When can you appeal from a judgment after taking remittitur on a different claim?

In this blog post, I discussed a thorny procedural issue: when does a party waive her objection to an untimely post-trial motion? That issue arose in a sexual harassment case that I argued, which the Court of Appeals resolved on October 29. The other complex procedural issue in this case is discussed below. That two procedural issues of first impression would arise in the same case makes this a Moore's Federal Practice bonanza.

The case is Legg v. County of Ulster. Here is what happened: co-plaintiff Watson won her sexual harassment claims brought under Title VII and Section 1983. Most people associate such harassment claims with Title VII, which requires that the plaintiff prove the abuse was severe or pervasive and altered the work environment for the worse. But if the plaintiff works for the government, as Watson did, she can also sue under Section 1983, which enforces the equal protection clause of the Constitution, except that to sue a municipality you have to show the harassment was sufficiently pervasive that county policymakers acquiesced in the harassment, a difficult legal burden. Still, Watson won both claims, winning $200,000 on  the Title VII claim and $200,000 on the Section 1983 claim.

The County next filed post-trial motions challenging the verdicts under Title VII and Section 1983. The trial court sustained the verdict under Title VII but said there was not enough evidence of municipal liability to support the Section 1983 claim. This means the Section 1983 verdict was vacated. While the Title VII verdict survived, however, the district court reduced the Title VII damages award from $200,000 to $75,000. That reduction is called a remittitur, which means the plaintiff has two choices: either accept the $75,000 or demand a new trial on damages. The problem with a new trial is that the remitted amount (in this case, $75,000) represents what the trial court thinks is the outer limits of what a jury could award the plaintiff in a case like this. So a new trial on damages is usually not worth the effort; if you get another $200,000 verdict, the trial court will probably reduce it again to $75,000. Watson accepted the $75,000 damages award, thereby ending the Title VII claim. If a plaintiff accepts the remittitur, she cannot appeal from the trial court's ruling that the case is only worth $75,000. The only way to take up that appeal is to have the second trial on damages and, when that trial is over, appeal from the remittitur ruling. Again, few parties actually do this, so accepting the remittitur forfeits any appeal from the remittitur ruling.

While Watson voluntarily ended the Title VII case by accepting the $75,000, she wanted to appeal from the district court's adverse ruling on the Section 1983 claim. After all, that verdict was worth $200,000. But remember the rule that you cannot appeal from a trial court's remittitur claim. Does that rule mean that you cannot appeal from the dismissal of a second claim that the trial court had dismissed on the merits? Considering how many trials we've had over the years where trial courts issue split rulings like this, you'd think this issue would have arisen more frequently than it has. It has not. There was no case law in the Second Circuit on the issue of what claims are waived when the plaintiff accepts a remittitur on one claim in particular. This case provides that guidance. Here is what the Second Circuit does on this issue:

While the county argued that "Watson is foreclosed from appealing any portion of the judgment by accepting the district court's remittitur of her Title VII award," the Second Circuit (Carney, Hall and Lynch) won't go that far. The few Circuits that have taken up this issue already have held that "accepting remittitur on one claim does not bar a plaintiff from appealing claims that are 'separate and distinct'" from the claim from which the remittitur arose. Since Watson had to prove different elements to prove her Title VII and Section 1983 claims, in that the Section 1983 claim required evidence that the sexual harassment was "official policy of the municipality," the claims are separate and distinct. Watson benefits from this rule because the Court of Appeals went onto reinstate the Section 1983 verdict that the district court had dismissed on the merits.