United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 15, 2001 Decided June 26, 2001
No. 99-7229
Andrew M. Fredrick, et al.,
Appellees
v.
District of Columbia,
Appellant
Appeal from the United States District Court
for the District of Columbia
(96cv02093)
Carl J. Schifferle, Assistant Corporation Counsel, argued
the cause for appellant. With him on the briefs were Robert
R. Rigsby, Corporation Counsel, and Charles L. Reischel,
Deputy Corporation Counsel. Lutz A. Prager, Assistant
Deputy Corporation Counsel, entered an appearance.
Janet R. Cooper argued the cause and filed the brief for
appellees.
Before: Henderson, Randolph and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Andrew M. Fredrick, Stephen
Bias and Michael J. Hairston sued the District of Columbia,
alleging that the District had discriminated against black
employees of the Metropolitan Police Department, in violation
of Title VII, 42 U.S.C. s 2000e et seq., and 42 U.S.C. s 1981.
The first trial ended in a hung jury. After a second trial held
in May 1999, the jury found the District liable for discrimina-
tion and awarded damages, $100,000 for Fredrick, $60,000 for
Bias and $30,000 for Hairston. The District contends that it
is entitled to a new trial because the district court erroneous-
ly admitted evidence and because the evidence introduced in
the trial was insufficient to support the jury's verdict.
I.
The contested evidence consisted of an excerpt of Monique
Blasio's testimony from the first trial which the court admit-
ted at the second trial because Blasio was unavailable. Bla-
sio, a black member of the Metropolitan Police Department,
testified as follows. While she was assigned to the Second
District vice unit in 1992, she went to see Lieutenant Knies-
er--a white officer--to express interest in an assignment to
the detectives unit. During this meeting, she suggested to
Knieser that the dearth of female promotions to detective was
"a gender issue." One day later she was reassigned to the
tactical unit. Blasio filed a grievance in 1993 or 1994 com-
plaining of her reassignment. The "white officers" in the
tactical unit considered her a "snitch." At one roll call, Blasio
asked those members of the tactical unit who were gossiping
about her to not do so behind her back. This prompted
Officer Chagnon to throw something and to attempt to draw
her into a fight. Blasio testified that Sergeant Vincent, the
head of the tactical unit, sent her to see Lieutenant Knieser.
At the same time, Sergeant Vincent permitted Officer Chag-
non to report for duty as usual.
Blasio testified that Lieutenant Knieser took her state-
ment, but made no audible response to her question: "How
can you effectively do an investigation on me when you so
[sic] biased?" Blasio said that "from that point on they just
kept bringing me in for questioning, having me write all kinds
of statements." She said she was later transferred to another
police district.
The District contends that Blasio's testimony regarding the
physical confrontation with Officer Chagnon was either irrele-
vant or unfairly prejudicial. Relevant evidence is "evidence
having any tendency to make the existence of any fact that is
of consequence to the determination of the action more
probable or less probable than it would be without the
evidence." Fed. R. Evid. 401; see United States v. Crowder,
141 F.3d 1202, 1206, 1209 (D.C. Cir. 1998) (en banc). The
argument in favor of relevancy is as follows. Fredrick,
Hairston and Bias were assigned to the Second District.
They alleged that they were denied opportunities to advance
to the vice and detective units, partly because Lieutenant
Knieser discriminated against them. In terms of Rule 401,
the fact of consequence here was Lieutenant Knieser's ham-
pering Fredrick's and his co-plaintiffs' employment prospects
because of their race. Evidence that Knieser had conducted
his other duties, such as the investigation of a confrontation
between a black and a white police officer, in a racially-biased
fashion would make the existence of that fact more probable
than without the evidence. See Miller v. Poretsky, 595 F.2d
780, 784-85 (D.C. Cir. 1978); see also McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804 (1973).
