The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motion at Docket 326]
At docket 326, plaintiff Janet D. Lewis moves for equitable remedies pursuant to Federal Rule of Civil Procedure 7(b) and the court's post-verdict request for briefing. At docket 332, defendant Michael B. Donley, Acting Secretary of the United States Air Force, opposes the motion. Plaintiff replies at docket 336. Oral argument was not requested and would not assist the court.
The background facts for this action are well known to the parties and are set forth in the court's orders at dockets 202 and 210. A summary of the case's relevant procedural history follows. On March 8, 2006, plaintiff Janet Lewis filed a complaint against defendant Michael Donley, Acting Secretary of the United States Air Force, and the United States of America (jointly "Donley"). On July 9, 2008, plaintiff Lewis filed her third amended complaint against Donley, alleging ten claims, including claims of disparate treatment and impact in hiring and promotion pursuant to 42 U.S.C. §2000e-2(a)(1), retaliation pursuant to 42 U.S.C. §2000e-3(a), unlawful removal from employment under 5 U.S.C. § 7702, negligent and intentional infliction of emotional distress, negligent supervision, and punitive damages.
After almost five years of motion practice, a jury trial commenced on February 7, 2011, on plaintiff's Title VII claims of race discrimination and retaliation for filing an EEO complaint. On February 18, 2011, the last day of trial, the court heard counsels' formal exceptions to the jury instructions and special verdict form. Plaintiff's counsel took exception to the exclusion of plaintiff's proposed jury instructions on "Qualifications" and "Subjective Decision Making In Employment Cases," and to Jury Instruction No. 6 on "Retaliation." As to the "Retaliation" instruction, plaintiff's counsel stated, "I finally take an exception on the retaliation instruction that we are not including that actions taken as a whole constitute retaliation against Ms. Lewis for her EEO activity." The court concluded that inclusion of plaintiff's proposed language concerning actions taken as a whole was unnecessary to accurately state the law and instruct the jury. As given, the jury instruction for "Retaliation" stated:
Lewis claims that Donley retaliated against her. To succeed on her claim of retaliation, Lewis has the burden of proving each of the following elements by a preponderance of the evidence:
1. Lewis engaged in or was engaging in an activity protected under federal law, specifically pursuing claims before the Equal Employment Office of the Air Force, which I will refer to as the EEO;
2. Donley subjected Lewis to an adverse employment action; and
3. Lewis was subjected to the adverse employment action because she made or pursued claims before the EEO.
If you find Lewis has proved all three of these elements, your verdict should be for Lewis. If, on the other hand, you find Lewis has failed to prove any of these elements, your verdict should be for Donley. The parties agree that the first element has been proved, so you should concentrate on the second and third elements.
Lewis contends that the following actions were adverse employment actions taken in retaliation for her having made an EEO claim:
1. Reducing the scores on Ms. Lewis' mid-term and annual appraisals;
2. Taking disciplinary action against Ms. Lewis;
3. By assigning extra work to Ms. Lewis;
4. Improperly handling Ms. Lewis' Form 332 work orders;
5. Denying some of Ms. Lewis' leave requests;
6. Criticizing Ms. Lewis' spending decisions;
7. Treating plaintiff Lewis improperly during the 2006 accreditation process by doing one or more of the following:
(a) Changing her work schedule;
(b) Requiring plaintiff Lewis to use different hiring procedures than the ...