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Jensen v. West Jordan City

United States District Court, D. Utah, Central Division

October 13, 2017

AARON JENSEN, Plaintiff,
v.
WEST JORDAN CITY, a Utah municipal corporation, Defendant.

          MEMORANDUM DECISION AND ORDER

          DALE A. KIMBALL UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Defendant West Jordan City's (“WJC's”) Motion for Judgment as a Matter of Law, Motion for Reduction of Damages, Renewed Motion for Judgment as a Matter of Law, and Motion for New Trial or Remittitur and on Plaintiff Aaron Jensen's Motion to Alter or Amend the Judgment and Motion for Attorneys' Fees. The motions have been fully briefed. The court concludes that a hearing would not significantly aid its determination of the motions. Accordingly, the court issues the following Memorandum Decision and Order based on the written submissions of the parties and the law and facts relevant to the pending motions.

         DISCUSSION

         The court will first address WJC's Motion for Reduction of Damages and Mr. Jensen's Motion to Alter or Amend Judgment in order to establish the proper amount for the judgment in this case. The court will then address WJC's Motion for Judgment as a Matter of Law and Renewed Motion for Judgment as a Matter of Law to establish whether and what portions of the judgment should stand. Finally, the court will address Mr. Jensen's Motion for Attorneys' Fees.

         WJC'S MOTION FOR REDUCTION OF DAMAGES

         At the conclusion of the trial in this case, the jury completed its deliberations and returned a verdict in favor of Mr. Jensen in the amount of $2, 774, 400. Although the jury initially failed to allocate the damages among the different causes of action, the jury, following the court's order, eventually allocated the damages to the different causes of action. In allocating the damages, the jury found that Mr. Jensen suffered $2, 740, 400 in damages as a result of WJC's violation of Title VII and that those damages are separate and distinct from the damages awarded to Mr. Jensen by the jury for Mr. Jensen's other malicious prosecution, retaliation, and breach of contract claims.

         After the verdict but before the court entered the judgment, WJC filed a Motion for Reduction of Damages asking the court to apply the statutory cap on damages in Title VII cases found in 42 U.S.C. § 1981a(b)(3) to the entire amount that the jury allocated to the Title VII claim. Because WJC had over 500 employees for twenty or more calendar weeks for the years during and preceding the events in question in this case, WJC requested the court to apply the cap of $300, 000 to the Title VII damages. See 42 U.S.C. § 1981a(b)(3)(D) (“The sum of the amount of compensatory damages that may be awarded . . . for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section shall not exceed [$300, 000].”). WJC also filed a proposed judgment reflecting the application of the statutory cap.

         Although Mr. Jensen did not respond directly to WJC's motion, Mr. Jensen did file a Proposed Judgment asking the court to enter a judgment for the entire $2, 740, 400, which Mr. Jensen argues reflects the jury's decision and intent. In support of his argument, Mr. Jensen attached a declaration from the jury foreperson in this case, which Mr. Jensen argues speaks to the jury's intent.

         Although the court did not directly rule on WJC's Motion for Reduction of Damages, the court entered a Judgment that applied Title VII's statutory cap to the entire amount that the Jury allocated to Mr. Jensen's Title VII claim. Applying the statutory cap in that manner, the court entered a total judgment of $334, 000 plus costs and attorney's fees in favor of Mr. Jensen. Therefore, the court GRANTED the Motion for Reduction of Damages when the court entered a Judgment that applied the statutory cap in the manner requested by WJC.

         MR. JENSEN'S MOTION TO ALTER OR AMEND THE JUDGMENT

         “A rule 59(e) motion to alter or amend the judgment should be granted only ‘to correct manifest errors of law or to present newly discovered evidence.'” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997) (citations omitted); see also Fed. R. Civ. P. 59(e) (allowing for a motion to alter or amend judgment if it is filed “no later than 28 days after the entry of the judgment”). “A manifest error of law is ‘the wholesale disregard, misapplication, or failure to recognize controlling precedent.'” Susinka v. United States, 19 F.Supp.3d 829, 834 (N.D. Ill. 2014) (quoting Oto v. Metro Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)).

