Opinion
Case No. 5:98 CV 2554.
September 19, 2000
ORDER RE: POST-TRIAL MOTIONS
Before the Court are the following post-trial motions: Defendant's Rule 50 Motion for Partial Judgment as a Matter of Law, or in the Alternative, Motion to Alter Judgment/Grant Remittitur/Grant New Trial ( Doc. No. 171); Defendant's Rule 59 Motion for New Trial ( Doc. No. 172); and Plaintiffs Motion for Prejudgment Interest ( Doc. No. 169).
For the reasons that follow, Defendant's Rule 50 Motion for Partial Judgment as a Matter of Law, or in the Alternative, Motion to Alter Judgment/Grant Remittitur/Grant New Trial ( Doc. No. 171) is GRANTED in part and DENIED in part. The motion is GRANTED with respect to Defendant's request to reduce the damages award in accordance with the federal statutory cap, and the motion is DENIED in all other respects. Defendant's Rule 59 Motion for New Trial ( Doc. No. 172) is DENIED in full. Plaintiffs Motion for Prejudgment Interest ( Doc. No. 169) is GRANTED in part and DENIED in part.
In this case, Plaintiff, James Hall claimed that his employer, Consolidated Freightways Corporation of Delaware, intentionally discriminated against him on the basis of his race and wrongfully terminated his employment. Hall further alleged that he had been subjected to a racially hostile work environment and retaliation for having complained of racial harassment. The Defendant maintained that it in no way discriminated against Hall on the basis of his race, and that Hall would have been terminated regardless of his race. Moreover, Defendant maintained that it took prompt and effective remedial action upon any complaints or allegations of racial harassment made by Hall.
Hall's union grieved the termination and succeeded in having it reduced to a three-week suspension without pay.
No motions for summary judgment were filed and the case went to trial before a jury on May 9, 2000. During the trial, the Court twice denied oral motions by Defendant for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure, and the case went to the jury on May 18, 2000. A verdict was returned on May 19, 2000. The jury found Defendant liable on all claims and awarded the Plaintiff compensatory damages in the amount of $50,000 and punitive damages in the amount of $750,000. The matter is before the Court on the parties' post-trial motions.
I. RULE 50 MOTION FOR PARTIAL JUDGMENT AS A MATTER OF LAW
Defendant moves for judgment as a matter of law on Plaintiffs Wrongful Termination and retaliation claims. In the alternative, Defendant moves for a new trial on these claims on the grounds that the judgment was contrary to the manifest weight of the evidence. In addition, Defendant moves for judgment as a matter of law on punitive damages, or in the alternative, to alter the judgment and reduce the award pursuant to Rule 59(e). In the second alternative, Defendant moves for a remittitur on the punitive damage award.
In order for Consolidated Freightways to succeed on its motion for judgment as a matter of law, it must demonstrate that there was insufficient evidence to raise a question of fact for the jury. See Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999). All reasonable inferences must be made in the light most favorable to the non-moving party. Id. "Only when it is clear that reasonable people could come to but one conclusion from the evidence should a court grant a motion for directed verdict." Id. (quoting Wayne v. Village of Sebring, 36 F.3d 517, 525 (6th Cir. 1994)).
Under Rule 50, a court should render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. Rule Civ. Proc. 50(a); see also Weisgram v. Marley Co., 528 U.S. 440, ___, 120 S.Ct. 1011, 1016-1018 (2000). The standard for judgment as a matter of law under Rule 50 mirrors the standard for summary judgment under Rule 56. Thus, the court must review all of the evidence in the record, cf., e.g., Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), drawing all reasonable inferences in favor of the nonmoving party, but making no credibility determinations or weighing any evidence, see, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-555 (1990). The latter functions, along with the drawing of legitimate inferences from the facts, are for the jury, not the court. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., 120 S.Ct. 2097, 2109-2110 (June 12, 2000).
