United States District Court, D. Nevada
MICHAEL S. BROWETT, Plaintiff,
CITY OF RENO, Defendant.
C. JONES UNITED STATES DISTRICT JUDGE
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.
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). 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.
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
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).
The § 2615(a)(2) Claim
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)
The § 2 ...