equity , or other pr oper proce edingfor r edre ss. 42 U.S.C. § 1983. In the seminal ca se of Mone ll v. Dept. of Soc. Servs., 436 U.S. 658 (1978) , the Supreme Court held that in order f

or liability

to attach to a municipa lity for c ivil rights violations under section 1983, the municipality must have ac ted in acc ordanc e with a “ g overnme nt’s policy or custom, whether

made by its lawmakers or

by those whose e dicts or ac ts may fairly be said to repr esent off

icial policy .” I d. at 694. The Court e mphasized that the imposit ion of liability under section 1983 wa s not based on a the ory of respondeat superior , but rather was imposed only wher e ther e wa s proof of a policy which itself violated the statute. I d. at 691. Acc ord Moonblatt v. District of Columbia, 572 F. Supp. 2d 15, 20 (D.D.C. 2008). In other wor ds, a plaintiff must “show a course deliberately

pursued by

the city , ‘as oppose d to an ac tion taken unilatera lly by a nonpolicy making municipal employ ee.’ ” Carte r v. District of Columbia, 795 F.2d 116, 123 ( D.C. Cir. 1986) (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 829 (1985)).

a. Plaintiff Presented Suffic ient Evidence that the Chief of Police, the Final Policy

maker with Reg ard to Tr ansfe rs, Acte d in a Retaliatory Fa shion W hen He Denied Plaintiff’ s Request to Transf er B ack to OIA in 1998 In Pembaur v. City

of Cincinnati, 475 U.S. 469 (1986), the Supre me Court held that a

5single decision by a policy maker may be the ba sis for the imposition of section 1983 municipal liability . I d. at 480. The Court noted how ever that “municipal liability

attache s only

wher e the decisionmake r possesses f inal authority

to establish municipal policy with respec t to the action order ed” a

nd that “[t] he fa ct that a pa rticular of ficial–e ven a policy

makingofficia l–has discre tion in the exercise of

particula r func tions does not, without m ore, g ive rise to municipal liability based on a

n exercise of

that discretion.” I d. at 481-82. “ Wit h this understanding , it is pl ain that municipal liability

may be imposed for

a sing le dec ision by

municipal policy

maker s under appropr iate cir cumstance s.” I d. at 480. Acc ord Mande l v. Doe, 888 F .2d 783, 792 (11th Cir. 1989) (“ Pembaur stands for the pr oposition t hat, under cer tain circ umstances, municipal liability may be imposed for

a sing le dec ision by

a municipal policy

maker .”). i. Plaintiff Presented Suffic ient Evidence that the MPD L acke d Writt en Policies or Proce dures Reg ardingTransf ers and that the Chief of

Police had F inal Policy

making Authority with Respect to Tra

nsfer s The de termination of whe ther a n individual has final policy making authority

for pur poses of imposing se ction 1983 municipal liability is determined by

the cour t as a matter

of state law

. St. L ouis v. Praprotnik, 485 U.S. 112, 124 (1988); J ett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) ( “Review ing the rele vant leg al mater ials, including state and loca l positi ve law, a s well as ‘c ustom or usag e havingthe forc e of la w’ . . . the tria l judge must identify those offic ials . . . who speak with final policy making authority

for the loc al g overnme nt [ entity ] concerningthe action alleg ed to have cause d the par ticular c onstitut ional or statutory violation at issue.”). As the Supreme Court indicated, re sort must be first be had to positive law but in this

case it was not argued that ther e wa s a law or municipal reg

ulation that gr anted the Chief of

6Police the authority to make tra

nsfer s. I t follows then that it appropriate to look as the District’s custom or usag e. Indeed, the fede ral c ourts have spe cifica lly conclude d that they

may look to a municipality ’s custom or usag e to deter mine whether

a municipal off

icial has fina l policy

making authority . Gros v. Gr and Prairie , 181 F.3d 613, 616 ( 5th Cir. 1999); Felicia no v. Cleveland, 988 F.2d 649, 655 ( 6th Cir.), cer t. denied, 510 U.S. 826 (1993); Ma ndel, 888 F.2d a

t 792-93. In this case, plaintiff pr esente d sufficie nt evidence at trial to permit me to conc lude that the MPD lacke d an off

icial policy

reg ardingthe way

in which transf

ers we re to be car

ried out and that instead there was a

distinct, well-established custom or pr actice that the Police Chief wa s the final policy

maker with respec t to these personne l actions. First, the jury

hear d testimony

about “g ener al orde rs.” The following excerpt is from plaintiff’s testimony :

Q Yester day

we introduc ed the c oncept of g ener al orde rs. What are g ener al orde rs? A Gene ral orde rs ar e our policie s for the police depar tment. They cover various topics fr om the structure of the police depar tment, org anizational structure, to tra ffic e nforc ement, to disciplinary

actions. Q Do the g ener al orde rs contain policies of the Metro Police Depa rtment? A That’s c orre ct. Tr. 7/22/08 at 33. J udg e Willi am L ewis He nnessy , curr ently an Associate J udg e with the District Court of Maryland and f

ormerly a Captain with the MPD, also testified that “ g ener al orde rs dictate the policy of the a g ency .” Tr. 7/22/08 at 133. Next, the jury

was infor med that the MPD lacke d any written policies or pr ocedur es g overningtransfe rs. The f ollowing e x cer

pts are a g ain from plaintiff’ s testimony :

7Q Now, we re you surprised whe n y ou wer e assig ned to 3D? A No. Q Why

is that? A Be cause ag ain, it was common pra ctice when you g ot promoted, you would be tra nsfer red. A lthough not wr itten in any policy , it was common prac tice that they would do that. Tr. 7/21/08 at 110.

Q (B Y MR. McKNI GHT) Are the re a ny g ener al orde rs that say a new ly promoted off

icer must be transfe rre d? A No. Q Are there any

written proc edure s that descr ibe how new ly promoted off

icer s are to be treated with respe ct to transfe rs? A No. Q Are there any

g uidelines on how new ly promoted off

icer s are supposed to be tre ated with re spect to transf er[s]? A No. Q And so the only

decide r about how ne wly promoted off

icer s are supposed to be is who, who de cides? A The c hief. Tr. 7/22/08 at 33-34. The de position t estimony of Glenn H oppert, a former Commander at the MPD, e choed 2 that of plaintiff:

A Well, when y ou g et into a manag ement position, they are not controlled under

any ty pe of la bor agree ment, such as the FO P, or the Gene ral Or ders state - - ther e’s a selec tion in there that anyone of a

rank of serg eant a

nd below, I believe, when a va canc y

occur s - - e x cuse me , when a vaca ncy occur s in a specia l assignme nt positi on, and then y ou g et into what a spe cial assig nment position i s, there is a whole def inition t hat g oes alongwith that. You have what is a re quirement that whe n a vac ancy occur s at the ser g eant or

below, an a

nnounceme nt has to be Hopper t’s deposition testimony

was re ad into the re cord at trial. 2 8published so many day s and then pe ople ca

n apply . And there are require ments and there is a whole proc ess that is laid out to fill t he positions. That is not the case when it comes to mana g ement, lieutena nts and above . There isn’t rea lly any documented, f

ormalized proce ss. Tr. 7/22/08 at 172-73. Finally , sever al witnesses testified a t trial that the Police Chief wa s the sole individual responsible for

making transfe r dec isions. The following e x cer pt is from plaintiff’s testimony : Q (B Y MR. McKNI GHT) B ased on the information you rec eived, who ma de the de cision to transfer y ou out and to keep B ailey

in? Who was the ultimate decision maker ? A Chief of Police F red Thoma s. Tr. 7/21/08 at 137. Patricia Ale x ander , an executive of fice r at the MPD’s Reg ional Oper ational Command, also addre ssed the role of the Police Chief w ith respec t to transfer s: 3

A . . . Iwouldn’t have any control over

promotions or transfe rs. Q Why

is that? A Be cause Ididn’t make the de cision about who g ets promoted or who g ets transfe rre d from one unit to another

