                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                      )
LAVERNE BATTLE,                                       )
                                                      )
               Plaintiff,                             )
                                                      )
               v.                                     )         Civil Action No. 12-2012 (ESH)
                                                      )
DISTRICT OF COLUMBIA, et al.,                         )
                                                      )
               Defendants.                            )
                                                      )

                                  MEMORANDUM OPINION

       Before this Court is plaintiff’s motion for a new trial. (Motion for New Trial [ECF No.

76] (“Pl.’s Mot.”).) For the reasons stated herein, the motion will be denied.

                                         BACKGROUND

       Plaintiff Laverne Battle brought this suit against the District Columbia and Sergeant

Kevin Pope, her direct supervisor at the Metropolitan Police Department, alleging, inter alia, that

Sergeant Pope sexually harassed her in violation of Title VII of the Civil Rights Act of 1964 and

the D.C. Human Rights Act (“DCHRA”), and that Sergeant Pope’s harassment constituted an

intentional infliction of emotional distress. (See Compl. for Monetary Damages [ECF No. 1-1].)

Following a four-day trial, the jury returned a verdict finding defendants liable on Count 2

(“Intentional Infliction of Emotional Distress”), but not on Count 1 (“Hostile Work

Environment”). (Verdict Form [ECF No. 72] at 1-2.) The jury awarded plaintiff $4,091. (Id. at

3.)

       Plaintiff objects to the jury’s verdict, arguing that it is inconsistent and against the weight

of the evidence, and requests a new trial. (Pl.’s Mot. at 2.) Defendants respond that the verdict
is reconcilable and supported by the evidence and, moreover, this Court should reconsider its

previous ruling and hold that plaintiff’s intentional infliction of emotional distress claim is barred

by the statute of limitations. (See Defs.’ Opp. to Pl.’s Mot. for a New Trial [ECF No. 79]

(“Defs.’ Opp.”) at 1-2.)

                                            ANALYSIS

       I.      LEGAL FRAMEWORK

       Federal Rule of Civil Procedure 59(a) provides that the Court may grant a new trial on all

or some of the issues raised in a jury trial “for any reason for which a new trial has heretofore

been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). “Generally, a

new trial may only be granted when a manifest error of law or fact is presented.” In re

Lorazepam & Clorazepate Antitrust Litig., 467 F. Supp. 2d 74, 87 (D.D.C. 2006). “The jury

verdict stands unless the evidence and all reasonable inferences that can be drawn therefrom are

so one-sided that reasonable men and women could not disagree on the verdict.” Youssef v.

F.B.I., 687 F.3d 397, 403 (D.C. Cir. 2012) (internal quotation marks omitted). “The burden of

showing that a new trial is warranted in accordance with [this] rigorous standard rests with the

moving party.” Czekalski v. Sec’y of Transp., 577 F. Supp. 2d 120, 122 (D.D.C. 2008) (internal

quotation marks omitted).

       II.     INCONSISTENT VERDICTS

       Plaintiff contends that “[t]he verdict in favor of the defendant on the plaintiff[’]s hostile

work environment claim is inconsistent with the verdict in favor of the plaintiff on her claim for

intentional infliction of emotional distress.” (P. & A. in Supp. of Pl.’s Mot. for a New Trial

[ECF No. 76] (“Pl.’s Mem.”) at 4-5.) In particular, plaintiff points out that, for the jury to have

found liability on the intentional infliction of emotional distress count, it must have found that



                                                  2
“defendant Pope’s conduct directed at the plaintiff was extreme and outrageous.” (Id. at 5; see

also Jury Instructions [ECF No. 65] (“Instructions”) at 29.) She further observes that liability on

the hostile work environment claim required a finding that the harassment was “severe and

pervasive.” (Pl.’s Mem. at 5; see also Instructions at 26.) Plaintiff argues that “proof of extreme

and outrageous conduct of a sexual nature would itself equate to unlawful sexual harassment.”

(Pl.’s Mem. at 5.) Arguing that “the verdict cannot be reconciled,” plaintiff urges this Court to

“set aside both verdicts and award[] a new trial.” (Pl.’s Mem. at 7 (quoting District of Columbia

v. Tulin, 994 A.2d 788, 798 (D.C. 2010).)

       Defendant first contends that “[p]laintiff waived the right to claim verdict inconsistency

because she never objected at the time the jury delivered the verdict.” (Defs.’ Opp. at 4.)

