Christopher Zamora v. City of Houston

Case: 14-20125 Document: 00513161693 Page: 1 Date Filed: 08/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20125 United States Court of Appeals
Fifth Circuit
FILED
CHRISTOPHER ZAMORA, August 19, 2015
Lyle W. Cayce
Plaintiff - Appellee Cross-Appellant Clerk
v.
CITY OF HOUSTON,
Defendant - Appellant Cross-Appellee
Appeals from the United States District Court
for the Southern District of Texas
Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Christopher Zamora (“Zamora”), a Houston police officer, sued the City
of Houston (the “City”) for unlawful retaliation under Title VII. A jury found
the City liable and awarded Zamora damages, some of which the district court
vacated. The City appealed, challenging the district court’s refusals: to grant
judgment as a matter of law for the City on Zamora’s retaliation claim, to
vacate the jury’s past compensatory damages award, and to grant a mistrial or
a new trial based on the jury’s discovery of a prior jury’s notes on the case.
Zamora also appealed, challenging the district court’s vacatur of the jury’s
future compensatory damages award. For the reasons that follow, we affirm in
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part, and reverse and remand only the district court’s vacatur of Zamora’s
future compensatory damages award.
I.
In 2007, several members of the Houston Police Department (the
“Department”), including Manuel Zamora (“Manuel”), sued the City for racial
discrimination and retaliation. Zamora, Manuel’s son and appellee/cross-
appellant here, joined the lawsuit in September 2008. Initially, Zamora alleged
only that the Department had retaliated against him in March 2008—because
of his father’s involvement in the lawsuit—by removing him from an
assignment to the Department’s prestigious Crime Reduction Unit (“CRU”).
During discovery, Zamora deposed several of his CRU supervisors.
Following those depositions, Manuel filed a complaint with the Department’s
Internal Affairs Division, alleging that the deponents violated the
Department’s policies by lying under oath and by colluding to gin up pretext
for Zamora’s removal from the CRU.
As part of Internal Affairs’ investigation into Manuel’s complaint,
Zamora was questioned on the specifics of his allegations of discrimination,
harassment, and retaliation. After interviewing his CRU supervisors and
nearly two dozen other officers, Internal Affairs determined that Zamora, not
his CRU supervisors, had violated the Department’s policies by being
untruthful in his responses during the investigation. That determination was
largely based on statements made by Zamora’s CRU supervisors that harshly
attacked his credibility and baldly contradicted his factual assertions. A
departmental disciplinary committee recommended that Zamora be suspended
for ten days, and the Chief of Police approved the suspension.
While the Internal Affairs investigation was progressing, the district
court dismissed Zamora’s retaliation claim (and all other pending claims) on
summary judgment, reasoning that Zamora could not complain of retaliation
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for his father’s protected activity. But after the Supreme Court held in
Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), that a
plaintiff could base a retaliation claim on the protected activity of a close family
member, this court reversed the district court’s dismissal of Zamora’s
retaliation claim. Zamora v. City of Houston, 425 F. App’x 314, 316-17 (5th Cir.
2011) (per curiam).
In addition to appealing the district court’s summary judgment ruling,
Zamora appealed his suspension internally to an independent arbitrator. Just
before this court reversed the district court’s summary judgment ruling, the
arbitrator overturned Zamora’s suspension on the merits.
On remand, Zamora filed an amended complaint setting out additional
allegations of retaliatory actions taken by the Department since he joined the
lawsuit in September 2008. Relevant here, Zamora—pointing to his
suspension’s reversal—claimed that his ten-day suspension was retaliatory. 1
This time, the district court denied the City’s summary judgment motion,
and the case proceeded to trial. But after the jury reached a verdict, the
Supreme Court decided University of Texas Southwestern Medical Center v.
Nassar, 133 S. Ct. 2517 (2013), clarifying the standard for proving retaliation
under Title VII. The district court thus ordered a new trial.