. Q How is that dec ision made? A I ts made in a number of wa y s. L ieutenants a

nd above the chief makes the de cision for tra nsfer s. Promotions are based on c ompetitive exam. Q But in terms of tr ansfe rs, the chie f make s the dec ision? A The c hief in conjunc tion with, at that tim e, it would have been input - - if y ou’re talking a bout I nterna l Affa irs, with input from the commande r of Interna l Affa irs. Tr. 7/22/08 at 163-64. This was re iterate d by

Hopper t in his t estimony , wher ein he de scribed the proce ss he

Alexander’s de position t estimony was a lso read into the r ecor d at trial. 3 9went throug h when try ing to f ill a vaca ncy within his uni t: What happens is when ther e is a va canc y , if Ilost one of my lieutenants, I

would g et a list of eve ry

lieutenant in the police depa

rtment and then look on a promotional roster, see if I knew they

wer e g oing to pr omote. And I would g o to my assistant chief a

nd say , “I would like one of the se five pe ople, pre fer ably

in this order, if I

can ha ve them.” And like I

said, the assistant chief

would - - a

nd alongwith the chief of police, when it came to lieutenant and c aptain, those two would make the final dec ision, and may be I would g et who I

asked f or and of tentimes Ig ot people that I didn’t ask for, that they

had dec ided this is who is goingto be assig ned to your unit. Fr om my perspe ctive, it was a

point of making a rec ommendation of who I wanted a nd a fina l decision rested w ith the assistant chief a nd chief of police ultimately

. Tr. 7/22/08 at 173-74. Throug h his own testimony as we ll as that of J udg e He nnessy , Hopper t, and Alexander, plaintiff pre sented suff

icient evidenc e that the MPD lac ked any written policies or pr ocedur es reg ardingtransfe rs and that the Police Chief had fina l policy

making authority

in this area. Curiously , althoug h plaintiff, in his oppositi on to defe ndant’s post-trial motion, argues in that alternative that even if

the Police Chief wa s not the final policy maker , liability

still attache s, defe ndant did not attempt to refute pla intiff’s evidenc e at tria l that the Police Chief was the final policy maker . There fore , based on the evidenc e pre sented, the Court c oncludes that plaintiff produce d sufficie nt evidence that a we ll-established custom and usa g e made the Chief of Police the final de cision maker of transfe r dec isions so t hat his decision may serve as the pre mise of municipal liability

under § 1983.

ii. Plaintiff Presented Suffic ient Evidence that the Police Chief’s De cision Was Moti vated B y Retaliatory

Animus 10Proof of c ausation may take se vera l forms: To establish the re quisite causal c onnection a pla intiff usually must prove e ither (1) an unusually sug g estive tempora l prox imity betwee n the protec ted ac tivity and the a lleg edly

reta liatory

action, or (2) a patter

n of anta g onism coupled with timi ng to establish a causa l link . . . I n the abse nce of that proof, the pla intiff must show that from the “ evidenc e g leane d from the r ecor d as a whole” the trier of fac t should infer ca

usation. L aure n v. DeF laminis, 480 F.3d 259, 267 (3d Cir. 2007) (inter nal citations omitted). Acc ord Morris v. L indau, 196 F.3d 102, 110 ( 2d Cir. 1999) (“Ca usation can be established either indirectly by means of c ircumstantial evidenc e, for example, by

showing that the protec ted activity was followe d by

adver se trea

tment in employ

ment, or direc tly

by evidenc e of r etaliatory animus.”). See also Ba

rry v. U.S. Capitol Guide Bd., 636 F . Supp. 2d 95, 106-07 (D.D.C. 2009) and ca ses cited ther ein (a

plaintiff must show both that the final policy maker was a war e of plaintiff’s prote cted a ctivity and that the f

inal policy

maker ’s ac tions occurr ed bec ause of plaintiff’s prote cted a ctivity). Plaintiff presente d uncontrove rted e vidence that the Police Chief wa s awa re of the filing of his complaint of discrimination with the Equal Employ ment Opportunity

Commi ssion (“EE OC”). At tria l, plaintiff’s Exhi bit 23 was admitted. That exhibit i s a letter dated May 12, 1993, from the Gove rnment of the D istrict of Columbia Depar tment of Human Rig hts and Minority Business De velopment to Chief Fr ed Thomas, in which the Chief is notified that plaintiff has filed a

complaint ag ainst him. S ee D efe ndant’s Motion for Judgment as a Matter of L aw or in the Alternative for Ne w Trial, f or Remittitur (“Def

s. First Mot.”) [#136] at Attachment 3; Tr. 7/21/08 at 122 (“TH E COURT: . . . I ’m g oing to a dmit thi s document only for the pur

pose of showingwhether

or not Mr. Thomas, a s Chief of Police, lea rned of the compliant made by

Mr.

11Medina.” ). Also admitted at trial wa s plaintiff’s Exhibi t 21, plaintiff’s Notice of Charg e of Discrimination filed with the EEOC on May 4, 1993. Acc ordingto the notice, Chief Thoma s was sent a

copy of the doc ument. See De fs. Fir st Mot. at Attachment 2; Tr. 7/21/08 at 123-24 (cour t admits plainti ff’ s Ex hibit 21 without objection). Both Judge H ennessy

and Rosario provide d expli cit testimony reg ardingthe perva siveness of r etaliatory behavior taken by the depa rtment ag ainst those office rs who filed claims ag ainst it. J udg e He nnessy testified as follows: Q J udg e, base d on y our experienc e and obse rvation at the Metro Police De partment, did you have oc casion to obser ve in y our own e x perie nce whether the Metro Police Depa rtment reta liated ag ainst office rs who filed grieva nces ag ainst the Depa

rtment? * * * A My

experience with the police depa rtment was that if the y didn’t view you as a te am play er, a nd obviously

if y ou filed a g rieva nce you wer e not viewe d as a te am play er, that y ou wer e fa ir g ame. I

mean, they

would - - ther e wa s two sets of rules. One wa s for a

team player a

nd one wa s for the pe ople who wer e not team players. I f you wer e a te am play er, you know, poor judg ment calls or e ven cr iminal activity would be over looked, and if y

ou wer e not a tea

m play er, it wa s obvious that they

stretche d the fa cts in some instances to bringy ou befor e disciplinary boards or to take other

ty pe of disciplinary

action ag ainst you summarily

.

* * * Q (B Y MR. McKNI GHT) I f you filed a discr imination complaint ag ainst the Metro Police De partment, would you be conside red to be a te am play er? A Absolutely

not. Q And y ou observe d this over your 25 y ear s on the police depar tment? 12A Repeatedly

. Q Did y ou observe this under the command of Chief Fr ed Thomas? A Probably

less under him than a

ny other time, but it had g otten to the point where it was cultural. I mean, it had g one on for

so long that people expected it, you know . . . Tr. 7/22/08 at 135-38. Rosario provided similar testimony : Q And base d on y our experienc e and obse rvation, have y ou observe d whether

office rs suffe red, H ispanic off icer s suffe red r etaliation for f

iling g rieva

nces at the Metro Police Depa rtment? A We have numer ous documented inc idents. Tr. 7/22/08 at 99-100. I t was there fore not unrea sonable for the jury , based on the rec ord bef ore it at trial, to infer that the Police Chief’s dec ision to deny plaintiff re quest for a

transfe r to OIA in 1998 was motived by

reta liatory

animus b. In the Alternative, Plaintiff Presented Suffic ient Evidence that there was a

Custom or P rac tice of Reta liation A “§ 1983 plaintiff . . . ma y be able to rec over f

rom a municipality

without adducing evidenc e of a

n aff irmative dec ision by

policy maker s if able to prove that the cha lleng ed ac tion was pursua

nt to a state ‘c ustom or usag e’” Pembaur v. Cincinnati, 475 U.S. at 484 n.10. In other words, “[s]om e ac tions are so ‘pe rmane nt and well settled’ that they may be conside red g overnme ntal customs or prac tices eve n if they have not r ece ived forma l approva l throug h officia l state dec ision-making c hannels.” Moonblatt, 572 F. Supp. 2d at 20 (quoting Monell, 436 U.S. at 691)). F urthermor e, ther e nee d not be multiple incidents to constitut e a c ustom or prac tice: “Egreg ious instances of misconduc t, relatively fewin number but following a common

