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September 30, 2005.

GARIN MOORE, Plaintiff

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.

I. Factual Background

  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 employees.

  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 joining.

  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 airport.

  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.)

  II. Procedural History

  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.

  III. Discussion

  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 omitted).

  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 ...

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