The opinion of the court was delivered by: Jeanne E. Scott United States District Judge
JEANNE E. SCOTT, U.S. District Judge
This matter comes before the Court on Defendant City of Springfield's (City) Motion for Judgment as a Matter of Law or in the Alternative a Motion for New Trial Under Federal Rule of Civil Procedure 59 (d/e 308). Plaintiff Rickey Davis, an African American man, was a Lieutenant in the City Police Department. Davis alleged that the City retaliated against him in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e. Davis alleged in Case No. 04-3168 that the City discriminated and retaliated against him in October 2003, by not promoting him to the position of Deputy Chief in charge of Criminal Investigations. This case had already been tried once. The jury in the first trial found in favor of the City on the discrimination claim, but could not reach a verdict on the retaliation claim. Minute entry entered September 14, 2007; Jury Verdict (d/e 148). The retaliation claim was consolidated with the claims in Case No. 07-3096. Case No. 07-3096 Text Order entered April 25, 2008.
Davis alleged in Case No. 07-3096 that the City thereafter retaliated against him by: (1) interfering with his duties as Lieutenant in the Criminal Investigations Division; (2) giving him written counseling in December 2005; (3) issuing a reprimand in January 2006; (4) starting Internal Affairs investigations against him in February 2006; and (5) transferring him from Criminal Investigations to Field Operations in March 2006.
On September 1, 2009, a jury trial began on the remaining claims in these two consolidated cases. The claims in Case No. 04-3168 were referred to as Count I, and the claims in Case No. 07-3096 were referred to as Count II. On September 10, 2009, the jury returned verdicts in favor of the City on Count I and in favor of Davis on Count II. The jury awarded Davis $350,000 in damages for emotional distress caused by the retaliation alleged in Count II. Verdict Form on Count I (d/e 298); Verdict Form on Count II (d/e 299). The Court subsequently reduced the award to $300,000.00 due to the statutory cap. 42 U.S.C. § 1981a. The Court then conducted a bench trial on Davis' economic claims and awarded $40,000.00 in back pay. Opinion entered November 20, 2009 (d/e 306).
The City now asks for judgment as a matter of law on Count II, or in the alternative, for a new trial. The Court will address each request separately. For the reasons set forth below, each request is DENIED.
I. MOTION FOR JUDGMENT AS A MATTER OF LAW
The Court must grant a motion for judgment as a matter of law if "a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find in for the party on that issue." Fed. R. Civ. P. 50(a)(1). The Court must view all of the evidence in the record in the light most favorable to Davis. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). In this case, the issue is whether Davis presented enough evidence to permit a reasonable jury to conclude that he was a victim of illegal retaliation. See Filipovich v. K & R Express Sys. Inc., 391 F.3d 859, 863 (7th Cir. 2004).
In this case, Davis was required to present evidence that: (1) he engaged in protected activity; (2) he suffered a retaliatory adverse action; and (3) the retaliatory adverse action was motivated by his protected activity. David v. Caterpillar, Inc., 324 F.3d 851, 858 (7th Cir. 2003). A retaliatory adverse action is an action that would dissuade a reasonable employee from making or supporting a charge of discrimination. Burlington Northern & Santa Fe R. Co. v. White, 548 U.S. 53, 68 (2006). A lateral transfer can constitute a retaliatory adverse action if the new position was objectively less desirable. Lucero v. Nettle Creek School Corp., 566 F.3d 720, 729 (7th Cir. 2009).
The City argues that Davis failed to present evidence that: (1) he suffered a retaliatory adverse action or (2) a causal connection existed between his protected activity and the retaliatory action. The evidence showed that Davis engaged in protected activity. He filed charges of discrimination; he filed Title VII lawsuits alleging discrimination and retaliation; and he spoke out about the City's treatment of African American police officers. The City, however, argues that the evidence did not show that Davis suffered a retaliatory adverse action.
Although the question is close in light of the Court of Appeals' recent decision in Lucero, the Court finds that Davis presented sufficient evidence of a retaliatory adverse action. In Lucero, a teacher, Lucero, claimed that the defendant school district retaliated against her by transferring her from high school to junior high, with the same pay and benefits. The Court of Appeals determined that Lucero's subjective perception that teaching junior high was less prestigious was not relevant. Lucero, 566 F.3d at 729. The Court of Appeals explained that the retaliatory nature of the employer's actions must be determined on an objective standard; thus, a lateral transfer can constitute a retaliatory adverse action if the latter position is objectively less desirable than the former. Id. In Lucero, the transfer was not a retaliatory adverse action because Lucero taught the same academic subjects in the same building under the same conditions with the same pay and benefits. The latter position was not objectively less desirable. Id.
In this case, the jury found that the City subjected Davis to unwarranted disciplinary actions and transferred him from the day shift in Criminal Investigations to the midnight shift in Field Operations. After the transfer, he remained a Lieutenant with the same pay and benefits. Davis presented evidence that he and other officers perceived Criminal Investigations to be more prestigious than Field Operations, but those subjective perceptions are irrelevant. Id. Still, a jury could conclude that the assignment to Field Operations was objectively less desirable. Davis was placed on the midnight shift, and his working conditions changed because the Field Operations Division performed patrol functions. As a result, a Lieutenant in Field Operations would need to be on the street more in order to supervise patrol sergeants and officers. A jury could conclude that being out on the streets more during the midnight shift constituted objectively less desirable working conditions. In addition, the jury found that the City subjected Davis to unwarranted disciplinary actions. The combination of the disciplinary actions and the transfer to the midnight shift would support a finding that the City's actions subjected Davis to objectively less desirable working conditions.
The City also argues that Davis failed to present evidence of a causal connection between Davis' protected activity and the retaliatory adverse actions. However, Davis presented evidence that, in November 2003, Davis filed a charge of discrimination because then Police Chief Donald Kliment had selected Lieutenant William Rouse, a white man, over Davis to be Deputy Chief of Criminal Investigations. Davis presented evidence from which a jury could conclude that, thereafter, Rouse and Kliment were out to get Davis because he filed the charge of discrimination. Rouse almost immediately began keeping notes on his interactions with Davis. Beginning in 2004, Rouse repeatedly asked for Davis to be transferred out of Criminal Investigations. Davis submitted into evidence numerous memoranda in which he documented acts by Rouse and Kliment that, according to Davis' testimony, interfered with his ability to perform his duties. Rouse and Kliment subjected Davis to various forms of discipline that Davis testified were all unwarranted. Ultimately, Rouse and Kliment subjected Davis to the unwarranted discipline and ...