13desig n, may support an infe renc e that the instanc es would not occ ur but for municipa l toleranc e of the pra ctice in que stion.” Carter v. D istrict of Columbia, 795 F.2d at 124. F inally , a plaintiff may establish a custom or policy by prese nting e vidence that the municipality is deliberate ly indiffer ent to the constitutional violations t hat ar e occ urring . See City of Canton v. Har

ris, 489 U.S. 378, 388 (1989) (“ Only wher e a municipa lity ’s fa ilure to train its employ ees in a rele vant evidenc es a ‘ deliberate indiffer ence ’ to the rights of its inhabitants can such a shortcoming be proper ly thought of

as a c ity ‘policy or custom’ that is ac tionable under § 1983.”); Warr en v. District of Columbia, 353 F.3d 36, 39 (D .C. Cir. 2004) (“[F]ace d with actual or constructive knowledg e that its ag ents will probably violate constitutional rights, the c ity may not adopt a policy of inac tion.”). Be fore revie wing the evidenc e per taining to this issue, it is crucial to re call that plaintiff was not oblig ed to prove that the Chief of Police w as the fina l decision makingauthority and that there was a

custom or usag e in the MPD of re taliating a g ainst police off icer s who complained of discrimination. Plainti ff c ould preva il by provingeither. In Singletar y v. District of Columbia, 685 F. Supp. 2d 81 (D.D .C. 2010), the District insisted that the plaintiff, a pa rolee , had to show that the dec ision to deny

him parole wa s pursuant to a “ policy , prac tice or c ustom of revoking parole ‘base d on unreliable multipl e hea rsay ’ and/or in violation of c onstitut ional due proc ess rig hts, or that such a policy was c ommunicated to the B oard.” I d. at 90. J udg e Kollar -Kotelly had to re mind the District that since Single tary had conte nded and the District had conc eded that the dec ision to revoke his parole “wa s made by the ‘fina l municipal decision maker and [is] there fore proper ly

attributable to the municipality .’” I d. (quoting Bd. of County Comm’rs of Br y an County , Okla. v. B rown, 520 U.S. 397, 407 (1997) ). Judge Kollar -Kotelly then stated:

14“This is a distinct and independe nt means of pr oving municipa l liabilit y and does not re quire Singletar y to alleg e the e x istence of an explicit poli cy

or pra ctice by

the District.” I d. The District’s contention that Single tary had to prove an unconstitutional custom or prac tice and that the Parole B oard w as the fina l decision makingauthority “misse[d] the mark.” I d. In the ca se befor e me, a

ny contention by

the District that plaintiff had a n obligation to prove that the Chief of Police wa s the final dec ision making a uthority and that ther e wa s a custom or pra ctice of reta liating a g ainst police off icer s who filed discrimination complaints misses the same mar k. Iwill neverthe less revie w the evide nce pr esente d to the jury tendingto establish a custom or pra ctice of

reta liation because Ibelieve that the plaintiff is entitled to the benef it of all the evidenc e he pr esente d and to provide the court of a ppeals with the most complete r ecor d of my view of the evidenc e to obviate the ne ed of a rema nd if it rever ses my

decision as to the sufficie ncy

of the e vidence that the Chief of Police w as the fina l decision maker . In a ca se that has alre ady

g one on for

too long, I

owe the pa

rties and the c ourt of appe als at lea st that. Although pla intiff failed to provide concr ete e x amples of other Hispanic police office rs who, af ter c omplaining of

discrimination based on their H ispanic her itag e, we re r etaliated ag ainst, he did prese nt sufficient e vidence from which a rea sonable jury

could conc lude that the MPD was deliber ately

indiffer ent to the many

complaints of discrimination and re taliation lodge d by its officer s. Acc ordingto Rosario, when he met with the various Chiefs of the MPD over the y ear s, in his capac ity

of President of the Hispanic Police Assoc iation, their response to him was inadequate: Q In y our role a s president of the Hispanic Police Assoc iation,

have you had an oppor

tunity to meet with policy

making officia ls at the Metro Police De partment? A Yes, I

have. 15Q And what sorts of issues ha ve you broug ht to their attention? A Every

thing ther e in promotion issues, upward mobility , transfe rs, promotions, discipline, retaliation. Q Now, ca

n y ou g ive us a list of some of the of ficials with whom y ou have me t over the year s? A Chief Fr ed Thomas into Chief Sony a - - Interim Chief Sony a Proctor, L arr

y Soulsby , and Charle s Ramsey

. Q Have y ou discussed these issues w ith all these offic ials? A Yes, I

have. Q And was this in a fa ce- to-fac e mee ting whe n you wer e there ? A Yes. On a

regular ba sis. Q And how we re you rec eived? What response did you rec eive? A The political re sponse with quite a fe w, we’ re listeningto y our conc erns; we ’re taking y our conc erns down; they ’re g oing to be addre ssed - - that kind [ sic] thi ng . Q And did y ou find that in fac t the officia ls were responding to the conce rns and a ctively taking action in re sponse to y our conc erns? A Iwould have to sa y “y es” a nd “no,” be cause if that was the case , then my

conce rns via the membe rs that I repr esent would have be en hea

rd by the top brass, then I

would not have the need to take our complaints outside the District of Columbi a g overnme nt, when I have to wind up doinga compliant ag ainst our police de partment to the justice depar tment. * * * Q Did y ou discuss with the policy making officia ls any conce rns about Hispanic repr esentation and specia liz ed units over the y ear s? A Yes, I

did. Q And what c oncer

ns did y ou bringto their attention? A Our main c oncer

ns was that no matter

how qualified a L atino or Hispanic of

fice r wa s, when it ca

me time that they apply for positions, rare ly

wer e they

selec ted. Q And how we re you rec eived a nd what wa s the response ? A We’re g oing to wor k with y ou; we’r e g oing to look into it; we’ re g oing to se e. We wer e eve n promised to set up study g roups and do diff

ere nt things. Q Fr om y our obser

vation, wer e the pr omises kept? 16A Iwould have to sa y to some ext ent, ver

y littl e it was. Q Over

y our 14 y ear s, how many of these me eting s have you had with the chie f of police about these issues that you discussed? A Probably

a couple dozen. Q Eac h time are y ou bring ing the same issues to their attention ag ain? A Yes, sir. The re w as a time whe n Istarted the me eting s with the command of

ficials of a

district or division. I f there wer e some c oncer

ns, Iwould try

to meet with the commandingoffice r of c ommunications. I f we saw that it was not moving quickly

enoug h, then we w ent off to assistant chiefs a ll the way to the chief

ag ain. Q And the issues that you’re talking a bout in terms of we’ ve alre ady discussed them, to some extent, y ou discussed with assistant chiefs a

nd chief s over the year s since you’ve be en prese nt? A Yes. Tr. 7/22/08 at 93-95. Rosario also testified about the MPD’s f ailings w ith respec t to the Hispanic Prog ram Coordinator’s position, a position mandated by one of the MPD’s Gene ral Or ders: Q What is t he Hispanic Prog ram Coordinator? A I ts recognized, Ibelieve, a s in our g ener al orde rs at one time, that individual will be kind of ove rsee ing a nd looking into concer

ns of Hispanics within the De partment.

