Court of Appeals upholds plaintiff's verdict in Title VII claim

This case teaches us a few things. First, if something goes wrong at trial, object as early as possible. Second, the trial court has wide latitude to reconcile any potential conflicts in the verdict form. The losing party in this case did not object when the jury returned the verdict sheet, and the trial court nonetheless found a way to harmonize the jury's answers. The plaintiff wins the appeal.

The case is Perez v. County of Rensselaer, a summary order issued on May 27. I represented the plaintiff on appeal. This is a gender discrimination case. The plaintiff, a man, alleged he was denied multiple promotions in the County Probation office because of his sex; most of the positions went to female candidates. (The original plaintiff was Gerald Wierzbicki. He passed away, so his wife, Nellie Perez, became the plaintiff). The jury entered a verdict in his favor, awarding plaintiff $30,000 in lost wages and $100,000 in pain and suffering. The jury registered its verdict on a verdict form. Post-trial, after the jury had gone home, defendants argued in a motion that the jury's answers on the verdict form actually meant that defendants had won the case.

Here is how the Court of Appeals characterizes the verdict form:

The verdict form asked the jurors two questions regarding [Plaintiff's] Title VII gender
discrimination claim. First, the form asked: “Did Nellie Perez prove by a preponderance of the evidence that  [Plaintiff's]  gender  was  a  motivating  factor  in  one  or  more  of  Defendant  the  County  of Rensselaer’s  decisions  not  to  promote  him  to  the  Senior  Probation  Officer  position  or  the  Probation Supervisor  position?” 

If  the jurors  answered  “yes,” they  were  instructed  to  proceed  to Question 2, which asked: “Did the County of Rensselaer nevertheless prove by a preponderance of the evidence that even if [Plaintiff's] gender was a motivating factor in any of its decisions not to promote him, that it nevertheless would have made the same decision even absent gender discrimination?” Despite answering “yes” to Questions 1 and 2, the jury proceeded to award compensatory damages one amount of $130,000. Defendants allege that the award of damages was inconsistent with the jury’s affirmative response to Question 2.

As defendants saw it, since Title VII allows the defendant to win the case if it shows it would have denied the plaintiff the position even without considering his gender, they have to win the case because the jury also said the County would have made the same decision anyway. The basis for this argument is the first part of Question 2: "even if [Plaintiff's] gender was a motivating factor in any of its decisions not to promote him . . . " (Emphasis supplied).

The trial court disagreed. Not only did defendants fail to object to the purportedly inconsistent answers before the jury was discharged, but the trial court said that the jury meant that the County would have denied plaintiff at least one of the positions even without considering his gender. Supporting the trial court's finding was that, in one instance, a man was awarded the promotion instead of plaintiff.

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