         Mr. Jensen moved to alter or amend the judgment in this case because he argues that the Judgment contains a “manifest error of law.” Specifically, Mr. Jensen argues that Title VII's statutory cap should not apply to the economic damages that the jury awarded to Mr. Jensen for WJC's violation of Title VII because, according to Mr. Jensen, the statutory cap does not apply to economic damages from discrimination, including back pay, front pay, and benefits.

         Mr. Jensen is correct that the statutory cap does not apply to all damages awarded in Title VII cases. Under Section 706(g) of the Civil Rights Act of 1964, a court that determines a plaintiff is entitled to a remedy for a defendants violations of Title VII can “enjoin the [defendant] from engaging in such unlawful employment practice, and order such affirmative action as my be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without backpay . . ., or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5. Applying that language, courts have found that applicable plaintiffs “traditionally have been entitled to such remedies as injunctions, reinstatement, backpay, lost benefits, and attorney's fees under § 706(g) of the Civil Rights Act of 1964.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 847-48 (2001). In 1991, Congress expanded the remedies available under Title VII to include “compensatory and punitive damages . . . in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964.” 42 U.S.C. § 1981a(a)(1). However, Congress also placed caps on the “amount of compensatory damages awarded . . . for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages.” 42 U.S.C. § 1981a(b)(3). In other words, if a specific remedy was “a type of relief authorized under § 706(g), it is excluded from the meaning of compensatory damages under § 1981a, ” and the statutory cap does not apply to it. Pollard, 532 U.S. at 853.

         In this case, the jury awarded Mr. Jensen as damages for his Title VII retaliation claim $1, 740, 000 in non-economic damages, which both sides agree is subject to the statutory cap, [1]and $1, 000, 400 in economic damages, which the jury awarded Mr. Jensen for lost retirement benefits caused by Mr. Jensen's inability to go back to being a police officer following his arrest. When Mr. Jensen voluntarily resigned from his position at WJC pursuant to a settlement agreement, Mr. Jensen still needed to complete 7 ½ years of service as a police officer in Utah in order to receive his retirement benefits through the Utah Retirement Systems (“URS”) program. Therefore, the question before the court is whether the jury's award to Mr. Jensen of his lost retirement benefits was a type of remedy that courts were authorized to award under § 706(g) of Title VII to prevailing plaintiffs in post-employment retaliation cases.

         Mr. Jensen simply argues that, under Section 706(g) of the Civil Rights Act of 1964, prevailing plaintiffs were “entitled to such remedies as injunctions, reinstatement, back pay, lost benefits, and attorney's fees.” Pollard, 532 U.S. at 847. Because prevailing plaintiffs were entitled to the remedy of lost benefits and because the economic damages in this case were awarded to Mr. Jensen for his lost retirement benefits, Mr. Jensen argues that the jury's award of $1, 000, 400 in economic damages for his lost retirement benefits should not be subject to Title VII's statutory cap.

