The opinion of the court was delivered by: YVETTE KANE, District Judge
Before the Court are the following post-trial motions filed in
the above-captioned case: Defendants' Rule 50 Motion to Renew
Defendants' Motion for Judgment as a Matter of Law and
Alternative Request for a New Trial Under Rule 59 (Doc. No. 130);
Defendants' Rule 59(a) Motion to Alter or Amend Judgment (Doc.
No. 129); Plaintiff's Petition for Attorney's Fees (Doc. No. 128)
and supplemental request for such fees (Doc. No. 154); and
Plaintiff's Rule 59(e) Motion to Alter or Amend Judgment (Doc.
No. 127). The motions are fully briefed and ripe for disposition.
Each motion will be addressed in turn.
Plaintiff Garin Moore was an employee of Defendant Susquehanna
Area Regional Airport Authority ("SARAA") from July 2, 2001 until
his employment was terminated on March 1, 2002. Moore worked for
SARAA in the Maintenance Department on an at-will basis.
In January and February of 2002, following an adverse change in
their employee benefits, Moore and several other SARAA employees
became interested in organizing a union to represent their interests. On January 10, 2002, Moore and approximately 20 other
SARAA employees met at Shane's Flight Deck in Highspire,
Pennsylvania to discuss the possibility of organizing. Moore
chaired this meeting. At the same time, Randy Hicks, the Terminal
Manager for the Harrisburg International Airport ("HIA"), and
George Hamilton, HIA's Maintenance Supervisor, were also present
at the restaurant, but did not attend the meeting. Moore and the
attending employees determined that they would look for a union
willing to represent them. Moore undertook the responsibility of
contacting a number of unions about the organizing effort.
Ultimately, it was determined that Michael Fox, the Council
Director for AFSCME's District Council 89, would meet with the
Shortly thereafter, approximately 15 SARAA employees attended
another organizing meeting at Shane's Flight Deck during which
Michael Fox discussed what AFSCME's representation would entail.
At this time, the employees signed union cards and returned them
to Mr. Fox. In addition, Moore took another stack of union cards
to distribute to other employees who might be interested in
The SARAA employees scheduled another meeting at Shane's Flight
Deck during the evening of February 8, 2002. Also on February 8,
2002, employees in the Maintenance Department held a "family
meeting." The employees typically convened family meetings every
other Friday to correspond with a pay day. All maintenance
employees, garage employees, and middle management typically
attend the family meetings, during which paychecks are
distributed, some training is provided, and employees are
informed about relevant airport information.
Defendant Alfred Testa, Jr., SARAA's Director of Aviation,
attended the February 8, 2002 family meeting. Testa advised the
maintenance employees about plans for the airport, including the building of a new terminal. Later, Testa indicated that he was
aware of the efforts to organize a union. Moore testified that
during the meeting Testa said, "I don't know who your union
instigators are, but. . . ." (Tr. 78.) Taking offense, Moore
testified that he raised his hand and said, "I take that
personally. I am a voting Republican, and I am no friend of
organized labor, but when you people came in here and started
crapping on us, we had to do something." (Id.) When Testa
suggested that Moore discuss the matter with him in his office,
Moore declined, asserting that the employees' concerns needed to
be addressed in an open meeting. When Testa asked Moore about the
employees' specific grievances, Moore asked to be excused form
the meeting in order to retrieve some notes from his car. Moore
testified that Testa was very agitated at this point during the
meeting. Moore returned to the meeting and explained that the
employees were upset because certain benefits had changed,
including vacation time. Before he excused himself in order to
attend another scheduled meeting, Testa suggested that he would
be willing to meet further with the employees at a later time.
Moore suggested that they meet with Testa the following Monday.
Following the family meeting, eight employees met at Shane's
Flight Deck to again take up the issue of organizing a union.
Michael Fox of AFSCME was in attendance and advised the employees
that he would notify SARAA that AFSCME was organizing at the
Moore testified that he declined to meet with Testa on the
following Monday, having been dejected by the low employee
turnout and because he was hesitant to further irritate Testa
about the union organizing issue.
By letter dated February 11, 2002, Mr. Fox advised Testa about
the organizing efforts. Testa responded in a letter dated
February 13, 2002 in which he acknowledged that he had been aware
of the organizing efforts for several weeks.
On March 1, 2002, Moore and three other employees from the
Maintenance Department were terminated from their employment with
SARAA. Moore testified that during the meeting at which they were
advised of their termination, Testa looked at him and said,
"Garin, I'm sorry, but I just don't need a sign painter any
more. . . ." (Tr. 84, 379.) Testa explained that the employees
were entitled to a severance package and provided each of them an
official letter of termination. The letter given to Moore stated
two reasons for the termination: (1) scheduled demolition of
buildings at HIA and (2) the need to reduce expenses due to
economic pressures from the September 11, 2001 terrorist attacks
that impaired the airline industry. (Tr. Ex. 10.)
