                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0406n.06

                                        Nos. 07-4385/07-4386                               FILED
                                                                                        Jun 04, 2009
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


EDWARD LENTZ, JR.,                                  )
                                                    )
     Plaintiff-Appellee/Cross-Appellant,            )
                                                    )
v.                                                  )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
CITY OF CLEVELAND; EDWARD F.                        )   NORTHERN DISTRICT OF OHIO
LOHN; SANFORD E. WATSON,                            )
                                                    )
     Defendants-Appellants/Cross-Appellees.         )




        Before: GUY, CLAY and COOK, Circuit Judges.


        COOK, Circuit Judge. Edward Lentz, Jr., a white Cleveland police officer, sued the City of

Cleveland and various officials (“Defendants”) for discriminating and retaliating against him after

he shot the adolescent black driver of a stolen vehicle. A jury agreed with Lentz, awarding him

$800,000 in damages. Defendants challenged the sufficiency of the evidence and the court’s

evidentiary rulings, and sought a remittitur though a Rule 50 motion. On appeal, Defendants

challenge the district court’s denial of that motion. Lentz cross appeals. We reverse and remand the

district court’s denial of the remittitur, but affirm the other aspects of its denial of Defendants’ Rule

50 motion. We also deny the cross-appeal.
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


                                                  I.


       The shooting occurred while Lentz guarded the home of Mayor-elect Jane Campbell in 2001.

He observed a station wagon proceed erratically down the street and abruptly stop behind his squad

car. As Lentz approached, the car backed up, hit a tree, and Lentz somehow ended up on its roof.

To get the car to stop as it drove toward an intersection—with him on top—Lentz fired fourteen

rounds through its roof, injuring the black juvenile driver.


       The Police Department (“Department”) assigned Lentz to police gymnasium duty pending

an investigation and it is the lengthy duration of this assignment that spurred Lentz’s complaint—

he spent 652 days on gym duty, much longer than the time typically served by officers involved in

shootings. The Use of Deadly Force investigation team (“UDF”) completed its investigation within

a normal time frame and the assistant prosecutor submitted a felonious-assault charge to a grand jury.

But before the grand jury could decide whether to indict Lentz, a Department official—Lieutenant

Robert Klimak—withdrew the case from grand jury consideration and retained the file for some five

months—from April to October 2002—before he returned it to the chief prosecutor.


        The prosecutor resubmitted the felonious-assault charge and added a misdemeanor count of

providing false information to the UDF. The grand jury indicted Lentz on the falsification charge

only; the court later dismissed the charge. The Department then filed departmental disciplinary

charges against Lentz for (1) violating the “use of force” policy; (2) lying about the shooting; and

(3) failing to notify dispatch before approaching the vehicle. Lentz conceded the “failure to notify”

                                                -2-
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


charge and the Department dismissed the others. On September 17, 2003, nearly 22 months after

the shooting, the Department reinstated Lentz with back pay.


       In his state court complaint, Lentz alleged a variety of claims against the Defendants, who

removed the case to federal court. That federal jury found that the Defendants unlawfully

discriminated and retaliated against Lentz, and found the City liable under Section 1983. When

Defendants moved for judgment as a matter of law, a new trial, or remittitur, the district court

refused. On appeal, Defendants contend that: the evidence fails to support the jury’s verdict; that

the district court erred in six evidentiary rulings; and that the jury awarded excessive damages. Lentz

cross-appeals the denial of his motion for prejudgment interest.


                                                  II.


       We first address Defendants’ claims relating to the denial of their Rule 50 motion for

judgment as a matter of law. We review de novo. White v. Burlington N. & Santa Fe Ry. Co., 364

F.3d 789, 794 (6th Cir. 2004) (en banc).1 Defendants assert that sufficient evidence did not support

the jury’s findings that: (1) Defendants discriminated against Lentz; (2) Defendants retaliated against

Lentz for engaging in protected activity; and (3) the City had a municipal policy to discriminate




       1
          Though we review the denial of Defendants’ alternative motion for a new trial under the
more deferential abuse of discretion standard, Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178
F.3d 414, 424 (6th Cir. 1999), because we find the district court’s decision survives de novo review,
it clearly did not abuse its discretion.

                                                 -3-
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


against white officers, and more particularly to retaliate against Lentz, in violation of 42 U.S.C. §

1983. We address each argument in turn.


                                     A. Evidence of Discrimination


       The familiar McDonnell Douglas framework guides Lentz’s discrimination claims under

federal and Ohio law. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Little Forest

Med. Ctr. of Akron v. Ohio Civil Rights Comm’n, 575 N.E.2d 1164, 1167 (Ohio 1991). To establish

a prima facie case, a plaintiff must demonstrate: (1) membership in a protected group;2 (2) that the

plaintiff was qualified for the position; (3) that the plaintiff was subject to adverse employment

action; and (4) that the plaintiff was treated differently than similarly situated employees. The

burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action,

after which the plaintiff must demonstrate that the proffered reason is a pretext for discrimination.

McDonnell Douglas, 411 U.S. at 802–04.


       Following a trial on the merits, our review focuses on the “ultimate question of

discrimination,” and not the prima facie case. Noble v. Brinker Int’l Inc., 391 F.3d 715, 720 (6th Cir.

2004) (quoting Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 599 (6th Cir. 2001)).



       2
         The Sixth Circuit imposes a more demanding test in reverse-discrimination cases. See
Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603, 614 (6th Cir. 2003) (“[T]o satisfy the first
prong of the prima facie case, the plaintiff must demonstrate background circumstances [to] support
the suspicion that the defendant is that unusual employer who discriminates against the majority.”)
(internal quotation marks omitted). We need not address this prong of the modified test because the
Defendants do not raise it on appeal.
                                                  -4-
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


Nonetheless, Defendants dispute the individual elements, particularly whether (1) adverse

employment action occurred, and (2) the other employees are similarly situated. We need not

address either argument because “our duty . . . is simply to determine whether [plaintiff] produced

sufficient evidence to support the jury’s finding of intentional discrimination.” Noble, 391 F.3d at

721.


       We also decline to address the argument that the district court improperly took the adverse

employment action element away from the jury, finding that Defendants’ failure to raise the issue

in their Rule 50(a) motion precluded them from raising it in a post-verdict motion for judgment as

a matter of law. Defendants’ oral motion mentioned adverse employment action only as part of a

generalized objection to the sufficiency of the evidence. And while we agree that “[t]echnical

noncompliance with Rule 50(b) may be excused in situations in which the purposes of the rule are

satisfied,” Kusens v. Pascal Co., 448 F.3d 349, 361 (6th Cir. 2006) (quoting Scottish Heritable Trust,

PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996)), this is not such a case. Rule

50 serves to “alert the opposing party to the insufficiency before the case is submitted to the jury,”

Scottish Heritable Trust, 81 F.3d at 610, but Defendants’ conduct undermined that purpose. As

Judge O’Malley explained:


       [Y]ou never sought reconsideration from that finding from Judge Manos, so that’s
       why I conclude that he had already made that finding, that the parties relied on that
       finding in preparing and presenting the case, and frankly, I had relied on that finding
       throughout.