* * * Q And ca

n y ou identify

this particular doc ument? A I ts Metro Police Depa rtment Gene ral Or der 201.9, which is titled “Equal Employ

ment Opportunity

Prog ram.” Q Do y ou see this on the par ticular pa g e whe re the re’ s ref ere nce ma de to the Hispanic Prog ram Coordinator? A Yes. Q I s this the ge nera l order that y ou wer e makingref ere nce to when you said it’s in our g ener al orde r to have a Hispanic Prog ram Coordinator? A Yes. * * * 17Q Direc ting y our attention to the ea

rly 1990' s, y ou , of cour se, wer e the pr esident at that time, cor rec t? A That’s c orre ct. Q Was there a

period of time whe n the Hispanic Program Coordinator position was unfilled? A Yes. Serg eant Ross [ph.] was the pe rson who occ upied that position. He went in the field a nd Imade numer ous attempts to ge t it fill ed, includingthat Ieven a sked to be considere d for that position. Q Who did y ou speak to? You spoke to the c hief of police about that? A Fr ed Thomas - - Chief F red Thoma s. Q And how we re your ef forts to g et that position filled rec eived by

Chief Fr ed Thomas? A We’re g oing to look into it; we’re g oing to let you know. I was g iven excuses from that the position was more g ear ed towards a n officia l. Since Iwasn’t a n officia l - - so whe n I was told that, then I

put a list togethe r of se vera l officials that Iapproa ched a

nd wanted the police depa rtment, the chief to consider them. It stil l went unfilled. Q Now, ea

rlier you mentioned that - - w ell, befor e I leave this document, I

want to move to the next - - to subsection F a t the bottom of the pag e ther e. Do you see this subsection F here ? A Yes. Q That there shall be an EE O committee appointed by the chief of police, a

nd would y ou g o to the next page , please , at the top, and do you see where the Hispanic Prog ram Coordinator is supposed to be par t of the EEO c ommitt ee, corr ect? A Yes, sir. Q And duringthe per iod of time when ther e wa s no Hispanic Prog ram Coordinator, the re w as no one f rom y our community

repr esente d on the EEO c ommitt ee? A That’s c orre ct. Tr. 7/22/08 at 95-99. C. Plaintiff Presented Suffic ient Evidence that the MPD’s Dec ision not t o Transf er Plaintiff Ba ck to OIA in 1998 was a n Adver se Employ

ment Action 1. The Parties’ Posit ions Def endant a lso contends that the District is entitled to judgme nt as a matter of law a s to 18plaintiff’s re taliation claims beca use the late ral tra

nsfer s and non-tra

nsfer s that plaintiff complains of do not rise to the leve l of adve rse e mploy ment actions suffic ient to establish a prima fa cie c ase of

reta liation. Defs. Mem. at 12. Accor ding to de fenda nt, a prima fa cie c ase of reta liation requires the following : 1) a showingthat plaintiff eng ag ed in statutorily protec ted activity , 2) a showing

that the MPD took an adve rse pe rsonnel ac tion, and 3) a showing of the

causa l connec tion between the two. I d. at 13. Def endant a rgues that bec ause the MPD’s denial of plaintiff’s application to transfer to OIA did not have a ny materia lly

adver se conse quence s that aff ecte d the terms, conditions, or privileg es of his employ ment or future employ

ment opportunities and bec ause the re w as no diminution i n plaintiff’s pay or bene fits, he fa iled to make the r equisite prima fa cie c ase. I d. at 17-18. In response to this arg ument, plaintiff counter s that the issue of whe ther or not a transfe r is an adve rse a ction is a question of fa ct for the jury and wa s proper ly

resolved by

the jury in this

case . Plains. Opp. at 8-9. In support of his argument, plaintiff points to his own testi mony that had he sta y ed at OIA, he would ha

ve bene fitted from spec ialized training a nd experience . I d. at 9. Plaintiff also cites to the testimony of Stanley

Wigg enton, who re tired as a n Inspector w ith the MPD, and that of Sony a Proctor, who beca me ac ting Chief of

Police in 1998, both of whom worke d at OIA bef

ore the y wer e promoted, a s further proof of the ca ree r enha ncingbenef

its of workingat OIA. I d.

2. Analy sis In Bur lington Nor

thern & Santa Fe Railway Co. v. W hite, 548 U.S. 53 (2006), the Supreme Court held that “ a plaintiff must show that a r easona ble employ ee w ould have f ound the challeng ed ac tion materially adver se,” id. at 68, in that it would have “‘dissuade d a re asonable

19worke r fr om making or supporting a

char g e of discr imination.’” Rochon v. Gonzales, 438 F . 3d 1211, 1219 (D.C. Cir. 2006) (quotingWashington v. I ll. Dep’t of Reve nue, 420 F . 3d 658, 662 (7th Cir. 2005)). While not stating so over tly , the Court also confir

med that the issue of whether or not an a ction was mate rially adver se wa s one for

the jury : “B ased on this re cord, a jury could

rea sonably

conclude that the re assig nment of re sponsibili ties would have be en mater ially adver se to a re asonable employ ee.” Bur lington N. & Santa Fe Railway Co., 548 U.S. at 71. Accor d Cz ekalski v. L aHood, 589 F .3d 449, 454 (D.C. Cir. 2009) (“ This circuit’s standa rd for an adve rse employ ment action is well-e stablished: ‘[A] n employ ee suf fer s an adve rse e mploy

ment action if he experienc es mater ially adver se conse quence s aff ecting the terms, conditions, or privileg es of employ ment or future employ

ment opportunities such that a re asonable trier of fact could find objectively

tang ible harm.’” ) (quotingFor kkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (empha sis added)) ; Kelly v. Mills, 677 F. Supp. 2d 206, 221 (D.D.C. 2010) (“[A]t trial the factfinder ‘still first mustdeter mine whether

plaintiff has suff

ere d an adve rse e mploy

ment action.’” ) (quotingAdesa lu v. Copps, 606 F. Supp. 2d 97, 103 (D.D.C. 2007) (e mphasis added) ). In this case, the jur

y hear d uncontrove rted testimony reg ardingthe importance of transf ers g ener ally to an offic er’ s car eer . Rosario stated the f ollowing: Q Why

are transfe rs important to an off icer at the police depar tment? A Most of us that are car eer office rs and we have a spirations to move up within our depar tments, there a

re positions that are specia liz ed divisions transfer -wise that will not - - you will not have to be promoted. For instance, if I

wanted to g o to special ope rations and may be be a ssigne d to the squad that moves the pr esident around in the D istrict, Idon’t have to be a se rg eant to do that. I t’s a patr ol office r. I can c ompete. I

can a pply for positions. W e wa sn’t g etting a fair sha ke with this. I t didn’t make a

differ ence how qualified our members we re. 20Many , many , many times over and ove r they wer e alwa

y s surpassed . H e wa s not chosen re g ardle ss of our skills and qualifications. Tr. 7/22/08 at 100-01. Hopper t also testified reg ardingthe importance of transf ers to an of

fice r’s c are er: Q Now, does it help you move throug h the Depa rtment once y ou become a lieutena

nt or above if y ou g et ce rtain assig nments as you move through?

* * * A I s it beneficia l or are cer tain assig nments benef

icial to y our car eer ? Q Right. A That depe nds on the individual, but there is a pe rce ption that, y es, there wer e ce rtain assig nments that if y ou wer e chosen to fill these a ssignments, that you wer e being touched to g o on to bigg er a nd better thing s. Tr. 7/22/08 at 176-77. The jury ’s conc lusion, based on the testimony of Rosario and H opper r eg ardingthe importance of transf

ers to an of

fice r’s c are er, that the MPD’s decision to deny plaintiff’s re quest for a transfe r bac k to the OIA was materially adver se to his car eer

was re asonable . So too was the jury ’s implicit conclusion that such an ac tion would also have dissuade d other MPD offic ers from filingtheir own c laims of discrimination beca use they would fea

r that such a

n action mig ht jeopar dize their car eer s within the department. I I

. Def

endant’ s Motion for a Ne w Trial A. L eg al Standard In the alter

native to judg ment as a matter of law , defe ndant moves for a new trial pursuant to Rule 59 of the Fe dera l Rules of Civil Procedur e, which a llows for a ne w trial “a fter a jury trial,