         The court agrees that some lost benefits were available as a remedy under Section 706(g) of the Civil Rights Act of 1964. See, e.g., Rosen v. Pub. Serv. Elec. & Gas Co., 477 F.2d 90, 96 (3d Cir. 1973) (compensating early retirees “for the losses they sustained and are sustaining due to the discriminatory reduction in the amount of pension on account of service” and increasing “the retirement credit” for other male employees); Walker v. Ford Motor Co., 684 F.2d 1355, 1364-65 (11th Cir. 1982) (adopting the rule that “compensatory and punitive damages are unavailable in Title VII suits” but recognizing that “the compensatory damages ban does not include concomitants of employment such as fringe benefits, pension benefits, or other lost work benefits” and that “a district court order restoring such lost benefits is in the nature of an injunction and falls within the equitable relief provisions of [Section 706(g)]”). The courts that awarded damages for lost benefits under Section 706(g) often described those awards as being part of a complete award of backpay. See, e.g., Noel v. New York State Office of Mental Health Cent, New York Psychiatric Ctr., 697 F.3d 209, 213 (2d Cir. 2012) (defining back pay as “an amount equal to the wages the employee would have earned from the date of discharge to the date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits” (quoting United States v. Burke, 504 U.S. 229, 239 (1992), superseded by statute on other grounds); Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 626-27 (6th Cir. 1983) (“Backpay awards should completely redress the economic injury the claimant has suffered as a result of discrimination. A claimant, therefore, should receive the salary, including any raises, which he would have received but for discrimination. Sick leave, vacation pay, pension benefits and other fringe benefits the claimant would have received but for discrimination should also be awarded.” (citations omitted)); Meadows v. Ford Motor Co., 510 F.2d 939, 948 (6th Cir. 1975) (“If eligibility and discriminatory refusal are established, then back pay should be fully awarded, including compensation for fringe benefits then enjoyed by employees.”); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974) (“[T]he ingredients of back pay should include more than ‘straight salary.' Interest, overtime, shift differentials, and fringe benefits such as vacation and sick pay are among the items which should be included in back pay. Adjustment to the pension plan for members of the class who retired during this time should also be considered on remand.”); Sorrells v. Veterans Admin., 576 F.Supp. 1254, 1267 (S.D. Ohio 1983) (reinstating plaintiff to his position, ordering that he be provided with back pay, and granting plaintiff “retroactive seniority, sick leave, vacation pay, pension benefits and other fringe benefits in such fashion as though his employment . . . continued uninterrupted from [the date of the retaliatory discharge] until plaintiff's return to duty”). In other words, lost benefits were available as a remedy under Section 706(g) of the Civil Rights Act of 1964, but those awards of lost benefits were considered to be a part of a complete award of backpay. As such, the remedy for lost benefits under Section 706(g) was used to restore the benefits of the former employer to the former employee for the period of time between the discriminatory termination until the entry of judgment by the court. Similarly, courts would restore the benefits of the former employer to the former employee under Section 706(g) for the period of time between judgment and reinstatement, or in lieu of reinstatement, as part of front pay awards. See, e.g., Pollard, 532 U.S. at 853 (“[B]ackpay awards made for the period between the date of judgment and the date of reinstatement, which today are called front pay awards under Title VII, were authorized under § 706(g).”).

         However, just because some lost benefits is some forms were available as remedies under Section 706(g) of the Civil Rights Act of 1964, it does not necessarily follow that all lost benefits in all forms were similarly available. The lost retirement benefits awarded to Mr. Jensen by the jury in this case are different than typical lost benefits awarded to plaintiffs under Section 706(g). For example, because Mr. Jensen voluntarily resigned from his position at WJC, his claim for retirement benefits is not a claim that he is entitled to restoration of WJC's benefits in the form of back pay or front pay. Instead, Mr. Jensen claims that he is entitled to the benefits of future employment with a police department in Utah other than WJC, which he was not able to obtain due to the retaliatory conduct of WJC. Specifically, Mr. Jensen argues that WJC's retaliatory conduct led to his arrest and criminal prosecution, which damaged his record and reputation and prevented him from obtaining work as a police office at another police department.

         Because of the unique nature of Mr. Jensen's claim for retirement benefits, the jury's award to Mr. Jensen of $1, 000, 400 in economic damages for lost retirement benefits is more similar to an award for lost future earnings than it is to an award for front pay or back pay. An award for lost future earnings is given to compensate a plaintiff for “injuries [that] have narrowed the range of economic opportunities available to him . . . [and] caused a diminution in his ability to earn a living.” Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir. 1998). Such an award “is a common-law tort remedy” and is analogous to an “‘injury to professional standing' and to ‘injury to character and reputation, ' both of which have been identified by the Equal Employment Opportunity Commission as examples of nonpecuniary losses compensable under the 1991 Act.” Id. Based on this reasoning, the Court of Appeals for the Seventh Circuit has concluded that awards for lost earning capacity fall within the category of “other nonpecuniary losses” and are among “[t]he broad compensatory remedies added to Title VII in the 1991 Civil Rights Act.” Id. at 952-53; see also Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 771 (7th Cir. 2006) (recognizing front pay as an equitable remedy and lost future earnings as a legal remedy).

         Because the jury's award to Mr. Jensen of his lost retirement benefits in this case is comparable to an award for lost future earnings, the court concludes that the award falls within the category of “other nonpecuniary losses, ” which only became available in Title VII cases after the passage of the 1991 Civil Rights Act. Therefore, the court concludes that the award is subject to Title VII's statutory cap. Accordingly, Mr. Jensen's Motion to Alter or Amend the Judgment is denied.