Of course this assumes that Blasio's testimony is evidence
of racial bias on the part of Knieser. The District maintains
that Knieser's treatment of Blasio and Chagnon cannot sup-
port an inference that Knieser harbored racial bias. Other
evidence showed that he treated both Blasio and Chagnon
equally, recommending that both be disciplined for their roles
in the incident. If the jury understood the evidence this way,
the District has no cause to complain. We may overturn the
evidentiary rulings of the district court only when "a substan-
tial right of the party is affected," Fed. R. Evid. 103(a), that is,
only when the error affects the outcome of the trial. See
Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507,
1512 (D.C. Cir. 1995). Using that standard, we cannot see
how the District can prevail. Other evidence bore on the
question whether the District's employment practices were
racially-biased. This evidence, to which the District did not
object, included testimony regarding other incidents in which
discipline was not meted out in an even-handed fashion. On
the other hand, if the Blasio evidence did not tend to show
racial discrimination, it could not have influenced the jury
against the District. See Williams v. Pharmacia, Inc., 137
F.3d 944, 951 (7th Cir. 1998). To the extent the jury shared
the District's view of the Blasio evidence, a racially-charged
incident occurred and Knieser handled it in a racially-neutral
manner.
Relevant evidence may be excluded if its probative value is
"substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury ..." Fed. R.
Evid. 403. The District claims Blasio's testimony about the
Chagnon incident resulted in a "mini-trial of the entire roll
call incident." It also claims that the evidence was prejudicial
because it prompted the jury to find for Fredrick and his co-
plaintiffs out of sympathy for Officer Blasio or because the
jury concluded that the police mismanaged the Second Dis-
trict.
Neither objection is persuasive. The trial court has broad
discretion to weigh the extent of potential prejudice against
the probative force of relevant evidence. See United States v.
Latney, 108 F.3d 1446, 1450 (D.C. Cir. 1997). Here the court
carefully considered the District's objections and concluded
that the District's fears of prejudice and confusion were
unwarranted. The court disagreed with the idea that allow-
ing the testimony would lead to a "mini-trial": that Knieser
would testify to a different version of events would not "make
[the trial] any longer than necessary." And because the roll
call confrontation was a clear and distinct event, testimony
about it was unlikely to cause the jury to confuse the Dis-
trict's responsibility for actions against Blasio with its liability
for actions against Fredrick and his co-plaintiffs.
II.
The District also seeks a new trial on the ground that the
evidence was not sufficient to support the verdict with respect
to any of the three plaintiffs. The plaintiffs counter that the
District may not raise sufficiency of the evidence on appeal
because, after it moved for judgment as a matter of law at the
close of their case, the District never renewed the motion and
it filed no post-verdict motion to set aside the judgment.
A party may move for judgment as a matter of law "at any
time before submission of the case to the jury." Fed. R. Civ.
P. 50(a)(2). When the District filed its motion after the
plaintiffs' case-in-chief, the following exchange occurred:
THE COURT: All right. Let me hear your motion.
MR. BOLDEN [Counsel for the District]: Your honor,
I'd like to move for a judgment as a matter of law as to
the complaint.
It is the District's position that the plaintiff has the
burden of making out a prima facie case of discrimina-
tion. We believe that case has not been made.
The court said it would take the motion under advisement,
after which the District presented its evidence in defense.
The court never expressly ruled on the District's motion.
It is common ground that under no circumstances may the
District win more than a new trial. A party wishing to renew
a motion for judgment as a matter of law after a verdict has
been rendered must do so within ten days of the entry of
judgment. See Fed. R. Civ. P. 50(b). If "a party has failed to
move for j.n.o.v., an appellate court may not, in reversing the
denial of a directed verdict, enter judgment; relief is limited
to ordering a new trial. See Johnson v. New York, N.H. &
H. R.R., 344 U.S. 48 (1952)." Harbor Ins. Co. v. Schnabel
Found. Co., 946 F.2d 930, 936 (D.C. Cir. 1991); see Cone v.