                                                -5-
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


Neither do we find Defendants’ objection sufficient under Rule 51, which requires that “[a] party

who objects to an instruction or the failure to give an instruction must do so on the record, stating

distinctly the matter objected to and the grounds for the objection.” Fed. R. Civ. P. 51(c)(1)

(emphasis added). Defendants’ murky attempt to preserve some objection to “the assignment of

gymnasium duty as adverse employment” fails Rule 51's clarity requirement. Indeed, coming hard

on the heels of Judge O’Malley’s Rule 50 decision, it is not clear whether this objection even

pertained to a specific jury instruction.


       As for the sufficiency of the evidence, Lentz presented extensive evidence about gym duty,

departmental charges, and the experiences of other officers. Testimony described gym duty as

particularly unpleasant. And Lentz employed circumstantial evidence to link his unique treatment

to a discriminatory motive: African-American officers involved in shootings served much shorter

gym details—the longest, 254 days, was less than half Lentz’s assignment. Defendants seek to

discredit that evidence by arguing that those officers had different experiences, but “similarly

situated” only requires comparability in “all relevant respects,” not congruent experiences.

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). Many of these

officers participated in automobile-related shootings and received gym duty assignments while under

investigation pursuant to the relevant Departmental procedures; they fit the requirements of

Ercegovich. See id.




                                                -6-
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


        Sufficient evidence also supports the jury’s finding that Defendants’ nondiscriminatory

reasons were pretextual. A plaintiff can establish pretext by showing that the reasons: (1) have no

basis in fact; (2) did not motivate the decision; or (3) are insufficient to explain the adverse action.

Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003). Lentz cast doubt on Defendants’

reasons through evidence that, although the UDF investigation finished in three months, Lieutenant

Klimak took the file back for the unspecific reason that he wanted to “take a closer look” at the case.

Other evidence highlighted Safety Director Draper’s concerns with race relations and his desire to

avoid “another Cincinnati,” referring to large-scale race riots.


        Circumstantial evidence undermined Defendants’ nondiscriminatory reasons. For example,

the five officers with the longest gym details were white officers who shot black suspects.

Moreover, Lentz offered evidence that City officials discussed handling shootings of black suspects

“with care” to avoid “civil unrest”; that Draper met with the Cleveland NAACP President, who

expressed race relations concerns; and that officials discussed the Cincinnati riots. The court even

admitted news clips and a summary of television coverage of the shooting to highlight its “high

profile” nature. Given this evidence, the jury could reasonably conclude that Defendants’ espoused

reasons were a pretext for the City’s discriminatory decision to treat Lentz more harshly than it

would similarly-situated black officers. Accordingly, Defendants have not presented a reason to

surmount the “substantial deference owed a jury verdict.” Radvansky v. City of Olmstead Falls, 496

F.3d 609, 613 (6th Cir. 2007).



                                                 -7-
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


                                B. Evidence of Discriminatory Policy


         Turning to municipal liability, Defendants contend that the jury could not reasonably

conclude from the evidence that the City had an official policy or custom of discrimination. Such

a policy or custom is a prerequisite for a plaintiff to hold a city liable for a constitutional violation.

Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658 (1978). Even a single policymaker’s

decision can constitute official policy, Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986), but

that policymaker must possess “final authority to establish municipal policy with respect to the

action ordered,” id. at 482. Likewise, a subordinate’s decision may support municipality liability

if ratified by an authorized policymaker. Feliciano v. City of Cleveland, 988 F.2d 649, 656 (6th Cir.

1993).


         Sufficient circumstantial evidence exists to permit the jury to conclude that City

policymakers either discriminated against him themselves or ratified a subordinate’s decision to do

so. Lentz proffered evidence that Director Draper issued and ratified departmental charges,

including the amended charges that extended Lentz’s gym duty by two months. Draper conceded

as much, and his authorization of the charges constitutes city policy under Monell. See Monell, 436

U.S. at 694. Moreover, Lentz presented evidence that the Director and the Mayor repeatedly

discussed the case’s political risks. Those discussions—which suggest that City officials worried

about the racial component of the shooting—together with Draper’s authorization of Department

charges, furnish sufficient evidence for the jury to reasonably conclude that a policymaker made or


                                                  -8-
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


ratified a discriminatory decision. Accordingly, we reject Defendants’ challenge to the sufficiency

of the evidence supporting municipal liability.


                                     C. Evidence of Retaliation


        The McDonnell Douglas framework also applies to Lentz’s retaliation claim. Dixon v.

Gonzales, 481 F.3d 324, 333 (6th Cir. 2007). To establish a prima facie case of retaliation, a

plaintiff must demonstrate that: (1) the plaintiff engaged in protected activity; (2) the protected

activity was known by the defendant; (3) the defendant took “materially adverse” action against the

plaintiff; and (4) the protected activity and adverse action were causally connected. Abbott v. Crown

Motor Co., Inc., 348 F.3d 537, 542 (6th Cir. 2003). As with the discrimination claim, a plaintiff

must respond to an employer’s nonretaliatory reason by showing that the proffered reason was

pretext for retaliation. Id.


        We need only consider whether sufficient evidence supported the knowledge and adverse-

action elements. Defendants stipulated that Lentz engaged in protected activity when he filed an

EEOC complaint. As for causation, Defendants’ failure to challenge it in their Rule 50(a) motion

barred raising it in a post-verdict motion for judgment as a matter of law.


        Lentz introduced evidence of the other two elements at trial. Regarding knowledge, he

showed that the “Chief’s Office” received his grievance and that Director Draper knew Lentz filed

an EEOC charge. And the same evidence that supported the discrimination claim—that gym duty


                                                  -9-
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


was unpleasant, perceived as a form of punishment, and deprived Lentz of opportunities for

additional pay—supports finding adverse action.


       Finally, as to pretext, the district court gave the jury clear instructions:


       [i]n order to prove that defendants City of Cleveland’s alleged explanation is a
       pretext for impermissible retaliation, plaintiff Edward Lentz must show both that the
       explanation is false and that retaliation was the real reason the defendant took the
       adverse action.


The court acknowledged that the evidence of pretext was not as strong as with respect to the

discrimination claim. Nonetheless, Lentz presented evidence that this was a high-profile case

discussed by policymakers, including Mayor Campbell and Director Draper. Keeping in mind the

jury’s right to make all relevant credibility determinations, the jury could reasonably conclude that

Lentz’s protected activity motivated the policymakers. The jury heard this evidence, received clear

instructions, and determined that the City unlawfully retaliated against Lentz. That evidence

suffices; we will not upset the jury’s verdict.


                                 D. Evidence of Retaliatory Policy


       Sufficient evidence also supports the verdict finding the City liable for retaliation under 42

U.S.C. §§ 1981 and 1983. As with his discrimination claim, Lentz adduced evidence that Director

Draper personally ratified the departmental charges while aware of the EEOC grievance. Likewise,

the circumstantial evidence that policymakers discussed Lentz’s case supports the jury’s inference


                                                  - 10 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


of a decision to unlawfully retaliate against Lentz. Accordingly, we leave undisturbed the jury’s

finding of municipal liability.


                                                 III.


       Defendants attack six of the district court’s evidentiary rulings. In holding that these rulings

did not furnish grounds for judgment as a matter of law, the district court properly applied Rule 61

of the Federal Rules of Civil Procedure:


       [N]o error in admitting or excluding evidence . . . is ground for granting a new trial,
       for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a
       judgment or order. At every stage of the proceeding, the court must disregard all
       errors and defects that do not affect any party’s substantial rights.


In our fresh review, we apply the same standard and conclude that the district court did not err. See

White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 794 (6th Cir. 2004) (en banc). None of

the evidentiary rulings prejudiced Defendants’ substantial rights.


