 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 14, 2012          Decided February 15, 2013

                        No. 11-7107

                  FRAZIER CAUDLE ET AL.,
                        APPELLEES

                             v.

                  DISTRICT OF COLUMBIA,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:08-cv-00205)


    Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for the appellant. Irvin B. Nathan, Attorney General,
Todd S. Kim, Solicitor General, and Donna M. Murasky,
Deputy Solicitor, were on brief.

   Jennifer I. Klar argued the cause for the appellees.
Megan Cacace and John P. Relman were on brief.

   Before: HENDERSON and ROGERS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge HENDERSON.
                                 2
     KAREN LECRAFT HENDERSON, Circuit Judge: Appellees
Frazier Caudle, Nikeith Goins, William James, Sholanda
Miller and Donald Smalls (collectively, appellees) sued the
District of Columbia (District), their employer, for retaliation
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. (Title VII). During closing argument, their
counsel made four inappropriate statements—the last three of
which occurred after the district court had sustained
objections to the earlier iterations. The jury found in favor of
the appellees and awarded compensatory damages to each
except Smalls. The district court subsequently denied the
District’s post-trial motions, including those seeking a new
trial and/or remittitur. The District argues on appeal, inter
alia, that it is entitled to a new trial because of the improper
closing argument. We agree and reverse the district court’s
judgment, remanding for further proceedings consistent with
this opinion.1
                                 I.
    In 2005, the appellees worked for the First District of the
District’s Metropolitan Police Department (MPD). Goins
worked in the MPD’s Auto Theft Unit (ATU) and the other
appellees (FMU appellees) worked in MPD’s Focus Mission
Unit (FMU). At that time, Commander Diane Groomes
(Groomes) oversaw MPD’s First District.

1
   The District also argued that the district court erred (1) in not
granting judgment as a matter of law on Goins’s retaliation claim
because Goins did not engage in protected activity known to his
supervisor at the time he allegedly suffered retaliation; (2) in not
granting a new trial because of unduly harsh spoliation sanctions it
imposed on the District and (3) in not granting a new trial because
it improperly excluded certain evidence that the District treated the
appellees favorably in other respects. We do not reach these issues.
                                    3
     Beginning in late 2005, Lieutenant Ronald Wilkins
(Wilkins) became the appellees’ supervisor. The appellees
began to believe that Wilkins was discriminating against them
on the basis of race. On June 16, 2006,2 the FMU appellees
sent an anonymous letter to Groomes complaining about
Wilkins’s alleged discrimination. On June 20, Groomes called
a meeting of all FMU officers and asked whether they could
“work together.” Joint Appendix (JA) 270, 624. The meeting
was tense and, afterward, FMU officers generally had trouble
getting along. Around the same time, Goins (who did not join
in the June 16 anonymous letter) complained to Wilkins about
“unfair treatment.” JA 459, 477-80.
     By the end of July or the beginning of August, Groomes
decided to reorganize FMU and ATU. On August 14 she
posted vacancy announcements for FMU and ATU,
instructing applicants to apply by August 18. Additionally,
officers who wished to stay in FMU or ATU had to reapply to
keep their jobs. Appellees Caudle, James, Smalls and Goins3
all reapplied.4
    On August 24, the appellees drafted and signed a
complaint that alleged retaliation and discrimination by the
MPD based on, inter alia, the August 14 vacancy
announcements. They sent the letter to the District Office of