         WJC'S MOTION/RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

         On June 19, 2017, after Mr. Jensen completed the presentation of his evidence at trial, WJC filed a Motion for Judgment as a Matter of Law under Federal Rule of Civil Procedure 50(a). The court did not decide the motion at that time. When “the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion.” Fed.R.Civ.P. 50(b). On July 19, 2017, after the jury was discharged and judgment was entered in this case, WJC filed a Renewed Motion for Judgment as a Matter of Law under Federal Rule of Civil Procedure 50(b).

         “The standard in determining whether [a Rule 50(b) motion] should be granted is not whether there is literally no evidence to support the party opposing the motion, but whether there is evidence upon which the jury could properly find a verdict for that party.” Huffman v. Caterpillar Tractor Co., 908 F.2d 1470, 1478 (10th Cir. 1990). In other words, a court “must enter judgment as a matter of law in favor of the moving party if there is no legally sufficient evidentiary basis with respect to a claim or defense under the controlling law.” Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546-47 (10th Cir. 1996).

         In its motions, WJC presents nine different reasons why the court should enter judgment in its favor as a matter of law. The court will address each of those arguments below.

         Timeliness of Title VII Claim

         Title VII claims, such as the claims filed by Mr. Jensen, have a statutory limit of 300 days from the time that an employee or former employee knows of a retaliatory adverse action until the employee or former employee files a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or the “state agency that has authority over employment discrimination claims.” Benton v. Town of S. Fork Police Dep't, 553 F. App'x 772, 779 (10th Cir. 2014) (internal quotation marks and citation omitted). “A claim not filed within these statutory limits is time barred.” Id. A Title VII claim accrues when “ a reasonable employee would have known of the employer's decision.” Id. (internal quotation marks and citation omitted). “But . . . an employee who discovers, or should have discovered, the injury (the adverse employment decision) need not be aware of the unlawful discriminatory intent behind that act for the limitations clock to start running.” Id. (internal quotation marks and citation omitted). “Each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice and [the plaintiff] can only file a charge to cover discrete acts that occurred within 300 days of his filing.” Id. (internal quotation marks, brackets, and citation omitted).

         Although this time limit may be tolled in certain circumstances, “[i]n [the Tenth] circuit, a Title VII time limit will be tolled only if there has been active deception of the claimant regarding procedural requirements.” Jarrett v. U.S. Sprint Commc'ns Co., 22 F.3d 256, 260 (10th Cir. 1994). In this case, Mr. Jensen concedes that he offered no evidence to support the requisite standard for tolling.

         The evidence presented at trial demonstrated that Mr. Jensen was aware before signing the settlement agreement on April 29, 2009, that both a criminal investigation and a Police Officer Standards and Training (“P.O.S.T.”) investigation were ongoing and could not be stopped by WJC. Mr. Jensen was then arrested on May 6, 2010, received discovery information in the criminal case by May 17, 2010, and shared information about WJC's involvement in the criminal investigation and prosecution with Dr. Soderquist, his treating physician, on May 26, 2010. All of this occurred more than 300 days before Mr. Jensen filed his Charge of Discrimination with the EEOC and the Utah Labor Commission on March 28, 2011, four days after he signed it. Therefore, Mr. Jensen is time barred from recovering for any of these discrete acts that may qualify as materially adverse actions.

         However, at trial, Mr. Jensen argued that WJC did take materially adverse actions within the statutory limit of 300 days before he filed his Charge of Discrimination. Specifically, Mr. Jensen points to WJC's response to discovery requests, WJC employees' appearance and testimony during the preliminary hearing, and a possible offer by WJC's City Attorney, Jeff Robinson, to assist in drafting a motion in limine in Mr. Jensen's criminal trial. WJC argues that none of these actions by WJC constitute materially adverse actions for purposes of Title VII. On the Special Verdict Form, the jury was asked to provide a date on which Mr. Jensen first had knowledge that WJC had taken a materially adverse action against him and to provide a separate date for each adverse action. The jury only provided one date, November 9, 2010, which corresponds with WJC's response to a discovery request.