21for a

ny rea son for whic h a new

trial has her etofore been grante d in an ac tion at law in fede ral court.” Fe d. R. Civ. P . 59(a) (1)( A). At the tria l court’s discr etion, a new trial should only

be 4 g rante d “whe re the court is convince d the jury verdic t was a se riously

err oneous re sult and where denial of the motion will result in a cle ar misca rriag e of justice.” Martinez v. District of Columbi a, 503 F . Supp. 2d 353, 355 (D.D.C. 2007) (inter nal quotations and quotation marks omitted). “Ge nera lly , a new trial may only be g rante d when a

manifest er

ror of law or f act is prese nted.” In re L orazepam & Clorazepa te Antitrust L itig., 467 F . Supp. 2d 74, 87 (D.D.C. 2006). F inally , “[i] n decidingwhether to gr ant a ne w trial, the c ourt should be mindful of the jury ’s spec ial function in our leg al sy stem and hesitate to disturb its finding.” L ewis v. Elliot, 628 F. Supp. 512, 516 (D.D .C. 1986). B. The Parties’ Posit ions In support of its argument, defe ndant cites thre e re asons why a new trial is nece ssary

to avoid “a clea r miscar riag e of justice.” Def

s. Mem. at 19. Fir st, defenda nt argues that the c ourt should not have admitted plaintiff’s Exhibit 61, a Depar tment of Human Rig hts and L ocal Business De velopment L etter of Deter mination, because its prejudicial value f ar outwe ighe d its probative va lue. I d. at 19. In the document, the a g ency conclude d that there was proba ble ca use to believe that the MPD ha d violated the D.C. Human Rig hts Act with respe ct to its treatment of Hispanic off

icer s. I d. at 20-21. De fenda nt argues that bec ause the ag ency ’s deter mination was “not evidenc e, but rather a n opinion as to the conclusions that should be dra wn from that evidenc e,” it should not have be en admitted. I d. at 21. Next, defenda

nt argues that the c ourt should not have admitted into evidenc e a Re solution

See Hutchinson v. Stuckey , 952 F.2d 1418, 1420 ( D.C. Cir. 1992). 4 22Ag ree ment betwee n the Depa rtment of Just ice a

nd the MPD beca

use Judge Sullivan had previously

excluded the ag ree ment. Def s. Mem. at 22. Citing the lawof the c ase doc trine, defe ndant ar g ues that the c ourt’s admission of the agree ment “amounts to a manife st error of law for whic h a new

trial should be g rante d.” I d. Finally , defe ndant ar g ues that it was cle ar e rror for the c ourt to have a dmitted into evidenc e the testimony

of Hira m Rosario, the testimony of Judge L ou Henne ssy , and the MPD’s Affir mative Action Plan. I d. at 22. With respect to Rosario and H ennessy , defe ndant claims that they both failed to provide a

ny concr ete e x amples of a cts of re taliation by the MPD based on either national orig in or pattern or prac tice of discr imination. I d. at 22-23. With respec t to the MPD’s Affirmative Action Plan, defe ndant ar gues that bec ause it pre dates plaintiff’ s claims of discrimination and re taliation by five year s, it is i rre levant and should not have been a dmitted into evidence . I d. at 23. Wit h respe ct to defe ndant’s ar g uments reg ardingthe cour t’s admission of Ex hibit 61, plaintiff first ar g ues that the e x hibit was proper ly admitted beca

use def endant f ailed to object to the document whe n identified by the par ties as J oint Ex hibit No. 9 in their J oint Pretrial Statement and, althoug h defe ndant did object to the same document whe n identified by plaintiff as Exhibi t 64 in the J oint Pretrial Statement, defe ndant fa iled to include furthe r ar g ument reg ardingthe exhibit in its Mot ion in L imine. Plains. Opp. at 10-11. Wit h respe ct to the Resolution Agr eeme nt, plaintiff argues that not only did defe ndant fa il to object to this portion of the document at trial but bec ause the document constitutes an admission ag ainst interest, it was prope rly admitted as probative and re levant. I d. at 12-13. Wit h respe ct to defe ndant’s ar g ument that the cour t improperly

admitted the testimony

of

23Rosario and He nnessy , plaintiff ar g ues that their testimony was a ppropriate ly

admitted as lay witness testimony

beca use it was base d on their own pe rsonal obser vations reg ardingthe customs and pra ctices of

the MPD vis a vis MPD Officer s, including H ispanic Off icer s, who filed complaints ag ainst the Depa rtment. I d. at 13-14. Finally , plaintiff ar g ues that the c ourt proper ly admitted the MPD’s 1993 Aff irmative Action Plan as proof

that Chief Fr ed Thomas wa s awa re of the contents of the document, name ly that in that y ear , only

Bla ck and White Off

icer s rec eived tra

nsfer s for the positions of L ieutenant and Captain. I d. at 15. Acc ordingto plaintiff, the document is re levant to plaintiff’s c laim that he was discr iminated and re taliated ag ainst in 1994 when his reque st to remain at OIA was de nied even thoug h the same r equest fr om Serg eant B ailey , a B lack Of fice r promoted on the sa

me day , was g rante d. I d. Plaintiff also arg ues that the doc ument is releva nt to his 1998 claim that he was discriminated and r etaliated a g ainst when, a ccor ding to plaintiff, his re quest to transfe r bac k to OIA was de nied. I d. C. Analy sis 1. The District F ailed to Make at Trial the O bjection I t Claims I t Made The District’s motion conve y s the notion that plaintiff that plaintiff offe red Exhibit 61 into evidence , the District objecte d, and the c ourt overr uled the objec tion and admitted the evidenc e. De fs. Mem. at 19-20. T hat is not at all what happe ned. First, the e x hibit identified at trial as Plaintiff’s Exhibi t 61 was listed as Joi nt Ex hibit 9 in the pre -trial stateme nt filed by the par ties. Under the court’s pr e-tria l order the parties we re to list as joint exhibi ts “all the exhibit s to which neither pa rty has any objection.” Pre trial Procedur es Orde r [#108] (12/19/07) at 2. Since the D istrict list ed what beca me Plaintiff’s

24Ex hibit 61 at trial as an exhibit t o which it had no objec tion, it s hould be bound by that statement; it provided no re ason at trial a nd provides none now

as to why

is should be relieve d of its indi cation that it had no objec tion to the ex hibit. As the District conc edes that it offere d that document as a joint ex hibit, italso noted, in the pre trial statement, its objection to the document on the grounds of re levanc e af ter plaintiff mistakenly

listed it as a plaintiff’s exhibit, even though it wa s alrea dy a joint exhi bit. Pl ains. Opp. at 11. Thus, the District off ere d as a joint exhibi t the very exhibi t it objected to on the grounds of rele vance and it never

withdrew f

rom the position it t ook in an ea rlier pa rt of the joint pretria l statement, that this exhi bit should be a joint ex hibit. Second, whe n the exhibit was off ere d at trial, the District did not object to its admission. Tr. 7/21/08 at 163. I t must be reca lled that at the trial the e x hibits were pr ojected onto a scre en. When plaintiff’s counse l cause d Ex hibit 61 to be projected onto the sc ree n, the cour t specifica lly inquired of de fenda

nt’s counsel whe ther he had any objection and he indicated that he did not. I d. When a juror indicated that he or she wa nted to “g o back” , i.e. , g o to a prior pa g e, def endant’ s counsel then state d: “Your honor , Iobject to the leg al ana ly sis.” I d. When one looks at the document itself, it is clear that the objection wa s not to the document in its entirety but to the section of it ca

ptioned “Ana ly sis,” for the c ourt immediately said: “All rig ht. I ’ll talk to the jury about it. L adies a

nd g entlemen of

the jury , that section on ana ly sis–let’s skip over that rig ht now. That’s a leg al ana ly sis. W e’ll talk about the le g al issues pertinent to this case later on. Plea se g o to pag e 5.” I d. In addition, when one a g ain looks at Plaintiff’s Exhi bit 61, it i s clea r that the court’s la st direction to the per son who was pr ojectingthe exhibit was to g o to the next page , afte r the a naly sis section. There was no fur ther re fer ence to this ex hibit, for the next question t o

25plaintiff was: “Now, since this letter was issued, have you ever returne d to the Offic e of I nterna l Affa irs.” I d. at 164. Thus, the District first stipulated to the joint admission of a document while simult aneously

objectingto it on the gr ounds of re levanc e, then indicated no objection to its admission when first off

ere d, then cha

ng ed its mind and objected only to a sec tion of it, which was sustained in the se nse that the c ourt direc ted that the ana ly sis section not be shown to the jury . Most significa

ntly , the District neve r objec ted to para g raph six of Ex hibit 61, which speaks to a re solution agr eeme nt betwee n MPD and the De partment of Justice; it objected only to the analy sis section, which is on a diffe rent pa g e. The District’s ar g ument–that the exhibit was admitted over its objection –is completely incorre ct. Surely , it cannot pre ss as g rounds for a new 5 trial an objec tion that it never made at the trial, pa rticularly when it per

mitted the jury , without objection, to see the para g raph to whic h it now objects.

