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We often hear about the Magna Carta and how that great document eventually led to our Declaration of Independence. But, what was the Magna Carta all about? In 2015, San Antonio’s own Prof. Vincent R.  Johnson at St. Mary’s Law School wrote a nice piece about the Magna Carta. He explained in his article what was so new and ground-breaking about the “Great Charter.”

One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it.

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but entirely by Crown nominees. So, Clause 39 states: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Without due process, nothing else matters. No right can be protected without due process. This clause ensured the king could not seize property aided and abetted by his cronies.

Today, we often cite the Magna Carta as the basis for trial by jury. Prof. Johnson explains that some historians disagree. Clause 39 refers to judgment by one’s equal peers. But, one historian says the “judgment” refers to the initial decision regarding how trial would be conducted. The jury of peers would decide whether trial would be by ordeal, by hot iron or by water, compurgation, wager of law, trial by battle, or production of charter. Judgment, according to this view, did not refer to the final decision, but to the method to reach that final decision. The men of the time believed that God would render the final decision after one of these trial methods.

“Compurgation” refers to the medieval practice of of allowing the accused to swear an oath regarding his innocence. The accused would then need an oath from a certain number, often 12, other persons saying they believed the oath of the accused person.

But, added the professor, regarding a dispute between then King John and King Alexander of Scotland, the Magna Carta provided that a dispute over hostages should be resolved by judgment of his equals in “our court.” So, at least when trial by combat or by ordeal was not possible, the signers of the Magna Carta believed that trial by peers was the solution. So, suggests Prof. Johnson, some portions of the Carta did indeed refer to the trial itself, not simply the means by which trial would be conducted.

Clause 39 also presented a new form of evidence. It required that in the future, no official shall place a man on trial upon his own unsupported statement. He must produce credible witnesses to support his own “official” assertion. Officials at the time were generally lords. So, this clause removed from the lords the power to imprison a common man simply on his own, unsupported word.

A well-known provision, Clause 40 provides simply, “To no one will we sell, to no one deny or delay right or justice.” In a time when the Catholic Church would routinely “sell” dispensations, many judges were bribed to rule one way or the other. This provision set a new standard, by which justice was (mostly) not for sale. We take judicial independence for granted today, but once, that was not so.

Clause 36: “In [the] future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.” The writ of inquisition allowed a criminal defendant to avoid or delay trial – which was often trial by combat. Some call trial by combat “legalized private revenge,” because the accuser could exact the combat. The writ of inquisition involved a procedure in which one’s neighbors could could exonerate a defendant. The writ, however, was used as a revenue device by King John and was sold only to those with deep pockets. Making this writ freely available decreased the numbers of trials by combat.

The Magna Carta addressed proportionality in sentencing. Clause 20  provided. “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for a serious offense correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein (a feudal tenant) the implements of his husbandry, if they fall upon the mercy  of a royal court . . . ” The goal was to not reduce a criminal to beggary. There were similar provisions for earls, barons and clergy. The concept, which was new at the time, was to make punishment “fit the crime.” We see this concern still resonating on our modern time when some seek reforms regarding bail. Bail for misdemeanors often result sin persons staying in jail for months before they see a trial.

Widows could be married to any man willing to pay the going rate. The payment would be made to the widow’s feudal overlord. But, some widows were wealthy enough to outbid suitors and buy a charter guaranteeing she would not have to remarry. King John did a fruitful business in selling these charters to women who wished to marry their own choice, or not remarry at all. Clause 8 provides, “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without consent of whatever the lord she may hold them of.” This provision created new legal rights for women. This was not true freedom, but it was a step.

Clause 1 was addressed “TO ALL FREE MEN OF OUR KINGDOM.” Clearly, the rights in the Magna Carta were guaranteed to all free men, meaning not to vassals and the like. Clause 40, which guaranteed access to justice, was not limited to free men. It simply said “to no one will we sell, to no one deny or delay right or justice.” So, Clause 40 was much broader in scope than just the free men. And, Clause 60 asked that regarding all these rights, “let men of our kingdom . . . observe them similarly in their relations with their own men.” Clause 60 then expressed the hope that these rights would be extended by the free men to to those not free.

The treatment of debtors was addressed. Clause 9 provided that the King would not seize any land or or rent in payment of a debt, so long as the debtor had movable goods with which to pay the debt. That means the creditor could not seize land when smaller goods would suffice to pay the debt. That provision provided some protection in an agrarian society, so the debtor could still earn a living.