During deliberations following the second trial, the jury discovered a
chalkboard with jury notes from the first trial. Those notes appeared to
indicate that ten jurors on the first jury believed that Zamora’s suspension was
retaliatory. After questioning each juror in open court, the district court denied
the City’s motion for a mistrial, and later denied the City’s motion for a new
trial.
Zamora also claimed that he would have received a particular transfer he desired
1
had he not engaged in protected activity. After the jury deadlocked on that claim, he
abandoned it, and it is not at issue in this appeal.
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The jury found that the City suspended Zamora in retaliation for his
protected activity, and awarded him $23,000 in past compensatory damages
and $127,000 in future compensatory damages. The City then moved for
judgment as a matter of law and for a new trial or remittitur. The district court
denied the City’s motion on liability, but vacated the jury’s award of future
compensatory damages as not supported by the evidence.
This appeal followed.
II.
“Although we review the denial of a motion for judgment as a matter of
law de novo, we apply the same legal standard as the district court.” EEOC v.
Boh Bros. Constr. Co., 731 F.3d 444, 451 (5th Cir. 2013) (en banc). To obtain
judgment as a matter of law, “the facts and inferences [must] point so strongly
and overwhelmingly in the movant’s favor that reasonable jurors could not
reach a contrary conclusion.” Id. (quoting Baisden v. I’m Ready Prods., Inc.,
693 F.3d 491, 498 (5th Cir. 2012)) (internal quotation marks omitted). We
“must draw all reasonable inferences in the light most favorable to the verdict.”
Id. at 452. And we “‘cannot reverse a denial of a motion for judgment as a
matter of law unless the jury’s factual findings are not supported by
substantial evidence, or if the legal conclusions implied from the jury’s verdict
cannot in law be supported by those findings.’” Id. (quoting Am. Home
Assurance Co. v. United Space Alliance, LLC, 378 F.3d 482, 488 (5th Cir.
2004)).
We review a decision to grant or deny a mistrial for abuse of discretion.
United States v. Ruggiero, 56 F.3d 647, 652-53 (5th Cir. 1995) (refusals to grant
new trial following allegations of jury influence are reviewed for abuse of
discretion).
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III.
A.
The City first argues that Zamora, who used a cat’s paw theory of
causation in proving his retaliation claim, has not established that cat’s paw
analysis is still viable following Nassar.
A Title VII retaliation plaintiff must establish that: “(1) the employee
engaged in activity protected by Title VII; (2) the employer took adverse
employment action against the employee; and (3) a causal connection exists
between that protected activity and the adverse employment action.” Thomas
v. Tex. Dep’t of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000). Nassar and
cat’s paw analysis both bear on the third element, causation.
A plaintiff asserting a Title VII discrimination claim must show only
that the employer’s discriminatory motive “was a motivating factor” for an
adverse employment action. Nassar, 133 S. Ct. at 2526. In Nassar, the
Supreme Court clarified that a plaintiff asserting a Title VII retaliation claim
must meet a higher standard of causation. Such a plaintiff “must establish that
his or her protected activity was a but-for cause of the alleged adverse action
by the employer.” Id. at 2534.
Plaintiffs use a cat’s paw theory of liability when they cannot show that
the decisionmaker—the person who took the adverse employment action—
harbored any retaliatory animus. Under this theory, a plaintiff must establish
that the person with a retaliatory motive somehow influenced the
decisionmaker to take the retaliatory action. Put another way, a plaintiff must
show that the person with retaliatory animus used the decisionmaker to bring
about the intended retaliatory action.
This court has expressed uncertainty about the continued viability of
cat’s paw analysis in a similar context, albeit in a nonprecedential opinion. In
Holliday v. Commonwealth Brands, Inc., 483 F. App’x 917 (5th Cir. 2012) (per
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curiam), the panel considered, without deciding, whether cat’s paw analysis
should apply when plaintiffs must meet the heighted but-for standard of
causation (there, in an ADEA case). See id. at 922 n.2. But see EEOC v.
DynMcDermott Petrol. Operations Co., 537 F. App’x 437, 443-45 (5th Cir. 2013)
(per curiam) (using cat’s paw analysis to assess evidence of but-for causation
in ADEA case).