                                           A. Witnesses


       First, Defendants assert that Officers Joseph Paskvan and James Simone, and union president

Robert Beck, offered improper opinion testimony. But the court carefully limited their testimony

to evidence based on firsthand knowledge. It repeatedly sustained Defendants’ objections and

reminded the witnesses about the permissible scope of their testimony. Given that careful restriction,

we do not find that this testimony affected Defendants’ “substantial rights.”

                                                - 11 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


                                           B. News Stories


       Second, Defendants contend that the district court erred in allowing Lentz to refer to news

stories about the shooting, which they insist constituted prejudicial hearsay. But these references

merely confirmed that the City’s policymakers were aware of the “high profile” nature of the case;

Lentz did not seek to convince the jury of their truth. See Fed. R. Evid. 801. Moreover, the district

court strictly limited this evidence—it only permitted Lentz to show the jury one of the fifty news

clips, even though the jury requested more. Because the court circumscribed these references to

relevant, nonhearsay purposes, we cannot find that they prejudiced the Defendants’ substantial rights.


                                          C. EEOC Charges


       Third, Defendants allege prejudice from the court allowing Lentz to include in his testimony

references to the City’s release of his medical records—the subject of his EEOC charge. But the

district court similarly limited Lentz’s references to the alleged release, and even instructed the jury

that “there is no evidence that the City actually released his medical records.” Given these limits,

Defendants fail to show the requisite prejudice.


                                     D. Dr. Steinberg’s Testimony


       Fourth, Defendants object to the testimony of Dr. Joel Steinberg, an expert witness who

testified about Lentz’s emotional and psychological damages. But while they purport to argue the



                                                 - 12 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


unreliability and irrelevance of his testimony, their challenge focuses primarily on credibility—a

matter for the jury to settle—and not admissibility.


                                             E. Grand Jury


       Fifth, Defendants assert that the district court erred by allowing Lentz to refer to the grand

jury’s failure to indict him for felonious assault. That reference, they argue, prejudiced them because

the jury could assume that Defendants charged Lentz without probable cause. But no substantial

prejudice resulted when the jury also heard from the Prosecutor that the failure to indict is common

and does not imply the absence of probable cause.


                                     F. Similarly Situated Employees


       Defendants maintain that other officers’ testimony should have been excluded as those

officers were not similarly situated. As we explained in evaluating the evidentiary sufficiency for

the discrimination claim, however, the experiences of those officers were sufficiently comparable

in the relevant respects. See Ercegovich, 154 F.3d at 352. Further, the court instructed the jury to

determine for itself whether these officers were similarly situated.


                                                  IV.


       Defendants contend that the district court erred by denying a remittitur because the evidence

adduced on damages cannot support an $800,000 award. We review for abuse of discretion, Gibson


                                                 - 13 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


v. Moskowitz, 523 F.3d 657, 663 (6th Cir. 2008), noting that a district court may reduce an excessive

jury award if “it is beyond the maximum damages that the jury reasonably could find to be

compensatory for a party’s loss,” American Trim, LLC v. Oracle Corp., 383 F.3d 462, 475 (6th Cir.

2004) (quoting Farber v. Massillon Bd. of Educ., 917 F.2d 1391, 1395 (6th Cir. 1990)). But rather

than evaluate the evidence supporting the jury award, the district court rested its denial on the failure

to propose interrogatories to test the jury verdict: “Having not objected to the absence of

interrogatories requiring the jury to parse out its award, Defendants are left without firm ground to

argue that any particular basis for the jury’s award is without support.” We view it differently,

though, because subtracting the maximum economic-damages award Lentz’s evidence could support

leaves a remainder of some $700,000 to compensate for his temporary emotional harm, a sum that

manifests “plain injustice,” and an abuse of discretion. See Rodgers v. Fisher Body Div., Gen.

Motors Corp., 739 F.2d 1102, 1106-09 (6th Cir. 1984).


        Lentz proffered evidence of two kinds of damages: “economic” and “emotional.” The

economic category sought compensation for (1) lost extended tour (overtime), court, lunch, and

compensatory time, and (2) lost opportunity to obtain secondary employment. Lentz testified that

while on gym duty he was ineligible for additional pay that active officers received as follows:

$16,620.79 in lost “court time”; $10,147.77 in lost extended tour time; and $2,336.42 in lost lunch

time. Lentz also testified that he lost $11,527.20 in compensatory time—“overtime that you would

get, but you wouldn’t be paid for it. It would go on the books.” Finally, Lentz presented testimony

from several colleagues that officers on gym duty could not pursue secondary employment, costing,

                                                 - 14 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


by his estimate, another $52,000 in lost part-time bricklaying work. All told, his evidence supported

a maximum of $92,632.68 in economic losses. Given the total verdict of $800,000, the excess over

$92,632.68 left $707,367.32 as allocable to his emotional harm. We thus examine the testimony

underpinning that valuation.


       On that score, Lentz presented testimony of other officers describing gym detail as “house

arrest” and “the Black Hole of Calcutta.” Lentz himself explained that Defendants’ treatment of him

made him feel punished and betrayed and that the investigation “put [his] reputation and honor in

question” and “put a lot of things on hold.” As an example of things on hold, Lentz explained that

he might have married his wife and started a family sooner, but did not want to subject others to his

ordeal. His psychological expert witness, Dr. Steinberg, testified that Lentz became depressed and

suffered from an “adjustment disorder” that left him viewing gym duty like “going to jail or being

in a coffin.” Steinberg reported that Lentz “had troubles with irritability and anger and isolation

from friends and family, and a sense of being a pariah or a black sheep.” But Steinberg also admitted

that the disorder proved to be temporary; it lasted “the time that [Lentz] was confined to the

gymnasium and for a few months after he returned to work where he sort of had kind of a struggle

to get back up to speed.” Assuming that the “few months” would be another three, Lentz’s

emotional strain—consisting of an adjustment disorder, as well as feeling depressed and

betrayed—lasted just over two years and produced no ongoing emotional harm.




                                               - 15 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


        Defending the award against the City’s claims of excessiveness, Lentz cites the large awards

compensating other discrimination plaintiffs for emotional harm. Yet unlike those plaintiffs, Lentz’s

emotional problems ended, and he did not lose his job, pay, benefits, or position. For that matter,

his award is much higher than plaintiffs that suffered more emotional harm. See Bogle v. McClure,

332 F.3d 1347 (11th Cir. 2003) ($500,000 per plaintiff); Bach v. First Union Nat. Bank, 149 F.

App’x 354 (6th Cir. 2005) ($400,000); Moorer v. Baptist Mem’l Health Care Sys., 398 F.3d 469 (6th

Cir 2005) ($250,000); Lilley v. BTM Corp., 958 F.2d 746 (6th Cir. 1992) ($350,000). The harm

suffered by Lentz is more comparable to discrimination plaintiffs like Jimmie Knight, who received

a $150,000 verdict after he “testified at trial regarding his emotional distress, financial hardship, and

reduced standard of living resulting from his inability to return to the police force.” Knight v. Metro.

Govt. of Nashville & Davidson County, Tenn., 136 F. App’x 755, 762 (6th Cir. 2005); see also Giles

v. Gen. Elec. Co., 245 F.3d 474, 488 (5th Cir. 2001) (remitting an award from $300,000 to $150,000

where the plaintiff was “despondent, depressed, down and absolutely utterly discouraged about not

being able to [go] back to work”).


