Citations
- 945 F. Supp. 2d 1225
Full opinion text
MEMORANDUM OPINION AND ORDER ON DEFENDANTS’ MOTION FOR RECONSIDERATION AND TO VACATE TRIAL AND JUDGMENT AND/OR FOR A NEW TRIAL
JAMES A. PARKER, Senior District Judge.
In DEFENDANTS’ MOTION FOR RECONSIDERATION AND TO VACATE TRIAL AND JUDGMENT IN FAVOR OF PERKINS AND MILLER (1) BECAUSE OF IRREGULARITIES; (2) FOR LACK OF JURISDICTION; (3) PURSUANT TO THE COURT’S INHERENT POWERS OR RULE 59 Or. 60, AND/OR FOR A NEW TRIAL PURSUANT TO RULE 59 (Doc. No. 164) (Motion), Defendants Federal Fruit and Produce Company, Inc. (FFP) and Defendant Michael Martelli (Martelli) ask the Court to vacate the Judgment in favor of Plaintiffs Richard Perkins (Perkins) and Richard Miller (Miller) entered after a jury trial and verdict. Alternatively, Defendants ask the Court to order a new trial. The Court will grant the Motion in part and will deny the Motion in part.
The Court concludes that even though Perkins produced an additional page of notes from a meeting with his supervisor after discovery closed, the late production of the document was not sufficiently prejudicial to Defendants to enable the Court to set aside the verdict or order a new trial on Perkins’ disparate treatment and discriminatory discharge claims against FFP. Perkins’ failure to disclose prior to trial that Perkins had been arrested and had been involved in additional legal proceedings was not sufficiently prejudicial to Defendants to grant their requested relief because the evidence would not have been admissible, and the Court will not set aside the verdict or order a new trial on that basis. Perkins’ contradictory testimony about the date he began post discharge employment with GT Express affected Perkins’ expert’s calculation of Perkins net loss of wages and benefits related to Perkins retaliation claims. Thus, the jury’s determination of lost wages and benefits was based on speculation. The Court will grant a new trial on damages for lost wages and benefits awarded to Perkins on his retaliation claim against FFP. At trial, Defendants were surprised and unfairly prejudiced by testimony that Perkins prepared an additional Union grievance but the grievance was then misplaced by the Union. This missing grievance was important evidence of Perkins’ protected activity supporting his retaliation claim against Martelli. Thus, the Court will grant a new trial on liability and compensatory and punitive damages related to Perkins’ retaliation claim against Martelli.
Prior to trial, Miller failed to reveal that he had been convicted for a crime involving fraud. Miller also failed to inform FFP that Miller knew that his CDL was suspended three days after Miller began working for FFP. And, Miller failed to explain his testimony that he had been married for 27 years while at the same time Miller owed child support to his wife. These three areas of evidence would have been admissible primarily to prove that Miller did not suffer emotional distress due to his discharge from FFP. The evidence would also have been admissible to attack Miller’s credibility. Because this evidence is of most importance regarding the amount of compensatory and punitive damages that should be awarded for Miller’s retaliation claim against FFP, the Court will grant a new trial on damages related to this claim. The Court had earlier determined that a new trial is necessary on the amount of compensatory and punitive damages that should be awarded for Miller’s retaliation claim against Martelli. Because evidence other than Miller’s testimony strongly supported FFP’s and Martelli’s liability for retaliation, the Court will not grant a new trial on FFP’s and Martelli’s liability to Miller for retaliatory discharge.
In a separate MEMORANDUM OPINION AND ORDER, the Court has denied DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO FED. R. CIV. P. 50(b) (Doc. No. 163).
I. Procedural Background
From May 16-25, 2012, a jury trial was held on Perkins’ claims for disparate treatment, discriminatory discharge, and retaliation under Title VII and § 1981 against FFP and Martelli and on Miller’s retaliation claims under Title VII and § 1981 against FFP and Martelli. The jury returned a verdict in favor of Plaintiffs on all claims and awarded compensatory and punitive damages.
II. Standard of Review
Rule 59 provides several grounds for a new trial:
New Trial; Altering or Amending a Judgment
(a) In General.
(1) after a jury trial on all or some of the issues — and to any party — as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court[.]
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of a judgment.
Fed.R.Civ.P. 59(a), (e).
Under Rule 59, a district court may reconsider a ruling when the district court has “misapprehended the facts, a party’s position, or the controlling law.” Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir.2009). “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000).
Under Rule 60(b) a district court may order relief from a judgment based on several grounds:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
... or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.
Fed.R.CivJP. 60(b)(l)-(6), and (c).
According to Defendants, the entire Judgment is interlocutory because the Court granted a new trial on damages as to Miller’s retaliation claim against Martelli. If the Judgment is interlocutory, the Court may, in its discretion, amend the Judgment at any time before the filing of the final judgment without adhering to the standards of Rules 59 and 60. See Raytheon Constructors Inc. v. Asarco Inc., 368 F.3d 1214, 1217 (10th Cir.2003). However, the Court may follow the standards of Rules 59 and 60 to determine whether to alter or vacate an interlocutory order and whether to order a new trial. See Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1224 n. 2 (10th Cir.2008) (stating, “[t]he District Court’s partial summary judgment ruling was not a final judgment. Thus, [plaintiffs] motion for reconsideration is considered an interlocutory motion invoking the district court’s general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment. ... In such a case, the district court is not bound by the strict standards for altering or amending a judgment encompassed in Federal Rules of Civil Procedure 59(e) and 60(b).”) (quotations and citations omitted). Hence, the Court will use the standards set forth in Rules 59 and 60, particularly the standards of Rule 60, as a guide to determine whether to set aside all or part of the Judgment.
III. Factual Background
A. Perkins’ Employment at FFP.
FFP is a produce distributing company offering same-day delivery of produce to restaurants, grocery stores, military bases, and nursing homes. (Doc. No. 184-2.) FFP’s warehouse is a fast-paced working environment that is operated seven days a week. (Id.) FFP employs a day shift and a night shift of warehouse and trucking employees. (Id.) In 2010, FFP employed 90 people at its Denver facility and maintained a fleet of approximately 40 trucks. (Id.)
Perkins began working for FFP on October 3, 2008 as a Class B truck driver. (Tr. 964:14-15.) Perkins was a member of Teamsters Local Union No. 455 (Union). During the period of Perkins’ and Miller’s employment at FFP, Jesse Medina (Medina) was the Union’s business representative at FFP. A Collective Bargaining Agreement (CBA), effective from October 1, 2007 to October 1, 2011, governed the terms and conditions of employment at FFP with respect to its truck drivers. (Tr. 348:22-24; Ex. G.)