But we have not squarely decided that question, either in the broader
context of claims that require plaintiffs to show but-for causation or in the
narrower context of Title VII retaliation claims following Nassar. 2 At least
three other circuits have concluded that, even after Nassar, plaintiffs may use
a cat’s paw theory of causation in Title VII retaliation cases. See, e.g., EEOC v.
New Breed Logistics, 783 F.3d 1057, 1070 (6th Cir. 2015); Ward v. Jewell, 772
F.3d 1199, 1203, 1205 (10th Cir. 2014); Bennett v. Riceland Foods, Inc., 721
F.3d 546, 551 (8th Cir. 2013); see also Godwin v. Wellstar Health Sys., Inc., No.
14-11637, 2015 WL 3757354, at *11 (11th Cir. June 17, 2015) (using cat’s paw
analysis in ADEA case requiring but-for causation).
Read together, Nassar and Staub v. Proctor Hospital, 562 U.S. 411
(2011), make clear that cat’s paw analysis remains viable in the but-for
causation context. In Staub, the Court explicitly blessed the use of cat’s paw
analysis in the context of an employment claim requiring that the unlawful
animus be a “motivating factor” for the employer’s action (there, a USERRA
claim). Id. at 416-17, 419-22. The Court held that “if a supervisor performs an
2 In Haire v. Board of Supervisors of Louisiana State University Agricultural &
Mechanical College, 719 F.3d 356 (5th Cir. 2013), this court arguably relied on cat’s paw
analysis in holding that a Title VII retaliation plaintiff had raised a genuine issue of material
fact on causation. See id. at 366-69. But the court did not grapple with the issue whether cat’s
paw analysis remains viable in the retaliation context, and it is unclear from the opinion
whether the court relied only on cat’s paw evidence in finding that the plaintiff had produced
enough evidence to create a genuine issue of fact.
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act motivated by [unlawful] animus that is intended by the supervisor to cause
an adverse employment action, and if that act is a proximate cause of the
ultimate employment action, then the employer is liable.” Id. at 422 (footnote
omitted). Meanwhile, in Nassar, the Court changed only the strength of the
causal link—between the supervisor’s actions and the adverse employment
action—that the plaintiff must establish. Cf. Simmons v. Sykes Enters., Inc.,
647 F.3d 943, 949-50 (10th Cir. 2011) (applying Staub to ADEA case, which
requires proof of but-for causation, and noting that to establish cat’s paw
causation in such a case, “the relationship between a subordinate’s animus and
the ultimate employment decision must be more closely linked” than in
“motivating factor” cases). In other words, the applicable standard of causation
is relevant only to the latter portion of this Staub test—instead of being a
proximate cause, the supervisor’s act must be a “[but-for] cause of the ultimate
employment action.” 562 U.S. at 422; see also Seoane-Vazquez v. Ohio State
Univ., 577 F. App’x 418, 427-29 (6th Cir. 2014) (similarly replacing “motivating
factor” with “but-for” in applying cat’s paw analysis post-Nassar). Nassar says
nothing about whether a supervisor’s unlawful animus may be imputed to the
decisionmaker; it simply requires that the supervisor’s influence with the
decisionmaker be strong enough to actually cause the adverse employment
action.
The Court’s reasoning in Staub also supports this reading. There, the
Court explained that refusing to allow cat’s paw analysis would undercut a law
designed to prevent employment discrimination. 562 U.S. at 420. An employer
could insulate itself from liability by isolating the decisionmaker from an
employee’s supervisors. Id. Supervisors could then attempt to cause adverse
action through conduct motivated by unlawful animus—for example, by filing
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dismal but untrue performance reviews. Id. 3 This concern is even stronger in
cases where supervisors have sufficient influence over the decisionmaker that
they can in fact cause an adverse employment action—in other words, in but-
for cases. And “[s]ince a supervisor is an agent of the employer, when he causes
an adverse employment action the employer causes it.” Id. at 421. If the
supervisor is motivated by retaliatory animus, then the employer has violated
Title VII. Cf. id. In short, Staub supports using a cat’s paw theory of causation
in but-for cases, and nothing in Nassar is to the contrary.