The Magna Carta was not a perfect document. But, it was ahead of its time. The protections afforded the common free man far surpassed that found in other countries of the time. It was to these protections that the Founding Fathers looked in 1776.

Comal County is adjacent to Bexar County. The County seat for Comal is New Braunfels. Recently, a woman was charged with trafficking a girl for sex. While the jury was out deliberating, Judge Jack Robison interrupted them and told them God had told him the woman, Gloria Romero Perez, was not guilty. The jury ignored the judge and found the woman guilty. Judge Robison recused himself before sentencing. the Defendant asked for a mistrial, but was denied. See Austin American-Statesman report.

Judge Robison explained to the jury that he could not ignore God’s wishes. No, he should not. But, that interruption does provide the Defendant with a basis for an appeal.The defense attorney explained that she submitted a motion for directed verdict at the close of the prosecutor’s case. The judge could have simply granted that motion and avoid a lot of drama. See San Antonio Express News report.

Judge Robison has been previously sanctioned by the State Commission on Judicial Conduct. I think I see a another visit from the State Commission in the judge’s future. Usually, the jury room is sacrosanct. No one may enter.

The jury later sentenced the defendant to 25 years. They gave Ms. Perez the lightest sentence possible. She was accused of bringing her under-age niece to the U.S. and selling her to a 32 year old man. The man then impregnated the niece. The jury foreman said some jurors felt the Defendant should be released and given credit for the time she has already served.

One would expect that a case involving direct evidence of age bias would not be granted summary judgment. Yet, that is what happened in Lopez v. Exxon Mobil Development Co., No. 14-16-00826, 2017 WL 4018359 (Tex.App. Houston 9/12/2017). Plaintiff David Lopez worked for Exxon for over ten years when he was terminated in 2014. He was 56 years old at the time. He worked at various positions, mostly in management. He was told he would have to move from Texas to Canada. He complained about the assignment and the lack of a housing waiver. Not having a housing waiver, his family would have to move with him. Plaintiff Lopez spoke with his senior supervisor, Don Moe, about the transfer. Mr. Moe said higher-ups were concerned that someone of Lopez’ age was complaining about a move. He said older guys should just shut up. It was clear, said Mr. Moe, that Lopez was not on the “fast track.”

Plaintiff Lopez did not mention the ageist remarks for another six months. He finally mentioned them to his functional supervisor, Irfan Khan. Mr. Lopez said his transfer was discriminatory. The employee said Mr. Khan said he would look into the matter. Mr. Lopez received a poor evaluation after complaining. He was placed on a PIP. Mr. Khan and two other supervisors decided to terminate Mr. Lopez. The two other managers said Mr.Lopez was “old and stubborn.”The employee filed suit based on the Texas Commission on Human Rights Act. Exxon moved for summary judgment, which was granted.

On appeal, the court of appeals claimed the “old and stubborn” comment was not direct evidence. Without explaining its reasoning, the court simply said the court would have to draw an inference or make an assumption to determine whether the comment indicated motive. If the comment was direct evidence, then no inference or presumption would be necessary to see its discriminatory bias.

Reviewing the case as one of circumstantial proof, the court noted that Mr. Lopez had been ranked in the bottom third of his peers for the last four or five years. Acknowledging the many good performance reviews received by the plaintiff, the court of appeals simply found his testimony conclusory and subjective. Yet, at the same time the court made that observation that Lopez was describing the subjective evaluation process that resulted in his PIP. It then remarkably concluded that showing good performance evaluations simply shows the plaintiff might show the employer provided a false reason – that is not competent summary judgment evidence, claimed the court. Of course, that flies in the face of Reeves v, Sanderson Plumbing Products, 530 U.S. 133, 147 (2000), which expressly had that evidence of falsity of the reasons alone may support a finding of improper motive. The court actually accused the plaintiff of drawing a subjective conclusion when he argued that Exxon’s process was “highly subjective.” The court apparently never heard the phrase “what is good for the goose is good for the gander.”

The Fourteenth Court has imposed a doctrine known as pretext plus. It required the plaintiff to show more than pretext. It has held the plaintiff to a different standard than that set for the employer. The employer may engage in a subjective process, but the employee may not. Too, it has engaged in fact-finding. It finds the ageist remarks by Moe, and others to be too distant in time. That should be a jury finding. The jury should determine whether six months was too long. Certainly, the comments about “old and stubborn” were not distant in time. This is a motion for summary judgment, not a trial. Summary judgment exists to test the evidence, not to resolve it. See the decision here.