        We thus view the jury’s award as excessively compensating Lentz for temporary emotional

harm, such that the denial of a remittur here amounts to abuse of the court’s discretion. We reverse

the district court’s denial of the motion for remittitur, and remand for the court to calculate an

appropriate remittitur and, if necessary, retry the damages issue. See Skalka v. Fernald Env’t

Restoration Mgmt. Corp., 178 F.3d 414, 425 (6th Cir. 1999).



                                                 - 16 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


                                                  V.


       Lentz cross-appeals the denial of prejudgment interest. We review this decision, too, for

abuse of discretion. Anderson v. Whittaker Corp., 894 F.2d 804, 809 (6th Cir. 1990). Prejudgment

interest is appropriate if needed to make a plaintiff whole. See Thurman v. Yellow Freight Sys., Inc.,

90 F.3d 1160, 1170 (6th Cir. 1996). But awarding prejudgment interest is at the discretion of the

district court, id., and the court did not deem it necessary. Moreover, since Lentz did not introduce

evidence about when his injuries began, the court could not calculate how much interest, if any,

would make him whole. For these reasons, the court did not abuse its discretion.


       Finally, Lentz presses that the court erred by not holding that filing criminal charges

constitutes adverse employment action. We need not address this issue given the disposition of the

other claims.


                                                  VI.


       We affirm the district court’s judgment, reverse the denial of the remittitur, deny Lentz’s

cross-appeal, and remand for the district court to calculate an appropriate remittitur or hold a retrial

on damages.




                                                 - 17 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


       CLAY, Circuit Judge, dissenting. There was sufficient evidence adduced at the trial of this

case by both sides to permit a verdict to be upheld in favor of either Plaintiff or Defendants. But

because the district court improperly took the adverse employment action element away from the

jury, rendering the jury’s ultimate verdict incomplete, I would reverse and remand for a new trial.


I.     FACTUAL BACKGROUND


       The events from which this litigation arose are worth recounting, inasmuch as they

demonstrate the complexity of the case and the extent to which the jury could have drawn different

inferences about the Defendants’ motives, had the jury been properly instructed.


       On December 6, 2001, while assigned to help protect the home of the City of Cleveland’s

Mayor-Elect, Edward Lentz, who is white, shot and injured an African American twelve-year-old

boy driving a car on the Mayor-Elect’s street. Lentz was initially placed on administrative leave for

three days after the incident, and then spent the next 652 days on gym detail, spending his workday

in a gymnasium at police headquarters. On December 21, 2001, approximately two weeks after the

shooting, Lentz filed a union grievance because he believed the City had leaked confidential medical

records about him to the media. On July 17, 2002, Lentz filed a charge with the Equal Employment

Opportunity Commission, also in response to the medical information about him that he believed

the City had leaked.




                                               - 18 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


       While Lentz was on gym detail, Joseph Petkac, the chief of the police department’s homicide

division, led the department’s investigation of Lentz’ use of deadly force, with Lieutenant Robert

Klimak, the head of internal affairs at the department, playing a supervisory role. Petkac completed

the investigation by January 21, 2002, and then sent the investigation file to Mary Bounds, the City’s

police chief at the time. Bounds approved the investigation on January 27, 2002, and then sent the

file back to Petkac to deliver to the City prosecutor’s office. In March 2002, Edward Buelow, who

was the City’s acting chief prosecutor because the position of chief prosecutor was vacant at the

time, referred the case to the county prosecutor to present a possible charge of felonious assault

against Lentz to a county grand jury. Lentz does not appear to allege that any of the City’s

procedures to this point were improper.


       In April 2002, before the county prosecutor acted on the case, Lieutenant Klimak called the

county prosecutor and asked to have the investigation file back for further investigation. On October

10, 2002, Lieutenant Klimak completed his follow-up investigation of Lentz’ case, and sent the file

back to the Cleveland prosecutor’s office.


       Rather than refer the case again to the county prosecutor for a possible presentation to the

grand jury, on February 3, 2003, Cleveland’s newly appointed chief prosecutor, Sanford Watson,

decided to file criminal charges of felonious assault and falsification against Lentz himself. That

decision led to Lentz’ arrest and a probable cause hearing before the Cleveland Municipal Court,

which agreed that there was probable cause and therefore ordered the case to be presented to a grand


                                                - 19 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


jury by the county prosecutor. The City announced the criminal charges against Lentz in a press

release that provided updates regarding seven ongoing deadly force investigations. On February 6,

2003, Lentz was suspended without pay pending resolution of the criminal charges, in accord with

the City’s standard procedures following an officer’s indictment on a felony charge. In early April

2003, a grand jury declined to indict Lentz on the felonious assault charge, but did indict him on the

falsification charge, which was a misdemeanor. Because Lentz was cleared of the felony charge, his

suspension was lifted, he was compensated for the salary that had been withheld during his

suspension, and he was sent back to gym detail. On July 23, 2003, a state court dismissed Lentz’

falsification charge for lack of evidence.


        On February 6, 2003, after the City announced criminal charges against Lentz, the City’s

safety director, Robert Draper, informed Lentz by letter that the police department would bring

departmental charges of felonious assault and falsification against him, and also informed Lentz that

he would face the departmental charges after the resolution of the criminal charges. On July 27,

2003, after Lentz was cleared of both of his criminal charges, Safety Director Draper informed Lentz

that the departmental charges against him had been amended to add to the charges of felonious

assault and falsification a charge of failure to use his radio. On September 4, 2003, at an

administrative hearing conducted by the City police department, Lentz pled no contest to the failure-

to-radio departmental charge, and the other charges were dropped. On September 24, 2003, the City

removed Lentz from gym detail and he was permitted to return to active duty.



                                                - 20 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


       On March 30, 2004, Lentz brought a number of claims, including employment discrimination

and retaliation claims, against the City and against Police Chief Edward F. Lohn and Watson in their

official capacities. For his discrimination and retaliation claims, Lentz identified as adverse

employment actions his long tenure on gym duty and the departmental charges filed against him.1

Lentz’ theory for holding the City liable was that the City’s top decisionmakers–and Draper in

particular–subjected Lentz to the extended gym duty and the departmental charges in order to divert

attention away from the increasing use of deadly force by the City’s white police officers against

African American suspects, and to retaliate against Lentz for complaining that the City had leaked

his medical information to the press.


II.    ANALYSIS


       Defendants raise a number of issues on appeal,2 but their arguments concerning the adverse

employment action element of Lentz’ discrimination and retaliation claims merit reversal in and of

themselves, and it is therefore not necessary to address Defendants’ other arguments. Defendants

correctly contend that the district court improperly instructed the jury that Lentz’ gym detail and

departmental charges were adverse employment actions as a matter of law.


       1
         Lentz also identified the criminal charges brought against him as an adverse employment
action, but the district court rejected the criminal charges as an adverse employment action prior to
trial.
       2
          In addition to raising the adverse employment action issue, Defendants challenge the
sufficiency of the evidence with respect to the jury’s ultimate finding of discrimination and
retaliation, as well as the City’s liability. Defendants also appeal a number of the district court’s
evidentiary rulings at trial and challenge the jury award as excessive.
                                                 - 21 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


       A.      Waiver


       The majority declines to address this challenge to the district court’s jury instruction, finding

that Defendants’ failure to raise the issue in their Rule 50(a) motion precluded them from raising it

in a post-verdict motion for judgment as a matter of law. The majority’s dismissal of the central

procedural impropriety in the action ignores both the purpose of the waiver rule and the

circumstances of Defendants’ Rule 50(a) motion.