2
    Unless otherwise indicated, all dates are in 2006.
3
    The parties dispute whether Goins applied to FMU or ATU.
4
  Miller did not submit a reapplication. She had sought a transfer
from FMU to patrol so she could work a day shift. She was
transferred to patrol but not to the day shift. By the time she was
notified of her transfer, it was too late for her to apply to stay with
FMU.
                               4
Human Rights and to the United States Department of Justice
(DOJ) but did not inform anyone at the MPD about it.
     On September 27, Groomes posted her selections for
FMU and ATU officers. Instead of being assigned to their
former positions, Goins, James and Smalls were assigned to a
new Intel Unit,5 while Caudle and Miller were assigned to
patrol. Smalls worked in the Intel Unit from approximately
October 2006 until February 2008, when he was promoted to
sergeant and left the Intel Unit. Eventually, the MPD
disbanded the Intel Unit and assigned Goins and James to
patrol. On February 5, 2008—after filing charges of
retaliation with the United States Equal Employment
Opportunity Commission and the District Office of Human
Rights—they sued the District.
     At the end of a three-week trial and during closing
arguments, the appellees’ counsel made four statements to
which the District objected and now challenges on appeal.
First, she stated:
       You heard [the] plaintiffs explain that they felt
       humiliated, berated, and isolated at the [June
       20] meeting listening to their supervisors and
       peers comment on their discrimination
       complaint. Now, ask yourself, would you
       hesitate to speak up if you knew that speaking


