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September 8, 2003


The opinion of the court was delivered by: Harold Baer, Jr., District Judge[fn1] [fn1] Joseph Pontrello, an intern in my Chambers during the summer of 2003 and a second-year law student at Columbia Law School, provided assistance in the research and drafting of this opinion.


Plaintiff Shelia Hurdle moves, pursuant to Federal Rules of Civil Procedure 49 and 60, to vacate the judgment issued in favor of defendant New York City Board of Education ("Board of Education") and to hold a new trial on damages. In the alternative, Hurdle moves, pursuant to Federal Rule of Civil Procedure 59, for a new trial on all issues. Hurdle contends that based on the special verdicts, the Court erred by entering a judgment in favor of the Board of Education. For the following reasons, plaintiff's motion is denied. Page 2


Sheila Hurdle ("Hurdle"), a former principal of P.S. 113, brought a claim pursuant to 42 U.S.C. § 1983 against Community School District Superintendent Patricia Romandetto ("Romandetto"), in her personal capacity, and against the "Board of Education", via Romandetto, in her official capacity (collectively "defendants"). Hurdle alleges that Romandetto personally and in her official capacity unlawfully retaliated against her for exercising her First Amendment right to free speech. Specifically, Hurdle alleged that Romandetto removed her from her position as principal of P.S. 113 and transferred her to the district office of Community District 3 in retaliation for comments and conduct by Hurdle with respect to a proposed Corrective Action Plan for P.S. 113.

Hurdle's motion focuses on alleged inconsistencies between the judgment, jury instruction and answers to the special verdicts, which were based largely on defendant's proposed verdict sheet. In pertinent part, the verdict sheet posed the following questions:

1) Did plaintiff prove by a preponderance of the evidence that the exercise of her free speech was a substantial or motivating factor in defendant Romandetto's decision to remove plaintiff from principal of P.S. 113 and reassign her to the District 3 office? [Yes or No] . . .
2) Do you find that defendant Romandetto has proven by a preponderance of the evidence that she would have removed the plaintiff from principal of P.S. 113 and reassign plaintiff to the District 3 office regardless of whether or not she had exercised her right of free speech? [Yes or No] . . .
3) Pursuant to the question of qualified immunity as explained to you in my charge, do you find that it was reasonable for defendant Romandetto to believe that she did not violate plaintiff's right to free speech by removing her from the position of principal of P.S. 113? [Yes or No]
If you answer `Yes,' do not go any further and sign and this verdict and report your verdict to the Court. If your answer is `No,' go on to question No. 4.
Hurdle contends that the instruction following question 3 resulted in the jury prematurely ending its deliberation before making a finding as to damages, which she now claims the jury should have done in light of the answers to questions 1 and 2. The jury answered question 1) Yes; 2) No; and 3) Yes. Thus, the jury found 1) that Hurdle's exercise of her right to free speech was a factor in Romandetto's decision to reassign her; 2) that Romandetto would not Page 3 have reassigned Hurdle otherwise; but 3) that it was reasonable for Romandetto to believe that reassigning Hurdle did not violate the plaintiff's right to free speech. On January 10, 2003 the Court entered judgment dismissing the complaint.


As a threshold matter, defendants suggest that I may dispense with considering whether a new trial against the Board of Education is warranted because Romandetto, as a matter of state law, is not a policy maker, and therefore the Board of Education could not be held liable by the jury. "Under New York State law, `The community superintendent may transfer members of the teaching and supervisory service without their consent within the district . . .'" Murray v. Board of Education of the City of New York, 984 F. Supp. 169, 182 (S.D.N.Y. 1997) (citing N.Y.S. Ed. L. § 2590-j8); see also N.Y.S. Ed. L. § 2590-j4(d) ("Each community superintendent shall appoint and assign all supervisory personnel for all schools and programs under his or her jurisdiction."). Accordingly, she is a policy maker and her decision to transfer Hurdle, if made in her official capacity, may impose liability on the Board of Education. Murray, 984 F. Supp. at 182.