       The district court’s error, and Defendants’ properly raised objection to it, flow directly from

the unusual and complicated procedural history of this litigation. Following discovery, Defendants

filed a motion for summary judgment with respect to all claims. Lentz did not file any cross-motion

for summary judgment. On January 18, 2006, the district court, Judge John M. Manos presiding,

granted Defendants’ motion with respect to the retaliation claim, but denied it with respect to the

state and federal discrimination claims.3 In denying summary judgment with respect to Lentz’

discrimination claims, the district court declared sua sponte that “an almost two-year reassignment

to gym duty pending an investigation constitutes an adverse employment action.” (J.A. at 139.) In

his opinion, Judge Manos did not address whether the City’s filing of departmental charges was also

an adverse employment action. On July 11, 2006, the case was transferred to Judge Kathleen

O’Malley following Judge Manos’ death. On July 25, 2006, Judge O’Malley reinstated Lentz’



       3
        The district court also granted Defendants’ motion for summary judgment with respect to
the ADA, malicious prosecution, abuse of process, unlawful disclosure and invasion-of-privacy
claims Lentz raised in his complaint. The disposition of these claims is not at issue on appeal.
                                              - 22 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


retaliation claim. Accordingly, the parties proceeded to trial on the discrimination and retaliation

claims.


          At trial, following the close of evidence, Defendants indicated to the court that they intended

to move pursuant to Rule 50(a) for judgment as a matter of law. Judge O’Malley told Defendants

to do so orally, at that moment. The Defendants stated, as part of an argument comprising a total

of three sentences, that “[w]e believe there’s been an utter failure of proof on the required elements,

and I know it’s late and we’ve gone over these arguments before, but, again, this is supposed to be

a race discrimination case, supposed to show adverse employment action.” (J.A. at 3312.) The

judge immediately denied Defendants’ motion from the bench. Moving directly from that denial into

the conference to discuss proposed jury instructions, the judge informed the parties that she would

instruct the jury that both the gym detail and the departmental charges constituted adverse

employment actions as a matter of law. Judge O’Malley explained:


                  So I’m going to charge that gym duty and departmental charges are the only
          adverse actions. . . . While the defendants argue that the departmental charges flow
          as a matter of course, from the filing of the criminal charges, and there was some
          testimony that that always happens, first of all, I think there was not sufficient
          testimony that by law it’s required to happen; and secondly, and perhaps more
          importantly, even when those charges disappeared, the departmental charges, rather
          than disappearing, were amended and prolonged.


                  So I think it would be a fair argument for the plaintiff to argue that if not for
          the original filing of departmental charges, then the amendment of departmental
          charges and the continuation of the departmental charges constituted adverse
          employment actions for which the plaintiff can – which the plaintiff can claim were
          discriminatory.

                                                   - 23 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.




              . . . [W]hen [the court] was handing out the jury instructions, . . . the City
       questioned whether or not the decision by Judge Manos that the gym duty constituted
       an adverse employment action and that the departmental charges constituted an
       adverse employment action in the context of this case was really a decision as a
       matter of law or whether Judge Manos had the authority to make that decision as a
       matter of law when the plaintiff had not moved for summary judgment.


               I think that’s an easy question. I’ve reread Judge Manos’ opinion and there’s
       no doubt that he concluded there was an adverse employment action. . . . Secondly,
       while it is true that a Federal Judge normally is not permitted to sua sponte enter
       judgment against a nonmoving party, that goes to the question of notice. Where a
       party – where the issue is fully joined in front of the Judge and the parties are on
       notice and have, in fact, invited the Judge to consider the legal effect of a given set
       of facts, the Judge is permitted to render a decision as a matter of law even if that
       decision would operate to the disadvantage of the movant.


                Finally, having listened to all the testimony, I think that that decision as a
       matter of law is well-supported. While you certainly did your best to introduce
       testimony that it’s a fun thing to be in gym duty, I think that the unrebutted testimony
       was that gym duty for two and a half years was an adverse employment action, and
       that it was viewed by all of the officers who testified as punitive, and you didn’t –
       weren’t able to get anybody to concede that staying in gym duty for two and a half
       years would be something that they would enjoy, even if you got them to say that
       gym duty for a few months was nice because they could work out.


               So I think as a matter of law, even if Judge Manos hadn’t reached that
       conclusion, it would be easy for me to do so. No reasonable juror could conclude
       that two and a half years in gym duty is not an adverse employment action.


(J.A. at 3313-14.)


       Shortly thereafter, when the court began reading through the proposed jury instructions for

the parties’ review, the following exchange took place:
                                                - 24 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


        [DEFENDANTS]: And just so the record is clear, we do object to the, you know, the
        assignment of gymnasium duty as adverse employment.” The court responded: “I
        think the record is pretty clear.”


        THE COURT: I think the record is pretty clear.


        [DEFENDANTS]: I don’t know if it’s clear about our objection. I think it’s clear
        about your ruling.


        THE COURT: No, I meant your objection is pretty clear.


(J.A. at 3315.)


        It is thus clear that Defendants raised the substance of their objection to the district court’s

treatment of the adverse employment action element in both their Rule 50 motion and during the

subsequent jury charging conference. Although “[a] post-trial motion for judgment may not advance

additional grounds that were not raised in the pre-verdict motion[,]” setting forth the same grounds

with “technical precision [in the pre-verdict motion] is not necessary.” Kusens v. Pascal Co., 448

F.3d 349, 361 (6th Cir. 2006). Thus, “‘[t]echnical noncompliance with Rule 50(b) may be excused

in situations in which the purposes of the rule are satisfied.’” Id. (quoting Scottish Heritable Trust,

PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996)). In Scottish Heritable Trust,

the decision we cited approvingly in Kusens, the court stated that “the two basic purposes of this rule

are to enable the trial court to re-examine the question of evidentiary insufficiency as a matter of law

if the jury returns a verdict contrary to the movant, and to alert the opposing party to the insufficiency


                                                  - 25 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


before the case is submitted to the jury. A defendant’s objection to proposed jury instructions on

grounds pertaining to the sufficiency of evidence issues it seeks to appeal may satisfy these

purposes.” Scottish Heritable Trust, 81 F.3d at 610 (quotations and citation omitted) (emphasis

added).


          Although Defendants’ reference to the adverse employment action issue in their initial

statement in support of their Rule 50(a) motion was not a model of clarity, Defendants did state that

Lentz was “supposed to show adverse employment action.” (J.A. at 3314.) Moreover, any

ambiguity was clarified by the discussion that immediately followed. First, Judge O’Malley made

clear that she understood the substance of Defendants’ argument: that the jury should have decided

for itself whether the gym detail and department charges constituted adverse employment actions.

Judge O’Malley then provided several reasons for why the decision to take this element away from

the jury was proper: because Judge Manos held that the gym detail was an adverse employment

action as a matter of law; and because in her view the evidence at trial was unequivocal that Lentz’

gym detail and departmental charges constituted adverse employment actions. Finally, when

Defendants reiterated their objection to “the assignment of gymnasium duty as adverse employment,”

Judge O’Malley stated that she believed Defendants’ “objection is pretty clear.” (J.A. at 3315.)