5
  Before posting her decision, Groomes offered Goins, James and
Smalls positions in the Intel Unit, which they accepted (they
testified that they did so only because Groomes told them they
would not be returning to their former positions). The parties
dispute whether assignment to the Intel Unit was a demotion or a
promotion.
                              5
       up would mean that your boss would call a
       meeting with your entire office . . . .
JA 589 (emphases added). The District objected and the trial
court sustained the objection but denied its request for a
curative instruction.
     Almost immediately after the court sustained the first
objection, the appellees’ counsel stated: “Ask yourself this:
Wouldn’t you think twice about complaining about workplace
discrimination . . . .” JA 590 (emphasis added). Once again,
the court sustained the District’s objection but did not give a
curative instruction.
    The appellees’ counsel then argued:
       Now, in the end it is your job to determine how
       to make [the] plaintiffs whole for what they
       have had to endure. As you make those
       decisions, we ask yourselves [sic] to put
       yourselves in the plaintiffs’ shoes. What would
       it do to you to have your complaint broadcast
       to your entire office, to be the only one
       excluded . . . .
JA 591 (emphases added). After the District objected, the
district court sustained the objection and instructed the jury:
“Ladies and gentlemen of the jury, this is what is called a
golden rule argument, asking you to place yourself in the
position of the plaintiffs. You should not consider such an
argument.” JA 591-92.
    Finally—shortly after the district court sustained the last
objection—the appellees’ counsel concluded:
       By protecting plaintiffs’ right to complain
       about unlawful conduct without reprisal, you
       preserve the rights not just of plaintiffs but of
                                 6
        everyone. By ensuring that plaintiffs are made
        whole for what they have endured, you ensure
        that others will be free to exercise their rights
        without fear. Yours is an important job and we
        trust that you will [do what] is right and
        ensure that justice is done.
JA 593 (emphases added).6
     The jury returned verdicts for the appellees and awarded
a total of $900,000 in compensatory damages; $250,000 to
Smalls, $250,000 to James, $200,000 to Caudle, $200,000 to
Goins and $0 to Miller. The court then awarded back pay and
prejudgment interest in the amount of $14,399 to Smalls,
$51,666 to James, $36,454 to Caudle, $36,785 to Goins and
$0 to Miller. The court also enjoined the District from
engaging in further retaliation and awarded the appellees their
litigation costs.
                                 II.
     The district court “may, on motion, grant a new trial on
all or some of the issues . . . after 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). We
review the district court’s denial of a new trial motion for
abuse of discretion. See Daskalea v. District of Columbia, 227
F.3d 433, 443 (D.C. Cir. 2000). A new trial is unwarranted if
6
   The District did not contemporaneously object to the fourth
statement, nor mention the fourth statement in its post-trial motion,
although it did raise the issue when it moved for a mistrial
immediately after the appellees’ closing argument. We conclude
that the fourth statement is properly before us in view of the three
earlier objections, the thrust of the entire closing argument and the
contemporaneous mistrial motion.
                              7
the trial error is harmless. See United States v. Whitmore, 359
F.3d 609, 624 (D.C. Cir. 2004).
                              A.
     A new trial may be granted based on improper jury
argument. See, e.g., United States ex rel. Miller v. Bill
Harbert Int’l Constr., Inc., 608 F.3d 871, 897-98 (D.C. Cir.
2010) (per curiam) (“[A]rguments to the jury about a
defendant’s wealth are grounds for new trial.”); see also
Wash. Annapolis Hotel Co. v. Riddle, 171 F.2d 732, 740 (D.C.
Cir. 1948)). The jury may not return a verdict based on
personal interest, bias or prejudice and an argument asking it
to do so is improper. See, e.g., Miller, 608 F.3d at 897-98
(references to defendant’s wealth improper because “[t]he
only way the information could have affected the jury was to
prejudice it”); Riddle, 171 F.2d at 740 (jury argument “that
justice should be administered unequally as between the rich
and the poor” warranted mistrial).
     The appellees’ counsel made four inappropriate
statements during her closing argument. The first three are
“golden rule” arguments. A golden rule argument—which
asks “jurors to place themselves in the position of a party,”
see, e.g., Ins. Co. of N. Am. v. U.S. Gypsum Co., 870 F.2d
148, 154 (4th Cir. 1989)—is “universally condemned because
it encourages the jury to depart from neutrality and to decide
the case on the basis of personal interest and bias rather than
on evidence.” Granfield v. CSX Transp., Inc., 597 F.3d 474,
491 (1st Cir. 2010) (quotation marks omitted); see also
Arnold v. E. Air Lines, Inc., 681 F.2d 186, 199 (4th Cir. 1982)
(“The Golden Rule and sympathy appeals are . . . obviously
improper arguments . . . . Having no legal relevance to any of
the real issues, they were per se objectionable . . . .”); Har-
Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 714 (5th Cir.
1967) (“The real danger is that the sympathy and the feelings
                               8
of the jury will be encouraged and aroused so that the jury
will decide the case and award damages out of relation to
actual fault and actual damage.”). For example, it is
impermissible (1) to ask jurors how much the loss of the use
of their legs would mean to them, Leathers v. Gen. Motors
Corp., 546 F.2d 1083, 1085-86 (4th Cir. 1976); (2) to tell
jurors “do unto others as you would have them do unto you,”
Klotz v. Sears, Roebuck & Co., 267 F.2d 53, 54 (7th Cir.
1959); or (3) to tell jurors, in a reverse golden rule argument,
“I don’t want to ask you to place yourself in [the plaintiff’s]
position,” Loose v. Offshore Navigation, Inc., 670 F.2d 493,
496 (5th Cir. 1982).
     While all circuits that have considered the issue have held
a golden rule argument improper if made with respect to
damages, there appears to be, as the district court noted, a
circuit split regarding whether such argument is improper if
made with respect to liability. At least four circuits have
found such a golden rule argument permissible. See, e.g.,
McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1071 n.3
(11th Cir. 1996); Johnson v. Celotex Corp., 899 F.2d 1281,
1289 (2d Cir. 1990); Shultz v. Rice, 809 F.2d 643, 651-52
(10th Cir. 1986); Burrage v. Harrell, 537 F.2d 837, 839 (5th
Cir. 1976). On the other hand, the Third Circuit has rejected
the liability-damages distinction. Edwards v. City of Phila.,
860 F.2d 568, 574 n.6 (3d Cir. 1988) (“We see no rational
basis for a rule that proscribes the ‘Golden Rule’ argument
when a plaintiff argues damages, but permits it when the
defendant argues liability . . . . [because the] same concerns
are present in both situations—the creation of undue
sympathy and emotion” (quotation marks and brackets
omitted)); see also Ins. Co. of N. Am., Inc., 870 F.2d at 154
(suggesting but not holding that defense counsel’s opening
statement—“asking the jurors to consider whether any of
them would like to be accused of fraud based upon the
evidence which they were about to hear”—was improper);
                                 9
Joan W. v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir.
1985) (“[The Plaintiff] urges that the Golden Rule argument
is not objectionable when it refers only to the assessment of
credibility. There is no reason for such a distinction because
the jury’s departure from its neutral role is equally
inappropriate regardless of the issue at stake.”).
     We join our sister circuits and hold that a golden rule
argument is improper and may thus serve as the basis for a
new trial.7 Further, we do not recognize a per se distinction
between a golden rule argument relating to damages and the
same argument regarding liability. Courts forbid golden rule
arguments to prevent the jury from deciding a case based on
inappropriate considerations such as emotion. See, e.g., Stokes
v. Delcambre, 710 F.2d 1120, 1128 (5th Cir. 1983) (“The
rule’s purpose is to reduce the risk of a jury decision based on
emotion rather than trial evidence.”). It is no more appropriate
for a jury to decide a defendant’s liability vel non based on an
improper consideration than to use the same consideration to
determine damages. Accordingly, we agree with the Third
Circuit that a golden rule argument made with respect to
liability as well as damages is impermissible.
     We conclude that the appellees’ counsel’s first three
above-quoted statements are golden rule arguments. The third
statement, addressed to damages, is plainly improper; she
asked the jury to “put yourselves in the plaintiffs’ shoes” in
“determin[ing] how to make plaintiffs whole.” JA 591. This is
a quintessential invocation of the golden rule and the district
court was correct to sustain the objection and instruct the jury