Plaintiff responds that the Federal Rules do not impose a contemporaneous objection

requirement for Rule 59 motions. (See Pl.’s Reply to the Defs.’ Opp. to Pl.’s Mot for New Trial

[ECF No. 80] (“Pl.’s Reply”) at 4.) The parties agree that the D.C. Circuit has not resolved this

issue. 1 (See Defs.’ Opp. at 5; Pl.’s Reply at 3.) Nevertheless, the consensus view appears to be

that a party waives any objection to inconsistent general verdicts 2 by failing to timely object.

See Cash v. Cty. of Erie, 654 F.3d 324, 342-43 (2d Cir. 2011) (holding that an objection to an

inconsistency between general verdicts was “waived by defendants’ failure to raise an


1
  See Hundley v. District of Columbia, 494 F.3d 1097, 1103 n.2 (D.C. Cir. 2007) (“This Court
has not resolved whether we can consider an inconsistent verdict claim, other than for plain
error, when a party failed to object in any way before the district court’s entry of judgment. In
light of the repeated objection to the written interrogatory in this case, . . . we again need not
reach that question.” (citation omitted)).
2
  The parties agree that the verdicts in this case were general and did not include factual
interrogatories. (Pl.’s Mot. at 1 n.1; Defs.’ Opp. at 3; see also Mason v. Ford Motor Co., 307
F.3d 1271, 1274 (11th Cir. 2002) (“A general verdict is a ‘verdict by which the jury finds in
favor of one party or the other, as opposed to resolving specific fact questions.’” (quoting
Black’s Law Dictionary 1555 (7th ed. 1999))).)

                                                  3
inconsistency objection before the district court discharged the jury”); Mason, 307 F.3d at 1274

(“[I]f the jury rendered inconsistent general verdicts, failure to object timely waives that

inconsistency as a basis for seeking retrial . . . .”); Wennik v. PolyGram Grp. Distribution, Inc.,

304 F.3d 123, 130 (1st Cir. 2002) (holding, in the context of a potential inconsistency between

general verdicts, that “[i]t is well-established that a party confronted by an inconsistent jury

verdict has an obligation to call the inconsistency to the trial judge’s attention”); Machesney v.

Larry Bruni, P.C., 905 F. Supp. 1122, 1132 & n.15 (D.D.C. 1995) (finding an objection to

inconsistent general verdicts waived where the party did not object to the jury instructions or the

verdict itself prior to jury discharge). The Court is persuaded by these authorities. Requiring

contemporaneous objection “promote[s] the efficiency of trials by allowing the original

deliberating body to reconcile inconsistencies without the need for a new presentation of

evidence to a different body.” Fernandez v. Chardon, 681 F.2d 42, 58 (1st Cir. 1982). The

parties were given an opportunity to object after the jury delivered its verdict and failed to do so.

Plaintiff’s objection is therefore waived.

       Waiver notwithstanding, defendants argue that the verdicts are reconcilable. (See Defs.’

Opp. at 6-9.) In particular, they point out that the hostile work environment count required a

finding that the harassment was “based on plaintiff’s sex,” which was not an element of the

intentional infliction of emotional distress claim. (Defs.’ Opp. at 8; see also Jury Instructions at

26, 29-30.) Thus, defendants contend that “it is quite possible that the jury concluded that

although there was harassment, this harassment had nothing to do with Plaintiff’s gender.”

(Defs.’ Opp. at 8.) They make a similar argument about the fourth element of the hostile work

environment count, which required the jury to find “that the harassment was so severe and

pervasive as to affect a term, condition, or privilege of employment.” (Jury Instructions at 26.)



                                                  4
       In the Rule 49 context, the D.C. Circuit has held that “[c]laims that a jury verdict is

internally inconsistent ‘impose a special obligation on the court to view the evidence in a manner

that reconciles the verdicts if possible, and to grant a new trial if not.’” Hundley, 494 F.3d at

1102 (quoting Smith v. District of Columbia, 413 F.3d 86, 97 (D.C. Cir. 2005)). Other circuits

have applied similarly charitable interpretations to potentially conflicting general verdicts. E.g.,

Connelly v. Hyundai Motor Co., 351 F.3d 535, 540 (1st Cir. 2003) (“Before disregarding a

verdict, we must attempt to reconcile the jury’s findings, by exegesis if necessary.” (internal

quotation marks omitted)); Mosley v. Wilson, 102 F.3d 85, 90 (3d Cir. 1996) (holding that courts

have a “duty to attempt to read the verdict in a manner that will resolve inconsistencies” (quoting

City of Los Angeles v. Heller, 475 U.S. 796, 806 (1986) (Stevens, J., dissenting))); Vaughan v.