We now join the circuits that have addressed the question and hold that,
in the context of Title VII retaliation claims, cat’s paw analysis remains a
viable theory of causation. 4
B.
The City’s core argument on appeal is that Zamora did not produce
sufficient evidence from which a reasonable jury could find a causal connection
between his protected activity and his ten-day suspension. Zamora responds
that he produced evidence that his CRU supervisors made retaliatory
statements to Internal Affairs, intending to cause Zamora to suffer an adverse
employment action, and that they succeeded.
“[I]n a case such as this one when there has been a trial on the merits,
we need not address the sufficiency of the prima facie case, but instead we will
proceed to the ultimate question of whether the plaintiff presented enough
evidence for a jury to find that [retaliation] occurred.” Thomas, 220 F.3d at 393.
In other words, we need not analyze this case under the familiar McDonnell
Douglas burden-shifting framework. Id.
3 Indeed, that is similar to what Zamora alleges here.
4 Although the same rationale for the cat’s paw theory’s continued viability in the
retaliation context might be extended to other claims requiring but-for causation, such as
ADEA claims, the broader issue is not before us.
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Under Staub and Nassar, to establish causation under a cat’s paw
theory, Zamora must produce sufficient evidence that (1) his CRU supervisors,
motivated by retaliatory animus, took acts intended to cause an adverse
employment action; and (2) those acts were a but-for cause of his suspension.
We address each element in turn.
i.
The City argues that Zamora “produced no evidence of retaliatory motive
on the part of [his CRU supervisors]” and no evidence that, motivated by
retaliatory animus, they took actions intended to cause an adverse
employment action. The record suggests otherwise.
To begin with, at the time that Zamora’s CRU supervisors submitted
their statements to Internal Affairs, each was well aware that Zamora had
joined Manuel’s discrimination suit. See Manning v. Chevron Chem. Co., 332
F.3d 874, 883 (5th Cir. 2003) (explaining that “to establish the causation prong
of a retaliation claim, the employee should demonstrate that the employer
knew about the employee’s protected activity”). Indeed, most of them had
recently been deposed for that suit. Manuel’s allegations of misconduct in his
Internal Affairs complaint chiefly related to those depositions. And each of the
CRU supervisors received and responded to the Internal Affairs complaint.
Zamora also presented evidence that his CRU supervisors’ awareness of
his protected activity was particularly likely to cause retaliatory animus.
Zamora’s expert testified that the Department operated under a “code of
silence” in which officers would retaliate against those who complained, spoke
out against others, or filed complaints or lawsuits. The jury was entitled to
credit this testimony. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th
Cir. 2002). The jury could reasonably infer that the CRU supervisors, operating
under this “code of silence,” retaliated against Zamora, who they were well
aware had engaged in protected activity. For the same reason, the jury could
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also reasonably infer that they retaliated against Zamora because his father
had filed an Internal Affairs complaint against them. Moreover, Zamora’s
protected activity had caused the CRU supervisors to sit through depositions
just before they made their statements.
When considered with the highly negative statements themselves—
which severely attack Zamora’s credibility and reputation—a reasonable jury
easily could have found that the CRU supervisors were motivated by
retaliatory animus and that their statements were intended to cause Zamora
to suffer an adverse employment action.
ii.
The City argues that even if Zamora’s CRU supervisors were motivated
by retaliatory animus, their statements were not a but-for cause of Zamora’s
suspension. Substantial record evidence, however, shows that they were.
Zamora’s suspension did not result from an Internal Affairs
investigation of allegations of misconduct against him. Instead, it resulted
from an investigation prompted by Manuel’s complaint that certain of
Zamora’s CRU supervisors had violated departmental policies, including the
prohibition on truthfulness. That the investigation of Zamora’s CRU
supervisors resulted in a recommendation to instead punish Zamora for
untruthfulness was in large part due to his supervisors’ retaliatory statements.
