IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CASE NO.: 98-457-Civ-Orl-19-C

DONNA C. LINDAMOOD, Plaintiff,

-vs-

OFFICE OF THE STATE ATTORNEY,

NINTH JUDICIAL CIRCUIT OF FLORIDA,

Defendant.

__________________________________________/

PLAINTIFF'S MOTION FOR JUDGMENT NOTWITHSTANDING

THE VERDICT AND MOTION FOR NEW TRIAL

WITH MEMORANDUM IN SUPPORT

Plaintiff, Donna C. Lindamood, by and through her undersigned attorney, submits this motion under Rule 50, Federal Rules of Civil Procedure, for a judgment notwithstanding the verdict and submits this motion for new trial with memorandum in support and states as follows:

1. At the close of Defendant's presentation of its case in chief the Plaintiff moved

under Rule 50 for a directed verdict in favor of the Plaintiff. As stated by Plaintiffs counsel the basis of the motion was that direct evidence of retaliatory termination was undisputed. The terminating official for the Defendant, William Vose, admitted that his "thoughts" at the time he made the decision to terminate the Plaintiff included her EEOC charge of discrimination resulting in two and one-half years of administrative action with the Equal Employment Opportunity Commission, the dealing with the Florida Commission on Human Relations, and the public records request of the Plaintiff. The public records request of the Plaintiff Mr. Vose was referring to was the salary records which the Plaintiff was requesting in an attempt to support her charge of discrimination.

2. The terminating official for the Defendant/employer admitted that the "thoughts" at the time of the termination decision included Plaintiff’s protected activities under Federal law to make a claim and investigate a claim of gender discrimination. The terminating official is admitting a motivating factor in the termination was an illegal one. This is as direct as direct evidence can get and is a blatant admission not capable of a differing inferences, see Schoenfeldv. Babbitt, 168 F.3^rd 1257 (U.S. 11^th Cir. 1999). Under Title VII, the Plaintiff prevails when there is direct evidence of a discriminatory or retaliatory intent, see Price Waterhouse v.Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 LEd 2^"d 268 (1989). The Defendant, as an affirmative defense, could limit liability by proving that it would have made the same employment decision even without considering the improper factor. However, even if the Defendant shows that it would have taken the same action in the absence of the impermissible motivating factor the Plaintiff would still be entitled to declaratory relief, and attorney's fees and costs demonstrated to be directly attributable in pursuit of the claim in which the impermissible motive has been proven. This congressional mandate is stated in 42 USC § 2000e-5(g)(2)(B)which was enacted when Title VII was amended by the Civil Rights Act of 1991. The cited section states as follows:

"On a claim in which an individual proves a violation
under section 2000e-2(m) of this title and a respondent
· demonstrates that the respondent would have taken the
same action in the absence of the impermissible motiva-
ting factor, the court--O) may grant declaratory relief,
and injunctive relief (except as provided in clause (ii)),
and attorney's fees and costs demonstrated to be directly
attributable only to the pursuit of the claim under section
2000e-(m) of this title; and (ii) shall not award damages
or issue an order requiring any admission, reinstatement,
hiring, promotion, or payment, described in subparagraph
(A)."

At a minimum a partial directed verdict should have been entered regarding the question posed in paragraph number 2 of the verdict form which read, "has the Plaintiff Donna C. Lindamood, proved by a preponderance of the evidence that Defendant's decision to terminate her was motivated by her charge of discrimination? So the question remaining would be whether Defendant had met its affirmative defense as enunciated in Price Waterhouse as mandated by Congressional action in the Civil Rights Act of 1991, that is, the question posed as number 3 of the verdict form which read, "has the Defendant, Office of the State Attorney, Ninth Judicial Circuit of Florida, proved by a preponderance of the evidence that Defendant would have made the same decision to terminate the Plaintiff irrespective of Plaintiff's filing of this charge of discrimination, at the time Plaintiff was terminated?"

The court erred as a matter of law in allowing the jury to decide question number 2 where the admissions of the terminating official of the Defendant required a directed verdict as to that issue. Further, the court was required to award attorney's fees and costs to the Plaintiff for the portion of the case that relates to the retaliatory termination which the undersigned attorney certifies was the bulk of the case preparation. In fact, the majority of the trial time itself was related to the issue of the retaliatory termination.

3. To compound the error of not granting a directed verdict, perhaps more properly

called a partial directed verdict, the issue of Plaintiff and its burden to show an impermissible
motivating factor with direct evidence was set forth in a jury instruction which the court refused
to grant. Plaintiff's request number 12 in the pre-trial submissions of the jury instructions set forth the law as established in Price Waterhouse that is codified under 42 U.S.C. § 2000e-2(m).