Ricketts, 950 F.2d 1464, 1471 (9th Cir. 1991) (“[W]here inconsistent verdicts are alleged, the test

is not whether there was substantial evidence for the jury’s conclusion, but whether it is possible

to reconcile the verdicts.”).

       The verdicts here are reconcilable. The jury could have concluded that plaintiff suffered

harassment constituting intentional infliction of emotional distress, but that the harassment was

not based on plaintiff’s sex. Plaintiff contends that “all of the evidence showed that defendant

Pope’s conduct was either directly sexual in nature or heavily tinged with sexual overture.”

(Pl.’s Mem. at 7.) Plaintiff provides no citation to or discussion of the trial record to support this

assertion, and the Court’s own review of the record reveals several accusations by plaintiff that

could have been construed as harassment not based on any protected characteristic. For

example, plaintiff complained that Sergeant Pope frequently gave her undesirable assignments

where she was isolated and could not leave without being relieved by another officer. Plaintiff

also alleged that Sergeant Pope once entered an office she was in and locked the door behind



                                                  5
him, which made her feel uncomfortable. And finally, plaintiff claims that Sergeant Pope once

grabbed her around the waist and pulled on her ponytail. To be sure, the jury could have

accepted plaintiff’s interpretation that these incidents were sexually motivated. But it did not

have to. 3 This Court is obligated to “view the evidence in a manner that reconciles the verdicts if

possible,” Smith, 413 F.3d at 97, and the Court concludes that the jury could have found plaintiff

liable for intentional infliction of emotional distress without finding that the harassment plaintiff

suffered was based on her sex. See Sizer v. Rossi Contrs., Local 731 Teamsters 5, No. 98-C-

6967, 2002 U.S. Dist. LEXIS 13086, at *11-12 (N.D. Ill. July 17, 2002) (“Not all outrageous

conduct is discriminatory. People may, unfortunately, treat one another horribly for any number

of reasons, or for no reason at all. On that basis alone, it is evident that a jury could view one set

of facts and conclude that a plaintiff was the victim of outrageous conduct designed to inflict

severe emotional distress, but also conclude that the outrageous conduct had nothing to do with

plaintiff’s status in a protected class.”). The Court will therefore deny plaintiff’s motion for a

new trial based on a claim of verdict inconsistency. 4


3
  To give just one possible alternative explanation, several witnesses described plaintiff as
“quiet,” but Sergeant Pope was described as a “jokester” and “playful.” The jury could have
believed that Sergeant Pope’s actions, although inappropriate, owed to a clash of personality
types and not to plaintiff’s sex.
4
  In light of the above, the Court need not address defendants’ argument that inconsistent general
civil verdicts do not necessitate a new trial. (See Defs.’ Opp. at 2-3.) However, the Court does
note the D.C. Circuit’s observation that “[i]n both the civil and criminal contexts, courts have
held that inconsistency alone is not a sufficient basis for setting aside a jury verdict.” Pitt v.
District of Columbia, 491 F.3d 494, 506 (D.C. Cir. 2007); see also Heller, 475 U.S. at 805
(Stevens, J., dissenting) (“[A] court retains the authority, even in a civil case, to allow an
apparently inconsistent verdict to stand.”); Cash, 654 F.3d at 343 (“[A]ny inconsistency between
general verdicts . . . would not necessarily require retrial.”); Zhang v. Am. Gem Seafoods, Inc.,
339 F.3d 1020, 1035 (9th Cir. 2003) (“We have found no Supreme Court or Ninth Circuit cases
in which an appellate court has directed the trial court to grant a new trial due to inconsistencies
between general verdicts, and Ninth Circuit precedent dictates that we cannot do so.”);
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 407 (3d Cir. 2000) (“Inconsistent
jury verdicts are an unfortunate fact of life in law, and should not, in and of themselves, be used
                                                  6
       III.    SUFFICIENCY OF THE EVIDENCE

       Plaintiff also argues that the jury’s finding of no liability on the hostile work environment

count was against the weight of the evidence. In support of this assertion, plaintiff contends that

“defendant[s’] star witness, Sgt. Jamison Logan, revealed how tortuous defendant Pope’s

conduct had been by the [e]ffect it had on the plaintiff” and that “[t]he plaintiff was so distraught

that Sgt. Jamison Logan refuse[d] to let the plaintiff return[] to work.” (Pl.’s Mem. at 8.)

