Labor & Employment Law Daily Wrap Up, DISCRIMINATION—9th Cir.: Las Vegas firefighter not entitled to new trial, despite inconsistent jury findings, (Aug 5, 2025)

By Jason Albright, J.D.

The jury found the city did not violate Title VII but nevertheless awarded her $150,000 in damages.

A federal district court did not err in entering judgment for the City of Las Vegas on the race and sex discrimination and retaliation claims of the city’s first African-American female firefighter, in whose case a jury found no violation of Title VII but nevertheless awarded her $150,000 in damages. Holding that the district court did not abuse its discretion when it did not resubmit the verdict to the still available jury, the Ninth Circuit found that the district court’s decision to poll the jury—with both parties’ consent—clarified the seemingly inconsistent liability findings, and that at that point, the district court had sufficient legal grounds to discharge the jury and reconcile the verdict on its own (Lister v. City of Las Vegas, No. 24-3933 (9th Cir. Aug. 4, 2025)).

First African-American female firefighter. Las Vegas’s first African-American female firefighter, according to the court, the plaintiff worked as a city firefighter for about 29 and a half years.

Dinnertime incident. On April 7, 2019, she was on duty under the supervision of a fire captain who was a white male, and when she walked into the room at dinnertime, the captain, who was feeding a dog pieces of steak, said, “Here, girl. Here, [plaintiff’s first name],” while smacking his lips to make kissing noises.

Incidents reported. The firefighter reported this incident to her immediate supervisor, another captain. She later endured additional incidents she considered discriminatory, harassing, and retaliatory.

Request to bid out and lawsuit. Ultimately, the employee requested to bid out of her station, and in 2021, she sued the city under federal and state law for sex- and/or race-based discrimination and retaliation. Only her Title VII discrimination and retaliation claims based on the April 7 incident proceeded to trial.

Jury’s verdict and damages award. All told, the jury found: (1) the April 7 incident was severe or pervasive and objectively and subjectively offensive to a reasonable person; but (2) the incident was not motivated by race or gender; (3) the city did not discriminate against the firefighter in violation of Title VII; and (4) the city did not retaliate against her for reporting the April 7 incident in violation of Title VII. Despite finding no liability, however, the jury answered the damages question, awarding the firefighter $150,000 in damages.

Polling of jury. Following a recess, the district court called the jury back and asked the parties if they objected to polling the jury. Neither did.

The district court then read the verdict in open court and asked each juror three questions: (1) “Is this your true verdict?”; (2) “[D]o you find that the City did not discriminate against [plaintiff] on the basis of gender or race?”; and (3) “Is it your true and correct verdict that the City did not retaliate against [plaintiff] for the April 7, 2019 incident?”.

Each juror answered “yes” to all three questions. The district court did not poll the jury on damages, and after completing the poll, the district court discharged the jury.

Opportunity for briefing. After the jury left, the district court told the parties that the damages award would not be able to stand because the jury “found no Title VII violation,” but still gave the parties an opportunity to submit briefing on the issue.

Motion for new trial denied, award set aside. The plaintiff moved for a new trial in her briefing, but the district court denied her motion. The court then concluded that it could reconcile the verdict without resubmitting it to the jury, set aside the jury’s damages award, and entered judgment for the city.

The firefighter timely appealed to the Ninth Circuit.

Propriety of jury instructions. The appeals court first found that there was no conflict in the jury instructions with which the firefighter took issue. Jury Instruction No. 12—the opening paragraph of referred to the protected characteristics of race and sex—directed the jury to assess whether the firefighter experienced a hostile work environment on the grounds of race and gender, and Jury Instruction No. 9 set forth a plaintiff’s standard of proof for a gender- or race-based hostile-work-environment claim. Both instructions at issue were also derived from the Ninth Circuit Model Instructions, which instruct that they be used together when appropriate.

Failure to resubmit verdict to jury. Next, the firefighter argued that the district court abused its discretion when it did not resubmit the verdict to the still available jury, but the Ninth Circuit again disagreed, finding that the district court acted within its discretion when it polled the jury, discharged it, and reconciled the verdict.

When faced with an inconsistent special verdict, the appeals court observed, a district court “has a duty under the [S]eventh [A]mendment to harmonize” inconsistent answers in the special verdict “if such be possible under a fair reading of them.” And although the district court may resubmit the special verdict to the jury if the jurors have not been discharged, Fed. R. Civ. P. 49(a), on special verdicts, does not expressly provide for resubmission, and the Ninth Circuit has held that district courts have “discretion to resubmit the issue to the jury with a request for clarification” if the court notices the inconsistency before dismissing the jury.

Here, the district court’s decision to poll the jury—with both parties’ consent—clarified the seemingly inconsistent liability findings. The district court “polled the jury as to the substantive law violations” precisely because “the phrasing of the damages question appear[ed] inconsistent with the remainder of the verdict.” It recognized that the jury’s apparent desire to compensate the firefighter for the severe and offensive April 7 incident did not necessarily conflict with the jury’s factual findings that the incident was not racially or sexually discriminatory. And by confirming the relevant findings of fact, the district court “confirmed a clear statement of no liability from the jury.” At that point, said the appeals court, the district court “had sufficient legal grounds to discharge the jury and reconcile the verdict on its own.”

Denial of motion for new trial. Finally, the Ninth Circuit found that the district court did not err in denying the firefighter’s motion for a new trial. “[O]nly if all attempts at reconciliation fail, the court may order a new trial,” and in this case, “Because neither the jury instructions nor the damages award rendered the jury’s verdict here fatally inconsistent, the trial court correctly concluded that the verdict could be reconciled.”

The case is No. 24-3933.

Judge: Brown, J.

Attorneys: Noel Ann Arreola (Douglas Hicks Law) and Floyd Travis Buchanan (Law Offices of F. Travis Buchanan) for Latonia W. Lister. Nechole Garcia, Las Vegas Office of the City Attorney, for City of Las Vegas.

Companies: City of Las Vegas

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