Opinion
No. C-08-3401 EMC
11-05-2012
JAMES JENKINS, et al., Plaintiffs, v. CITY OF RICHMOND, Defendant.
ORDER (1) DENYING MOTION TO
SEVER, AND (2) BIFURCATING TRIAL
The claims of Plaintiff Pickett and Plaintiff Threets are currently set for a jury trial to begin January 14, 2013. In a joint case management statement filed October 31, 2012, Plaintiff Threets renewed a motion to sever trial for his claims from the trial for Plaintiff Pickett's claims. Plaintiff Threets argues that a joint trial would cause substantial prejudice, and that the only factual overlap between the two cases is a 2008 incident where both Plaintiffs allege that they should have gotten a promotion to Captain.
Defendant objects, arguing that there is extensive overlap in the evidence to be presented in the two cases, and that severing the trial would create a risk of inconsistent verdicts with respect to the promotion to Captain, as both Plaintiffs are alleging that they would have gotten the same job absent retaliation.
Where the number of plaintiffs alleging discrimination exceeds the number of actual job openings, the court must fashion any remedy in a way that does not overcompensate the discriminated against group as a whole. See U.S. v. City of Miami, 195 F.3d 1292, 1300 (11th Cir. 1999) (rejecting remedy in class action that assumed each discriminated against plaintiff would have received the job, when in fact the number of plaintiffs far exceeded the number of openings). When possible, courts finding discrimination against a group of employees should do an individualized determination of the position each plaintiff would have been in absent the discrimination. See International Brotherhood of Teamsters, 431 U.S. 324, 371-72 (1977) (rejecting remedy that would have provided a remedy to all plaintiffs regardless of whether they could show actual harm, and remanding the case with directions "to make . . . individual determinations in deciding which of the minority employees were actual victims of the company's discriminatory practices."); Shipes v. Trinity Industries, 987 F.2d 311, 318, 319 (5th Cir. 1993) ("If the class is small, the time period short, or if the effect of the discrimination is straightforward, [a court should generally make] an individual-by-individual determination of what each claimant's position would have been but for the discrimination"). As Defendant points out, in cases where two employees alleging discrimination were passed over for the same promotion, the court should deny requests to sever trial in order "to avoid the potential problem of inconsistent verdicts." Lutz v. Buono, 05 CIV. 4879 (GAY), 2009 WL 3364032 (S.D.N.Y. Oct. 16, 2009).
Plaintiff Threets points to the possible prejudice and conflict of interest from trying the cases together, as counsel for both Plaintiffs used to represent the other. When each Plaintiff is called upon to show that he would have received the promotion to Captain rather than the other, there may be danger that counsel would use confidential information obtained during the representation of the other Plaintiff.
Given the danger of inconsistent verdicts, however, this Court declines to sever the trials of Plaintiff Threets and Plaintiff Picket. Instead, to avoid the potential conflict, this Court will hold a joint trial for both Plaintiffs, but bifurcate the trial. Phase one will address all claims including the question of whether either or both of the Plaintiffs were subjected to retaliation in regard to the Captain promotion and whether either Plaintiff (without specifying which) would have received the promotion absent the complained of retaliation. Thus, on the question of the Captain promotion, the Court intends to ask the jury to return special verdicts on the following questions:
1. Has Plaintiff Threets proved by a preponderance of the evidence that he engaged in or was engaging in an activity protected under federal law?See Ninth Circuit Model Jury Instruction 10.3.
2. Has Plaintiff Pickett proved by a preponderance of the evidence that he engaged in or was engaging in an activity protected under federal law?
3. Has Plaintiff Threets proved by a preponderance of the evidence that the protected activity was a motivating factor for the Defendant's decision not to promote him to Captain?
4. Has Plaintiff Pickett proved by a preponderance of the evidence that the protected activity was a motivating factor for the Defendant's decision not to promote him to Captain?
5. Has the Defendant proved, by a preponderance of the evidence, that the Defendant would not have promoted neither Plaintiff Pickett nor Plaintiff Threets even if the Plaintiffs' protected activity had played no role in the Defendant's selection of who would be promoted to Captain?
If, at the close of phase one, the jury finds that both Plaintiffs have demonstrated that they engaged in protected activity, that this protected activity was a motivating factor in Defendant's decision not to promote them, and that Defendant has failed to show that it would not have promoted either Plaintiff even absent the alleged discrimination and retaliation, the trial would then continue to phase two. This second phase would address which of the Plaintiffs would have received the promotion. The conflicts raised by Plaintiff Threets may arise in phase two of the trial, and this Court will entertain appropriate motions to address these conflicts at that time.
For the foregoing reasons, the Court DENIES Plaintiff Threets's motion to sever, and orders the trial bifurcated in the manner described above.
IT IS SO ORDERED.
______________________
EDWARD M. CHEN
United States District Judge