          Thus, the purposes of the rule requiring any arguments to be raised in the pre-verdict motion

are clearly satisfied here: the court had the chance to re-examine the issue and did so, and Lentz was

unquestionably on alert regarding this issue before the case was submitted to the jury. See Scottish


                                                 - 26 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


Heritable Trust, 81 F.3d at 610. Defendants’ more specific objection to the proposed instructions

not only occurred immediately after their formal presentation of their Rule 50(a) motion, but it also

appropriately took place during the conference to discuss the proposed jury instructions. See id. (“A

defendant’s objection to proposed jury instructions on grounds pertaining to the sufficiency of

evidence issues it seeks to appeal may satisfy these purposes.”). I therefore take exception to the

majority’s dismissal of Defendants’ argument concerning the existence of an adverse employment

action argument on the ground that Defendants failed to raise the issue in their Rule 50(a) motion.


       Furthermore, it is unclear why Defendants would have been required to raise this objection

as part of their Rule 50(a) motion in the first place. Federal Rule of Civil Procedure 51 governs

objections to jury instructions. “A party who objects to an instruction or the failure to give an

instruction must do so on the record, stating distinctly the matter objected to and the grounds for the

objection.” Fed. R. Civ. P. 51(c)(1). “An objection is timely if[] a party objects [during the

conference on the court’s proposed jury instructions].” Fed. R. Civ. P. 51(c)(2)(A). Defendants

clearly met their obligations under Rule 51. They appear to have initially objected off the record,

while the proposed jury instructions were handed out at the start of the charging conference. Yet

Judge O’Malley acknowledged on the record that Defendants had made this objection, and addressed

it at length. Then, to be sure to preserve their objection, Defendants stated that they were concerned

that their objection had not been preserved on the record, but that, “just so the record is clear, we do

object to the, you know, the assignment of gymnasium duty as adverse employment.” (J.A. at 3315.)

I fail to see why Defendants needed to say anything more to preserve their right to raise the

                                                 - 27 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


impropriety of the jury instruction on appeal. In their appellate brief, Defendants renewed their

argument that the jury instruction was improper. Appellant’s Br. at 10-11.


       The majority opinion, in finding that Defendants waived their objection to the adverse

employment action instruction, approvingly quotes from Judge O’Malley’s response to Defendants

during the charging conference: “[Y]ou never sought reconsideration from that finding from Judge

Manos, so that’s why I conclude that he had already made that finding, that the parties relied on that

finding in preparing and presenting the case, and frankly, I had relied on that finding throughout.”

(J.A. at 3314.) Putting aside for the moment the problem that Judge O’Malley’s instruction was far

broader than Judge Manos’ order–Judge Manos found that only the gym detail was an adverse

employment action, and only with respect to Lentz’ discrimination claim, since he had actually

dismissed the retaliation claim in that same order–the majority apparently believes that for the

reasons Judge O’Malley provided, Lentz did not have sufficient notice that Defendants objected to

the adverse employment action ruling. Yet, as the majority even recognizes, Defendants only needed

to “alert the opposing party to the insufficiency before the case [was] submitted to the jury” to

preserve their right to appeal. Majority Op. at 5 (emphasis added). Defendants clearly did so, during

their Rule 50 motion and the ensuing charging conference.


       Moreover, to the extent that the majority labors under the misapprehension that Lentz’

subsequent reliance upon Judge Manos’ ruling in preparing for trial can be a basis for finding that

Defendants waived their right to appeal, it is worth remembering that the district court’s order


                                                - 28 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


granting partial summary judgment to Lentz with respect to the adverse employment action element

was a non-final order. See Bonner v. Perry, 564 F.3d 424, 427 (6th Cir. 2009) (“A grant of partial

summary judgment that does not dispose of all parties and all claims is generally not immediately

appealable unless the district court issues a Fed. R. Civ. P. 54(b) certificate.”). Whenever a non-final

order contains reversible error, the parties’ subsequent reliance on that order may be for nought. But

Defendants were certainly not required to file a motion for reconsideration of Judge Manos’ order

in order to object to Judge O’Malley’s legal determination and preserve that objection for appeal,

regardless of the legal resources wasted as a result of the district court’s error.


        Thus, Defendants did not waive their objection to the instruction that adverse employment

actions took place as a matter of law.


        B.      Merits of the Jury Instruction


        Having found that Defendants did not waive their right to challenge the district court’s jury

instruction concerning the adverse employment action element, I would then hold that the

instruction itself was improper and would reverse on that ground.


        As an initial matter, it is worth clarifying that a district court unquestionably has the

discretion to determine that there is no dispute of fact with respect to an employer’s conduct toward

an employee, and that the employer’s conduct constitutes an adverse employment as a matter of law.

When a district court properly makes that determination, it may instruct the jury accordingly.


                                                 - 29 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


However, where the law does not clearly indicate whether the undisputed facts concerning an

employer’s conduct render the conduct an adverse employment action, a judge must allow the jury

to decide whether an adverse employment action has occurred. The jury should have decided

whether an adverse employment action occurred in this case for the reasons that follow.


                 1.     Gym Detail


          Judge Manos was incorrect to decide that the gym detail constituted an adverse employment

action as a matter of law. Accordingly, that ruling cannot provide an independent justification for

Judge O’Malley’s jury instruction that the gym detail was an adverse employment action as a matter

of law.


          An adverse employment action “constitutes a significant change in employment status, such

as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Burlington Indus. v. Ellerth, 524 U.S. 742, 761

(1998) (citations omitted). “We have held that a suspension with pay and full benefits pending a

timely investigation into suspected wrongdoing is not an adverse employment action.” Peltier v.

United States, 388 F.3d 984, 988 (6th Cir. 2004) (quotations and citation omitted); see also Yates

v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987) (reassignment or demotion without reduction in

salary and benefits is not adverse employment action); Dendinger v. Ohio, 207 F. App’x 521, 527

(6th Cir. 2006) (“We have repeatedly held, however, that neither an internal investigation into



                                                - 30 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


suspected wrongdoing by an employee nor that employee’s placement on paid administrative leave

pending the outcome of such an investigation constitutes an adverse employment action.”).


       As part of his denial of Defendants’ motion for summary judgment, Judge Manos found as

a matter of law that the gym detail constituted an adverse employment action. In doing so, he

distinguished this case from this Court’s precedent finding an administrative leave pending an

investigation not to constitute an adverse employment action by citing what he considered to be the

unique aspects of Lentz’ gym detail, including “(1) the loss opportunities for overtime and secondary

employment, (2) the significant differences between gym duty and active duty, (3) the uniqueness

of police work rendering this reassignment particularly undesirable, (4) the fact that officers do not

like gym duty; and (5) the length of the investigation[.]” (J.A. at 138-39.) Regarding loss of

overtime, this Court has never established a binding precedent that the loss of overtime pay requires

a finding of an adverse employment action. See, e.g., Broska v. Henderson, 70 F. App’x 262, 267-68

(6th Cir. 2003) (“[T]he denial of overtime can constitute an adverse employment action.”) (emphasis

added). In fact, as Judge Manos noted, this Court has even held that as a matter of law, the loss of

overtime does not constitute an adverse employment action. See Smith v. County of Hamilton, 34

F. App’x 450, 456 (6th Cir. 2002) (“Nor do [the plaintiff’s] claims regarding her loss of opportunity

for compensatory time establish that her transfer was an adverse employment action.”). As for the

general undesirability of gym duty (factors two through four cited by Judge Manos), there is no

dispute that by itself, the reassignment of an officer to gym duty pending investigation of a use-of-

deadly-force incident is not an adverse employment action. Accordingly, the fact that officers do

                                                - 31 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


not like being on gym duty or find it unpleasant is not enough to render gym duty an adverse

employment action as a matter of law; if it the officers’ unhappiness with the reassignment were

sufficient, then any length of time on gym detail would constitute an adverse employment action.