A jury verdict should be upheld so long as there is any competent and substantial evidence in the record to support it even if contradictory evidence was presented. Green v. Francis, 705 F.2d 846 (6th Cir. 1983). Measured by these standards, sufficient evidence was presented to support the jury's findings.
A. Wrongful Termination and Retaliation Claims
Throughout the trial, Defendant contended that Plaintiff Hall was terminated for stealing company time and that he would have been terminated regardless of his race and regardless of the fact that he filed EEOC charges. Defendant maintains that there is no legally sufficient evidentiary basis for a reasonable jury to find for the Plaintiff on either wrongful termination or the retaliation claims. The Court disagrees.
In response to Defendant's contention that Hall took excessive lunch and break time on a given day, Hall gave a plausible explanation for his conduct and it was up to the jury to decide whether he was "stealing time" at all. Plaintiff also presented evidence establishing that other employees discovered "stealing company time" (namely Armstrong, Lowe, Hoover, Bridgeman, Avant, Taylor and Clay) were treated differently from Plaintiff Hall and received less severe discipline, or no discipline at all.
Throughout the trial, Defendant chose to portray the Plaintiff as a lazy and untrustworthy person who was using this case as a vehicle to remedy his precarious financial situation. The jury was thus presented with radically different views of the truth. In many cases, two individuals who were in the same meeting or conversation testified to dramatically conflicting facts.
Above all else, this trial was a credibility case and the jurors were given a stark choice. In the end, they chose to believe Plaintiff and his witnesses over those offered by Defendant. This Court cannot say that there was insufficient evidence from which a reasonable jury could find for the Plaintiff. On this basis, Defendant's motion for partial judgment as a matter of law is DENIED.
Defendant alternatively requests a new trial on the issue of damages, claiming that the judgment was contrary to the manifest weight of the evidence. Defendant maintains that it is impossible to determine how much of the jury's $800,000 damage award flowed from its erroneous verdict on the wrongful termination and retaliation claims and argues for a new trial.
Having determined that there was sufficient evidence for the jury to find for Plaintiff on his wrongful termination and retaliation claims, this particular issue is rendered moot. However, the Court explores the arguments on damages.
At the conclusion of the trial, the jury awarded Plaintiff punitive damages in the amount of $750,000 and compensatory damages in the amount of $50,000. While $50,000 is by no means minuscule, it is not astronomical either. Under these facts, a $50,000 compensatory damage award is neither excessive, nor without supporting and substantiating evidence. Plaintiff introduced evidence that as a result of his termination by Defendant, he incurred approximately three weeks of lost salary. While this amounts to approximately $2,400, compensatory damages are not comprised of back pay alone. Having determined that Defendant's conduct was unlawful, the jury was required to assess an amount that is "fair compensation." In assessing compensatory damages, the jury may consider damages for any pain, suffering or mental anguish that Plaintiff Hall experienced as a consequence of Defendant's discriminatory and/or retaliatory conduct. An award of $47,600 for the emotional distress suffered by Hall over several years is not unreasonable as a matter of law. The award was well reasoned and considered, and the Court will not disturb this finding. Defendant's request for new trial on damages is DENIED.
B. Punitive Damages
Defendant maintains that it is entitled to judgment as a matter of law on punitive damages because there is no legally sufficient evidentiary basis for a reasonable jury to assess punitive damages against Defendant. The Court does not agree.
Title VII allows a jury to award punitive damages "if the complaining party demonstrates that the respondent engaged in a discriminatory practice . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a.