Article 13 of the CBA describes FFP’s Progressive Discipline Policy:
1st offense — Written “verbal” warning
2nd offense — Written warning
3rd offense — 2nd Written warning and suspension
4th offense — Termination.
(Ex. G at 9.) Article 16 of the CBA prohibits discrimination on the basis of race. (Ex. G at 12.) Under the CBA, all employees were to receive a copy of FFP’s work rules and were required to sign an agreement to abide by the rules. (Id. at 8; Ex. O FFP 00861-00863.)
In response to an employee’s unsatisfactory job performance, FFP management could issue a “warning notice” according to the CBA’s progressive discipline policy. (Id.) Warning notices, known as write ups, were considered “current” for 15 months after issuance. (Id. at 9.) When issuing a write up, an FFP supervisor or manager would first present the write up to the employee to sign, but if the employee refused to sign the write up, the supervisor or manager would note “refused to sign” on the signature line. The Union received a copy of all write ups within 7 days, and all write ups were kept in an employee’s “permanent file” at FFP. (Id.)
On February 10, 2009, Perkins and three other FFP employees became union stewards to “manage certain issues between management and the CBA members.” (Tr. 969:20-21 Perkins testimony; Tr. 355:15 Medina testimony.) During his employment at FFP, Perkins received several disciplinary write ups. All but one of Perkins’ write ups were for first level offenses under the CBA. (Trial Ex. D.) During his employment at FFP, Perkins filed several union grievances about working conditions and some in response to write ups Perkins received that Perkins claimed were unjust. (Id.) (Tr. 1028:12-21.) When an employee prepares a Union grievance, the grievance is presented to an FFP supervisor or manager, who can sign the grievance. If the supervisor or manager refuses to sign, a notation “refused to sign” is written in place of a signature. (Ex. D.) The grievance is then filed with the Union, and the Union can initiate arbitration proceedings to resolve a grievance.
B. Perkins Initial Write Ups And Grievances: February 28, 2009 Through Initial March 11, 2009 Write Up And Grievance
On February 28, 2009, Mondragon issued the first write up to Perkins stating that Perkins and another African-American truck driver, Gary Moore (Moore), were sitting in a truck while paperwork was prepared for their routes. (Tr. Ex. D FFP 00167.) Mondragon wrote up Perkins and Moore because under FFP policy, after drivers inspect their trucks and wait for their delivery paperwork, drivers are expected to help load produce into trucks in the warehouse. On February 28, 2009, Perkins filed a union grievance challenging this write up as “unfounded and unjust.” (Ex. D FFP 00166.)
On March 2, 2009, Perkins asked Mon-dragon to meet with him to discuss Union issues. Mondragon agreed and asked Chris Salazar, another FFP supervisor, to attend the meeting with him. Perkins, Moore and Jorge Morales, all Union stewards, attended the meeting. (Tr. 589:9-12.) Mondragon testified that racial discrimination was not discussed during this meeting. (Tr. 589:9-12.) However, Perkins testified that at the March 2, 2009 meeting, he complained to Mondragon that on February 28, 2009, Perkins and Moore, who are African-American, were written up, but other employees, who were Latinos, were not written up for the same conduct. Perkins testified that in response, Mondragon told Perkins and Moore they were written up because “they were black.” (Tr. 983:2-6.) Moore also testified that he heard Mondragon say that Moore and Perkins were written up because “they were black.” (Tr. 163:21-23.) Mondragon denied that he said this. (Tr. 589:9-12.)
On March 4, 2009, Perkins filed a grievance stating that on February 28, 2009, Perkins observed FFP owner Martelli doing union work in violation of the CBA. (Tr. 975:19-976:14.) On March 5, 2009, Union representative Medina sent a letter to FFP complaining that management was “conducting bargaining unit work,” and that management was “disrespecting employees.” (Ex. NN FFP 0047.) FFP did not respond to this letter. (Tr. 361:2-10 Medina testimony; Tr. 496:22-25, 520:23-521:6; 523:2-8 Stan Kouba testimony.) Perkins’ March 4, 2009 grievance and Medina’s March 5, 2009 letter contained no allegations of race discrimination. (Id.)
On March 11, 2009, Perkins received a second write up. On that day at approximately 5:30 am, Perkins and another truck driver, Roberto Villa-Moreno (Moreno), were outside talking while doing the daily pre 'trip inspection of their trucks. (Tr. 1010:1-14 Perkins testimony.) After observing Perkins and Moreno, Martelli drove up to Perkins and Moreno and told them to “stop the bull-shit and get back to work.” (Tr. 272:22-25 Martelli testimony.) Perkins and Moreno testified that after a verbal altercation with Moreno, Martelli yelled racial epithets at Perkins and Moreno. (Tr. 1011:14-16; 1013:23-25 Perkins testimony; Tr. 147:19-149:16 Moreno testimony.) Perkins, who had walked into the warehouse, and Miller, who was already inside the warehouse, testified that as Martelli walked into the office area of the FFP warehouse, Martelli yelled to Mon-dragon, “I am fucking tired of that nigger and Mexiean[,]” and Martelli ordered Mon-dragon to “write up the nigger and fire the spick.” (Tr. 1014:16-20; Tr. 147:19-149:16; Tr. 201:1-8.) Both Mondragon and Martelli testified that although Martelli was angry and was yelling, Martelli did not say the racial epithets. (Tr. 573:4-9 Mondragon testimony; Tr. 284:24-285:8 Martelli testimony.) Martelli had not instructed what level write up he wanted Perkins to receive. Mondragon issued to Perkins a first offense level write up.
Perkins filed a grievance about the write up he received on March 11, 2009. This grievance mentioned Article 13, the progressive discipline policy of the CBA, but in this grievance, Perkins did not describe Martelli’s use of racial epithets, particularly the term “nigger.” (See Ex. D FFP 00171.)
C. The Second March 11, 2009 Grievance
Perkins and Union representative Medina testified that on March 11, 2009 Perkins prepared a second, additional written grievance that was presented to Mondragon, who refused to sign it. Perkins testified that he gave the additional March 11, 2009 grievance to Medina and did not see the grievance thereafter. Medina testified that he usually faxed grievances to FFP, but that the Union misplaced the additiom al March 11, 2009 grievance. (See Tr. 1088:9-17 Perkins testimony; Tr. 376:1-379:4 Medina testimony.) Defendants assert that they learned about this “missing” additional grievance for the first time at trial.
D. Perkins’ Write ups and Grievances From March 23, 2009 Through May 4, 2009
On March 19, 2009, Perkins was written up for delivering the wrong type of lettuce, but Perkins claimed another warehouse employee was responsible for the mistake. (Ex. D FFP 00174.) On March 23, 2009, Perkins, believing that he was unjustly disciplined for another employee’s mistake, filed a grievance concerning this write up. (Ex. D FFP 00173.) This grievance complained that Perkins had been, “Racially discriminated against since becoming steward violating Article 16 of contract agreement and Item C-7 of company policy.” (Id.) Article 16 of the CBA prohibited racial discrimination, and Item C-7 of FFP’s Work Rules prohibited employees from discriminating against fellow employees. (Ex. G FFP 0012 and Ex. O FFP 00862.)