Hurdle contends that the verdict sheet contains an inconsistency, and, as a result, she is entitled to a new trial pursuant to Rule 49(b). Fed. R. Civ. P. 49(b). Hurdle relies on an alleged error in the jury instruction, which directed the jury not to reach the question of damages in the verdict sheet if it found that Romandetto reasonably believed that she did not violate Hurdle's right to free speech. Because the subject of Hurdle's motion is directed to the verdict sheet language/instructions, rather than to an omission of a question or inconsistency between answers, her challenge should be examined as an objection pursuant to Rule 51, rather than Rule 49 as Hurdle suggests. Barrett v. Orange County Human Rights Comm'n, 194 F.3d 341, 349 (2d Cir. 1999). Pursuant to Rule 51, objections must "stat[e] distinctly the matter objected to and the grounds of the objection" and be interposed before the jury retires to deliberate. Fed.R.Civ.P. 51; Barrett, 194 F.3d at 349; see also Jarvis v. Ford Motor Co., 283 F.3d 33, 57 (2d Cir. 2002).

Hurdle contends that her counsel adequately preserved her objection when he suggested, during the charging conference, that the jury should go on to the question of damages Page 4 even if it found Romandetto's belief to be reasonable.*fn2 At the time her counsel raised the objection, he merely voiced a preference of one instruction over another, which does not suffice to comport with Rule 51's mandate that he state distinctly the grounds of his objection. Jarvis, 283 F.3d at 62. In response to the preference voiced by Hurdle's counsel, the Court indicated that it would entertain the suggestion, and reserve decision for later. TT at 370. When Hurdle's counsel expressed concern whether the reason for the expressed position was clear, the Court indicated that it understood and that the matter could perhaps be solved by "spell[ing] out the qualified immunity" issue in the jury charge and in the special verdict question. Id. Hurdle did not disagree and, it appears from the record, acquiesced in leaving the instruction after question 3 untouched. See TT at 373-76 (review by the Court of the changes that would be entered on the verdict sheet and discussion with Hurdle's counsel as to any further changes). Following this discussion, plaintiff was given a further opportunity to object when the Court later reviewed how the verdict sheet would read. Hurdle raised no legal authority nor made any legal argument or articulated a specific objection to the instruction following question 3, so as to "bring into focus the precise nature of the alleged error." Jarvis, 283 F.3d at 60. Immediately after the jury retired to deliberate, Hurdle requested and obtained a hard copy of the verdict sheet, which the Court had inadvertently failed to supply the parties' counsel before the jury began deliberations. TT at 478. Although Rule 51 "usually" requires objections before the jury retires, see Fed. R. Civ. P. 51; Barrett, 194 F.3d at 349, the Court's oversight, in fairness, would have obligated it to entertain objections raised within a reasonable time after Hurdle received the verdict sheet. The Page 5 Court advised Hurdle to "[l]ook at it carefully" and "[s]tick around." TT at 478. The jury deliberated for approximately an hour before it was allowed to go home. Id. The jury returned the following day at about 9 a.m. and reported the verdict at around 2:25 p.m. Id. at 483. Despite the Court's admonition to examine carefully the verdict sheet and the ample time that Hurdle's counsel had to familiarize himself with it, at no point did he interpose any objection after seeing it in its final form. Even after the verdict was read, the Court gave the parties an opportunity to poll the jury and to raise any other objections to bring to the Court's attention any errors made before it discharged the jury. Id. at 484-85. Hurdle's counsel stood mute. Id.

Rule 51 "requires more than simply the disclosure of a `fundamental position' desiring one jury instruction over another." Jarvis, 283 F.3d at 62. Although Hurdle's counsel may have conveyed a preference for a different jury instruction in the charging conference, he never stated the grounds for the objection until now. See Fed.R. Civ. P. 51. "The purpose of Rule 51's timeliness requirement is `to prevent unnecessary new trials because of errors the judge might have corrected if they had been brought to his attention at the proper time.'" Barrett, 194 F.3d at 349 (quoting Bonner v. Guccione, 178 F.3d 581, 586 (2d Cir. 1999)). Assuming the jury's failure to award damages constitutes an inconsistency with its answers to questions one and two, as Hurdle contends, Hurdle's timely objection could have insured the resubmission of the damage issue to the jury, and allowed the Court to obtain sufficient information to adequately evaluate the presence of any inconsistency. Hurdle failed, however, to timely state the grounds for her objection, and she has therefore waived any objection under Rule 51 to the instruction directing the jury to cease deliberating if it found Romandetto's belief to be reasonable that she did not violate Hurdle's right to free speech. See Jarvis, 283 F.3d at 59-62 (reversing district court finding and holding that litigant waived objections because the litigant did not make particularized and well grounded objections); U.S. Football League v. National Football League, 842 F.2d 1335, 1367 (2d Cir. 1988) ("failure to bring alleged inconsistencies in the verdict sheet to the court's attention before the jury has been discharged waives the right to have the alleged inconsistencies remedied in a new trial."); see also Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 112 (2d Cir. 2002) ("[a] party who fails to object to a jury instruction at trial waives the right to make that instruction the basis for an appeal.") (quoting Fogarty v. Near N. Ins. Brokerage, Inc., 162 F.3d 74, 79 (2d Cir. 1998)). Page 6