On April 2, 2002, Moore filed a complaint against SARAA and
Testa, alleging that his employment was terminated in retaliation
for his union organizing activities. On September 30, 2003, the
Court granted Moore leave to amend his complaint to include an
allegation that Testa acted ultra vires in eliminating his
position. This count was later dismissed, but Moore's claim of
retaliation was allowed to go forward.
Trial was held on November 16 and 17, 2004. At the conclusion
of Plaintiff's case, Defendants moved for judgment as a matter of
law pursuant to Rule 50 of the Federal Rules of Civil Procedure.
Although acknowledging that it was a very close case and that
there was very little evidence supporting Moore's claim that
Testa knew his identity and of his protected activity, the Court
denied Defendants' motion and sent the case to the jury. (Tr.
314-315.) The jury returned with a verdict in favor of Moore and
awarded him $42,000 in back pay and $20,000 in punitive damages.
At that time, Defendants renewed their motion to judgment as a
matter of law, judgment notwithstanding the verdict, a remittitur
and a new trial, if necessary. (Tr. 467.) Thereafter, the parties
filed several other post-trial motions that are the subject of
this Memorandum and Order.
A. Defendants' Motion for Judgment as a Matter of Law
When a trial court denies a motion for judgment as a matter of
law at the close of the evidence, the movant may renew its
request by filing a motion no later than ten days after the entry
of judgment. Fed.R.Civ.P. 50. A motion for judgment as a
matter of law should be granted if, viewing the evidence in a
light most favorable to the nonmoving party and giving the
evidence the advantage of every fair and reasonable inference,
there is insufficient evidence from which a jury could reasonably
find liability. Ambrose v. Township of Robinson, 303 F.3d 488,
492 (3d Cir. 2002) (citations omitted). In order to prevail, the
moving party must show that the jury's findings, presumed or
expressed, are not supported by substantive evidence, or if they
[are], that the legal conclusions implied [by] the jury's verdict
cannot in law be supported by the findings. Valenti v. Allstate
Ins. Co., 243 F. Supp. 2d 221, 223 (M.D. Pa. 2003) (citations
In considering whether the evidence at trial was sufficient to
sustain the jury's verdict, the court may not weigh the evidence,
determine the credibility of witnesses, or substitute its version
of the facts for the jury's version. Ambrose, 303 F.3d at 492
(citations omitted). Although judgment as a matter of law should
not be granted liberally, a mere scintilla of evidence is
insufficient to sustain a verdict of liability. Id. The Court
is not to ask whether there is literally no evidence supporting
the verdict, but instead whether there is evidence upon which the
jury could properly find a verdict for the prevailing party. Id. at 493 (citations omitted). Accordingly, if the
evidence of record is insufficient to support the jury's verdict,
then motion for judgment as a matter of law should be granted.
Ambrose, 303 F.3d at 493.
Defendants' central argument in support of their motion for
judgment as a matter of law is that there was no reliable
evidence taken during trial that Testa knew Moore's identity or
knew Moore was engaged in union organizing activities when Testa
decided to eliminate five positions within the Maintenance
Department effective March 1, 2002. In order to evaluate this
argument, it is first necessary to explain what Moore was
required to prove in order to support his claim of retaliation.
A public employee's retaliation claim for engaging in protected
activity is evaluated under a three-part test. In order to
succeed on a retaliation claim, a plaintiff must show: (1) he
engaged in an activity constitutionally protected by the First
Amendment; and (2) his protected activity was a substantial and
motivating factor in the retaliating action. Finally, a defendant
may defeat a plaintiff's claim of retaliation by demonstrating
that the plaintiff's employment would have been terminated even
in the absence of the protected conduct. Ambrose,
303 F.3d at 493.
Defendants concede that Moore's efforts to organize a union
constituted activity entitled to protection under the First
Amendment. However, they argue that Moore failed to establish
that his union organizing activity was a substantial or
motivating factor in his termination. Defendants chief argument
is that "there is absolutely no reliable evidence of record that
Testa, the undisputed decisionmaker, knew Moore's identity or
knew Moore was engaged in union organizing activities when Testa
decided to eliminate five positions effective March 1, 2002."
(Doc. No. 141, at 10.)
In support of this argument, Defendants rely heavily on
Ambrose, in which the United States Court of Appeals for the Third Circuit held "it is only intuitive
that for protected conduct to be a substantial or motivating
factor in a decision, the decisionmakers must be aware of the
protected conduct." Ambrose, 303 F.3d at 493. In Ambrose, the
plaintiff, a police officer, received a thirty-day suspension
after he provided an affidavit in support of his colleague's
lawsuit against the township-employer. The township claimed it
disciplined plaintiff because he entered administrative offices
after hours and made misleading entries in his activity logs.
Id. at 491. The plaintiff alleged that the suspension was
imposed in retaliation for offering the affidavit in the
litigation against the township. Id. at 492. All of the
township commissioners who voted to suspend plaintiff testified
that they were unaware of the affidavit he provided. Id. at
493. At trial, the plaintiff prevailed on his retaliation claim
and the district court denied the ...