In the Supreme Court's recent decision in Kolstad v. American Dental Assoc., 527 U.S. 526, 119 S.Ct. 2118 (1999), the Court clarified the standards to be applied in determining the appropriateness of punitive damages. In Kolstad, the Court confirmed that a showing of discrimination will support compensatory damages, but more is needed for an award of punitive damages:
The very structure of § 1981a suggests a congressional intent to authorize punitive awards in only a subset of cases involving intentional discrimination. Section 1981a(a)(1) limits compensatory and punitive awards to instances of intentional discrimination, while § 1981a(b)(1) requires plaintiffs to make an additional "demonstrat[ion]" of their eligibility for punitive damages. Congress plainly sought to impose two standards of liability — one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award.Kolstad, 527 U.S. 526, 119 S.Ct. at 2124. Although a plaintiff is required to make a higher showing to support punitive damages, the plaintiff is not required to make a separate showing of egregious conduct before punitive damages may attach:
[W]e reject [the Court of Appeals'] conclusion that eligibility for punitive damages can only be described in terms of an employer's "egregious" misconduct. The terms "malice" and "reckless" ultimately focus on the actor's state of mind. . . . While egregious misconduct is evidence of the requisite mental state . . . § 1981a does not limit plaintiffs to this form of evidence, and the section does not require a showing of egregious or outrageous discrimination independent of the employer's state of mind. Egregious misconduct is often associated with the award of punitive damages, but the reprehensible character of the conduct is not generally considered apart from the requisite state of mind. Conduct warranting punitive awards has been characterized as "egregious," for example, because of the defendant's mental state. . . . That conduct committed with a specified mental state may be characterized as egregious, however, is not to say that employers must engage in conduct with some independent, "egregious" quality before being subject to a punitive award.Id. at 2124, 2126. Thus, malice or reckless disregard for federally protected rights is sufficient to support a punitive damages award. In light of the foregoing, the Court finds sufficient evidence to satisfy the higher threshold required for a punitive award.
The jury for this case was not a "runaway" jury in any sense of the word. It was an all white jury that heard the evidence as it was presented to them by both sides. There were numerous instances throughout the trial where two parties to a conversation or meeting testified in a diametrically opposing fashion and the testimony could not be reconciled. The jurors had to conclude that one witness or the other was not telling the truth. They weighed the credibility of the witnesses and found Plaintiff and his witnesses to be more credible than Defendant's witnesses. That is their role.
As an aside, the Court notes that had Consolidated Freightways been as aggressive in responding to the graffiti, flyers, and persistent offensive slurs as it was to allegations that an African American supervisor, Ricky Peterson, had engaged in verbal sexual harassment of a subordinate, the unlawful conduct would have been eliminated. The jury concluded that Plaintiff was subjected to years of discriminatory treatment and hostility, and that the company did not take meaningful action. These are things that should have and could have been corrected, but weren't. While the jury could have concluded that the company was merely negligent, there was evidence from which the jury could have found "reckless indifference." Therefore, the punitive damage award is not unreasonable. For all of these reasons, Defendant's request to vacate the jury's award is DENIED.
Defendant also makes the argument that the amount of punitive damages bear no relationship to the compensatory damages suffered. Defendant challenges the constitutionality of the punitive damage award on the basis that the ratio of 15:1 makes the award excessive under the due process clause. However, the Supreme Court has "consistently rejected the notion that the constitutional line is marked by a simple mathematical formula . . . ." BMW of North American, Inc. v. Gore, 517 U.S. 559, 582 (1996). Instead "[a] general concer[n] of reasonableness . . . properly enters into the constitutional calculus" (sic) BMW, supra, at 583, quoting Pacific Mutual Life Insurance v. Haslip, 499 U.S. 1, 18 (1991). Defendant's argument further fails because ratio alone is not sufficient to overturn a punitive damage award as unconstitutionally excessive.BMW, supra; United States v. Big D. Enterprises, Inc., 184 F.3d 924, 933 (8th Cir. 1989). A court must consider two other factors in addition to ratio: the degree of reprehensibility and the comparability of civil or criminal penalties. All three factors must be considered in a constitutional challenge to an allegedly excessive punitive damage award. Defendant's constitutional challenge is overruled.