2. Plaintiff’s Ex hibit 61 was Properly Admitted Even if the D istrict had, in fac t, objected to the a dmission of P laintiff’s Exhibi t 61, the letter of de termination, its admission over that objection would not have be en in er ror. A r eport by another ag ency of the District of Columbia is an admission of a pa rty opponent under

Rule 801 of the F eder al Rules of Evidenc e, that dee ms an admission of a par ty opponent to include “a statement by

a per son authorized by

the par ty to make a statement conc erning the subject.” Fe d. R. Evid. 801(d)(3)( c). The repor t surely appea rs to be a statement by

“a pe rson” a

uthorized by the District of Columbia to make a statement conc erningthe subject matter of plaintiff’s complaint. In Wil burn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007), the c ourt held that, since

Def s. Mem. at 20. 5 26the District of Columbia was a party to the lawsuit, a statement by one of its employ ees w as “admissible under

Rule 801(d)(2) (D) a s an admission of the District.” I d. at 1148. I f a state ment by an employ ee is a dmissibl e under that theory , a findingby

an ag ency

of the District a fter a

n investigation is equally

admissible. Skaw v. United States, 740 F.2d 932, 937 ( Fe d. Cir. 1984) (statements by

For est Service that lessee ha d made va lid discovery of minera ls on his claim admissible ag ainst United States as statement of party opponent); United States v. Amer . Tele. & Tele. Co., 498 F . Supp. 353, 356-58 (D.D.C. 1980) ( statement of a g ents of the United States admissible ag ainst the United States). He nce, in Allen v. Chica g o Transit Authority , 317 F.3d 696 (7th Cir. 2003), it was er ror f or the trial judg e to re fuse to g ive any weig ht to the finding by the def endant’ s own investiga

tor that the explanation g iven by the def endant’ s employ ee f

or promoting a

white man over

the Afr ican- Americ an fe male plaintiffs wa s not credible. I d. at 700. “The finding was a dmissibl e as a n admission made by

an employ ee of

a par ty opponent within the scope of his employ

ment . . . and as a

n investiga

tive repor t of a public a g ency .” I d. (interna l citations omitt ed). Second, and inde pendently , the fe dera l courts have admitted finding s of fa ct by the Equal Employ ment Opportunity

Commi ssion, rely

ing on the exception to the hear say rule for public repor ts and rec ords. Fe d. R. Evid. 801(8); Chandler v. Roudebush, 425 U.S. 840, 863 n.39 (1976) ( “Prior a dminist rative f

indings made with respec t to an employ ment discrimination claim may , of cour se, be a dmitted as evidenc e at a fede ral-se ctor trial de novo. See F ed. Rule Evid. 803(8)( c).” ). While the Ninth and Fifth Circuits re quire their a dmission, s ee B radsha w v. Z oologic al Soc., 569 F.2d 1066, 1069 ( 9th Cir. 1978); McClure v. Mexia I ndep. Sch. Dist., 750 F.2d 396, 399- 400 (5th Cir.1985), other Circ uits indi cate that the dec ision to admit them lies

27within the discretion of the tria l judge , who must weig h their probative value a g ainst the other

considerations li sted in Rule 404 of the F eder al Rules of Evidenc e. See, e .g ., J ohnson v. Yellow Fr eig ht Sy s., I nc., 734 F .2d 1304, 1309 (8th Cir.), ce rt. denied, 469 U .S. 1041 (1984); Walton v. Eaton Corp., 563 F .2d 66, 74-75 (3d Cir.1977); Cox v. Babcoc k & Wilcox C o., 471 F.2d 13, 15 (4th Cir. 1972). The Eig hth Circuit has indicated that such pr obable c ause de terminations are entitled to defe renc e, B ell v. Bolg er, 708 F .2d 1312, 1321 (8th Cir. 1983), while the F ifth Circuit has indicate d that an EEOC investig ator’s f inding that a

n unlawful discr iminatory prac tice has

occur red w as hig hly

probative of

the ultimate issue involved in discrimination cases. Smith v. Universa l Servs., 454 F.2d 154, 157 ( 5th Cir. 1972). Surely , the District is not goingto argue that the finding s of its own ag ency are so unfair, bia sed, and ina ccur ate that they lack a ny probative va lue. Finally , the District ig nores the e x traordina ry car e that wa s taken to make sure that the jury g ave the most specific a

nswers possible to questions that wer e desig ned to discriminate most

car efully betwee n the plaintiffs’ c laim of discrimination and his claim of re taliation. Here is the verdic t form and the jur

y ’s answe rs:

________________________________________________________________________ VERDICT F ORM 1. Did plaintiff establish by a pre pondera

nce of evidenc e that his beingtransfe rre d out of the Offic e of Interna l Affa irs upon his promotion to L ieutenant de nied him equal prote ction of the law s beca

use it was base d on his national orig in?

_____ Yes (PROCEED TO QUESTI ON 2) X No (PROCEED TO QUESTI ON 4)

282. Did plaintiff AL SO establish by a pre pondera

nce of evidenc e that his beingtransfe rre d out of the Off

ice of Interna l Affa irs upon his promotion to L ieutenant de nied him equal protec tion of the laws bec ause it wa s based on a custom or pra ctice of

discrimination ag ainst Hispanics of the D istrict of Columbia?

_____ Yes (PROCEED TO QUESTI ON 3)

_____ No (PROCEED TO QUESTI ON 4) 3. I f the a

nswers to que stions 1 and 2 were “Ye s” what damag es do you awa rd plaintiff? $ __________ (PROCEED TO QUESTI ON 4)

________________________________________________________________________ 4. Did plaintiff establish by a pre pondera

nce of evidenc e that his beingtransfe rre d out of the Offic e of Interna l Affa irs upon his promotion to L ieutenant wa s an adve rse e mploy ment action?

_____ Yes (PROCEED TO QUESTI ON 5) X No (PROCEED TO QUESTI ON 7) 5. Did plaintiff AL SO establish by a pre pondera

nce of evidenc e that his beingtransfe rre d out of the Off

ice of Interna l Affa irs upon his promotion to L ieutenant wa s substantially motivated by

his national orig in?

_____ Yes (PROCEED TO QUESTI ON 6)

_____ No (PROCEED TO QUESTI ON 7) 6. I f the a

nswers to que stions 4 and 5 were “Ye s” what damag es do you awa rd plaintiff? $ __________ (PROCEED TO QUESTI ON 7)

________________________________________________________________________

297. Did plaintiff establish by a pre pondera

nce of the evidenc e that the de nial of his application to re turn to the Off ice of Interna l Affa irs in 1998 and the sele ction of a white office r for

the position was based on his national or igin?

_____ Yes (PROCEED TO QUESTI ON 8) X No (PROCEED TO QUESTI ON 10) 8. Did plaintiff AL SO establish by a pre pondera

nce of the evidenc e that the de nial of his application to re turn to the Off ice of Interna l Affa irs in 1998 and the sele ction of a white office r for

the position was based on a custom or pra ctice of

discrimination ag ainst Hispanics of the District of Columbia?

_____ Yes (PROCEED TO QUESTI ON 9)

_____ No (PROCEED TO QUESTI ON 10) 9. I f the a

nswers to que stions 7 and 8 were “Ye s” what damag es do you awa rd plaintiff? $ __________ (PROCEED TO QUESTI ON 10)

________________________________________________________________________ 10. Did plaintiff establish by a pre pondera

nce of the evidenc e that the de nial of his application to re turn to the Off ice of Interna l Affa irs in 1998 and the sele ction of a white office r for

the position was an adve rse e mploy ment action? X Yes (PROCEED TO QUESTI ON 11)

_____ No (PROCEED TO QUESTI ON 13) 11. Did plaintiff AL SO establish by a pre pondera

nce of evidenc e that the de nial of his application to re turn to the Off ice of Interna l Affa irs in 1998 and the sele ction of a white office r for

the position was substantially motivated by

his national orig in?