On March 24, 2009, Perkins received a write up for loading the wrong kind of bananas into his truck. (Ex. D FFP 00169.) Perkins testified that while his truck was still in the warehouse, Moore noticed the mistake, Perkins unloaded the wrong bananas, loaded the correct bananas, and delivered the correct bananas. (Tr. 1030:5-1031:5.) This write up was recorded as a “2nd Offense written warning.” (Ex. D FFP 00169.) Perkins grieved this write up. (Ex. D FFP 00170.)
On March 31, 2009, Perkins was written up for not wearing his FFP badge. (Ex. D. FFP 00178.) Perkins grieved this write up stating that his FFP badge was in his truck, but Perkins was not allowed to retrieve it. (Ex. D FFP 00177.)
On April 9, 2009, Perkins was written up for wearing tennis shoes in the warehouse, instead of the required work boots. (Ex. D FFP 00179.) On April 10, 2009, Perkins grieved the write up as unjust and stated that CBA “Article 13 and any other that may apply” were violated. (Ex. D FFP 00180.)
On April 10, 2009, Perkins was written up for not checking in at the warehouse at the end of his shift. (Ex. D FFP 00181.) April 10, 2009 was Good Friday, and Perkins had twelve deliveries on that day. At 5:30 pm, Perkins returned to the warehouse after the deliveries and put his truck keys and paperwork in the outside mailbox at FFP. On April 21, 2009, Perkins grieved the write up. (Ex. D FFP 00182.) Perkins testified that he had been previously instructed, “if [he] got back and no one was at the warehouse,” Perkins was to park his truck, lock his truck, and put the truck keys and his paperwork in the mailbox to be retrieved by the night shift supervisor. (Tr. 1038:24-1039:17.) Mon-dragon testified that on April 10, 2009, Perkins did not follow instructions.correctly because Perkins had been instructed to leave his keys and paperwork with the night crew, not in the mailbox. (Tr. 583:19-584:14.) Mondragon and Angela Vigil, an FFP office employee, testified that employees were instructed to leave truck keys and paperwork in the mailbox only if no one was at the warehouse. (Tr. 585:5-9; 530:24-531:3.) Mondragon testified that on April 10, 2009, the night crew supervisor called him from an FFP phone to report that he saw Perkins park his truck, and leave the truck keys and delivery paperwork in the mailbox. (Tr. 585:1-16.) Mondragon testified that this call indicated that the night crew supervisor was at the warehouse when Perkins arrived at 5:30 pm. (Id.) Mondragon wrote up Perkins for failing to leave the truck keys and paperwork with the night crew supervisor. (Id.)
On April 21, 2009, Perkins was written up for lack of attendance. (Ex. D FFP 00183.) Perkins grieved this write up and claimed his absence on April 21 was excused. (Ex. D FFP 00184.) Perkins and Mondragon testified that Perkins called Mondragon on Monday evening, April '20 and told Mondragon he had to attend a court hearing on Tuesday, April 21 and would miss work. (Tr. 1051:14-25 Perkins testimony; Tr. 586:3-21 Mondragon testimony.) Mondragon recorded on the write up that he was disciplining Perkins not just for Perkins’ April 21st absence, but also for a pattern of absences that averaged about one per week. (Ex. D. FFP 00183.) Perkins testified that in his telephone conversation with Mondragon on Monday, April 20, Perkins asked Mondragon if he could switch his scheduled day off, Wednesday, April 22 to Tuesday, April 21, so Perkins could attend court and would not have to miss an extra day of work for which he would not receive pay. The evidence showed that for his absence on April 21, 2009, Perkins followed FFP policy by giving at least one hour’s advance notice to Mondragon the previous night. (Ex. D FFP 00184; Tr. 1051:16-1052:13.) Perkins testified that Mondragon approved Perkins’ request to switch his day off and work on Wednesday, but when Perkins arrived at work Wednesday, Mondragon had not assigned a route to Perkins. Perkins incurred one additional day of unpaid leave as a result. (Tr. 1053:22-1054:24.) Perkins testified that employees, who were Latinos, had missed work without giving the required one hour’s advance notice, ■ but had not been written up:
Q. Now the second page of this April 21st entry, you made notes, particularly right here. What’s — please discuss with the jury what was the relevance of these two note entries.
A. I found out that Carlos Cornelius and another driver had missed work on Wednesday and Thursday. He was not written up, and he was also allowed to work that Saturday. Carlos worked Monday through Friday. He was also allowed to work that Saturday to make up for missing one of those days.
The other note I made was concerning Enrique. Because I was not allowed to work on that Wednesday, that Wednesday was Enrique’s day off, he was allowed to work.
(Tr. 1055:6-16.)
On April 23, 2009, Perkins was written up by Supervisor Dennis Nakashima (Nakashima) for not responding to a page. (Ex. D FFP 00185.) In the write up, Nakashima stated that he tried to page Perkins several times while Perkins was out on a delivery, but Perkins did not call back. (Id.) Nakashima wrote that supervisor Alfonso Diera (Diera) had also tried to call Perkins who did not respond. (Id.) Perkins testified that he checked his radio, and determined he had received only one page “at 12:45 for about 14 seconds.” (Tr. 1056:11.) Perkins reiterated, “[t]he only page I received that day came from Dennis, 12:45, and it lasted for 14 seconds. I was still written up for not answering a page.” (Tr. 1056:23-25.) Perkins further testified that he had the windows open in the truck, which lacked air conditioning, and could not hear the page. (Tr. 1056:16-22.) Additionally, Perkins testified that he later determined Nakashima and Diera were calling the wrong number. (Id.)
On May 4, 2009, Perkins filed two grievances: one stating that he experienced “harassment since becoming a union steward,” and one stating as an ongoing violation, “Retaliation for Discrimination grievance.” (Ex. D FFP 00186-00187.) Perkins explained the second grievance at trial, “I filed it because I felt, once again, because I complained of racial discrimination I was being retaliated against.” (Tr. 1057: ISIS.)