The Fourteenth Court has issued a poorly thought decision. It is decisions like this that have come to undermine our jury system. Decisions like this take away from the jury assessments which serve as bedrock for our judicial system.

Our judicial system requires juries to review only evidence produced at trial. That is the system we have had since before 1776. A juror who brings in a medical dictionary to better understand medical testimony would violate the oath they take as jurors. The theory is that a jury should review only the evidence that has passed judicial scrutiny. We have an adversarial system that relies on two different parties battling it out in court. If a juror does her own research, that turns everything upside down.

So, what happens when a juror looks something up on the internet? Everyone, well, almost everyone carries a little computer with him –  a cell phone. It has become second nature to some folks to pull out the phone and look something up. But, that is all wrong for the jury. A jury cannot review or consider something that was not introduced as evidence during the trial. Courts have been wrestling with this phenomenon. In U.S. v. Zimny, 846 F.3d 458 (1st Cir. 2017), a juror did violate her oath as a juror.

Mark Zimny operated a business known as Ivy Admit. The business helped Chinese and South Korean students get into prestigious American boarding schools in return for the parents making surreptitious donations to the school. The donations would be processed through Ivy Admit. But, Mr. Zimny kept much of the donations. So, he was charged and his trial attracted the attention of a blog post. Several hundred comments were made to the blog. People were very upset with Mr. Zimney. The comments were very angry and contained threats against the defendant. One of the comments was apparently made by a juror. Juror No.  8 said when she left the jury, half of the jury supported conviction, while half favored acquittal. Juror No. 8 had left the jury before trial ended for medical reasons. The judge called her back and asked her about the comments. She assured the judge she had visited the blog only after she was removed from the jury. A few days later, another purported juror made a comment on the blog. That comment referred to Juror No. 8.

The judge did not ask the other jurors if they had been affected or even if they were aware of Juror No. 8’s visits to the blog during the trial. Defendant Zimney appealed the court’s failure to interview other members of the jury. The appellate court found that Zimney did not suggest questions to the court to ask Juror No. 8 about whether she was affected by the comments on the blog. Not having asked to pose such questions, the defendant cannot appeal the court’s failure to ask such questions.

But, regarding the other juror, the court found some concern. The second juror who commented on the blog post remarked that Juror No. 8 was “spouting about” some things she had seen on the blog, at the trial. That comment indicated that Juror No. 8 had indeed discussed with jurors what she had seen on the blog. The court of appeals felt this would “inflame” the passions of the jury. The First Circuit panel concluded that the Defendant’s concern was legitimate. There was a colorable claim that Juror No. 8 saw things on the blog post and shared them with other members of the jury.

The court recognized the possibility that in the future, some defendant could prolong a trial by making inflammatory comments online. That is, a friend of an accused could help him avoid trial by making inflammatory comments online in the hopes of contaminating the jury. But, in the circumstances of this case, the district court should have investigated the actions of Juror No. 8 and of the second juror more closely. Zimney, at p. 468.

Mr. Zimney urged the appellate court to overturn his conviction and order a new trial. But, the higher court would not go there. Instead, the panel ordered the district court to investigate the actions of the jurors and determine if those actions were prejudicial to the jury. See decision here. The court of appeals retained jurisdiction over the remaining points of appeal.

No one wants to overturn a jury verdict. But, what do you do if the jury was contaminated by outside influence? Way back when, in 1807, Aaron Burr was tried for treason. In the early days of the Republic, that was the OJ Simpson case of the era. The Burr prosecution received overwhelming media attention. The justices had to work mightily to find jurors not contaminated by media accounts. Justice Marshall presided over the trial. He wrote in the opinion that an impartial jury must be seated. But, what does that mean? It means a jury that not only states it will abide by the evidence, but one that truly means it. Justice Marshall said a man (they were all men at the time) must come to jury duty “with a perfect freedom from previous impressions.” U.S. v. Burr, 25 F.Cas. 49, 50 (No. 14,692g) (CC Va. 1807). That is high burden, but one that is required by our system of justice.