Lieutenant Spjut reviewed the Internal Affairs report and recommended
that Zamora be disciplined. In his recommendations, he heavily relied on the
CRU supervisors’ retaliatory statements. Indeed, in two of the three incidents
for which Spjut recommended discipline, the CRU supervisors provided the
purportedly contradictory evidence. Spjut also repeatedly credited the
testimony of other officers over Zamora’s in finding that Zamora lied, including
in the only instance for which the CRU supervisors did not provide the
contradicting statements. An inference that he did so because of the CRU
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supervisors’ harsh attacks on Zamora’s credibility would be reasonable. The
City did not, moreover, produce an example of untruthfulness for which
Zamora would have been punished absent the CRU supervisors’ statements.
Spjut had no personal involvement in or knowledge of Zamora’s work
performance. Instead, he relied on the statements made by those interviewed.
Similarly, the departmental disciplinary committee did not perform an
independent investigation; it simply reviewed the Internal Affairs file and
Spjut’s recommendations. Likewise with the Chief of Police’s designee.
In short, the CRU supervisors managed, with their retaliatory
statements, to turn an investigation of purported wrongdoing by them into a
recommendation that one of their accusers be disciplined. Without their
statements against Zamora, Spjut would not have recommended discipline; the
departmental disciplinary committee would not have adopted Spjut’s
recommendation; and the Chief of Police would not have had any
recommendation to approve. Clearly, Zamora was disciplined because of the
CRU supervisors’ retaliatory statements.
The City counters that the many layers of review between the CRU
supervisors’ statements and the ultimate decisionmaker necessarily broke the
chain of causation. Not so. Neither Spjut nor anyone above Spjut conducted an
investigation that “result[ed] in an adverse action for reasons unrelated to the
[CRU] supervisor[s’] original biased action[s]”—the retaliatory statements.
Staub, 562 U.S. at 421. In Staub, the Supreme Court noted that if an
independent investigation “takes [a supervisor’s biased report] into account
without determining that the adverse action was, apart from the supervisor’s
recommendation, entirely justified,” the supervisor’s action “may remain a
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causal factor.” Id. 5 Spjut’s investigation did not merely take the CRU
supervisors’ statements into account; he based his disciplinary
recommendations on them. And without the supervisors’ statements, the
adverse action would not have been justified.
The City next argues that Zamora’s 2010 suspension is too remote from
his joining of Manuel’s lawsuit in 2008. Courts have found that to establish a
prima facie case, plaintiffs may rely solely on temporal proximity between
protected activity and an adverse employment action only if the two are very
close. See, e.g., Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001).
Our inquiry here, however, is not whether temporal proximity alone shows
causation—Zamora has produced other evidence of causation—nor is it
whether Zamora has established a prima facie case. Also, joining Zamora’s
father’s lawsuit was not his only protected activity. His statement to Internal
Affairs during the investigation, alleging retaliation, harassment, and other
misconduct, was circulated to his CRU supervisors; the jury could have found
that the CRU supervisors were retaliating against Zamora for that protected
activity—which took place close in time to the retaliatory statements—as well.
Next, the City contends that because the ultimate decisionmakers
reasonably believed that Zamora had violated departmental policies, the
decision to suspend Zamora was “based on a non-retaliatory reason.” This
argument misunderstands cat’s paw analysis. In every case involving a cat’s
paw theory of causation, the ultimate decisionmaker bases his decision on a
non-retaliatory reason. Indeed, that is why cat’s paw analysis is needed: The
plaintiff cannot show that the decisionmaker harbored any retaliatory animus.
But because the supervisors caused that decision through actions motivated by
5Staub, of course, was a USERRA case, involving the “motivating factor” standard of
causation. But it is instructive on this point because it suggests that even investigations that
merely take into account a biased report do not break the causal chain.
