                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 07a0547n.06
                                 Filed: August 7, 2007

                                            No. 06-5372

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


TONY BLAKELY,                                            )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
                                                         )    THE MIDDLE DISTRICT OF
CITY OF CLARKSVILLE,                                     )    TENNESSEE
                                                         )
       Defendant-Appellant.                              )
                                                         )


Before: SILER and COOK, Circuit Judges; REEVES, District Judge.*

       SILER, Circuit Judge. The City of Clarksville (“City”) appeals the district court’s denial

of its Rule 50(b) motion following a jury verdict in favor of Tony Blakely, an African-American

officer of the Clarksville Police Department (“CPD”). The City argues that: (1) it is immune from

suit for claims of outrageous conduct and malicious harassment; (2) the district court erred by

admitting evidence of an Equal Employment Opportunity Commission (“EEOC”) determination and

a prior trial verdict; and (3) the district court erred by admitting evidence of discrimination alleged

by current and former employees. Because the district court abused its discretion in admitting

evidence of a prior jury verdict, we REVERSE the denial of the City’s Rule 50(b) motion for a new

trial with respect to Blakely’s claims for discriminatory discipline, hostile work environment, and


       *
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 06-5372
Blakely v. City of Clarksville

retaliation, and REMAND for a new trial. We DISMISS Blakely’s claims for outrageous conduct

and malicious harassment because the City is entitled to immunity.

                                        I. BACKGROUND

       Blakely began working for the CPD in 1990. He was promoted to detective in 1996 and

successfully passed the sergeant exam in 2000. The CPD promoted three white officers to sergeant

following this test, but not Blakely. In 2001, he filed a charge of discrimination with the EEOC,

alleging retaliation and hostile work environment. Blakely claimed he was called a “nigger” by his

supervisor, had a noose placed near his work station, and was suspended, because of his race and

because he testified in an internal affairs investigation. The EEOC issued a determination,

concluding that there was no evidence to support a claim for retaliation, but that there was evidence

to support the existence of a hostile work environment.

       In 2001, Blakely sued the City in federal district court, alleging failure to promote and

retaliation. He filed a second complaint in 2004, asserting claims for failure to promote, retaliation,

hostile work environment, intentional and/or negligent infliction of emotional distress, outrageous

conduct, and malicious harassment. The claims were based upon Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Tennessee Human Rights Act, TCA § 4-21-

101 et seq., and supplemental jurisdiction of state claims.

       The jury found in favor of Blakely on his claims of hostile work environment, retaliation,

racial discrimination in administering the City’s disciplinary policy, outrageous conduct, and

malicious harassment, and awarded him $325,000 compensatory damages total, or $65,000 per



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Blakely v. City of Clarksville

claim. Blakely’s claim of racial discrimination in the promotion process was dismissed with

prejudice.

                                            II. ANALYSIS

                      A. Outrageous Conduct and Malicious Harassment Claims

           The City first argues that it is immune from Blakely’s claims for outrageous conduct and

malicious harassment. We agree with the City and dismiss these claims because the City is immune

from suit based on Tennessee’s Governmental Tort Liability Act (“GTLA”), TCA § 29-20-101 et

seq. Even though the City raised the issue of governmental immunity for the first time on appeal,

immunity based on the GTLA is a jurisdictional bar that may be raised at any time. City of Lavergne

v. So. Silver, Inc., 872 S.W.2d 687, 690 (Tenn. Ct. App. 1993) (holding that the Tennessee

legislature intended the GTLA to deny courts jurisdiction over suits against an immune governmental

entity).