7
  We explain infra that the district court may grant a new trial only
if the golden rule argument affects substantial rights, see Fed. R.
Civ. P. 61.
                              10
to disregard it. While the propriety of the first two statements
is a closer question, we nonetheless conclude that they also
constitute golden rule arguments addressing liability. The
appellees’ counsel stated, inter alia, “would you hesitate to
speak up if you knew that speaking up would mean that your
boss would call a meeting,” JA 589 (emphases added), and
“[w]ouldn’t you think twice about complaining about
workplace discrimination.” JA 590 (emphasis added). The
appellees argue that the statements are permissible because
they explain the legal standard for retaliation under
Burlington Northern & Santa Fe Railway Co. v. White, 548
U.S. 53 (2006). But the Burlington Northern standard—which
forbids “employer actions that would have been materially
adverse to a reasonable employee”—is an objective standard.
548 U.S. at 57 (emphasis added). Because it is objective, “[i]t
avoids the uncertainties and unfair discrepancies that can
plague a judicial effort to determine a plaintiff’s unusual
subjective feelings.” Id. at 68-69. As the district court
necessarily found in sustaining the objections, however, the
appellees’ counsel’s statements did not describe an objective
standard. Rather, they asked the jurors to decide how each of
them—not a reasonable person—would feel if he were in the
appellees’ situation.
     The fourth statement, while not a golden rule argument,
is also inappropriate. The appellees’ counsel stated:
       By protecting plaintiffs’ right to complain
       about unlawful conduct without reprisal, you
       preserve the rights not just of plaintiffs but of
       everyone. By ensuring that plaintiffs are made
       whole for what they have endured, you ensure
       that others will be free to exercise their rights
       without fear. Yours is an important job and we
       trust that you will [do what] is right and ensure
       that justice is done.
                               11
JA 593. This is a so-called “send a message” argument that,
alone, might not be grounds for reversal, Carter v. District of
Columbia, 795 F.2d 116, 138–39 (D.C. Cir. 1986). Here,
given the fact that the appellees’ counsel made this argument
after the district court had sustained three objections to golden
rule arguments—her send a message argument was also
inappropriate because, like the golden rule arguments, it
diverted the jury’s attention from its duty to decide the case
based on the facts and the law instead of emotion, personal
interest or bias.
    We next address whether the improper statements
warrant a new trial.
                               B.
     The district court concluded that a new trial was
unnecessary because “any minimal prejudice that might have
arisen from counsel’s comments” was cured by the fact that
(1) the court sustained prompt objections to the three golden
rule arguments; (2) after the third iteration, the court
instructed the jurors to disregard it and (3) in its general jury
instructions, the court directed the jurors to “decide the facts
of this case only from a fair evaluation of all of the evidence
without prejudice, sympathy, fear, favor, or public opinion.”
Caudle v. District of Columbia, 804 F. Supp. 2d 32, 53
(D.D.C. 2011) (quotation marks omitted).
    In determining whether a new trial is warranted, we must
determine whether the error is harmless. We do so by
       measur[ing] the harm in terms of whether the
       error had substantial and injurious effect or
       influence in determining the jury’s verdict, not
       merely whether the record evidence is
       sufficient absent the error to warrant [the jury
       verdict]. Consequently, an evidentiary error is
                              12
       harmless if (1) the case is not close, (2) the
       issue not central, or (3) effective steps were
       taken to mitigate the effects of the error.
Ashcraft & Gerel v. Coady, 244 F.3d 948, 953 (D.C. Cir.
2001) (quotation marks and citations omitted). The appellees’
counsel’s improper argument was not harmless. First, this was
a close case. Like many retaliation cases, it hinged on a
determination of motive based on circumstantial evidence.
Their claims also had serious evidentiary weaknesses that the
jury resolved in their favor.
     For example, at trial, the appellees presented two
alternative theories to support Goins (to whom the jury
awarded $236,785) having engaged in protected activity that
was known to Groomes at the time she allegedly retaliated
against him. See Talavera v. Shah, 638 F.3d 303, 313 (D.C.
Cir. 2011) (retaliation claim fails if employee does not engage
in protected activity known to supervisor). First, they argued
that Goins engaged in protected activity by complaining about
“unfair treatment” to Wilkins; however, Goins’s testimony on
this point was equivocal at best. Goins stated that he
complained to Wilkins by “tell[ing] him certain things I didn’t
agree with . . . . [w]henever I felt unfair treatment.” JA 459.
He admitted, however, that he never referred to racial
discrimination. On cross-examination, the District’s counsel
asked Goins: “[Y]ou never complained of unfair treatment
based upon your race, correct?” to which he responded: “I
never said directly, but, indirectly, within my complaint, it
was voiced, yes, sir.” JA 478. When pressed on the point, he
admitted “I might not have said it directly that it was racial
treatment.” JA 479. Goins also stated that he complained
about “unfair treatment” at staff meetings, but the District’s
counsel’s cross-examination confirmed that he “never said . . .
that race discrimination was at play” or that “white officers
                                 13
are being treated one way and black officers are being treated
another way.” JA 479-80.
     Alternatively, the appellees argued that Groomes knew—
at the time she allegedly retaliated against Goins—that Goins
engaged in protected activity by signing the August 24, 2006
complaint. The appellees testified, however, that they did not
send the August 24 complaint to the MPD or inform anyone
at the MPD about the letter; rather, they sent the letter to DOJ
and the District Office of Human Rights. Groomes and others
testified that they were unaware of the letter at the time of the
alleged retaliation.
     Furthermore, despite the fact that the appellees’ damages
evidence was tenuous at best, the jury awarded almost one
million dollars. See Whitehead v. Food Max of Miss., Inc.,
163 F.3d 265, 278 (5th Cir. 1998) (“That the awards were
improperly influenced by passion and prejudice is indicated
by their size.”).8