Hurdle further claims that the jury's affirmative answer to whether Romandetto violated her rights to free speech, establishes a finding for liability against Romandetto, in her personal and official capacity, thereby making the Board of Education subject to liability. Although the jury found that Romandetto held a qualified immunity, Hurdle contends that the Board of Education remains liable, which entitles her to a jury trial to determine damages against it. The first special verdict question, contrary to Hurdle's claim, does not specify in what capacity the Court should view Romandetto. The jury's finding that Romandetto violated Hurdle's right to free speech fails to answer unambiguously whether the jury found that Romandetto violated Hurdle's rights in her personal and/or official capacity. Parties have an obligation to make timely objections in effort to conclude litigation; here, Hurdle was given multiple opportunities to do just that, but did not. Because Hurdle utterly failed to object to the ambiguity in the first special verdict question, of which she should have been aware,*fn3 I conclude that she is not now allowed to do so. See National Football, 842 F.2d at 1367 (holding that the return of an ambiguous verdict and "counsel's failure to seize the opportunity" to seek clarification constitutes a waiver to claim error); Bseirani v. Mahshie, 881 F. Supp. 778, 784 (N.D.N.Y. 1995) ("[w]aiver is particularly appropriate where counsel is or should be aware of the inconsistency in the verdict, and where resubmission to the jury would [have] resolve[d] the ambiguity"); Manes v. Metro-North Commuter R.R., 801 F. Supp. 954, 959 (D. Conn. 1992) (finding the doctrine of waiver applicable to motions under both Rules 51 and 49 of the Federal Rules of Civil Procedure); see also Lavoie, 975 F.2d at 55 (noting that "no new trial [is] required to reconcile inconsistent verdicts under Rule 49(b) if the objecting party failed to make known its complaint before the jury was discharged"); Haskell v. Kaman Corp., 743 F.2d 113, 123 (2d Cir. 1984) (same); cf. Schaasfsma v. Morin Vermont Corp., 802 F.2d 629, 634 (2d Cir. 1986) (holding that the court has a responsibility to resolve inconsistencies even when no objection is made provided it is before the trial court entered judgment in the case).

When a party waives its right to claim error for an allegedly defective verdict sheet, a subsequent challenge based on the verdict sheet "should be entertained only if the alleged errors are `fundamental.'" Shade v. Housing Authority of the City of New Haven, 251 F.3d 307, 313 (2d Cir. 2001). Under the "fundamental error" standard, Hurdle's request to Page 7 vacate the judgment and order a new trial should be granted only if "`necessary to correct a fundamental error or to prevent a miscarriage of justice' caused by the allegedly erroneous [verdict sheet]." Id. As the court in Manes v. Metro-North Commuter Railroad aptly observed, "[a]llowing [a party] to challenge the jury's verdict in the absence of a timely objection runs counter to the sanctity normally accorded such verdicts and would encourage rampant abuse of Rule 49." 801 F. Supp. at 961 n. 4 (D. Conn. 1992). The same concern exists for Rule 51, and thus, not surprisingly, the fundamental error standard of review is stringent. Shade, 251 F.3d at 313. A fundamental error must be "so serious and flagrant that it goes to the very integrity of the trial." Id. (citing Modave v. Long Island Jewish Med. Ctr., 501 F.2d 1065, 1072 (2d Cir. 1974)). "[A] `fundamental' error must be even more egregious than the type of `plain' errors that might suffice to excuse a procedural default in a criminal trial." Id.

The circumstances of this case are somewhat similar to Shade v. Housing Authority of the City of New Haven, 251 F.3d at 307 (2d Cir. 2001). The Second Circuit found that "[n]either the content of th[e court's] instructions nor the coherence of the first verdict [were] ultimately dispositive of whether the court erred in ordering a second trial," rather it was the conduct of the movants at trial that was dispositive. 251 F.3d at 312. In Shade, the movants sought and successfully obtained from the trial court a new trial limited to the issue of damages. Id. The movants, however, failed to timely raise an objection to the trial court's instructions and jury verdict, and tried to convince the court to adopt a jury charge, which the movants later called erroneous and that gave rise to their motion to seek a new ...

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