Defendant's final contention with respect to the compensatory and punitive damage award is that it must be reduced to conform to the $300,000 statutory cap for noneconomic damages under Title VII. Section 1981a caps an employer's exposure to compensatory and punitive damages along a sliding scale that varies with the employer's size. See 42 U.S.C. § 1981 a(b)(3)(A)-(D). It provides, in pertinent part:
(2) Exclusions form compensatory damages Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964.
(3) Limitations: The sum of the amount of compensatory damages awarded under this section 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, for each complaining party —
(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.42 U.S.C. § 1981 a(b)(3)(A)-(D).
Pursuant to the statute, Defendant calculates that Plaintiffs compensatory damages were limited to three weeks of missed work and emotional distress. Because the Plaintiff earned approximately $20 per hour, three weeks of lost pay would total approximately $2,400 ($20 per hour x 5 days per week x 3 weeks). The remaining $47,600 of his $50,000 compensatory award is therefore attributable to emotional distress and is subject to the $300,000 cap. Thus, in accordance with 42 U.S.C. § 1981a(b)(3), the punitive damages award must not exceed $252,400, which is $300,000 less $47,600 in emotional distress damages.
Plaintiff argues against the application of the federal cap because his claims were tried under both Title VII and Chapter 4112 of the Ohio Revised Code, and contends damages in excess of the federal cap could be properly awarded. Citing Laderach v. U-Haul, 207 F.3d 825, 828 (6th Cir. 2000), Plaintiff maintains that the "title" of an instruction is irrelevant. He argues that whether the Court "titled" the jury instructions under Title VII or under Ohio law is of no consequence, since state and federal employment discrimination claims parallel one another. "If the proof is sufficient to find one, it is sufficient to find the other also." (Doc. No. 184, p. 6).
Plaintiff further argues that the Court's punitive damage instruction, while applying the federal standards, was sufficient for an award of punitive damages under state standards. However, to so construe Plaintiffs argument would be to render the federal cap on damages meaningless. The Court finds that the statutory cap of $300,000 is applicable here.
As a final argument, Plaintiff asserts that the Ohio Supreme Court held in Rice v. Certain Teed Corp., 84 Ohio St.3d 417 (Ohio 1999), that punitive damages are unlimited when federal and state claims are tried together. (Doc. No. 184, p. 6). However, as Defendant points out, the sole issue before the Ohio Supreme Court in Rice was whether punitive damages could be assessed at all under Ohio law. Furthermore, Rice also restated the Ohio law requirement that "[i]n Ohio, punitive damages are awarded only upon a finding of actual malice." Rice, 84 Ohio St.3d at 422.
Here the jury was instructed, under the federal standard, that punitive damages could be awarded if they found that Defendant "had engaged in a discriminatory and/or retaliatory practice or practices with malice or reckless indifference to the rights of Plaintiff James Hall to be free from such intentional discrimination and/or retaliation in employment." (Court's Jury Instructions at 15) (emphasis provided). The fact that the jury concluded that there was malice or recklessness in the Defendant's conduct does not necessarily mean that it concluded that there was actual malice — as would be required by Ohio law. Because we do not have an affirmative finding on actual malice, the Ohio standard is not satisfied.
Accordingly, because the jury was instructed under federal law and under federal standards, the federal cap must be applied. Defendant's motion to alter judgment and grant remittitur is GRANTED. Pursuant to 42 U.S.C. § 1981a, the punitive damage award is hereby reduced to the statutory maximum of $300,000 plus the amount of the backpay award ($2,400). Judgement for Plaintiff is amended to reflect a damage award of $302,400. Defendant's Rule 50 motion for judgment as a matter of law is DENIED in all other respects.
II. RULE 59 MOTION FOR NEW TRIAL
Pursuant to Rule 59, Defendants move that judgment in favor of Plaintiff be vacated and that Defendant be granted a new trial on all claims. Defendant maintains that the jury's verdict was based on jury instructions that misstated the applicable law, misled the jury, and prejudiced the Defendant. Defendant also challenges both the admission and exclusion of certain evidence which it believes was unfairly prejudicial and compounded the prejudicial effect of the errors in the jury instructions.