8
  The damages evidence was less than compelling. Smalls—who
was ultimately promoted to sergeant—testified that his “blood
pressure went up,” he “couldn’t sleep” and the events “just
consumed [his] thoughts.” JA 550. James testified that he cried, felt
depressed and humiliated and had “headaches, stomach pains, [and]
verbal altercations with [his] wife.” JA 140. Caudle testified that
“certain colleagues [ ] stare at me funny and some of them . . .
question your work ethic,” he was “humiliated” and “[i]t was
difficult trying to rest, you know, the more you think about it—you
get headaches, but it was very hard, though.” JA 515; see also JA
524 (Caudle admitting he never saw a doctor about headaches and
lost sleep). Goins testified he got “a lot of headaches,” “went to
[his] doctor . . . to make sure there wasn’t nothing besides maybe
just stress” and that talking about the case “is like opening up an
old wound.” JA 473-74; see also JA 489-90 (Goins admitting he
                               14
     Second, the appellees’ counsel’s comments went to
central issues in the case. See Carter, 795 F.2d at 132 (issue
central because “whether the defendants engaged in
misconduct with respect to their arrest of the plaintiffs was . .
. the overarching question in the case”). There was only one
theory of liability in this case—retaliation—and the first two
comments were directed at a contested element of retaliation.
The third comment went to damages—central to the verdict—
and the fourth comment went to both damages and liability.
     Third, while the district court attempted to mitigate the
prejudice by sustaining objections and giving a curative
instruction, we do not believe the prejudice was so easily
removed. This is not a case in which counsel made a single
misstatement and ceased further misstatements after the
district court sustained an objection. Compare Stokes, 710
F.2d at 1128 (no plain error because “no repeated
impermissible use of the argument technique”), with
Whitehead, 163 F.3d at 277-78 (multiple improper arguments,
including golden rule argument, warranted new trial). Instead,
the appellees’ counsel made four impermissible statements—
each escalating from the last—three of which came after the
district court had sustained the District’s objections. In a
similar context, we stated:
       Evidence need not be reinforced and reiterated
       again and again for it to be prejudicial enough
       to warrant a new trial. Here, it is enough that
       there were several inappropriate references to
       multiple     different    companies’     wealth,
       especially given that the Government’s counsel