4. In addition to improperly instructing the jury for retaliatory claims and the

Defendant's defense to those claims, the court committed further error in incorporating Connick v. Meyers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed 2^nd 708 (1982) as part of the jury instruction as it pertains to the defense of this case. The Defendant did not submit the Connick v. Meyers legal principles in its submissions before the court, either at the time of the motion for summary judgment or the request for jury instructions. The Connick case regarded issues of a first amendment claim by a public employee, and there is no authority for its entry into a Title VII retaliatory termination claim. In what can only be described as an unusual event for a trial the theory of Connick v. Meyers was enunciated, not by defense counsel, but by the terminating official for the Defendant, William Vose, during his testimony. In explaining why he did not terminate the Plaintiff before he did (since she was supposedly a disruption within the office) Mr. Vose, as the terminating official, testified that he had to be sensitive to the balancing of interest between the employer and the employee as it pertains to the rights for an employee to speak out against issues in the workplace. Mr. Vose cited Connick v. Meyers in his testimony as his legal guide in his dealings with the Plaintiff The court without the request from Defendant's counsel, took it upon itself to research the case and bring forth copies of the case to counsel for further consideration on the eve of the charge conference to determine jury instructions. The court insisted on the placement of Connick v. Meyers principles in the jury instructions and overruled Plaintiff's objection to the placement of these instructions.

5. The court committed further reversible error when it prohibited the Plaintiff in

providing rebuttal testimony in this cause. Two witnesses, William Vose and Randy Means, testified the Plaintiff had a criminal complaint against the Defendant regarding a controversy involving the e-mail system at the offices of Defendant. While Randy Means testified that it was his perception that Plaintiff was involved in a criminal complaint, the testimony of William Vose was a matter of fact and was not limited to perceptions or speculation. The testimony was prejudicial in that the jury could certainly be upset if the jury believed an employee had made a false criminal complaint against officials of the employer. No explanation was given for the refusal of the court to allow rebuttal testimony other than the trial judge Peter Beer saying that he does not normally allow rebuttal testimony. Plaintiff's counsel stated the need for rebuttal testimony which included the denial of the Plaintiff as to the filing of a criminal complaint and explaining the context and circumstances of the controversy of the lack of assignment of the parking space, which the defense counsel belittled during closing arguments. It is well settled that a prejudicial failure to admit rebuttal evidence requires a new trial, see Maguire v. Federal Crop bls. Corp., 181 F.2nd 320 (11^th Cir. 1950). A party is entitled to rebut the evidence of the other by any competent evidence which explains, repels, or disproves such evidence, see 88 C.J.S. Trial § 101.

6. It is also well settled that the court should grant a new trial where the verdict is "contrary to the great, not merely the greater, weight of the evidence", see ARD v. Southwest Forest Indus., 849 F.2^"d 517 (11^th Cir, 1988). In the case at bar not only was there admissions from the terminating official of his thought process at the time of the termination decision included impermissible factors, as fully explained in paragraphs 1 and 2 above, the defense presented no credible evidence to support the defense that it would have made the same decision to terminate the Plaintiff irrespective of Plaintiff's filing the charge of discrimination. The undisputed evidence shows that those attorneys that violated the e-mail policy of the Defendant were given reprimands in accordance with the progressive step disciplinary process. The Plaintiff was not provided any discipline under the progressive step disciplinary process which would have included verbal warning, a written reprimand, or suspension without pay. The defense in justification of the termination of the Plaintiff, stated that the e-mail of the Plaintiff of January 8, which ridiculed officials in the Office of the State Attorney, is as serious of an offense as another Assistant State Attorney who was immediately terminated for having sexual relations with a domestic violence victim. This lack of credible explanation is further amplified by the fact that an individual who referred to a local Circuit Judge as being engaged in "judicial crapola" was not disciplined in any manner. According to William Vose, the terminating official of the Plaintiff, it was a "mistake" on her part. The terminating official admitted that this statement, if told to the judge, would be contemptuous conduct. However, Mr. Vose explained
since the e-mail was directed only to him the character of the e-mail ought to be considered a mistake and not dealt with in a disciplinary manner. This lack of a credible explanation for the termination of the Plaintiff combined with the admission of the terminating official that illegal
factors were being considered at the time of termination, namely, Plaintiff's charge of
discrimination with the EEOC, FCHR and public records request for information to support her
claim results in the great weight of evidence supporting the Plaintiff.
7. A further error of the court was the exclusion of the testimony of April Douglas regarding the terminating official's statements in regards to salary disparity. Defense counsel objected in the attempt of this witness to testify as to discussions she had with William Vose, the terminating official of the Plaintiff, regarding salary. The undersigned counsel proffered to the court that when confronted by the witness Mr. Vose admitted to April Douglas that she was discriminated against. The court accepted the arguments of defense counsel that the Plaintiff had not filed a class action lawsuit and limited the evidence of the salary disparity to Plaintiff and Roger Mallory. The undersigned counsel further proffered that another witness, Lourdes Calvo-Paquette, would testify that William Vose, the terminating official of the Plaintiff, made statements regarding Ms. Calvo-Paquette's maternity leave and her return from maternity leave. The proffer was that Ms. Calvo-Paquette would testify that Mr. Vose referred to her as a "prego", and that upon her return another Assistant State Attorney was taking maternity leave and Mr. Vose stated, "one prego coming back and another prego is going", or words to that
effect. This testimony should have been admitted to show the discriminatory animus of the
terminating official. The Plaintiff in addition to her retaliatory termination claim had a claim of
gender discrimination by salary disparity· The individual who set the salaries, was William
Vose, and his admissions that another female was a victim of discrimination was probative of
this individual's state of mind, intent, and method of operation.
8. To further compound the error in the courts refusal to allow the evidence as stated in the paragraph immediately above the court then allowed the Defendant over the objection of the Plaintiff's counsel, to submit evidence from what Defendant claimed was a comparable male
to the Plaintiff, the salary history of William Beemer, Jr. This evidence showed that Mr.
Beemet, Jr. was hired prior to the Plaintiff, yet received salary raises with less frequency and
less amounts than the Plaintiff The court should have excluded this evidence since this allowed
the Defendant to buttress its defense against the Plaintiff's claims, yet, the court had already
ruled the Plaintiff would only be allowed to present evidence of the Plaintiff's claims for
disparity in salary in relation to one individual, Roger Mallory· For the Defendant not to be
limited in refuting the evidence to the Plaintiff's claims in relation to Roger Mallory, and
allowing evidence of other individuals was a highly prejudicial reversible error.
9. Two more reversible prejudicial errors occurred during jury deliberations. The
jury made an inquiry regarding the conflict it had between the "at-will doctrine" and the claims
of the Plaintiff regarding infringement on her rights. Plaintiff's counsel asked the court to limit
its instruction to what amounted to a well settled principle in employment law, that is, that at-will