 

The decision in Pena-Rodriguez v. Colorado did not receive much attention. But, it should have. In that case, a Mexican immigrant was found guilty of assaulting two teenage girls. After the verdict, a member of the jury reported that another member of the jury said some racist things about Mr. Pena-Rodriguez. The jury was all white. One juror, a former police officer, said he’s guilty “because he’s Mexican and Mexican men take what they want.” The same juror made several anti-Mexican comments. He dismissed the credibility of an alibi witness because the witness was an illegal immigrant. These statements are clearly racist. If these sentiments had been known, they would have kept the former police officer off the jury. But, because the statement did not come to light until after the verdict, it could not be used under the law in Colorado and in most states.

Most states have a version of the “no impeachment” rule, that provides a jury cannot be impeached after the verdict for things said during deliberations. There are just a few limited exceptions to the rule, such as when a juror considers something s/he should not have during deliberations.

The no impeachment rule dates back to common law England. But, as Justice Kagan pointed out, this is as good as “smoking gun” evidence gets. This statement clearly shows racist sentiment. By a 5-3 vote, the U.S. Supreme Court ruled that where prejudice is involved, the “no impeachment” rule must give way. The Sixth Amendment, which guarantees the right to a trial by jury, requires the courts to consider evidence of racial bias.

As the dissent pointed out, this ruling will invite scrutiny of jurors everywhere regarding what was said in the formerly sacred room, the jury room. It is common practice for lawyers to meet with jurors after a trial to discuss how they arrived at their verdict. If evidence of racial bias is fair game, then surely other forms of bias will also become fair game. And, yes, that does open a Pandora’s box. But, the alternative is jurors acting out of racist prejudice. And, that cannot be allowed. See Above the Law blog post here. The time may come when we move away from the jury system. England uses juries in only rare cases, now. See the decision in Pena-Rodriguez v. Colorado, No. 15-6-6 (3/6/2017) here.

The jury trial has greatly diminished in federal court. Where once some 10% of cases filed in federal court resulted in a jury trial in the 1960’s, that number has now decreased to less than 1%. The judge proposed for the U.S. Supreme Court wants to help bring back the federal court trial. Judge Neil Gorsuch, nominated by Donald Trump for the Supreme Court, and Judge Susan Graber propose making jury trials the default for all civil lawsuits filed. Currently, a plaintiff must specifically ask for a jury when s/he files a new lawsuit. The two judges proposed this change to the federal rules of civil procedure in a June, 2016 letter to the federal Judiciary’s Advisory Committee on Rules of Civil Procedure.

The two judges cited several reasons, but their reasons essentially boil down to simply supporting the Seventh Amendment guarantee of jury trials. See ABA Bar Journal report.

Faith Gonzales worked at a Bill Miller barbecue restaurant. As any San Antonian would know, Bill Miller’s is a fast-food version of barbecue and is a local institution. She complained about discriminatory conduct and was fired in 2008. She filed her charge with the EEOC. The matter did not go to trial until January, 2013. After a two day trial, the Bexar County Court-at-law jury awarded $30,000 in lost pay and emotional suffering damages. Most juries award relatively small amounts for lost pay and emotional suffering type damages.

As often happens with civil rights lawsuits, the larger money is in the attorney’s fees. Ms. Gonzales’ lawyers submitted an attorney fee request for $65,000. They submitted the request to the judge after the trial, not to the jury and not during trial. The employer, Bill Miller, argued the fee request should have been made to the jury. The judge disagreed and awarded $60,000 in attorney’s fees.

On appeal, the Fourth Court of Appeals in San Antonio agreed with the defendant. It said attorney’s fees must be decided by a jury, even though at least one Texas Supreme Court case, El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012), indicates that judges should decide attorney fees. See the decision in Gonzales v. Bill Miller  here. The Fourth Court noted that two other Texas courts of appeals have found that attorney’s fees should be determined by the court, not by a jury. The Fourth Court noted that the reasonableness of an attorney fee is a fact issue. The court also noted correctly that El Apple I did not state clearly that a court should determine attorney’s fees. It did refer generally describe the lower court’s role as reviewing attorney fee requests for reasonableness. El Apple I, pp. 763-64. It would be impossible for a jury to perform that role. Nevertheless, the Fourth Court added, the Supreme Court in El Apple I was not presented with the question of who should decide the question of attorney’s fees. That is true. The Texas Supreme Court did not address who specifically should determine a jury fee award.