had headaches periodically for non-work reasons). Nevertheless,
the issue of damages is not before us.
                                   15
        emphasized the wealth of the Harbert
        companies in his closing statement and
        insinuated that the money would be in better
        hands if it were taken from the defendants.
Miller, 608 F.3d at 898.
     Nor do we agree that the district court’s general jury
instruction—to decide the case without prejudice, sympathy,
fear, favor or public opinion—eliminated the unfair prejudice
to the District caused by the appellees’ counsel. This
instruction is given in virtually every trial; it was not in any
way directed at her argument. See, e.g., 3 KEVIN F.
O’MALLEY ET AL., FEDERAL JURY PRACTICE & INSTRUCTIONS:
CIVIL § 103:01 (6th ed. 2011) (including, as a pattern jury
instruction: “The law does not permit you to be controlled by
sympathy, prejudice, or public opinion.”). As the conduct of
the appellees’ counsel in this case was egregious, we conclude
that the generic instruction did not sufficiently counter the
prejudice.9
                                ****
    Counsel has an obligation—as Justice Holmes put it—to
“play the game according to the rules.”10 Here, the appellees’
9
  We fear that the denial of the District’s mistrial motion in the
jury’s presence may have lessened the likelihood that the jury took
seriously either the district court’s curative instruction or its general
jury instruction. We therefore suggest that it might have been better
had it been done outside the jury’s presence.
10
     I said to [Justice Holmes]: “Well, sir, goodbye. Do justice!”
     He turned quite sharply and . . . . replied: “That is not my job.
     My job is to play the game according to the rules.”

     Judge Learned Hand
                               16
counsel did not. She made four inappropriate arguments; three
after the district court had sustained objections. As the district
court’s efforts to cure the resulting prejudice were, in our
view, insufficient, we reverse and remand for further
proceedings consistent with this opinion.
                                                     So ordered.




Michael Herz, “Do Justice!”: Variations Of A Thrice-told Tale, 82
VA. L. REV. 111, 111 (1996) (quoting Learned Hand, A Personal
Confession, in THE SPIRIT OF LIBERTY 302, 306-07 (Irving Dilliard
ed., 3d ed. 1960)).