West Virginia Pulp & Paper Co., 330 U.S. 212, 218 (1947).
In the Harbor Insurance case just quoted, a company
sought review of the district court's denial of its motion for a
directed verdict. Like the District in this case, the company
"did not make a timely motion for j.n.o.v. or a new trial [after
judgment had been entered], but instead appealed directly to
this court." See Harbor Ins., 946 F.2d at 934.1 We ordered
a new trial on the single issue--contributory negligence--the
company had raised in its motion for a directed verdict at the
end of all evidence. See id. at 933.
The District is not in the same position as the party in
Harbor Insurance. Its only motion came at the close of the
plaintiffs' case; it never filed a motion for judgment at the
close of all the evidence. The rule, followed in the other
courts of appeals, is that "a party who moves for judgment
after an opponent's opening statement or at the close of the
opponent's evidence must ordinarily reassert the motion at
the close of all evidence or risk waiving the right to renew the
motion under Rule 50(b) ... and the right to appellate review
of the sufficiency of an opponent's evidence...." 9 James
Wm. Moore et al., Moore's Federal Practice s 50.20[3] (3d
ed. 2000); see Davoll v. Webb, 194 F.3d 1116, 1135-36 (10th
Cir. 1999); American & Foreign Ins. Co. v. Bolt, 106 F.3d
155, 160 (6th Cir. 1997); Patel v. Penman, 103 F.3d 868, 878
(9th Cir. 1996); BE & K Constr. Co. v. United Bhd. of
Carpenters & Joiners of Am., 90 F.3d 1318, 1324-25 (8th Cir.
1996); Umpleby v. Potter & Brumfield, Inc., 69 F.3d 209, 212
(7th Cir. 1995); Kiesling v. Ser-Jobs for Progress, Inc., 19
F.3d 755, 758-59 (1st Cir. 1994); Scala v. Moore McCormack
Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993); McCann v.
Texas City Refining, Inc., 984 F.2d 667, 671 (5th Cir. 1993);
Keith v. Truck Stops Corp. of Am., 909 F.2d 743, 744 (3d Cir.
1990); National Indus., Inc. v. Sharon Steel Corp., 781 F.2d
1545, 1548 (11th Cir. 1986).
Our court has never squarely adopted this general rule,
although we have held that "a prerequisite to any motion for
__________
1 The Harbor Insurance opinion uses the phrases "directed
verdict" and "judgment not on the verdict." Under the 1991
revisions to the Federal Rules of Civil Procedure, these terms have
been replaced by the generic phrase "judgment as a matter of law."
See Fed. R. Civ. P. 50 advisory committee's note; 9 James Wm.
Moore et al., Moore's Federal Practice s 50.03 (3d ed. 2000).
judgment n.o.v. is a motion for directed verdict at the close of
all the evidence," and that a defendant cannot raise insuffi-
ciency of the evidence on appeal unless the defendant filed a
directed verdict motion seeking judgment on that basis. U.S.
Indus., Inc. v. Blake Constr. Co., 671 F.2d 539, 548 (D.C. Cir.
1982). If we applied that holding to the District, it would lose
because it failed to move for judgment as a matter of law at
the close of the evidence. But in light of the district court's
failure to rule on the District's motion at the close of the
plaintiffs' case, the District urges us to treat that motion as
the equivalent of one filed at the close of all the evidence.
Rule 50(b) of the civil rules states that "[i]f, for any reason,
the court does not grant a motion for judgment as a matter of
law made at the close of all the evidence ... [t]he movant
may renew its request for judgment as a matter of law by
filing a motion no later than 10 days after entry of judgment."
Fed. R. Civ. P. 50(b). This is of no assistance to the District.
The text of Rule 50(b) envisions a motion made after "entry
of judgment," something the District neglected to do.