E. Termination of Perkins’ Employment
On May 10, 2009, Mondragon issued the tenth and final write up to Perkins for “unknown whereabouts for 3+ hours.” (Ex. D FFP 00189.) This write up was labeled as a 4th Offense write up, and Perkins’ employment was terminated two days later on May 12, 2009. (Id.) On May 10, 2009, Perkins was assigned a delivery to Rancho Liborio # 7, located at 6440 East 64th Street in Commerce City, about six to eight miles from the FFP warehouse. (Id.; Doc. No. 182-4) Perkins left the warehouse at 7:30 am but did not return until 12:06 pm. (Id.) On the write up, Mondragon stated that Mondragon spoke to and got a written statement from the receiver at Rancho Liborio # 7, Miguel Angel Montenegro (Montenegro), who reported that Perkins had arrived at Rancho Liborio # 7 at 8:00 am and had left at 8:30 am. (Id.; Ex. D. FFP 001.92.) Mondragon also received from FFP employee Oliver Macias and his wife Lorene Macias a written statement, in which they wrote that they saw an FFP truck near 64th Street and Quebec in Commerce City at 8:50 am that morning. (Ex. D FFP 00196.) The Macias’ statement indicated that seeing an FFP truck “grabbed [their] attention, since we knew there wasn’t (sic) any stops on that side of town.” (Id.) Mondragon, who was not working that day, submitted his own written statement that as he was driving westbound on 1-70, he saw Perkins driving eastbound on 1-70 about 5 miles from Rancho Liborio # 7, at around 10:30 am. (Tr. 542:10-17; 593:24-25.)
Perkins testified that on May 10, 2009 at about 7:45 am, he arrived at Rancho Liborio # 7, he had to wait for two trucks to be unloaded, and he left Rancho Liborio # 7 sometime between 10:30 am and 11:00 am. (Tr. 592:10-18; 594:5-7.) On Perkins’ trip ticket, the document that Perkins prepared after completing a delivery, Perkins recorded that he arrived at Rancho Liborio # 7 at 7:45 am and left Rancho Liborio #7 at 11:00 am because there were “2 Trucks b 4 me.” (Ex. D FFP 00191; Tr. 1075:8-16.) Perkins explained that after leaving Rancho Liborio # 7 at about 10:30 or 11:00 am, he drove to Church’s Chicken, located at 64th Street and Quebec in Commerce City, to buy lunch before returning to the FFP warehouse. (Tr. 1066:1-25.) After arriving at Church’s Chicken, Perkins discovered he had left his wallet at his apartment. Perkins then drove 30 to 35 minutes to his apartment in Aurora, located in the area of Peoria and Iliff, to retrieve the wallet. (Tr. 1067:1-7.) Perkins testified that he felt he had to immediately retrieve his wallet because it contained his commercial driver’s license (CDL), which he needed to drive. (Tr. 1067:11-19.) After getting his wallet, Perkins drove back to Church’s Chicken to pick up his lunch, and returned to FFP just after noon. (Tr. 1071:4-11.)
Defendants claim that Perkins was discharged for “unknown whereabouts” and also for dishonesty because Mondragon believed Perkins misrepresented on his trip ticket that he left Rancho Liborio # 7 at 11:00 am, whereas the Rancho Liborio # 7 receiver Montenegro reported Perkins left Rancho Liborio # 7 at 8:30 am. (Tr. 591-19-20 Mondragon testimony.) Perkins’ trip ticket also conflicted with Mr. and Mrs. Macias’ statement that they saw an FFP truck at 64th and Quebec at 8:50 am, and the trip ticket did not match Mondragon’s belief that he saw Perkins on 1-70 at 10:30 am. (Tr. 712:1-714:11.) Dishonesty and being “off-route” are causes for immediate discharge under the CBA. (Ex. O at 8.) The termination write up, however, stated that Perkins was discharged for “unknown whereabouts” and did not specifically mention dishonesty as a reason for discharge. (Ex. D FFP 00189.)
Perkins presented evidence that several Latino and Caucasian drivers, who committed similar offenses, were not fired. (Tr. 595:19-600:15; Ex. T.) For example, Mondragon testified one employee pulled over his truck and slept without informing FFP:
Q. ... On January 23, 2009, Mr. Frank DaPaepe, who is a Class A driver at Federal Fruit, was written up by you for an unauthorized stop. Do you see that?
A. Yes, I do.
Q. Okay. In your description here, supervisor comments, you indicate that Mr. DaPaepe had pulled over and slept in his vehicle for about two and a half hours; is that right?
A. Yes.
Q. Later that same day Mr. DaPaepe pulled over again and slept for 33 minutes; is that right?
A. Yes.
Q. And that’s totally unacceptable, isn’t it?
A. Yes.
Q. And Mr. DaPaepe only got a written warning; isn’t that true?
A. Yes.
Q. And Mr. DaPaepe, once again — let’s see, two months later you wrote you him up a second time for unauthorized stop, on March 26, 2009; is that right?
A. Yes.
Q. Okay. On this particular date, Mr. DaPaepe pulled his vehicle over and slept for approximately six hours; is that right?
A. Yes.
Q. And as it relates to Mr. DaPaepe, because the whereabouts were unknown, you had to actually use GPS to find Mr. DaPaepe, didn’t you?
A. Yes.
Q. And Mr. DaPaepe, ... only received a written warning; isn’t that right?
A. Yes.
Q. Is Mr. DaPaepe an African American?
A. He is not.
(Tr. 600:22-602:4.)
Perkins grieved his termination of employment. (Ex. D FFP 00188.) An unemployment hearing was held regarding Perkins’ discharge. On November 5, 2009, Perkins filed a CHARGE OF DISCRIMINATION (Ex. E) with the Equal Employment Opportunity Commission (EEOC) alleging race discrimination, discriminatory discharge, and retaliation by FFP and Martelli. On January 10, 2010, Perkins received a right to sue letter from the EEOC. (Am. Compl. Ex. A.)
On August 26, 2010, Perkins entered into a SETTLEMENT AGREEMENT with the Union and FFP resolving several of Perkins’ union grievances. (Ex. P.) Perkins received $54,523.76 in the settlement, but the settlement did not resolve Perkins’ Title VII and § 1981 claims. This case was initiated on March 4, 2011, and an Amended Complaint was filed on March 24, 2011. (Doc. Nos. 1 and 7.)
F. Miller’s Employment at FFP
Miller began working for FFP as a Class A truck driver on November 19, 2008. (Tr. 198:4-5.) On March 5, 2009, Miller received a write up for not wearing his FFP ID badge. On that day, Miller also received a write up stating that Miller, while driving an FFP truck on a delivery, “accidentally hit a building at Buckley Air Force Base,” causing minimal damage. (Tr. 198:11-200:7.)
Miller testified that on the morning of March 11, 2009, he was standing about 25 to 30 feet away from the office area of the warehouse and heard Martelli yelling to Mondragon “fire the spick and write up the nigger” in reference to Moreno and Perkins. (Tr. 200:24-201:22.) Miller testified that in his thirty-year employment history he had never heard a manager use these types of racial slurs. (Tr. 201:24-202:1.) Miller further testified that he spoke to Mondragon at about 9:00 am that day and complained that the language Martelli used was “inappropriate and unacceptable”; and Mondragon responded, “[t]hey’ll do what they want.” (Tr. 202: 7-19.) Miller did not talk to Martelli about Martelli’s use of racial epithets because Miller “was afraid he would lash out at me.” (Tr. 203:8-12.)