         For purposes of a retaliation claim under Title VII, a materially adverse action encompasses “those acts that carry a ‘significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects, '” unless the impact on future employment prospects is “de minimis.” Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir. 2004). Courts “liberally define[] the phrase ‘adverse employment action' . . . [and] take a case-by-case approach, examining the unique factors relevant to the situation at hand.” Sanchez v. Denver Public Schools, 164 F.3d 527, 531 (10th Cir. 1998). Using this definition, the Tenth Circuit has found that “the filing of false criminal charges constituted an ‘adverse employment action' because such an act causes ‘harm to future employment prospects.'” Hillig, 381 F.3d at 1032 (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996)). Applying a similar standard, the Seventh Circuit has held “that listing [a former employee's] name in publicly available SEC filings (and referring to her complaint as ‘meritless') constituted a materially adverse employment action.” Greengrass v. International Monetary Systems Ltd., 776 F.3d 481, 485 (7th Cir. 2015).

         Even under this liberal definition for adverse action, the court cannot see how a defendant responding to discovery requests or a City Attorney offering to assist in drafting a motion in limine could cause more than de minimis harm to someone's future employment prospects, especially considering that neither of those actions is necessarily public. However, if a defendant knowingly provided false or fabricated testimony or knowingly failed to provide exculpatory information at a public preliminary hearing that led to a judge's decision to bind over criminal charges against a plaintiff, that action could cause more than de minimis damage to an individual's reputation and harm to the individual's future employment prospects. Given the unique factors relevant to the situation in this case, the harm to Mr. Jensen's reputation and future employment prospects is even more pronounced given the fact that his employment prospects were with police departments, which are more likely to recognize and care about the difference between charges being filed and charged being bound over by a judge.

         Therefore, the question before the court is whether there is a legally sufficient evidentiary basis to support the claim that WJC employees knowingly provided false information or knowingly withheld exculpatory information at the preliminary hearing. The court concludes that a legally sufficient evidentiary basis does exist to support that claim. First, the court notes that, in order for the jury to reach its finding that WJC is liable on Mr. Jensen's Section 1983 claim for malicious prosecution, the jury needed to find that employees of WJC either knowingly provided false information or knowingly withheld exculpatory information, or both, at the preliminary hearing. Although conflicting evidence was presented at trial, the jury apparently assigned credibility to the evidence suggesting that WJC officers provided false information about the amount of money given to Mr. Jensen by another officer, that WJC officers provided false information about when and how drugs appeared in Mr. Jensen's office, and that WJC withheld information related to Mr. Jensen's work schedule around the time of the booking of money into evidence. Therefore, although reasonable minds could differ as to the weight and credibility of evidence on both sides of the issue, the court concludes that there was sufficient evidence at trial for the jury to properly find that WJC took a materially adverse action against Mr. Jensen within the 300-day statutory limit for Title VII retaliation claims.

         “But For” Causation

         WJC also argues that Mr. Jensen did not present sufficient evidence from which a reasonable jury could find that Mr. Jensen's sexual harassment complaint was the “but for” cause of WJC's materially adverse actions. The but-for causation standard applies to three of Mr. Jensen's claims: Title VII retaliation, breach of the Negotiated Settlement Agreement, and Section 1983 retaliation under the First Amendment. To establish liability under Title VII, “an employee [must] demonstrate that, but for her protected activity, she would not have faced the alleged adverse employment action.” Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1269 (10th Cir. 2015). Because the Negotiated Settlement Agreement requires WJC to comply with Title VII and also has its own non-retaliation provision, the same but-for standard applies to Mr. Jensen's claims for breach of the Negotiated Settlement Agreement. Finally, the “Supreme Court [has] held that the causation required in a First Amendment retaliatory prosecution claim connecting a retaliatory motive to the adverse action taken by the defendant is but-for causation, without which the adverse action would not have been taken.” McBeth v. Himes, 598 F.3d 708, 717 (10th Cir. 2010) (internal quotation marks and citation omitted).

         WJC argues that Mr. Jensen did not establish that WJC would not have cooperated in the manner it did had Mr. Jensen not previously made a sexual harassment complaint. However, the court does not agree that there is no legally sufficient evidentiary basis for the jury to have concluded, as it did, that WJC would not have taken the adverse actions against Mr. Jensen had Mr. Jensen not previously made a sexual harassment complaint. As stated in the Jury Instructions, the jury had the right to rely on indirect evidence to find that WJC employees would not have acted the way they did in the absence of Mr. Jensen's sexual harassment complaint. Evidence was presented at trial that some of WJC's officers were upset about being named in Mr. Jensen's sexual harassment complaint and that those same officers were instrumental in providing evidence against Mr. Jensen during the early stages of the internal investigation. Other evidence presented at trial suggested that Mr. Jensen may have been treated more harshly during the investigation than other officers who had committed similar violations. Therefore, the court concludes that a legally sufficient evidentiary basis existed for the jury to conclude that WJC employees would not have committed adverse actions against Mr. Jensen in the absence of Mr. Jensen's sexual harassment complaint.