employment is a general rule, however, one is protected from termination when they make a charge of discrimination and have a reasonable basis for the charge. Instead of stating this well settled principle, which is included in the jury instructions, the court erred by commenting on the weight of the evidence and on the credibility of the witnesses. The court commented that the Defendant was "forthcoming" in its explanation. This can only refer to the testimony of William Vose. While Mr. Vose admitted that at the time of the termination process he had thoughts of Plaintiff's discrimination charge, the EEOC administrative process, the Florida Commission on Human Relations, and the public records request regarding salaries this should have been seen as an admission of an illegal factor in the termination process. However, the terminating official also made other statements against the Plaintiff is support of its defense with several hours of testimony. The comment on credibility of the witness, or the credibility of the party was clearly in error, prejudicial to the Plaintiff and requires a new trial. It is improper for a trial judge to express or indicate any opinion as to the credibility of evidence or of the witness, see 88 C.J.S. Trial § 50.

10. In addition to the comment of the credibility of the Defendant or its witness, the court in answering the jury questions also stated, words to the effect, that the evidence was, "not in conflict", over the ultimate issue for the jury to decide. Considering that the instructions given to the jury requiring the Plaintiff to bear the ultimate burden of proof to prove by the greater weight of evidence and prove by the preponderance of evidence, any suggestion or statement of the lack of conflict in the evidence only served to sway the jury against the Plaintiff's burden. It is well settled that it is improper for a judge to indicate his opinion as to the weight and sufficiency of any evidence, see 88 CJ.S Trial § 50 and the cases cited therein.

11. In summary, multiple errors occurred in the trial which were prejudicial and require a new trial. Further, the court at this time should enter a partial judgment notwithstanding the verdict, and grant an injunctive and declaratory relief, finding that Plaintiff' s termination motivated by an illegal factor, and direct Plaintiff' s counsel to submit an application of attorney's fees as it relates to the prosecution of the retaliatory termination claim, as required under 42 USC § 2000e-5(g)(2)(B).

12. The undersigned certifies that he has contacted opposing counsel pursuant to local Rule regarding this motion. Opposing counsel will contest this motion.

WHEREFORE, the Plaintiff requests the Court enter an appropriate Order for a partial judgment notwithstanding verdict, and a new trial for reasons cited herein.

____________________

Edward R. Gay, Esquire

Fla. Bar No. 342084

1516 E. Concord Street

Orlando, Florida 32803

407/898-1871

407/897-7042 (telefax)

TRIAL COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that on the ~ day of March, 2000, a true and correct copy of the above and foregoing was mailed by U.S. Mail, postage prepaid, to Assistant Attorney General, Charlann Jackson-Sanders, Westwood Center, Suite 700, 2002 North Lois Avenue, Tampa, FL 33607 and Philip J. Spengler, II, Esq., Office of the Attorney General, 2002 North Lois Avenue, Suite 700, Tampa, FL 33607.

__________________

Edward R. Gay