On June 23, 2009, Miller was called as a witness in Moreno’s Union arbitration hearing held in connection with Moreno’s discharge. (Tr. 204-21-25.) Miller testified specifically about Martelli’s use of racial epithets on March 11, 2009. (Tr. 205:8-10.) Martelli and another FFP owner, Stan Kouba, were present at the arbitration hearing during Miller’s testimony. (Tr. 228:1-6.) Miller’s employment was terminated on July 10, 2009, seventeen days after his testimony at Moreno’s arbitration, for the stated reason that Miller had an accident in the FFP parking lot that damaged two FFP trucks. (Tr. 206:3-5.)
Miller testified about the events leading to his termination on the morning of July 10, 2009:
A. I went out where we park the trucks at night and to retrieve a truck. I was coming around to hook up to a trailer. I was looking out my right side for the trailer number that I needed to hook onto. And I had to swing out to the left while I was still watching to the right of me, and I collided with another truck.
(Tr. 208:16-21.) In Miller’s notes, written after the accident, Miller accepted 100% responsibility for the accident, but at trial, Miller testified that he believed he was 50% at fault for the accident. (Tr. 209:5-17.) The other driver involved in the accident, who was Latino, was not written up or disciplined after the accident. (Tr. 209:21-25; 301:25-302:1.) Mondragon fired Miller within a few hours of the accident, but no one from FFP interviewed Miller in connection with the accident and no estimate of the damage costs was obtained prior to firing Miller. (Tr. 211:5-13; 300:16-18.) Miller testified he believed he was fired “[bjecause I testified at [Moreno’s] arbitration. They were just out to get rid of me.” (Tr. 211:17-18.)
Defendants presented evidence that in response to accidents involving FFP drivers, FFP management approached each circumstance differently. Some drivers who were in accidents were fired, some drivers were suspended, some drivers were written up, and some drivers were put on a probationary period. . (Tr. 693:7-14 Mondragon testimony; Ex. Y.) Mondragon testified that Miller was fired because of the particular circumstances of his accident:
Q. ... Why did you terminate [Miller]? A. I think it was because of the severity of the accident and that it was in our parking lot. To have that severe of an accident in a parking lot, that’s — I mean, it’s not enclosed, ... I mean it’s a big area, but to have that kind of an accident in our parking lot just floored me____I really don’t believe that type of accident should have happened in our parking lot.
(Tr. 701:21-702:8.)
Miller presented evidence that some FFP drivers were involved in serious accidents, but were not fired. (Tr. 229:16-25 Miller testimony; Tr. 602:7:608:19 Mon-dragon testimony.) For example, Mondragon testified about accidents involving other FFP employees:
Q. Okay. And so even after three accidents, Mr. Savacoll is not terminated, right?
A. Right.
Q. You would agree that Mr. Pennegar was only terminated after his fourth accident?
A. Yes.
Q. Do you recall Mr. Alverez having a major accident involving flipping a truck?
A. I believe so.
Q. Do you recall whether or not he was terminated?
A. No, he wasn’t.
(Tr. 608:10-19.)
On November 5, 2009, Miller filed a CHARGE OF DISCRIMINATION with the EEOC complaining he was discharged in retaliation for his “complaint of race discrimination, [his] testimony against an owner of Federal in a legal proceeding and due to [his] association with former Federal African-American employee Richard Perkins, ...” (Ex. F.) On January 10, 2010, Miller received a right to sue letter from the EEOC. (Am. Compl. Ex. A.)
On March 30, 2010, FFP settled with the Union and Miller, reinstated Miller’s employment, and paid Miller $26,615.40 in lost wages. Miller resigned from employment at FFP on June 2, 2010. (Tr. 242:25-243:12.) Evidence was presented at trial that Miller’s CDL was suspended on September 21, 2009, three days after Miller was initially hired by FFP, and Miller’s CDL was reinstated on February 2, 2010. (Tr. 256:15-257:1.)
IV. Discussion
A. Trial Irregularities: Trial Judge’s Absence During Jury Deliberations
Defendants contend that the Court should set aside the jury’s verdict or order a new trial on all claims because the presiding trial judge, Senior United States District Court Judge James A. Parker sitting by designation from the District of New Mexico, was absent from the bench during jury deliberations. When the jury was about to begin deliberating, after Judge Parker had instructed the jury, and counsel had made their closing arguments, Judge Parker informed the jury, the parties, and counsel for Plaintiffs and Defendants that he was leaving Denver to return to New Mexico. (Tr. 1379:5-10.) Judge Parker also told the attorneys that United States District Judge R. Brooke Jackson from the District of Colorado would preside over all proceedings that day, and if necessary, Chief United States District Judge Wiley Y. Daniel from the District of Colorado would preside the next day. Neither counsel for Plaintiffs nor counsel for Defendants objected to Judge Parker’s departure, and neither side objected to the substitution of Judge Jackson and Chief Judge Daniel for the remainder of the trial proceedings. (See Tr. 1379:5-1383:3.)
In the Motion, however, Defendants allege that Judge Parker’s absence during jury deliberations was a structural error requiring the Court to set aside the verdict or order a new trial. Defendants point to a fatal error in the jury’s Special Interrogatories: the lack of a compensatory damage interrogatory on Miller’s retaliation claim against Martelli. This first came to light while Judge Parker was absent. When reading the jury’s verdict, Judge Jackson noted that the question regarding compensatory damages on Miller’s retaliation claim against Martelli was missing. (Tr. 1413:15-16.) According to Defendants, Judge Jackson was not familiar with the case, and thus, Judge Jackson did not correct the error. However, at the time Judge Jackson read the verdict, neither Plaintiffs’ counsel nor Defendants’ counsel objected to the missing interrogatory. On Miller’s retaliation claim, the jury returned a verdict in favor of Miller and against Martelli in the amount of $200,000, for punitive damages, without awarding compensatory damages for emotional pain and mental anguish. In the Judgment, the Court noted that the omission of the Special Interrogatory on compensatory damages was a “fatal error” that warranted a new trial on compensatory and punitive damages on Miller’s retaliation claim against Martelli. Defendants point to the missing Special Interrogatory, deemed a fatal error by the Court only as to the amount of damages on this claim, and argue that Judge Parker’s absence should be considered a structural error that requires the Court to set aside the entire verdict.