       Thus, the only factor cited by Judge Manos that actually could have rendered the gym duty

an adverse employment action as a matter of law was its length in Lentz’ case. The only precedents

Judge Manos cited for the proposition that a long suspension with pay could constitute an adverse

employment action as a matter of law were two cases–Jackson v. City of Columbus, 194 F.3d 737

(6th Cir. 1999), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002),

and Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000)–which expressly found that

a suspension with pay for a short period of time did not constitute an adverse employment action.

Judge Manos reasoned that “[t]he corollary to both of these cases is that a suspension with pay or

removal for a prolonged period of time can constitute adverse employment actions.” (J.A. at 138.)

Judge Manos was correct that a long suspension with pay can constitute an adverse employment

action. However, it does not follow from the fact that a short suspension with pay cannot constitute

an adverse employment action that a longer suspension with pay must be an adverse employment

action. In short, Judge Manos did not have any legal basis to find that the extended gym detail was

an adverse employment action as a matter of law.


       At the conference to discuss proposed jury instructions, Judge O’Malley cited Judge Manos’

summary judgment opinion to support her decision to instruct the jury that the extended gym detail


                                               - 32 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


was an adverse employment action as a matter of law. For the reasons discussed, the summary

judgment ruling she cited was incorrect. Her other independent basis for giving that instruction to

the jury was that the evidence adduced at trial rendered the court’s summary judgment order “well-

supported.” (J.A. at 3313.) Along these lines, Judge O’Malley told Defendants that “[w]hile you

certainly did your best to introduce testimony that it’s a fun thing to be in gym duty, I think that the

unrebutted testimony was that gym duty for two and a half years was an adverse employment action,

and that it was viewed by all of the officers who testified as punitive, and you didn’t – weren’t able

to get anybody to concede that staying in gym duty for two and a half years would be something that

they would enjoy, even if you got them to say that gym duty for a few months was nice because they

could work out.” (J.A. at 3313.) Subsequently, in denying Defendants’ post-verdict motion for

judgment notwithstanding the verdict, the court again cited Judge Manos’ summary judgment order,

and reiterated that as an independent ground, it found the evidence adduced at trial to “includ[e]

substantial testimony that gymnasium duty was dirty, dismal and prevented officers from earning

overtime and engaging in secondary employment.” (J.A. at 81.) The court’s post-verdict ruling also

stated that “there was really no credible testimony to the contrary on this point.” (J.A. at 81.) In so

finding, Judge O’Malley repeatedly disregarded evidence Defendants introduced to oppose Lentz’

contention that the harshness of Lentz’ gym duty did not rise to the level of an adverse employment

action.


          Since the majority opinion does not refer at all to this evidence, this opinion will briefly

summarize some of it. Regarding the harshness of the conditions, Ellis Johnson, who supervised

                                                 - 33 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


gymnasium duty during the time Lentz was detailed there, testified that officers on gym detail could

leave the gym to spend time with their family upon request, and such requests were never refused.

Johnson stated that officers were free to come and go as they pleased. Although several officers

testified that they did not like being on gym detail and none would have wanted to be there as long

as Lentz was, two officers testified that they did not mind being on gym detail, with Lieutenant

Klimak, who had previously spent time on gym detail, stating, “So you’re getting paid 20 or $25 an

hour to work out, to lift weights, to play basketball. I wouldn’t consider it a punishment, sir.” (J.A.

at 3145.) Judge O’Malley dismissed this testimony as not credible, and it may very well not have

been credible, given Lieutenant Klimak’s role in Lentz’ investigation; however, such a determination

was for the jury, and not the district court, to make. Regarding loss of overtime and extra

employment opportunities, beginning in March 2002, the City allowed non-police-related secondary

employment for officers on gym detail, as long as they sought permission from the deputy chief of

police. Further, Lentz acknowledged on cross-examination that, contrary to his previous assertion,

he hardly engaged in secondary employment at all during the year prior to his gym duty. As for the

length of gym duty, Police Chief Edward Lohn testified that Robert Beck, the police union president

who acted as Lentz’ advocate during the investigation, had agreed that the gymnasium was the best

place for Lentz to be until the departmental charges could be resolved; although Beck denied making

that statement, this dispute was a question of credibility for the jury, which could have found Beck’s

support for Lentz’ reassignment to gym detail to be evidence that it did not rise to the level of an

adverse employment action.


                                                - 34 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


       The district court was correct that there was substantial evidence at trial that would support

a finding that the gym detail constituted an adverse employment action: there was unrebutted

testimony that the gym was dirty and windowless, that it eliminated the opportunity for overtime pay,

and that no officer would have wanted to stay there for almost two years. Such evidence would have

certainly been sufficient to uphold a jury finding–but the jury was never given an opportunity to

make that finding. Judge O’Malley may also have been correct that Defendants’ opposing testimony

was not credible, or that it could not serve to rebut the punitive nature of the gym duty. However,

in making those findings, she clearly impeded on the role of the jury as the factfinder.


       In sum, given our well-established precedents holding that paid administrative leave pending

the resolution of an investigation is not generally an adverse employment act, and given the disputed

circumstances concerning the gym detail, the question of whether the Lentz’ gym detail was a

disputed issue of fact that should have been presented to the jury.


               2.      Departmental Charges


       When Judge O’Malley instructed the jury that the filing of departmental charges against

Lentz was an additional adverse employment action, she could not base that decision on Judge

Manos’ summary judgment ruling, since Judge Manos never found that the departmental charges

constituted an adverse employment action. In fact, Judge Manos’ only reference to the departmental

charges occurred in his discussion of Lentz’ retaliation claim, for which he actually granted

Defendants’ motion for summary judgment. In the retaliation context, Judge Manos stated: “The

                                               - 35 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


filing of departmental charges, in and of itself, does not constitute an adverse employment action.”

Lentz v. City of Cleveland, 410 F. Supp. 2d 673, 695 n.10 (N.D. Ohio 2006). Because an adverse

employment action is a broader standard in the retaliation context than the discrimination context,

see Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 68 (6th Cir. 2006), the only

reasonable interpretation of Judge Manos’ summary judgment ruling is that the filing of

departmental charges would also not amount to an adverse employment action in the context of a

discrimination claim. It is inexplicable, then, how Judge O’Malley believed that Judge Manos “also

stated that the pursuit of those charges after the criminal charges were dropped might lead a

reasonable jury to conclude that the charges were motivated by discriminatory intent.” (J.A. at 81.)