                       B. Admission of EEOC Determination and Prior Verdict

                                        1. EEOC Determination

           The City next asserts that the district court erred by permitting Blakely to introduce the

EEOC determination. A trial court has the discretion to allow an EEOC determination into evidence,

even though these determinations are not per se admissible in all civil rights suits. Heard v. Mueller

Co., 464 F.2d 190, 194 (6th Cir. 1972). In this case, the district court did not abuse its discretion by

permitting this evidence. While “[a] strong argument can be made that a jury would attach undue

influence to this type of agency determination, viewing it as a finding of discrimination . . . rather

than as a mere finding of probable cause,” Williams v. Nashville Network, 132 F.3d 1123, 1129 (6th

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Blakely v. City of Clarksville

Cir. 1997), the district court minimized any potential undue influence by specifically instructing the

jury that it was free to disregard any conclusions contained in the report because the EEOC may not

have had the same evidence as the jury had.

                                           2. Prior Verdict

       The City’s next argument is that the district court abused its discretion by permitting

Detective Kenneth Austion, an African-American CPD employee, to testify about a verdict in his

similar racial discrimination suit against the City. Evidence is properly excluded when it poses a

“likelihood of misleading the jury and confusing the issue.” Olin-Mathieson Chem. Corp. v. Allis-

Chalmers Mfg. Co., 438 F.2d 833, 837-38 (6th Cir. 1971). Evidence of a prior verdict is likely to

mislead the jury because “[a] jury is likely to give a prior verdict against the same defendant more

weight than it warrants. Admission of a prior verdict creates the possibility that the jury will defer

to the earlier result and thus will, effectively, decide a case on evidence not before it.” Coleman

Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1351 (3d Cir. 1975). In essence, the jury may “import

the whole verdict . . . from the prior proceeding.” Engquist v. Or. Dep’t of Agric., 478 F.3d 985,

1010 (9th Cir. 2007).

       While Detective Austion’s history of similar treatment and experiences may have had some

probative value, see Robinson v. Runyon, 148 F.3d 507, 512-13 (6th Cir. 1998), testimony regarding

a jury verdict in his favor did not “possess such additional probative value . . . to overcome the risk

of prejudice and confusion that the verdict posed.” Engquist, 478 F.3d at 1010. Had Austion

testified only to the similar treatment he endured, there would have been little potential for prejudice

and confusion. However, when he testified that he obtained a favorable verdict in his trial, there was

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Blakely v. City of Clarksville

a substantial risk that the jury would import the whole verdict from the Austion case, especially since

his case involved identical claims. Moreover, just after this case was argued on appeal, the Austion

case was decided by this court, partially affirming the jury verdict and partially reversing the

judgment, in particular, with regard to his demotion and failure-to-promote claims. Austion v. City

of Clarksville, No. 05-6626, ___ F. App’x ___ (6th Cir. July 31, 2007). Although the district court

gave the jury a limiting instruction, it did not cure any resulting prejudice. The admission of this

evidence was an abuse of discretion.

                             C. Admission of Previous Racial Conduct

       Finally, the City argues that the district court should have excluded evidence of racial

comments directed at other City employees. The district court did not abuse its discretion in

admitting this evidence because it was relevant to Blakely’s claim of a hostile work environment.

Although these incidents were not aimed at Blakely, “an employer may create a hostile environment

for an employee even where it directs its discriminatory acts or practices at the protected group of

which the plaintiff is a member, and not just the plaintiff herself.” Jackson v. Quantex Corp., 191

F.3d 647, 661 (6th Cir. 1999) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 87 (1986)).

Further, “[c]omments that single out a member of a protected class are relevant not only as to

whether a particular work environment was objectively hostile to members of the protected class,

but also as to whether an employee belonging to the protected class subjectively felt harassed.”

Jackson, 191 F.3d at 661.

                                        III. CONCLUSION



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No. 06-5372
Blakely v. City of Clarksville

       For the foregoing reasons, we REVERSE the denial of the City’s Rule 50(b) motion with

respect to Blakely’s claims for discriminatory discipline, hostile work environment, and retaliation,

and REMAND for a new trial. We DISMISS Blakely’s claims for outrageous conduct and

malicious harassment.




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