Courts have found that the absence of the trial judge during a “critical stage” of a trial can constitute structural error sufficient to nullify a verdict if the judge’s absence affects the integrity of the trial. See, e.g., United States v. Mortimer, 161 F.3d 240, 241 (6th Cir.1998) (finding that trial judge’s unexplained absence from the bench without warning prejudiced the defendant and that a new trial was warranted). In this analysis, the Tenth Circuit employs a fact-specific inquiry and has not established a bright-line rule regarding a trial judge’s absence during a trial. United States v. Solon, 596 F.3d 1206, 1212 (10th Cir.2010) (stating, “[w]e do not decide today whether a judge’s absence from the bench might constitute structural error in a case [other than the one presently under review].”). The Tenth Circuit noted, “[although most constitutional errors can be harmless, some are so offensive to our judicial system that they require automatic reversal.” Id. at 1211 (citing Arizona v. Fulminante, 499 U.S. 279, 306-09, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). “These violations, termed ‘structural errors,’ involve defects in the ‘trial mechanism’ and affect ‘the framework within which the trial process proceeds’ from beginning to end.” Id. (quoting United States v. Lott, 433 F.3d 718, 722 (10th Cir.2006); and Fulminante, 499 U.S. at 309-10, 111 S.Ct. 1246). “A defining feature of structural error is that the resulting unfairness or prejudice is necessarily unquantifiable and indeterminate, such that any inquiry into its effect on the outcome of the case would be purely speculative.” Id. (internal quotations omitted).
In Solon, the Tenth Circuit concluded there was no structural error even though the trial judge was absent for six minutes in the middle of defense counsel’s closing argument because, “nothing occurred during his absence,” 596 F.3d at 1212. Defendants distinguish this case from Solon. Defendants maintain that unlike the harmless error in Solon, the omission of the Special Interrogatory for compensatory damages on Miller’s retaliation claim against Martelli, already deemed a fatal error by the Court, cannot be considered harmless. According to Defendants, this fatal error would not have occurred without Judge Parker’s absence. However, this assertion is based on speculation of what might have occurred had Judge Parker, instead of Judge Jackson, presided over the jury deliberations.
Although this Court found the omission of the Special Interrogatory a fatal error as to the amount of damages awardable on Miller’s retaliation claim against Martelli, the omission did not undermine the entire trial process and does not warrant a declaration that the whole verdict is “a nullity.” Mortimer, 161 F.3d at 241 (citing, Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989)). Plaintiffs correctly point out that the cases cited by Defendants involved more egregious errors and a complete absence of a presiding judge. For example, in Mortim er, at the end of a criminal trial, the presiding judge, who had been present during the prosecutor’s final argument, disappeared during the final argument for the defense without notice to counsel or to the jury. 161 F.3d at 241. The Sixth Circuit noted that the judge gave no reason for his disappearance, but the judge was “back on the bench in time to thank defense counsel for her speech and call on the prosecutor for her rebuttal.” Id. The Sixth Circuit ruled that the judge’s unexplained absence was a structural error, and concluded, “[w]hen the judge is absent at a ‘critical stage’ the forum is destroyed .... [and] [t]he verdict is a nullity.” Id. Importantly, the Court in Mortimer concluded that the jury “could have inferred from the judge’s absence that the defense was not worth listening to ...” Id. at 242.
What distinguishes this case from Mortimer and Solon is that Judge Parker’s departure did not leave a judicial void. Judge Jackson presided after Judge Parker left Denver. Judge Parker clearly explained to both the jury and to counsel that he would be returning home, and counsel did not object at that time. See Mortimer, 161 F.3d at 241 (noting that a trial’s “structure normally stands if the parties consent to excuse the presence of a judge.”). Judge Jackson ably presided during jury deliberations and helped counsel for Plaintiffs and Defendants craft an answer to questions from the jury. (E.g. Tr. 1386:2-1394:19.)
The Court concludes that no judicial absence occurred ■ during jury deliberations. Furthermore, Judge Parker’s departure and the substitution of Judge Jackson were not structural errors requiring the Court to set aside the jury’s verdict.
B. Federal Rule of Civil Procedure 63
Rule 63 governs the substitution of judges:
If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties.
Fed.R.Civ.P. 63. Defendants correctly assert that Judge Jackson did not certify he was familiar with the record when he stepped in as substitute judge during jury deliberations. However, this failure does not require the Court to set aside the jury’s verdict because Defendants did not object to the substitution of Judge Jackson in place of Judge Parker. See Higginbotham v. Corner Stone Bank (In re Higginbotham), 917 F.2d 1130, 1132-33 (8th Cir.1990) (concluding that a litigant waived the right to new trial under Rule 63 because he failed to object to the procedure that the successor judge employed and stating that a litigant “ ‘has no right to sit back and await a decision of the case before objecting to the procedure.’ ”) (quoting Townsend v. Gray Line Bus Co., 767 F.2d 11, 18 (1st Cir.1985)); Milbrew, Inc. v. Commissioner, 710 F.2d 1302, 1308 (7th Cir.1983) (concluding that litigant waived right to object to successor judge deciding case on the existing record by agreeing to reassignment). Therefore, any violation of Rule 63 was waived by Defendants.
C. Administrative Exhaustion of Perkins’ Retaliation Claim
In Perkins’ EEOC charge (Ex. E), Perkins alleged he engaged in several protected activities:
1) In early 2009, Perkins gathered complaints from employees regarding race discrimination and complaints about general working conditions (Ex. E ¶ B);
2) Perkins complained to Mondragon in a meeting (no date given) that the February 28, 2009 write up was a form of harassment due to Perkins’ race but Mondragon angrily left the meeting (Ex. £¶£); .
3) Perkins filed a grievance on or about March 5, 2009 regarding race discrimination (Ex. E ¶ F);
4) Perkins asked Mondragon to discuss the March 11, 2009 incident but Mondragon refused to discuss it (Ex. E ¶ I);-
5) Perkins complained to Mondragon about being called a “nigger” by Martelli on March 11, 2009 (Ex. E ¶ J);
6) On April 14, 2009, Perkins wrote and hand-delivered a letter to FFP owner Stan Kouba complaining generally that the write ups he received “display a pattern of discriminatory retaliation based upon my race.” (Ex! E ¶ L); and
7) Perkins filed a grievance (no date given) with the Union for retaliation based on Perkins’ complaints of race discrimination (Ex. E ¶ L).