       The Court concludes that there was more than sufficient evidence to support the jury’s

verdict. As discussed supra, the jury could have found that any harassment plaintiff suffered

was not based on her sex. Moreover, the majority of plaintiff’s evidence consisted of her own

testimony, most of which was not corroborated by any other witness. Indeed, several of

plaintiff’s coworkers, including Tara Resper and Alexia Jones, testified that they never saw

Sergeant Pope act inappropriately. 5 “[I]t is the province of the jury to weigh the credibility of

competing witnesses . . . .” Kansas v. Ventris, 556 U.S. 586, 594, n. (2009). The evidence in

this case was certainly not so “one-sided that reasonable men and women could not disagree on

the verdict.” Youssef, 687 F.3d at 403 (internal quotation marks omitted). The Court will

therefore deny plaintiff’s motion for a new trial based on the sufficiency of the evidence.

       IV.     STATUTE OF LIMITATIONS




to overturn otherwise valid verdicts.”). The Court finds these authorities persuasive and would
adopt their rationale assuming, arguendo, that the verdicts were inconsistent.
5
 Plaintiff also overstates the significance of Sergeant Logan’s testimony. Sergeant Logan did
not testify that she witnessed any untoward behavior by Sergeant Pope, but merely that plaintiff
came to her to report Sergeant Pope’s harassment and that plaintiff was “visibly upset” in doing
so. This testimony is of only marginal relevance on the issue of liability.

                                                  7
         Finally, defendants renew their argument that plaintiff’s intentional infliction of

emotional distress claim “is barred by the statute of limitations.” 6 (Defs.’ Opp. at 9.) Their

rationale is that, even though an intentional infliction of emotional distress claim would typically

have a three year statute of limitations, if such a claim is “intertwined with any of the causes of

action for which a period of limitation is specifically provided,” the intentional infliction claim

assumes the statute of limitations of the predicate tort. Saunders v. Nemati, 580 A.2d 660, 664-

65 (D.C. 1990). Defendants contend that plaintiff’s intentional infliction claim is intertwined

with the hostile work environment claim, which, under the DCHRA, has a one-year statute of

limitations. See D.C. Code § 2-1403.04(a). Defendants concede that plaintiff’s DCHRA claim

is timely because it was tolled during the pendency of her administrative complaint, but they

argue that “a pending administrative complaint does not toll the statutory period for a plaintiff’s

common law claims.” (Defs.’ Opp. at 11 (citing Cornish v. District of Columbia, No. 13-cv-

1140, 2014 WL 4583637 (D.D.C. Sept. 16, 2014); Adams v. District of Columbia, 740 F. Supp.

2d 173 (D.D.C. 2010)).)

         Plaintiff responds that defendants’ request for relief is untimely. (Pl.’s Reply at 1.) The

Court agrees. Defendants had 28 days after the entry of judgment to renew their motion for

judgment as a matter of law or to request a new trial on this matter. Fed. R. Civ. P. 50(b), 59(b).

Judgment in this case was entered on March 2, 2015. (Judgment on the Verdict [ECF No. 74].)

Defendants did not file their memorandum in opposition until April 28, 2015. The Court will

therefore not disturb the jury’s verdict in favor of plaintiff on the intentional infliction of

emotional distress claim. 7


6
    The Court denied a similar motion by defendants before trial began.
7
 The Court would again deny defendants’ motion in any case. The cases cited by defendants do
not deal with the situation at hand, where the claims are intertwined and the common law claim
                                                   8
                                         CONCLUSION

       For the foregoing reasons, the Court will deny plaintiff’s motion for a new trial [ECF No.

76]. A separate Order accompanies this Memorandum Opinion.


                                                     /s/ Ellen Segal Huvelle
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge


Date: May 22, 2015




assumes the statute of limitations of the predicate tort. The D.C. Court of Appeals has explained
that the purpose of this doctrine is to prevent plaintiffs from using artful pleading to improperly
extend the prescribed statute of limitations. See Saunders, 580 A.2d at 661. No such abuse
would occur by allowing the statute of limitations for plaintiff’s intentional infliction claim to
toll along with the intertwined DCHRA claim. Indeed, failing to do so would recreate a
mismatch in limitations periods.

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