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Browett v. City of Reno

United States District Court, D. Nevada

July 24, 2018

MICHAEL S. BROWETT, Plaintiff,
v.
CITY OF RENO, Defendant.

          ORDER

          ROBERT C. JONES UNITED STATES DISTRICT JUDGE

         This case arises out the denial of a Reno Police Department ("RPD") Sergeant's rights under the Family and Medical Leave Act of 1993 ("FMLA") and RPD's refusal to promote him to Lieutenant after he complained. Pending before the Court is a renewed motion for judgment as a matter of law or, in the alternative, for a new trial.

         I. PROCEDURAL HISTORY

         Plaintiff Michael Browett sued the City of Reno ("the City") in this Court under the FMLA. The Court interpreted the Complaint as including two claims: (1) interference (exercise of rights) under 29 U.S.C. § 2615(a)(1); and (2) interference (discrimination) under § 2615(a)(2).[1] The Court denied summary judgment to the City, and a jury found for Plaintiff on both claims. After briefing and argument, the Court entered judgment in favor of Plaintiff and against the City for $110, 406.00 in back pay, $2, 251.65 in pre-judgment interest, $112, 657.65 in liquidated damages, $900, 468.00 in front pay, $250, 445.00 in attorney's fees, $14, 550.00 in expert witness fees, and post-judgment interest of $85.35 per day.

         II. LEGAL STANDARDS

         If a party makes a motion for judgment as a matter of law after the opposing party has been fully heard on an issue and before the case is submitted to the jury but the Court denies the motion, the party may renew its motion within 28 days after the entry of an adverse judgment and may include an alternative request for a new trial under Rule 59. Fed.R.Civ.P. 50(b). The City made a motion for judgment as a matter of law at the close of Plaintiff s evidence, and the Court denied the motion. The City has timely renewed its motion and has included an alternative request for a new trial.

In considering a Rule 50(b)(3) motion for judgment as a matter of law, the district court must uphold the jury's award if there was any legally sufficient basis to support it. In making that determination, the district court considers all of the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party . . .; the court may not make any credibility determinations or reweigh the evidence.

Experience Hendrix L.L.C. v. Hendrixlicensing.com Ltd, 762 F.3d 829, 842 (9th Cir. 2014) (citations and internal quotation marks omitted).

Unlike with a Rule SO determination, the district court, in considering a Rule 59 motion for new trial, is not required to view the trial evidence in the light most favorable to the verdict. Instead, the district court can weigh the evidence and assess the credibility of the witnesses. The district court also is not limited to the grounds a party asserts to justify a new trial, but may sua sponte raise its own concerns about the damages verdict. Ultimately, the district court can grant a new trial under Rule 59 on any ground necessary to prevent a miscarriage of justice.

Id. (citations omitted).

         III. ANALYSIS

         A. The § 2615(a)(2) Claim

         The City first argues that no evidence supported the jury's verdict for Plaintiff under § 2615(a)(2), i.e., the "discrimination"-type "interference wim rights" claim for retaliating against him based on his opposition to an unlawful practice under the FMLA. For the reasons already given in the Court's previous order, the Court disagrees. (See Order, ECF No. 76). There was ample evidence adduced at trial that Plaintiffs dispute with the City's human resources department over its demand that he take unpaid leave or use vacation leave, not the sick leave he was entitled to use under the FMLA, was the primary basis for the City's refusal to promote him. Id. A communication threatening legal action because of an employer's activity that is unlawful under the FMLA constitutes protected activity under the statute. See, e.g., Mohoney v. Ernst & Young LLP, 487 F.Supp.2d 780, 808 & n.159 (S.D. Tex. 2006). It was undisputed at trial that Plaintiff complained in writing about not being able to use his sick leave, threatening to file a grievance over the issue. Various members of the RPD command staff confronted Plaintiff about his complaint in the promotion interviews and afterwards admitted to Plaintiff both orally and in writing that the complaint was a basis for his non-selection. The evidence was so strong it took the jury barely more than an hour to reach a verdict. The evidence supported the jury's conclusion that Plaintiff opposed a practice that was unlawful under the FMLA and that he suffered an adverse employment action as a result. Unlike an "exercise of rights"-type retaliation claim under § 2615(a)(1), a "discrimination"-type retaliation claim under § 2615(a)(2) is not based on the exercise or attempted exercise of FMLA rights but on opposition to unlawful practices. The Court will not disturb the jury's verdict for Plaintiff on the § 2615(a)(2) claim.

         B. The § 2 ...


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