On direct examination at trial, Perkins was questioned extensively about each paragraph in his EEOC charge. The four protected activities from Perkins’ EEOC charge summarized above in paragraphs 1), 2), 6), and 7) were either affirmed by Perkins’ testimony or affirmed through documentary evidence. As for paragraph 1), Perkins testified that he collected complaints from FFP employees about general working conditions and about race discrimination. In regard to paragraph 2), Perkins testified that at the March 2, 2009 meeting with Mondragon and Supervisor Chris Salazar, Perkins complained to Mon-dragon about the February 28, 2009 write up given to Perkins and Moore as being racially discriminatory because employees, who were Latinos, were not written up for the same behavior. Perkins testified that at the March 2, 2009 meeting, Mondragon told Perkins and Moore they were written up because they were black. With respect to paragraph 6), Perkins testified that he wrote and hand-delivered an April 14, 2009 letter to Stan Kouba complaining of race discrimination, and Perkins offered and the Court admitted Trial Exhibit I, a copy of the letter. With regard to paragraph 7), Perkins offered and the court admitted a copy of a grievance dated May 5, 2009, in which Perkins complained as an ongoing violation, “Retaliation for Discrimination grievance.” (Tr. Ex.- D FFP 00187.)
At trial, however, Perkins denied that he engaged in the protected activity set forth in Perkins’ EEOC charge that is summarized above in paragraphs 3), 4), and 5). Concerning paragraph 3), Perkins testified that on March 4, 2009, he filed a grievance about being written up on February 28, 2009, but admitted that the grievance did not mention racial discrimination. (Ex. D FFP00166.) As for paragraphs 4) and 5), Perkins testified that he did not complain to Mondragon about Martelli’s use of racial epithets on March 11, 2009. In sum, Perkins affirmed or proved the protected activity outlined in Perkins’ EEOC charge described in paragraphs 1), 2), 6), and 7) above, but Perkins recanted the protected activity outlined in Perkins’ EEOC charge described in paragraphs 3), 4), and 5) above.
In addition, two of Perkins’ protected activities proven at trial were not mentioned in Perkins’ EEOC charge. First, Perkins’ EEOC charge failed to mention the March 23, 2009 grievance (Ex. D FFP 00176) complaining about race discrimination that allegedly occurred on March 19, 2009. The grievance specifically cited Article 16 of the CBD and Item C-7 of the FFP work rules, both of which prohibit race discrimination. Second, Perkins’ EEOC charge failed to mention the controversial grievance brought up for the first time at trial in which Perkins specifically complained about Martelli’s use of the term “nigger” on March 11, 2009. According to Perkins’ and Medina’s testimony, the Union misplaced this grievance. To explain the discrepancies between his EEOC.charge and the trial evidence, Perkins testified that his attorney, Paula Greisen, drafted the EEOC charge, and Perkins signed it without reading it.
Defendants contend that since Perkins’ EEOC charge contained allegations of protected activity that were so significantly different from the evidence of protected activity presented at trial, the Court should dismiss Perkins’ retaliation claims against FFP and Martelli for failure to exhaust administrative remedies.
To bring a claim under Title VII or § 1981, a claimant must exhaust his administrative remedies as to each claim of discrimination or retaliation. Shikles v. Sprint/United, Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.2005) (noting that exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII). The first step to exhaustion is the filing of a charge of discrimination with the EEOC. See Jones v. Runyon, 91 F.3d 1398, 1399 n. 1 (10th Cir.1996) (noting that the EEOC filing is a jurisdictional requirement). The purposes of the administrative exhaustion requirement are: “1) to give notice of the alleged violation to the charged party; and 2) to give the EEOC an opportunity to conciliate the claim.” Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir.1994), abrogated on other grounds, Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir.2003). An EEOC charge must contain facts that would prompt an investigation into the claim at issue. Jones v. UPS, 502 F.3d 1176, 1183-86 (10th Cir.2007). Facts supporting each element of a prima facie case of retaliation must be alleged in a charge in order for a retaliation claim to be exhausted. Id. at 1186. “A plaintiffs claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” MacKenzie v. City and County of Denver, Co., 414 F.3d 1266 (10th Cir.2005).
In determining administrative exhaustion, however, courts liberally construe EEOC charges. See id. (construing liberally a plaintiffs charge of discrimination based on the ADA); and Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1195 (10th Cir.2004) (noting that courts liberally construe charges based on the ADEA). The Court may consider allegations not expressly included in an EEOC charge if the conduct alleged would fall within the scope of the EEOC investigation which reasonably would have grown out of the allegations that a plaintiff actually made. Martin v. State of KS., 978 F.Supp. 992, 998 (D.Kan.1997) (quoting Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir.1993) overruled in part on other grounds as recognized by Davidson v. America Online, Inc., 337 F.3d 1179, 1183 (10th Cir.2003)).
In MacKenzie, the Tenth Circuit affirmed a district court’s grant of summary judgment in favor of the employer. 414 F.3d 1266. The plaintiff had filed an EEOC charge alleging that her employer discriminated against her on the basis of her disability, which she indicated on her EEOC charge as coronary disease. Id. at 1274. For the first time on appeal, however, the plaintiff asserted she had a second disability: depression. Id. The Court refused to consider this as an actionable disability under the ADA because “[plaintiffs] second alleged disability plainly exceeded] the scope of her EEOC charge” and because the. second disability was raised for the first time on appeal. Id. The Tenth Circuit further noted that the plaintiff raised for the first time in her summary judgment response that her employer failed to accommodate her disability; however, the Tenth Circuit dismissed this claim on appeal because the plaintiff, “... failed to exhaust her administrative remedies as to this claim.... ” Id. n. 13. Hence, the court in MacKenzie determined that a plaintiff may not sue her employer for discrimination based on an additional disability not mentioned in the plaintiffs EEOC charge, and a plaintiff may not sue her employer for failure to accommodate her disability when this claim was not mentioned in the plaintiffs EEOC charge. Id.
As set forth in the supplemental briefing, in Manning v. Blue Cross and Blue Shield of Kansas City, No. 12-3190, 2013 WL 1490803 (10th Cir. Apr. 12, 2013) (unpublished opinion), the Tenth Circuit affirmed the dismissal of discrimination and retaliation claims for failure to exhaust because the EEOC charges at issue were “too vague to give defendants notice of the challenged conduct.” Id. at *7. Three former employees had filed charges against Epoch Group, L.C., a subsidiary of Blue Cross and Blue Shield of Kansas City, for race discrimination and retaliation and for disability discrimination and retaliation. One plaintiffs charge, which was similar to the other two employees’ charges, stated that she was treated “unequally and was denied employment opportunities due to her race, retaliated against in violation of her rights, and was not offered reasonable accommodation for her diabetes, carpal tunnel and blood clots.” Id. at *6. The court rejected plaintiffs’ argument that the factual basis for their claims would have been discoverable upon investigation: “There is nothing in any of the plaintiffs’ EEOC charges that would have put the defendants on notice that [plaintiffs] were alleging that their non-hire for the job openings in October and November 2009 was based on race discrimination or in retaliation for any protected opposition to discrimination.” Id. *8 (emphasis added).