So, the appellate court returned the case to Bexar County Court-at-Law No. 7 for trial simply on the issue of attorney’s fees. The jury then awarded some $127,000 in attorney’s fees. The Defendant may be wishing it had not sought this appeal, after all.

A jury in state court awarded $240,000 to a detective with the Austin, Texas Police Department. Amy Lynch sued the department for discrimination. Ms. Lynch was a long-time law enforcement officer who was diagnosed with narcolepsy in 2009. Soon after, she was transferred from her high profile assignment in the Human Trafficking and Vice unit to Firearms, a less prestigious position. She was then later denied her accommodation of coming to work at 10:00 a.m. She received a poor evaluation and then went out on FMLA leave. While out on leave she was told she was being dismissed from the Firearms division and she would have to find a new position. And, oh by the way, she would have to pass a new fitness for duty examination. She passed that exam in 2011. It did not address her narcolepsey. So, the Chief ordered a second exam. She passed the second exam. But, she was still not offered a position.

Ms. Lynch filed suit in 2012. She filed her first EEOC charge in 2011 and her second in 2013. With no explanation, the Chief offered her a position in Burglary in January, 2014 with the accommodation that she could start work at 9:00 a.m. and not work nights. That was very close to her requested accommodation.

The state court jury deliberated all day after three days of testimony. It then awarded her $220,000 in lost pay and benefits and $20,000 in emotional suffering damages. See Austin Chronicle report. The general public does not appreciate that discrimination cases do not typically result in large verdicts. This case shows how often a jury will award an appropriate amount for lost pay and benefits. But, when it comes time to award emotional suffering type damages, the jury becomes very conservative. It also shows what can happen when an employer can “see the light” and reconsider an earlier, discriminatory termination. The jury surely took the Austin Police Department’s change of heart into consideration when it awarded a relatively small amount for emotional suffering.

But, the claim for attorney’s fees will surely be north of six figures. Discrimination cases require a tremendous amount of attorney time.

The Fifth Circuit is a risky place to do business. Sometimes, it just reaches some strange conclusions. The case of Allen v. Radio One of Texas II, LLC, No. 11-20781, 2013 WL 703832 (5th Cir. 2/26/2013) illustrates the lack of predictability at the Fifth Circuit. In that case, Corina Allen worked at a radio station as general sales manager.  After complaints about her from subordinates and co-workers, she was warned and then fired. Three weeks after her termination, she sent a letter threatening the station with a lawsuit and suggesting they settle. The Fifth Circuit seemed to be troubled by this letter. The letter did not mention sex discrimination. The opinion does not say who wrote the letter. But, I would expect her lawyer sent the letter.

A few months later, Ms. Allen filed an EEOC charge alleging sex discrimination. Ms. Allen briefly worked for CBS radio, a competitor to Radio One. About the time of her EEOC charge, she called Radio One seeking business. Ms. Allen had left CBS Radio and was now working for herself. The plaintiff sold radio advertising. Ms. Allen was seeking to do business with her former employer. But, Radio One said they could not do business with her because of her EEOC charge.

It is curious that the appellate decision mentions her brief employment with CBS Radio. She was terminated from that position before her call to Radio One. There is no apparent reason why that brief employment would be relevant. So, it is curious that the higher court mentioned it.

The court’s description that she called Radio One “about” the time of she filed her EEOC charge is also confusing. She must have filed her charge before she called Radio One. Since, Radio One referred to her charge as the reason for not doing business with her. She recorded that phone call. One would think that is pretty clear evidence of retaliatory motive. Radio One refused to do business with her because she had opposed their discriminatory conduct. Or, at least, a jury could see it that way

And, that is how the jury did see it. The issue of whether that refusal to do business with her amounted to retaliation went to the jury. The jury found that refusal did indeed constitute reprisal for filing her EEOC charge. The jury awarded $6,100 in lost income, $10,000 for emotional pain and suffering, and $750,000 in punitive damages. The district court would reform the punitive damages down to the cap of $300,000. But, it still remains a large verdict.

But, as in all trials, the defendant moved for judgment as a matter of law (JMOL) at the close of the plaintiff’s case. The district court denied the motion, saying there was sufficient evidence upon which a jury could find for the plaintiff. As the Fifth Circuit noted, the judgment as a matter of law is a device by which federal courts ensure no jury will reach crazy verdicts. A judge can stop the trial in its tracks by finding, after the plaintiff has presented all her evidence, that not enough evidence has been presented. Or, the defendant can re-new its JMOL motion at the close of the entire trial. At that point again, the judge can take the decision away from the jury. It can rule that the plaintiff does not have sufficient evidence upon which a reasonable jury can find in her favor.