       Judge O’Malley did not cite any case law, either during the charging conference or in her

post-verdict opinion, to support her decision to instruct the jury on the departmental charges. The

omission of any legal analysis was particularly glaring because the court had never previously ruled

on whether the filing of departmental charges was an adverse employment action, and Lentz never

sought such a finding in a motion or in his requested jury instructions. Instead, Judge O’Malley

provided the following reasons for her decision. First, during the charging conference, she stated

that “[w]hile the defendants argue that the departmental charges flow as a matter of course, from the

filing of the criminal charges, and there was some testimony that that always happens, first of all,

I think there was not sufficient testimony that by law it’s required to happen; and secondly, and

perhaps more importantly, even when those charges disappeared, the departmental charges, rather

than disappearing, were amended and prolonged.” (J.A. at 3313.) In her opinion denying

                                               - 36 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


Defendants’ post-verdict motion for judgment notwithstanding the verdict, Judge O’Malley added

to this analysis by stating, without citing any legal authority, that “to the extent that the filing of

departmental charges extended Lentz’s gymnasium duty, the filing of those charges are intertwined

with the gymnasium duty. The departmental charges, therefore, go beyond mere threats of

discipline.” (J.A. at 82.)


       Neither of the reasons Judge O’Malley provided were valid. First, there is no precedent in

this Court’s jurisprudence for finding the continuation of gym detail after the dismissal of the

criminal charges to constitute an adverse employment action as a matter of law, and other circuits

have found just the opposite. See Joseph v. Leavitt, 465 F.3d 87, 92 (2d Cir. 2006) (“We conclude

that the [employer’s] decision not to reinstate [the plaintiff] immediately after dismissal of the

criminal charges did not alter the terms and conditions of [the plaintiff’s] employment, and thus did

not constitute an adverse employment action.”). Second, Judge O’Malley appeared to base her

decision at least partly on a rejection of Defendants’ explanation that the charges flowed

automatically from the criminal charges against Lentz. In addition to making an inappropriate

credibility determination here, the court also appeared to confuse the elements of the claim; the

reason Defendants brought the departmental charges should not be relevant to whether the

departmental charges are an adverse employment action, but only concerns whether the departmental

charges were the result of discrimination. Third, it is nonsensical and misleading to instruct the jury

that the departmental charges are adverse actions because their filing extended Lentz’ gym detail,

when the court was already instructing the jury that Lentz’ extended gym detail was an adverse

                                                - 37 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


employment action. In other words, if, as Judge O’Malley indicated, the only aspect of the

departmental charges that rendered them adverse as a matter of law was the extent to which they

lengthened Lentz’ gym duty, then the departmental charges would not create any more adversity for

Lentz than he was already experiencing from the gym duty. However, when the court informed the

jury of two distinct adverse employment actions, the jury could only have concluded the charges

themselves, and not the degree to which they extended Lentz’ gym duty, were adverse. Yet the

evidence adduced at trial did not include any adverse effect of the departmental charges, other than

the fact that it further delayed the end of Lentz’ gym detail.


       Thus, the court found the departmental charges to be adverse as a matter of law in the

absence of any evidentiary basis independent of the gym detail, in the absence of case law supporting

the decision, and even in the absence of a request from Lentz that the jury be given such an

instruction. The court’s instruction with respect to the departmental charges was therefore both

improper and incorrect as a matter of law.


       C.      Sufficiency of Adverse Employment Action Evidence


       In addition to refusing to address Defendants’ argument that the district court improperly

instructed the jury that the gym detail and the departmental charges were adverse employment

actions as a matter of law, the majority also refuses to address Defendants’ related argument that

there was insufficient evidence at trial to support the adverse employment action element. This time,

the majority’s justification for its unwillingness to consider Defendants’ argument is that

                                                - 38 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


“[f]ollowing a trial on the merits, our review focuses on the ‘ultimate question of discrimination, and

not the prima facie case.’” Majority Op. at 4 (quoting Noble v. Brinker Int’l Inc., 391 F.3d 715, 720

(6th Cir. 2004).


       The majority opinion misapplies Noble. The majority is correct that after a trial on the

merits, we cannot revisit the district court’s finding that Lentz made out a prima facie case, or its

decision to deny Defendants’ motion for summary judgment. See Barnes v. City of Cincinnati, 401

F.3d 729, 736 (6th Cir. 2005). However, “that is not to say that the evidentiary underpinnings of a

plaintiff’s prima facie case are irrelevant or insulated from examination by this court to aid its

determination whether the evidence in toto is sufficient to support a finding of intentional

discrimination.” Noble, 391 F.3d at 725. In Barnes, for example, because the defendant argued on

a sufficiency-of-the-evidence appeal that the evidence was insufficient to find that the plaintiff was

a member of a protected class and that he was treated differently than similarly situated employees,

this Court analyzed those elements individually to determine whether the evidence adduced at trial

supported them. Barnes, 401 F.3d at 736-37.


       Yet more importantly, the principle in Noble applies specifically to a district court’s denial

of a defendant’s motion for summary judgment in an employment discrimination case. In Noble,

this Court explained the rationale for the rule by quoting from the Supreme Court:


       [W]hen the defendant fails to persuade the district court to dismiss the action for lack
       of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the
       reason for the plaintiff's rejection, the fact finder must then decide whether the

                                                - 39 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


       rejection was discriminatory within the meaning of Title VII. At this stage, the
       McDonnell-Burdine presumption [in a motion for summary judgment] “drops from
       the case,” and “the factual inquiry proceeds to a new level of specificity.”


Id. at 720-21 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15 (1983))

(emphasis added). Thus, the precedents of Aikens and Noble stand only for the proposition that there

is no purpose to revisiting the plaintiff’s initial prima facie case in an employment discrimination

case after a court denies a summary judgment motion, because the evidence is presented a second

time with greater specificity at trial; in that context, the only relevant question is whether the

evidence presented at trial was sufficient to prove discrimination. See Aikens, 460 U.S. at 713-15

(“Because this case was fully tried on the merits, it is surprising to find the parties and the Court of

Appeals still addressing the question whether Aikens made out a prima facie case. . . . The

[factfinder] has before it all the evidence it needs to decide whether ‘the defendant intentionally

discriminated against the plaintiff.’”) (emphasis added).


       Yet here, the entire question of whether there was sufficient evidence to uphold the jury’s

verdict is irrelevant, because the jury never had the chance to reach a complete verdict once its

deliberations were unduly circumscribed by the court’s instructions. Certainly, there was sufficient

evidence at trial to support a jury finding of discrimination. However, the jury never rendered a

verdict on the “ultimate question of discrimination,” see Noble, 391 F.3d at 720, because it never

ruled on whether Defendants’ alleged discrimination caused an adverse employment action, or

whether Defendants actually retaliated by taking a materially adverse employment action. Reading


                                                 - 40 -
Nos. 07-4385/07-4386
Lentz v. City of Cleveland, et al.


Noble so as to foreclose Defendants’ challenge to the district court’s decision to rule for one party

as a matter of law with respect to a key issue in the case, as the majority does, insulates the district

court’s interpretation of a legal question from any appellate review. Our decision in Noble surely

cannot be read so broadly.


       In sum, the majority glosses over the central, fatal defect of the trial: that the jury never had

the chance to decide on a critical element of the claim. The conduct of the trial was by definition

egregiously defective as a matter of law because, had the jury been properly instructed, it could have

reached a verdict favorable to either Lentz or Defendants, and there would have been sufficient

evidence for either verdict to be sustained. As it were, the court’s rulings deprived the jury of its

factfinding function.


       This was undoubtedly a hard-fought trial, with significant resources expended by both sides.

In such cases, the temptation exists not to disturb the judgment merely because of underlying

procedural defects. Nevertheless, we cannot abdicate our duty to ensure that adversaries have had

the opportunity to present their cases in full to a jury when the law does not clearly resolve a claim,

or an element of a claim, in one party’s favor. I therefore respectfully dissent.




                                                 - 41 -