In contrast, the Tenth Circuit in Anderson v. Clovis Mun. Schools, reversed a district court’s determination that the plaintiff had failed to exhaust a hostile work environment claim and a constructive discharge claim. 265 Fed.Appx. 699 (10th Cir.2008) (unpublished opinion). The Tenth Circuit concluded that the factual allegations in the plaintiffs EEOC charge would have led to an investigation of those claims:
Specifically, Anderson stated that “[b]e-ginning in February 2005 and continuing on a continuous basis I have been subjected to adverse terms and conditions unlike my peers.” He also checked the box indicating that the discrimination was based on his race. Like the court in Jones, we think these two claims [for hostile work environment and constructive discharge] can reasonably be expected to follow the charge of discrimination, ... and thus conclude that Anderson’s charge was sufficient to exhaust his administrative remedies and thereby confer jurisdiction.
Id. at 703 (citing Jones v. UPS, Inc., 502 F.3d at 1187).
Unlike the charges analyzed in MacKenzie and Manning, Perkins’ EEOC charge sufficiently described Perkins’ allegations that FFP and Martelli retaliated against him for opposing racial discrimination through a series of verbal and written complaints, plus union grievances, that occurred during a particular time period, from February 28, 2009 through May 10, 2009. Also, despite its omissions and inaccuracies, Perkins’ charge, as the charge in Anderson, contained factual allegations that would have triggered an investigation into all of Perkins’ alleged protected activity during the relevant time period. Defendants do not, nor could they, assert that Perkins’ EEOC charge failed to notify them that Perkins was claiming retaliation for opposing racial discrimination. Instead, Defendants argue that the protected activity described by Perkins at trial is too different from the protected activity described in Perkins’ EEOC charge. The Court recognizes that Perkins’ EEOC charge fails to allege all protected activity in which Perkins engaged and that Perkins’ EEOC charge outlined some protected activity that Perkins denied at trial. However, the allegations in Perkins’ EEOC charge provided a sufficient starting point for an investigation into discrimination or retaliation claims. The differences between Perkins’ EEOC charge and the trial evidence do not show that the administrative process related to Perkins’ EEOC charge was insufficient. The Court does not agree that the differences were so prejudicial that Defendants were unable to investigate the truth of Perkins’ assertions. See Jones, 502 F.3d at 1187 (affirming district court’s conclusion that the plaintiffs allegations at the administrative level “should have triggered an inquiry into whether UPS viewed Mr. Jones as disabled.”). The Court concludes that Perkins’ claims against FFP and Martelli for retaliation were administratively exhausted despite the differences between the protected activity alleged in the EEOC charge and the evidence of protected activity adduced at trial.
D. Motion For New Trial Based On Surprise At Trial; New Evidence; and Misconduct
Defendants assert that during pre-trial discovery, Plaintiffs provided incomplete or untruthful information that hindered Defendants’ ability to defend against Plaintiffs’ claims at trial. Defendants further contend that they were surprised and unfairly prejudiced at trial by Perkins’ testimony that he had engaged in protected activity at FFP that Perkins had not disclosed to Defendants prior to trial. Defendants maintain that the cumulative effect of the new information at trial and the misleading or incomplete information given to Defendants prior to trial placed Defendants at an unfair disadvantage. Defendants ask the Court to vacate the Judgment or grant a new trial under the Court’s inherent power to alter interlocutory judgments or under Fed.R.Civ.P. 59 or 60.
1. Perkins’ Notes About the March 2, 2009 Meeting With Mondragon
At Perkins’ pretrial deposition, he testified that he had written down notes or “minutes” of the March 2, 2009 meeting with Mondragon. Perkins testified that at the meeting Perkins complained about the write up that Perkins and Moore received on February 28, 2009, and Perkins informed Mondragon that two drivers, who were Latinos, were not written up for the same conduct. Perkins alleged he recorded in his notes that Mondragon told Perkins and Moore they were written up “because they were black.” At trial, Perkins testified that on the morning of his deposition, he discovered that he had not given copies of his notes about the March 2, 2009 meeting to Defendants. During a break, Perkins and his attorneys went to the attorneys’ office and retrieved two pages of notes, and Perkins’ deposition continued:
Q. You testified earlier this morning that your notes from that 3/2/09 meeting were on two pages. Are these the two pages you were referring to?
A. Yes, ma’am, it appears that they are.
Q. Are these all of the notes that you have that you took on March 2, '09, at that meeting?
A. Yes, this would be all of the notes.
(Mot. Ex. A-l Tr. Dep. of Richard Perkins Sept. 29, 2011 at 109:21-110:2.) However, Mondragon’s statement that Perkins and Moore were written up “because they were black” was not recorded on the two pages of notes provided to Defendants at Perkins’ deposition. Despite Perkins’ statement at his deposition that he had produced all of his notes from the March 2, 2009 meeting, Perkins found a third page of notes sometime after Perkins’ deposition and gave the third page to his counsel. On the third page of notes, Perkins recorded that Mondragon had told Perkins that Perkins and Moore were written up “because they were black.” Plaintiffs’ counsel delivered the third page of notes to Defendants’ counsel on November 7, 2009, the day after discovery closed. (See Doc. No. 187 Tr. of Hearing held on Nov. 19, 2012 at 7:16-10:12.) Defendants did not move to reopen discovery.
At trial, because the notes contained hearsay, the Court did not allow Plaintiffs to admit the three pages of notes as documentary evidence. However, Perkins referred to his notes during his testimony, and Perkins and Moore both testified that they heard Mondragon say that Perkins and Moore were written up “because they were black.” (Tr. 983:1-13, 163:18-164:2.) Perkins was then questioned about producing the notes at his deposition:
Q. ... [I]n your deposition were you asked what notes you took regarding the March 2nd, 2009, meeting?
A. I was.
Q. Okay. At the time of your deposition, did you believe that you produced all your notes?
A. I did.
Q. Okay---- [I]n your deposition, did
you, in fact, produce all three of these pages of documents?
A. The first two pages were presented at the time of deposition.
Q. Okay. After your deposition, did you find other notes?
A. I did.
Q. And please describe how you found those notes.
A. In my deposition, I was asked about the comments about Mr. Mondragon writing us up because we are black. To the best of my knowledge, I thought I had submitted all those notes to my counsel. In that deposition, these notes appeared, and the first two pages were there, but the last page was not there. I was questioned why it wasn’t there by Ms. Keimig, and I couldn’t recall why it wasn’t there[.] ... So after that deposition, ... I went home to search for that particular document, and I did find it.
Q. And the document you found, was that the one that you identified the statement by Mr. Mondragon where he said, I am writing you up because you are black?
A. Yes, that was the document along with the alleged dates of CBA violations. (Tr. 985:11-986:23.)
Defendants contend that Perkins’ late production of the third page of notes was one of several v