The trial judge in the Allen case denied the motion at the time. But, the defendant appealed the denial of a JMOL. And, that is what the Fifth Circuit looked at.

The higher court said no, the plaintiff had not presented adequate evidence. The higher court simply found that the refusal to do business with Ms. Allen came too long after her termination. It was 18 months after her termination and a year after she filed her EEOC charge. It was not reasonable, said the court, that an employee would contemplate just before filing her EEOC charge that she might not be able to do business in the future because of her complaint. See the court’s decision here.

The court offered no actual analysis other than its own opinion that this fear would not occur to the average employee. The experience of the panel is apparently far different than mine. Because, I can attest that most plaintiffs contemplate just about every possible contingency before they take even the smallest legal action against her employer. Most, perhaps all employees, fret about such a thing until the cows come home.

So, the higher court found there was insufficient evidence for the verdict. That means Ms. Allen gets nothing. She loses her trial. All because one panel of three judges substituted their experience for that of the jury.

Monica Hague filed suit against the University of Texas Health Science Center at San Antonio in 2011. Judge Garcia of the Western District granted summary judgment against her in 2013. The Plaintiff appealed to the Fifth Circuit. The higher court reversed summary judgment regarding Ms. Hague’s retaliation claim and affirmed summary judgment regarding her sexual harassment and sex discrimination claims. See Fifth Circuit decision. Ms. Hague argued on appeal that when a supervisor (Dr. Manifold) read a sexually explicit article out loud during a meeting and gave a sexually explicit doll to a co-worker, that conduct amounted to sexual discrimination.  But, Ms. Hague failed to check the block for sex discrimination on the EEOC charge form.

[Note this is a good reason why folks should consult with a lawyer before going to the EEOC. The EEOC workers mean well, but they just do not address every possible issue. Checking the right blocks is very important.]

Ms. Hague’s EEOC charge form did however, include general allegations of sexual harassment, so it did not matter for sexual harassment whether she checked the right block or not. The Fifth Circuit addressed that issue. It found that the actions of Dr. Manifold were not germane, since he was not a supervisor in the sense that he could not take any adverse action against Ms. Hague. So, his conduct did not amount to quid pro quo (something for something) harassment. Looking at her claim as a hostile work environment claim, the court found there were “only” two instances of conduct that could amount to sexual harassment. That means there was no evidence indicating his harassment affected a term or condition of Ms. Hague’s employment.

Regarding the retaliation claim, the court noted that the plaintiff did not address that claim specifically in her brief. But, the lower court did not address the retaliation claim either. The district court (i.e., Judge Garcia) did not address whether the plaintiff satisfied the prima facie requirements of a retaliation claim or not. Addressing the issue of pretext, the plaintiff pointed out that two other female employees who supported Ms. Hague’s complaint were also non-renewed. The plaintiff was not fired directly. Instead, her contract was non-renewed soon after she made her allegations. The court also noted that the deciding official offered two different reasons for the non-renewal. One reason cited budgetary concerns. The other reason was based on an alleged need for a higher pay grade for the position. So, his story changed.

The court did not mention this explicitly, but it also seemed concerned that the reasons offered for the non-renewal of the two other women was subjective (so-called “trust” issues) and not based on performance.

And, the supervisor did state that he no longer trusted Ms. Hague because she filed a grievance about him. His lawyer argued the supervisor meant a separate grievance, not related to any complaint about sex harassment. But, his testimony could be interpreted in various ways, said the court. And, Ms. Hague’s direct supervisor rebutted the higher level managers who claimed Plaintiff Hague’s performance was deficient. Her direct supervisor said her performance was good.

[It is always very helpful when a former supervisor testifies on behalf of the plaintiff.]

So, in the Spring of 2014, the case was then sent back to Judge Garcia for trial. In January, 2016, trial was held. The jury found in favor of Ms. Hague and awarded her $100,000 in lost wages and benefits and $15,000 in compensatory damages. This is typical of many juries. They are generally skeptical about emotional suffering type damages, but are more comfortable awarding lost ages type benefits.