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retaliatory animus—in effect manipulating the decisionmaker into taking
what appears to the decisionmaker to be a non-retaliatory action—the
employer is liable. See Staub, 562 U.S. at 419-22. That is precisely what
occurred here.
Because Zamora produced sufficient evidence to show that his CRU
supervisors, motivated by retaliatory intent, intended to cause and did cause
his suspension, the district court properly denied the City’s motion for
judgment as a matter of law on this issue.
IV.
A.
At trial, Zamora sought past compensatory damages for mental anguish,
emotional distress, and damage to his reputation. The jury awarded Zamora
$23,000 in past compensatory damages. The City challenges the sufficiency of
the evidence supporting that award.
“Compensatory damages are reviewed for abuse of discretion.” DeCorte
v. Jordan, 497 F.3d 433, 442 (5th Cir. 2007). Zamora must show how he was
“personally affected by the [retaliatory] conduct and the nature and extent of
the harm.” Id. Although in many cases a claimant’s testimony alone will not
suffice, “corroborating testimony and medical evidence is not required in every
case involving compensatory damages.” Id.
Manuel testified as to the mental anguish and depression that Zamora
suffered between his suspension and the arbitrator’s reversal of the
suspension. In addition, Zamora, Manuel, Zamora’s expert, and several of his
supervisors testified either that Zamora’s reputation was harmed after he was
branded untruthful or that in general, officers found to be liars suffer severe
reputational harm within police departments. Zamora thus produced specific
evidence that the retaliation caused him to suffer both mental anguish and
reputational harm sufficient to support the jury’s award.
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B.
The jury also awarded Zamora $127,000 in compensatory damages for
future mental anguish and reputational harm. The district court granted the
City’s motion for judgment as a matter of law and vacated this award, finding
it to be unsupported by the evidence. Zamora appeals, but he argues only that
he presented sufficient evidence of future reputational harm; he has
abandoned his argument that the award was based on a sufficient showing of
future mental anguish.
This court “review[s] the district court’s grant of a motion for judgment
as a matter of law de novo.” Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036,
1042 (5th Cir. 1998).
Zamora argues that two “executive assistant chiefs” in the Department—
high-ranking officers who report directly to the Chief of Police—disagreed with
the arbitrator’s decision to overturn Zamora’s citation and resulting
suspension. One, Munden, stated explicitly that he still thought Zamora was
untruthful. The district court stated that it was “unpersuaded that these
individuals’ personal opinions support compensable injury from unlawful
retaliation” because Zamora had not “adduce[d] proof indicating that any of
these individuals’ (or others’) views are likely to impact his career in the
future.” But the jury was entitled to make the natural and common-sense
inference that an employee suffering from a blackened reputation in the eyes
of high-ranking executives of an organization is limited in his potential to rise
within that organization. And although Zamora received a scheduled
promotion to sergeant, the jury was entitled to believe that his chances of
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further promotion—or transfer from a patrol unit to a more prestigious
investigative unit—would be affected by his poor reputation. 6
The City counters that since 2010, Zamora has consistently received
positive performance reviews from his new supervisors; he has been selected
for illustrious training programs; he has received commendations; he has
enjoyed successful working relationships with his peers; and he has received a
scheduled promotion. That he is currently doing well within his new unit,
however, does not mean that his future is not limited by the harm to his
reputation.
Indeed, Zamora produced expert testimony about the importance of
truthfulness in the law enforcement community, and about the devastating
effect that even an overturned finding of untruthfulness can have. The expert,
Mel Tucker, testified that “untruthfulness is one of the worst [complaints],
because that’s a bell, if you will, that can’t be un-rung.” Tucker noted that, if
he were to evaluate applicants for a position, he would choose one without an
untruthfulness allegation over one who had one, even if the allegation had been
overturned, “because that’s less baggage that I have to deal with with that
employee.” Other parts of Tucker’s testimony dealt with the culture of police
departments, and how whistleblowers who break the “code of silence” are
viewed as turncoats. The jury was entitled to consider what Tucker told them
about police department culture and draw their own conclusions about the
extent that Zamora’s “baggage” would continue to injure him in the future.