There is another problem for the District. With some
exceptions courts of appeals hold that even if a defendant files
a motion for judgment at the close of the plaintiff's case, the
defendant must move for judgment as a matter of law at the
close of all evidence in order to preserve lack of sufficient
evidence as a ground for appeal--again something the Dis-
trict neglected. See, e.g., Patel, 103 F.3d at 878 & n.9;
Umpleby, 69 F.3d at 212. Although exceptions have grown
up over the years, see, e.g., Douglas County Bank v. United
Financial Inc., 207 F.3d 473, 477 (8th Cir. 2000); Scala, 985
F.2d at 684 n.2, the basic rule remains intact and has become
common to both civil and criminal practice. The Supreme
Court treated it as a foregone conclusion as much as a
century ago. See Bogk v. Gassert, 149 U.S. 17, 23 (1893);
Columbia & Puget Sound R.R. v. Hawthorne, 144 U.S. 202,
206 (1892). The logic behind the rule is simple. "It not
infrequently happens that the defendant himself, by his own
evidence, supplies the missing link; and, if not, he may move
to take the case from the jury upon the conclusion of the
entire testimony." Bogk, 149 U.S. at 23; see also United
States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993) (suggest-
ing that" 'negative inferences' " from defendant's manner of
testifying could "suppl[y] enough evidence to convince any
rational juror of ... guilt beyond a reasonable doubt").
Our practice in criminal cases is comparable. Rule 29 of
the Federal Rules of Criminal Procedure was intended to
"accord with the practice prescribed for civil cases by Rule
50(a) of the Federal Rules of Civil Procedure," Fed. R. Crim.
P. 29 advisory committee's note. A defendant may move for
a judgment of acquittal (previously called a motion for a
directed verdict) on the ground that "the evidence is insuffi-
cient to sustain a conviction," id.; the motion may be made at
the close of the prosecution's case-in-chief or at the close of
all the evidence. Id. But in this circuit, as in others, "a
criminal defendant who, after denial of a motion for judgment
of acquittal at the close of the government's case-in-chief,
proceeds to the presentation of his own case, waives his
objection to the denial." United States v. Foster, 783 F.2d
1082, 1085 (D.C. Cir. 1986) (en banc). A defendant also
waives his right to object to the sufficiency of the evidence on
appeal if he fails, at the end of all evidence, to renew the
motion he lodged at the close of the government's case. See
United States v. Sherod, 960 F.2d 1075, 1077 (D.C. Cir. 1992).
(In criminal cases, Rule 29(b) provides that if "the court
reserves decision"--as the district court did here--"it must
decide the motion on the basis of the evidence at the time the
ruling was reserved," but civil Rule 50 has no comparable
provision.)
For the District to escape the force of these precedents it
must come up with some exception to the requirement that a
Rule 50 motion be renewed at the close of all evidence in
order to preserve a sufficiency-of-the-evidence claim for ap-
peal. A Fifth Circuit decision, the District tells us, recog-
nizes such an exception when the motion at the end of the
plaintiff's case sufficiently warned the plaintiff of the issues
and the district court "either refused to rule or took the
motion under advisement." Polanco v. City of Austin, 78
F.3d 968, 974-75 (5th Cir. 1996). Even if we followed Polan-
co, the District would not qualify for the exception. Its oral
motion did not fairly warn the plaintiffs of the issues it now
seeks to raise on appeal and the District's own witnesses
provided evidence that could support the plaintiffs' case. For
example, Lieutenant Knieser testified that jobs were some-
times filled without posting vacancy notices, a fact relevant to
the District's objection that plaintiffs could not have been
denied jobs for which they never had applied.
Given the District's procedural default, we are limited in
our review to considering whether the verdict is so unsup-
ported by evidence that allowing it to stand would constitute
a manifest miscarriage of justice. Cf. Bristol Steel & Iron
Works v. Bethlehem Steel Corp., 41 F.3d 182, 187 (4th Cir.
1994). Whatever flaws there may be in the record compiled
by the plaintiffs, they are not that severe.
Affirmed.