30_____ Yes (PROCEED TO QUESTI ON 12)

X No (PROCEED TO QUESTI ON 13) 12. I f the a

nswers to que stions 10 and 11 were “Ye s” what damag es do you awa rd plaintiff? $ __________ (PROCEED TO QUESTI ON 13)

________________________________________________________________________ 13. Did plaintiff establish by a pre pondera

nce of the evidenc e that the de nial of his application to re turn to the Off ice of Interna l Affa irs in 1998 and the sele ction of a white office r denie d him equal protec tion of the laws by reta liating a g ainst him for havingfiled complaints complaining of discrimination on the basis of his national orig in? X Yes (PROCEED TO QUESTI ON 14)

_____ No (PROCEED TO QUESTI ON 16) 14. Did plaintiff AL SO establish by a pre pondera

nce of evidenc e that the de nial of his application to re turn to the Off ice of Interna l Affa irs in 1998 and the sele ction of a white office r wa s based on a

custom or pra ctice of

reta liation ag ainst persons who c omplain of discrimination on the basis of national orig in? X Yes (PROCEED TO QUESTI ON 15)

_____ No (PROCEED TO QUESTI ON 16) 15. I f the a

nswers to que stions 13 and 14 were “Ye s” what damag es do you awa rd plaintiff? $90,000 (PROCEED TO QUESTI ON 16)

________________________________________________________________________ 16. Did plaintiff establish by a pre pondera

nce of the evidenc e that a r easona ble employ ee would have f

ound the MPD’s denial of his a pplication to return to the Of fice of Interna l

31Affa irs in 1998 and the sele ction of a white office r a materially adver se ac tion? X Yes (PROCEED TO QUESTI ON 17)

_____ No (PROCEED TO QUESTI ON 19) 17. Did plaintiff AL SO establish by a pre pondera

nce of evidenc e that the MPD’s de nial of his application to re turn to the Off ice of Interna l Affa irs in 1998 and the sele ction of a white office r wa s done in reta liation for his making complaints of discrimination? X Yes (PROCEED TO QUESTI ON 18)

_____ No (PROCEED TO QUESTI ON 19) 18. I f the a

nswer to que stion 16 was “Ye s” what damag es do you awa rd plaintiff? $90,000 (PROCEED TO QUESTI ON 19)

________________________________________________________________________ 19. Did plaintiff establish by a pre pondera

nce of the evidenc e that the MPD’s de lay in restoringplaintiff to his police power s denied him equa l protection of the la ws bec ause it was done in retaliation for his having filed complaints of discr imination?

_____ Yes (PROCEED TO QUESTI ON 20) X No (YOUARE DONE) 20. Did plaintiff AL SO establish by a pre pondera

nce of the evidenc e that the MPD’s de lay in restoringplaintiff to his police power s was base d on a custom or pr actice of the District of Columbia?

_____ Yes (PROCEED TO QUESTI ON 21)

_____ No (YOUARE DONE) 21. I f the a

nswer to que stions 16 and 17 were “Ye s” what damag es do you awa rd plaintiff?

32$ __________ (YOUARE DONE)

________________________________________________________________________ I t is im possible for the jury to have made it any

clea rer that it rejec ted all of plaintiff’ s claims of discrimination, meaning , of cour se, that while the D istrict’s Depa rtment of Human Rights conc luded that the MPD discriminated a g ainst plaintiff when it denie d his request to transfe r bac k to OI A in 1998, the jury disag ree d and answ ere d “no” to que stion 7 on the verdict form. It is equally

impossibl e, ther efor e, for the District of Columbia to establish that it was prejudice d in any

way by the admission of the entire exhibi t, let alone the only part to which it objected. G iven that the entire repor t, including the only

part to which the District objected, could have been pr operly admitted as the a dmission of a party opponent and a s a re port of a public ag ency , and that, in any event, the r eport c ould not possibl y have a ffe cted the jur

y ’s verdic t, its admiss ion cannot be grounds for a new tria l. 3. The DO J /MPD Resolut ion Ag ree ment On J uly 7, 2008, this Court gra

nted in part a

nd denied in par

t defe ndant’s motion in limine with respect to the a dmission of the March 31, 1998 Resolution Ag ree ment. See Memorandum Or der [#118] (7/7/08). S pecif ically , the Court conclude d that under Rule 407 of the Fe dera l Rules of Evidence , it was proof of a subseque nt remedia l measure and ther efor e inadmissible. I d. at 10. Althoug h defe ndant ar g ues that the Court should not have a dmitted the Resolution Agr eeme nt into evidence, the Court never did. What was admitted was plaintiff’ s Ex hibit 61, which, as just ex plained, conta ined a summary of the Resolution Ag ree ment in the section ca ptioned “F indings of F act” : On Marc h 31, 1998, the Respondent signed a Re solution Ag ree ment with the Offic e of Justi ce Programs (O J P), United 33States Depa rtment of Just ice. This Agree ment resolved c omplaint number 94-C-006 w ith the Hispanic Police Association in which the Respondent’s e mploy ment prac tices violated Title VI of the Civil Rights Act of

1964, as ame nded and the Omnibus Crime Control and Safe Stree ts Act of 1968. This Resolution Agr eeme nt, in part, states that the Responde nt will outl ine proc edure s for its promotion process, a

nd testing pr ocedur es, to provide Hispa nic employ ees w ith an equal oppor tunity for pr omotion. R espondent also ag ree d to assess job assig nments and trainingopportunities and to deve lop objective standa rds, as ne cessa

ry for making assig nments and providingtrainingthat is not based solely upon languag e skills or national orig in. Def s. First Mot., Attachment 11 at 4. Thus, the Resolution Agr eeme nt itself was not admitted at trial; only the sec tion of the letter of de termination, exhibi t 61, that refe rre d to it was admitted and, in any event, the se ction that was a dmitted speaks to plaintiff’s cla im of discrimination . Since the jury did not conclude that plaintiff had be en discriminated a g ainst, the admission of this summ ary did not prejudice plaintiff in any

way . 4. Plaintiff’s Ex hibit 28 W as Proper ly Admitted Plaintiff offer ed into evidenc e a pa g e of the District of Columbia Metropolitan Police Depa rtment Aff

irmative Ac tion Progra

m as Exhi bit 28. Tr. 7/22/08 at 67. The def endant made the followingobjection:

First of a ll, dealing with the Plaintiff's Exhibit 28. The District objects to this document coming into evidence . The last pag e sets forth a ta ble of statistics, and I

think this leads c lear ly

to speculation from the jury

as to what these numbers mea n, and on that basis it should not come into evidenc e bec ause I think that y ou would have - - they would have to have a sta tisti cian explain what is the adverse impact ratio column, what does that mean whe re it has 1.0 - - 1.0.47.77. That kind of statistical evidence , Idon' t think is within the ken of the aver ag e lay

person that they

can make out or unde rstand the statistics. S o, on that basis, Iwould cer tainly object to 34Ex hibit No. 28 coming into evidenc e.

Tr. 7/23/08 at 7. Shortly there afte r, the c ourt sustained the only objection made: I ' m goingto admit Pl aintiff' s 28. Iam g oing to tell the jury to disreg ard the reve rse impac t ratio bec ause it' s unexpl ained and inexplicable on this recor d. I t otherwise c onstitut es an admission of a par

ty opponent and be ars on the issue of whether there is a custom and pra ctice of discrimination ag ainst Hispanic people , which is of cour se the g rava men of the claim. I d. at 11. The c ourt then ca

used the e x hibit to be projected on the scre en and stated to the jurors: L adies a nd g entlemen, if y

ou look at this document, this last page , the Table 14.2 shows some perc entag es and pe rce ntag es of transfe rs and shows a

differ ence . The fir st three c olumns, seem to me, to be simply

mathematics. The last column say s "A dverse I mpact Ratio." That is a ter m of statistics, and fra

nkly , Idon' t know what it means. U sually in colleg e whe n they

said this is t he statistics class, Isaid, " I ' m awfully sorry I ' m in the wrong class. I was looking[for] t he leg al history [class] ." So, let' s look at -- the f irst three, it see ms to be, are well within y our experienc e since you can a dd and subtrac t. The last one, we don' t know what it means. Disre g ard it complete ly . I t's meaning less to us. I t's a s if it were written in a diff ere nt languag e. I d. at 17. Thus, the District’s asse rtion that Ex hibit 28 was admitted over its objection is also incorre ct. The c ourt sustained the only objection the District made by instructing the jury

to disreg ard the only

section of the doc ument to which the District objec ted. I ts doing so ca nnot possibly be the ba sis for a ne w trial. Fur thermore , like Ex hibit 61, ex hibit was proper ly admitted as an a dmissions by a par ty

35opponent and, a g ain like Exhi bit 61, it dealt with dis crimination and not re taliation. Since the

jury exonerated the District of all cla ims of discrimination, its admission could not have possibly have pr ejudiced the District.

