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An attorney for the city files motions asking a judge to overturn the jury's decision and for a new trial

A jury's verdict finding the city of Newberg guilty of racial discrimination will be contested, counsel for the city announced last week.

Andrew Campbell, the Salem attorney representing the city in Patton v. City of Newberg, has filed two motions in Yamhill County Circuit Court. The first calls for a judgement notwithstanding the verdict (JNOV), a legal term that essentially calls on the bench, in this case Yamhill County Circuit Court Judge John Collins, to overturn the verdict against the city. Campbell has also filed an alternative motion, should the first one fail, for a new trial.

"The city respects the work of the jury and the service jurors provided to the community in fulfilling their civil duty," Newberg Interim City Manager David Clyne said. "Respectfully, the city believes that this verdict was the result of several errors that were allowed to occur during the trial."

Clyne offered the city's response on the primary premise of the plaintiff.

"The motion argues that no evidence whatsoever of racial discrimination was presented at trial," Clyne said. "In fact, the plaintiff (Mr. Patton) self-admittedly has stated that 'even a white person could not have received the job.' In other words, the hiring decision by a panel of three females (one of which was a Latina), which resulted in the hiring of a female of Asian descent, could not have discriminated on the basis of race."

Campbell filed the motions in response to the Sept. 25 jury decision finding in favor of the plaintiff in the case, Greg Patton, in a civil suit he filed in 2017 claiming the city racially discriminated against him when he applied for a position in 2016 as a human resources assistant with the city. Patton is African-American. The judgement was for $283,500 in economic and non-economic damages.

"The standard for a JNOV is straightforward: the jury's verdict must stand unless there was no evidence in the record to support it," Campbell wrote in the motion. He added that he was rebuffed twice by Collins in his plea for a directed verdict, a legal mechanism where a judge can rule that there is no legally sufficient evidence allowing a jury to reach any other conclusion.

"Respectfully, that denial was in error," Campbell said of Collins' decisions. "The court should have granted the motion for directed verdict as there was no evidence in the record that any city of Newberg employee intentionally discriminated against (Patton)."

Campbell argued further that Patton's counsel, Portland attorney Sean Riddell, had not established racial discrimination in the case.

"Plaintiff did not produce any evidence, direct or indirect, that race was a factor in the decision to hire Jennifer Ortiz over plaintiff," Campbell wrote in the motion. "In fact, the evidence is that, even when plaintiff scored himself, his score was still well below Jennifer Ortiz's score."

Campbell speculated that Riddell would "respond that he proved his case using inferences or indirect evidence," and that the city accepts that inferences are permissible for a jury to determine that an employer discriminated against an individual.

"However, to survive a directed verdict motion … a plaintiff must be able to point the court to some evidence of discrimination based on a protected class (race, gender, etc.), albeit indirect, that supports the discriminatory inference."

Campbell went on to argue that the fact that a city committee recommended hiring a minority applicant over another minority "mitigates heavily against an inference of racial discrimination."

Campbell claimed Riddell had "inflamed the jury" and encouraged it to push back against "the government."

"This argument reached its pitch as plaintiff argued during closing (statements) that the jury should not allow soldiers to be quartered in their homes," he wrote in the motion. "Which, of course, has nothing to do with the issues in this case and was transparently designed to encourage an emotional anti-government decision, not a decision based on the evidence in the case."

Ultimately, Campbell argued, Patton and his counsel "successfully inflamed the jury and, with all due respect to the jury, it made a decision that was completely unsupported by the evidence."

Riddell was unimpressed with Campbell's assertions. He filed motions Oct. 9 in response, calling on Collins to deny both of Campbell's motions outright.

"There is ample evidence in the record when viewed in the light most favorable to the party that prevailed before the jury (the legal standard for a judge to grant a JNOV) to support the jury's verdict in favor of the plaintiff," Riddell wrote in his motion. "Plaintiff asks that you uphold the sanctity of the jury's verdict and deny the defendant's motion …"

As to Campbell's motion for a new trial, Riddell said the standard was simple and had not been met by the defendant.

"A party is entitled to a new trial only when the record demonstrates 'substantial' or 'prejudicial' error," he wrote in the motion to deny. "A mere showing that the outcome of the trial 'might' have been different absent of the error is insufficient."

In the second motion, Campbell argues that Collins erred in his instructions to the jury concerning evidence.

"Mr. Patton contends that the city of Newberg at one time possessed an Excel spreadsheet of candidates for the assistant human resources position that contained scoring information or other relevant information," Collins said in his instructions to the jury. "However, the city of Newberg did not take proper steps to preserve the Excel spreadsheet.

"You may assume that such evidence would have been unfavorable to the city of Newberg only if you find by a preponderance of the evidence that the city of Newberg intentionally destroyed the evidence, intentionally altered the evidence, or caused the evidence to be destroyed."

Campbell argues that Collins gave the instructions despite the fact that there was no evidence nor testimony indicating that the spreadsheet had been destroyed or altered.

"While we are saddened and abashed by the outcome, and will be taking actions to adopt best practices in these areas, we are nonetheless in disagreement with the specific result," Clyne said. "We hope the judge will correct the error."

City vows to audit human resources department's

practices in response to verdict

Regardless of the outcome of the trial, Clyne said the city is taking the verdict to heart and will conduct an audit of the city's human resources practices "with a particular emphasis on equity and inclusion." He added that the city will take additional steps to improve and expand its ongoing efforts in addressing the areas of diversity, equity and inclusion (DEI), remarking that the city recently committed to hiring a part-time professional to engage with the burgeoning Latino community in Newberg.

"With this court result and the analysis showing available budget resources due to recent savings, there was a concurrence that this position become full-time with a broader DEI portfolio," he said.

The Newberg City Council was briefed on the trial's outcome and subsequent filings during an executive session at its Oct. 7 meeting. A representative of the city's insurance carrier, Salem-based CIS Oregon, was on hand as well.

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