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Norman Lupescu v. Janet Napolitano

September 25, 2012

NORMAN LUPESCU, PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY OF UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

A jury found in favor of plaintiff Norman Lupescu on his Title VII claim of race discrimination against defendant Janet Napolitano and awarded him $300,000 in compensatory damages. Lupescu worked for the Transportation Security Administration, which is part of the Department of Homeland Security. The Court will refer to the defendant as TSA.

TSA has filed a motion that is entitled -- not quite correctly -- as a motion for judgment as a matter of law (JMOL). She makes four arguments: (1) there was insufficient evidence that race played any role in Lupescu's termination; (2) the Court erroneously gave the jury a "cat's paw" instruction; (3) the Court improperly admitted evidence regarding how the TSA treated certain other employees; and (4) the jury's damage award was excessive. Only argument 1 would provide a basis for entry of JMOL in TSA's favor. Arguments 2 and 3, if successful, would lead only to a new trial, not entry of judgment for TSA. Argument 4, if successful, would lead to an order of remittitur, which if not accepted by Lupescu would in turn lead to a new trial.

The Court rejects Lupescu's argument that the motion is untimely. The motion was filed within twenty-eight days after judgment was entered on the docket. This makes TSA's motion timely under Rules 50(b) (concerning JMOL motions) and 59(b) (concerning motions for a new trial).

1. Sufficiency of evidence of discrimination

The Court deals first with TSA's argument that there was insufficient evidence to

prove race discrimination. The Court may grant judgment as a matter of law when "a reasonable jury would not have a legally sufficient evidentiary basis to find for the [nonmoving] party." Fed. R. Civ. P. 50(a)(1); see Thomas v. Cook County Sheriff's Dep't, 604 F.3d 293, 300--01 (7th Cir. 2009). The Court "do[es] not weigh evidence or assess the credibility of witnesses. Instead, [it] draw[s] all reasonable inferences in favor of the nonmoving party." Thomas, 604 F.3d at 300--01 (citations omitted).

After trial, a party can move for judgment as a matter of law only on issues it raised before submission of the case to the jury. Fed. R. Civ. P. 50(b). A Rule 50(b) motion for judgment as a matter of law "is only a renewal of the preverdict motion, [and] can be granted only on grounds advanced in the preverdict motion." Wallace v. McGlothan, 606 F.3d 410, 418 (7th Cir.2010) (internal quotation marks omitted).

The earlier [preverdict] motion informs the opposing party of the challenge to the sufficiency of the evidence and affords a clear opportunity to provide additional evidence that may be available. The earlier motion also alerts the court to the opportunity to simplify the trial by resolving some issues, or even all issues, without submission to the jury.

Fed. R. Civ. P. 50, advisory committee note, 2006 amendment.

TSA's Rule 50(b) motion at trial, in its entirety, was as follows:

The defendant moves, under Rule 50, the plaintiff has not shown that he was terminated because of his race. Running through comparators, a document with a witness who has never seen this document, doesn't make it a but for that he was terminated because of his race, and we renew our motion that the comparators were improper. Most of them were not on the same shift, they weren't the same supervisor, did not receive differential treatment.

Pl.'s Resp. to Def.'s Mot. for Judg. as a Matter of Law, Ex. A (trial transcript excerpt). TSA's current motion extends beyond this: TSA argues that Lupescu failed to meet what it characterizes as a higher burden that applies when a person claims he was discriminated against because he is Caucasian. This argument is forfeited as a basis for post-judgment Rule 50(b) relief, because TSA did not make it in its pre-judgment motion.

Even if not forfeited, however, TSA's argument lacks merit. The argument is based on Lupescu's purported failure to establish a prima facie case of discrimination. As the Seventh Circuit has stated, however, at this stage of the case such an argument "is irrelevant because . . . once a case reaches trial, the McDonnell Douglas burden shifting framework should no longer be ...


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