6 Zamora was asked at trial whether he believed that he would “ever be able to
promote, or transfer rather, as a sergeant from patrol into some type of investigative
sergeant’s position,” and he responded, “[n]o, I don’t think so.” In its briefing in the district
court, the City claimed that despite their “personal opinions,” “Munden and Dirden have an
obligation to follow not only the law and city policy, but also to accept the consequences of
‘bargained for’ arbitration processes.” But the jury was not required to believe that the HPD
would follow its own policies.
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In sum, given the deference owed to the jury verdict and the evidence
Zamora presented at trial, the district court erred in vacating the portion of
the jury’s award attributable to future reputational harm. Yet, although we
conclude that Zamora presented sufficient evidence to support an award of
some amount of damages for future reputational harm, the jury’s award did
not specify how much of the award was attributable to emotional distress and
how much was attributable to reputational harm. On remand, the district court
should consider remittitur to determine the amount of damages to which
Zamora is entitled for reputational harm only.
V.
The City argues that the district court erred in denying the City’s motion
for a mistrial after the jury discovered the previous jury’s notes on a chalkboard
in the jury room. The district court denied the City’s motion after making a
factual finding that none of the jurors were tainted by viewing those notes.
“The decision to declare a mistrial is left to the sound discretion of the
judge,” and granting a mistrial “is appropriate when there is a high degree of
necessity.” Renico v. Lett, 559 U.S. 766, 774 (2010) (internal quotation marks
omitted). When it comes to influences on the jury, whether extrinsic or
intrinsic, “the trial court has broad discretion and the ultimate inquiry is: ‘Did
the intrusion affect the jury’s deliberations and thereby its verdict?’” United
States v. Sotelo, 97 F.3d 782, 797 (5th Cir. 1996) (quoting United States v.
Ramos, 71 F.3d 1150, 1154 (5th Cir. 1995)). This court, moreover, “should
accord great weight to the trial court’s finding that the evidence in no way
interfered with any juror’s decision.” United States v. O’Keefe, 722 F.2d 1175,
1179 (5th Cir. 1983). After all, “the trial judge is in the best position to evaluate
accurately the potential impact of the complained-of . . . influence.” Ramos, 71
F.3d at 1154.
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Here, the district court interviewed each of the jurors individually in
open court. The district court noted that, upon discovering the notes and
“deduc[ing] that that material was related to some proceeding in this case . . .
[the jury] in good faith . . . stopped reading.” The notes, moreover, did not
contain evidence; they appear to have indicated only the first jury’s positive
view of Zamora’s retaliation claim. Following the juror interviews, the district
court found that none of the jurors would “be influenced by anything they have
seen on that board.”
The district court did not abuse its broad discretion in assessing whether
the jury would be influenced by viewing the previous jury’s notes. The view
that the district court reached after its prompt and thorough investigation, and
the district court’s admonishment to the jury not to consider the notes,
indicates that the notes did not affect the jury’s deliberations and thereby its
verdict.
VI.
For the foregoing reasons, we AFFIRM the district court’s judgment on
liability because Zamora produced evidence sufficient to find—under Nassar’s
but-for standard of causation—that his CRU supervisors, motivated by
retaliatory intent, intended to cause and did cause his suspension. We
AFFIRM the district court’s order upholding the jury’s past compensatory
damages award because Zamora produced specific evidence that he suffered
mental anguish and reputational harm until his suspension was overturned.
We REVERSE and REMAND the district court’s order vacating the jury’s
future compensatory damages award because Zamora produced sufficient
evidence to support his claim of future reputational harm, and instruct the
district court on remand to consider remittitur. And we AFFIRM the district
court’s order denying the City’s motion for a mistrial because the district court
17
Case: 14-20125 Document: 00513161693 Page: 18 Date Filed: 08/19/2015
No. 14-20125
found after a thorough investigation that the discovery of the prior jury’s notes
would not affect the jury’s deliberations or the jury’s verdict.
18