Carolyn Fay GARCIA, Appellant, v. CITY OF TRENTON, Missouri; Timothy Whitaker, Mayor, City of Trenton, in his individual and official capacities; and Robert Lewis, Chief of Police, City of Trenton, in his individual and official capаcities, Appellees.
No. 03-1749WM.
United States Court of Appeals, Eighth Circuit.
Submitted: Sept. 11, 2003. Filed: Nov. 7, 2003.
348 F.3d 726
have obtained these records during the appellate process and demonstrated that they were such that a remand to the ALJ was necessary. She has not done so.
For the reasons stated herein, we affirm the judgment of the district court.
Randall D. Thompson, argued, Kansas City, MO, for appellee.
Before MELLOY, RICHARD S. ARNOLD, and FAGG, Circuit Judges.
RICHARD S. ARNOLD, Circuit Judge.
Carolyn Fay Garcia appeals the District Court‘s grant of judgment as a matter of law for Timothy Whitaker, the Mayor of Trenton, Missouri, following a jury verdict in favor of Ms. Garcia on a retaliation claim she filed under
I.
This Court reviews a grant of judgment as a matter of law de novo, applying the same standard as the District Court. Moran v. Clarke, 296 F.3d 638, 643 (8th Cir.2002). Judgment as a matter of law is proper when a party fails to establish any legally sufficient evidentiary basis for a reasonable jury to find for her on an essential issue.
A grant of judgment as a matter of law following a jury verdict is appropriate only when the evidence is “entirely insufficient to support the verdict.” Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir.2000). This high standard protects the role and province of the jury to determine which inferences shall be drawn from the evidence presented. “Only where ‘all of the evidence points in one direction and is susceptible to no reasonable interрretation supporting the jury verdict’ should the grant of a motion for judgment as a matter of law be affirmed.” Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir.2002), quoting Hathaway v. Runyon, 132 F.3d 1214, 1220 (8th Cir.1997).
II.
We state the facts in the light most favorable to the jury verdict. Ms. Garcia, the owner of a gift shop in Trenton, Missouri, complained to Mayor Whitaker and
Both bеfore and during the time period when Ms. Garcia complained about the ordinance, she regularly parked her car in front of her shop in violation of a two-hour time limit. However, because it was police policy not to ticket unless someone complained about a parking violation, the police rarely issued parking tickets. From the opening of her shop in November 1999 until August 30, 2000, Ms. Garcia never received a parking ticket.
On August 30, during a heated exchange about the sidewalk ordinance, Mayor Whitaker told Ms. Garcia that the two-hour time limit would be enforced against her, and that he was taking this action because of her complaints about the bicycling ordinance. Sеveral hours later, Ms. Garcia received a parking ticket. Through October 20, 2000, Ms. Garcia received three additional tickets for violating the time limit. By comparison, Kevin Hudson, an accountant whose office is located next door to Ms. Garcia‘s shop, regularly parked in violation of the two-hour limit for eight years without receiving a tickеt until August 30, when he also received a ticket. Mr. Hudson‘s ticket disappeared from police records after he spoke with Mayor Whitaker about it the following week.
As a rеsult of receiving these four parking tickets, Ms. Garcia testified (and the jury apparently believed) that she suffered from medically diagnosed anxiety and that she refrained from sрeaking at city council meetings for fear of additional retaliation.
The case then went to the jury. The jury returned verdicts in favor of two co-defendants, Robert Lewis, the Chiеf of Police, and the City of Trenton itself. Ms. Garcia has not appealed from these verdicts. On the claim against Mayor Whitaker, the jury‘s verdict was for the plaintiff. It awarded $5,000.00 in сompensatory damages, and $20,000.00 in punitive damages. The District Court, as noted above, then granted judgment as a matter of law for the defendant Whitaker. The Court held that there was insufficient evidence to justify a rational conclusion that a person of ordinary firmness would be chilled by Mayor Whitaker‘s conduct with respect to the parking tickets. From this judgment the plaintiff now appeals.
III.
The ordinary-firmness test is well established in the case law, and is designed to weed out trivial matters from those deserving the time of the courts as reаl and substantial violations of the First Amendment. See Bart v. Telford, 677 F.2d 622 (7th Cir.1982). We have adopted and applied this standard. See Naucke v. City of Park Hills, 284 F.3d 923 (8th Cir.2002).1
The effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable.
The test is an objective one, not subjeсtive. The question is not whether the plaintiff herself was deterred, though how plaintiff acted might be evidence of what a reasonable person would have done. (Plaintiff herе testified that she was deterred, to some degree, from further exercising her rights of protest, and the jury may have believed her, but, as we have said, this is not the issue.) What would a person of “ordinary firmness” have done in reaction to the tickets? Would he or she have simply ignored them, or would he or she have been slowed down, at least to some degreе? The issue is a close one, in our view. The total amount of the tickets was not large, $35.00. However, they came during a period of less than two months, and the threat of further harassment could reasonably be inferred. Ultimately, this sort of question is usually best left to the judgment of a jury, twelve ordinary people, than to that of a judge, one ordinary person. The jury, after all, represents the conscience of the community. It decides many similar questions—for example, what would a person of ordinary prudence have donе in certain circumstances? Here, the matter is sufficiently close, in our view, to come within the jury‘s province.
In Naucke v. City of Park Hills, supra, 284 F.3d at 928, we affirmed a summary judgment against one of three plaintiffs on the grоund that there was no genuine issue of material fact as to whether a person of ordinary firmness would have been chilled by the defendants’ allegedly retaliatory actiоns. In that case, the plaintiff charged that the defendants had made harassing, derogatory, and humiliating comments about her. This conduct, we believed, was “insufficient to deter a рerson of ordinary firmness from continuing to speak out.” Ibid. We believe the present case is distinguishable. Here, in contrast to Naucke, defendant‘s conduct went beyond mere speеch, however offensive. Defendant, in his capacity as Mayor, engaged the punitive machinery of government in order to punish Ms. Garcia for her speaking out. Charges made by a parking ticket, to be sure, are typically only petty offenses, not even misdemeanors, but they have concrete consequences. We hold that the evidence in this case was sufficient to go to the jury.
The judgment of the District Court is reversed, and the cause remanded to that Court with directions to reinstate the verdict for Ms. Garcia аnd against Mayor Whitaker.