         Municipal Liability

         “[M]unicipalities may be held liable on § 1983 claims only if a municipal policy or custom causes a violation of federal law.” David v. City & Cty. of Denver, 101 F.3d 1344, 1357 (10th Cir. 1996). An action can be shown to be a policy of a municipality if the act is committed by a city official who has “final policymaking authority, ” Id. (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion)), or if “the authorized policymakers approve a subordinate's decision and the basis for it, ” Moss v. Kopp, 559 F.3d 1155, 1168-69 (10th Cir. 2009). In this case, the jury was instructed that the City Manager, the Chief of Police, and the City Attorney of WJC all have final policymaking authority. A custom of a municipality is “an act that, although not formally approved by an appropriate decision maker, has such widespread practice as to have the force of law.” Carney v. City & Cty. of Denver, 534 F.3d 1269, 1274 (10th Cir. 2008) (citation omitted). To establish a custom, a plaintiff must prove that there was a “continuing, persistent, and widespread” practice by the defendant, which is usually shown by offering “evidence suggesting that similarly situated individuals were mistreated by the municipality in a similar way.” Id. (citations omitted). But “proof of a single incident of unconstitutional activity is ordinarily not sufficient to impose municipal liability.” Moss, 559 F.3d at 1168-69. A plaintiff may also establish a custom with evidence of “a series of decisions by a subordinate official of which the supervisor must have been aware.” Mitchell v. City & Cty. of Denver, 112 Fed. App'x 662 672 (10th Cir. 2004) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988)). In such a case, “the supervisor could realistically be deemed to have adopted a policy that happened to have been formulated or initiated by a lower-ranking official.” Praprotnik, 485 U.S. at 130. However, the knowledge attributed to the supervisor has to be more than simply a “mere failure to investigate the basis of a subordinate's discretionary decision.” Id.

         WJC argues that Mr. Jensen failed to establish any constitutional violation or act by a WJC employee with final policymaking authority or to establish a custom of unconstitutional conduct by WJC. Specifically, WJC argues that Mr. Jensen has failed to present any evidence that any of WJC's final policymakers took the actions that Mr. Jensen alleges violated his constitutional rights or that WJC had a widespread practice of unconstitutional conduct.

         Evidence was presented at trial, which the jury apparently found to be credible, suggesting that WJC's City Attorney, Jeff Robinson, showed unusual interest in Mr. Jensen's criminal case. Mr. Robinson's interest in the case was especially unusual because the case was being prosecuted by Salt Lake County and not by WJC. Some evidence was also presented that Mr. Robinson attended events associated with Mr. Jensen's criminal case, even though his attendance at the events was not necessary, and that he even offered to help draft documents for the case. Because the jury found that WJC employees decided to knowingly provide false information or knowingly withhold exculpatory information, or both, at a preliminary hearing, the jury could have also reasonably found through the evidence presented that Mr. Robinson must have been aware of this decision, even if the decision was formulated or initiated by other WJC employees. Because the jury apparently found that Mr. Robinson was aware of the WJC employees' decision, Mr Robinson can realistically be deemed to have adopted a policy authorizing the decision. Therefore, the court concludes that the jury was presented with a legally sufficient evidentiary basis to find municipal liability against WJC.

         Malice

         “In the Tenth Circuit, state law provides the starting point for a § 1983 claim of malicious prosecution.” Chase v. Cedar City Corp., No. 2:05-CV-293, 2006 WL 2623934, at *7 (D. Utah Sept. 13, 2006) (citation omitted). “Under Utah law, there are four elements to a malicious prosecution claim, all of which must be proven: ‘(1) A criminal proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the accused; (3) absence of probable cause for the proceeding; (4) “malice, ” or a primary purpose other than that of bringing an offender to justice.'” Id. (quoting Callioux v. Progressive Ins. Co., 745 P.2d 838, 843 (Utah Ct. App. 1987)). ...


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