5. The Te stimony

of Rosario and the Testimony of Judge He nnessy

Were Properly Admitted First, althoug h neither Judge Henne ssy or Rosario provide d concr ete e x amples of reta liation by

the MPD, they

did both provide testimony that supports the jury ’s findingthat the MPD had a c ustom or policy of re taliation. Upon that theory , their testimony was prope rly admitted. They

rec ounted their obser

vations of the pra ctices a

nd customs of the MPD based on their obser

vations. Their opinions as to those pra ctices a nd customs, based on those observations, were c erta inly admissible under Rule 701 of the Fe dera l Rules of Evidence

. I I I

. Def

endant’ s Motion for Remitti tur Finally , defe ndant moves the c ourt to either or der a new tria l limi ted to the issue of damag es or g rant the motion for a remittitur conditioned on plaintiff’s ac cepta nce of a re duced damag e aw ard. D efs. Me m. at 24. A. L eg al Standard “A jury awa rd must stand unless it is ‘bey ond all rea son’ or ‘so great as to shock the conscie nce.’ Daska lea v. District of Columbi a, 227 F .3d 433, 443 (D.C. Cir. 2000) (quoting Wil liams v. St euar

t Motor Co., 494 F.2d 1074, 1085 (D.C. Cir. 1974)). F urthermor e, “‘ [c] ourts may not set aside a jur

y verdic t merely

deeme d g ener ous; rather , the ver dict must be so

unrea sonably

high a s to result in a miscarr iag e of justice.’ ” I d. (quotingL ang evine v. District of Columbi a, 106 F .3d 1018, 1024 (D.C. Cir. 1997)) ( internal quotations omitted). Fina lly , remittitur “is appropr iate only if the ver dict ‘is so inordinately larg e as obviously

to exceed the 36maxi mum lim it of a re asonable rang e within which the jury may proper ly operate.’” I d. B. The Parties’ Posit ions Def endant a rgues that the jury

awa rd of $180,000.00 wa s excessive in light of the evidenc e pre sented at trial in that 1) plaintiff fa iled to put forth any evidenc e of a ctual dama g e to him, and 2) the jury

awa rded pla intiff double re cover y for his re taliation claim by awa rdinghim $90,000.00 for ha

ving pr oven an e lement of re taliation and then $90,000.00 for havingproven reta liation. Defs. Mem. at 26-27. Plaintiff counters that his re cover y was for one count of

discrimination and one c ount of reta liation and that a cla imant is permitted to “rec over unde r more tha n one theor

y arisingout of the same c ircumstance s.” Plains. Opp. at 16-17. Plaintiff also notes the pr esumption ag ainst disturbing jury

awa rds unless “so unre asonably high a s to result in a miscarr iag e of justice.” I d. at 18 (quoting L ang evine, 106 F .3d at 1024.). C. Analy sis 1. Plaintiff Put Forth Sufficient Evidenc e of A ctual Damag es Although de fenda

nt contends that plaintiff fa iled to put forth any evidenc e of a ctual damag es, the re cord pr oves otherw ise:

Q (B Y MR. McKnig ht) Captain Medina, ha s this affec ted you emotionally

or your re lationship with y our family at all? A Absolutely . Mentally , anguish, anx iety , the lack of conce ntration at work, ha ving to g o there and dea l with the situation. You know, Iknow at times, y ou know, I probably would snap at home. Q Do y ou think this has af fec ted your re putation in the Depa rtment? A Yes, I

think it has, because as a c aptain now pr etty much I believe I ’ve r eac hed the e nd of the roa d as fa r as promotions. I ’ve g one throug h the civil service proce ss. And I ’ve g ot this far, but y ou know, ag ain, I fee l that Ihave 37the skills and qualifications to g o beyond, but ag ain, now it’s out of my

control. Now, it’s by

passed me a

nd only the chief makes that c all. Q How does a

n office r’s re putation affe ct his ability to move throug h the police de partment onc e you g et above serg eant?

* * * A The most difficult par t was whe n Ireturne d back to duty from the a

bsence . People look at you. Iwould never imag ine my self beingin that situation. But, y ou know, people look at you and you never know what they ’re thinking. My

cre dibilit y

was shot. My

reputation was shot, y ou know, but up to that point, Ithink, y ou know, people knew what they

wer e g etting w ith Ange l Medina. My supervisors kne w what they wer e g etting w ith Ange l Medina. It hurt. I t’s now a r ebuilding pr ocess f or me to try to ge t established that you know who I rea lly am. Q Did y ou ever

seek a ny treatment or talk to a psy chiatrist about any of this? A I ’ve c urre ntly

been f or the last y ear

g oing to ther apy

with our EAP, Employ ee A ssistance Prog ram, a nd prior to that, I did have a

couple of sessions with our then pastor in the churc h. Tr. 7/21/08 at 180-83.

2. Plaintiff Was Not Awarde d Double Rec overy The jury awa rded pla intiff a total of $180,000 in dama g es. F irst, the jury awa rded plaintiff $90,000 upon their c onclusion that plaintiff had prove n that defe ndant had violated T itle VI Iof the Civil Ri g hts Act. As indicated in the ve rdict for m reproduc ed above , the jury conclude d that: 1) plaintiff had e stablished “by a pre pondera

nce of the evidenc e that the de nial of his application to return to the O ffice of Interna l Affa irs in 1998 and the sele ction of a white office r denie d him equal protec tion of the law by reta liating a g ainst him for havingfiled complaints complaining of discrimination on the basis of his national orig in,” and that 2) plaintiff had esta blished “by

a pre pondera

nce of evidenc e that the de nial of his application to re turn to the 38Offic e of Interna l Affa irs in 1998 and the sele ction of a white office r wa s based on a custom or prac tice of r etaliation ag ainst persons who c omplain of discrimination on the basis of national orig in.” See Ve rdict F orm, Question # 13. This question was base d on plaintiff’s cla im under the fe dera l statute, 42 U.S.C. § 1983. Second, the jury

conclude d that: 1) plaintiff had e stablished “by a pre pondera

nce of the evidenc e that a r easona

ble employ ee w ould have f ound the MPD’s denial of his a pplication to return to the O ffice of Interna l Affa irs in 1998 and the sele ction of a white office r a materially adver se ac tion,” and that 2) pla intiff had esta blished “by

a pre pondera

nce of evidenc e that the MPD’s denial of his application to return to the Off ice of Interna l Affa irs in 1998 and the selec tion of a white off

icer was done in retaliation for his making c omplaints of discrimination.” Ver dict For

m, Questions 16-18. These questions were based on the D.C. Human Rights Ac t and spoke not to plaintiff’s rig ht under the United States Consti tution to equal protection under the law, as did Que stion 13, but t o his rights unde r District of Columbia Human Rig hts Act not be subjected to re taliation for makingcomplaints of discrimination. Thus, contra ry to defe ndant’s claim that plaintiff re cover ed twice upon the same the ory of re taliation, plaintiff actua lly

rec overe d once unde r a f

eder al statute and onc e under a District of Columbia statute. The District must reca ll that Congre ss has specif ically indicated that nothingin fede ral c ivil rights statutes “shall be de emed to exempt or relieve any person f rom any liability , duty , penalty

or punishment provided by

any prese nt or future law or a ny State or political subdivision of a State.” 42 U.S.C. § 2000e-7. CONCLUSION Def endant ha s failed to prove that it is entit led to judgme nt as a matter of law, or

in the

39alternative, to a new tr ial or to remittitur. Defe ndant’s motion will therefor e be de nied. An

Orde r ac companies this Memora ndum Opinion.

J OHN M. F ACCI OLA UNI TED STATES MAGI STRATE J UDGE

40