A new trial is warranted under Rule 5 9(a) when a jury has reached a seriously erroneous result as evidenced by: (1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party. See Holmes v. Massillon, 78 F.3d 1041, 1045-6 (6th Cir. 1996), cert. denied, Fabianich v. Holmes, 519 U.S. 935 (1996).
A. Misleading Jury Instructions
Challenging the jury instructions, Defendant maintains that the instructions on unanimous verdict, hostile work environment, and on the standard for finding race discrimination, wrongful termination, and retaliation were misleading and gave the jury an inadequate understanding of the applicable law. Defendant claims that these jury instructions made it easier for the Plaintiff to prove his claims than it would have been under the actual legal standards governing Plaintiffs claims. The Court reviews each of Defendant's challenges.
(1) Unanimous Verdict
Defendant contends that the jury was erroneously instructed that to find for Defendant, it had to unanimously agree that Hall failed to prove every essential element of his claims. The jury was charged as follows:
Your verdict, whether it be for Plaintiff or Defendant, must be unanimous. This means that to find for Mr. Hall, every one of you must agree that Mr. Hall has proved each of the essential elements of his claim's by a preponderance of the evidence.
And to find for Defendant, every one of you must agree that Mr. Hall has failed to prove each of the essential elements of his claims by a preponderance of the evidence.
Either way, all of you must agree.
(Doc. 199, p. 17).
Defendant argues that "the instruction improperly states that the Defendant can prevail only if Hall fails to prove each of the essential elements of his claims. According to Defendant, the instruction therefore misinforms the jury that if Hall proves at least one of the essential elements, it cannot find for the Defendant." (Doc. No. 174, p. 3). The Court does not agree with Defendant's contention. It does not necessarily follow that the Court's instructions charged the jury that they could not find for the Defendant if Hall established one of the elements of his claims.
Moreover, the Defendant fails to take into consideration the Court's earlier instruction on the burden of proof which stated:
Mr. Hall is required to prove all the elements of his claim by a preponderance of the evidence. This duty is known as the burden of proof. If the proof should fail to establish any essential element of plaintiffs claim by a preponderance of the evidence in the case, the jury should find for the defendant as to that claim.
(Doc. No. 199, pp. 2-3) (emphasis added). The instructions taken as a whole adequately instructed the jury as to applicable law. According to the current Sixth Circuit standard as set forth in United States v. Wells, 211 F.3d 988 (6th Cir. 2000), a particular jury instruction may not be judged in artificial isolation, but must be viewed in the context of the overall charge.
This court may reverse a judgment on the basis of improper jury instructions only if the instructions, when viewed as a whole, were confusing, misleading and prejudicial. See United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995) (quoting United States v. Clark, 988 F.2d 1459, 1468 (6th Cir. 1993)). Our inquiry into jury instructions is limited to whether, taken as a whole, the instructions adequately inform the jury of the relevant considerations and provide the jury with a sound basis in law with which to reach a conclusion. See Id. at 1430 (citation omitted). A particular jury instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).United States v. Wells, 211 F.3d 988, 1002 (6th Cir. 2000)
Finally, the Court notes that while counsel for the Defendant did object to the proposed "unanimous verdict" instruction, that objection differs from the present challenge. At the Jury Charging conference held on the morning of Tuesday, May 16, 2000, the Court went through the initial proposed instructions page by page and heard objections by counsel. With regard to the instruction on unanimous verdict, the following colloquy transpired between counsel for Defendant and the Court:
MS. WALLER: . . . The provision on unanimous verdict. I believe it's the second paragraph. It reads, "And to find for defendants, every one of you must agree."
* * * *
MS. WALLER: The language there reads, "And to find for defendant, every one of you must agree that Mr. Hall failed to prove all of the essential elements of his claims by a preponderance of the evidence." It's our position that this is somewhat confusing. I mean, Mr. Hall, we have already stipulated — or we haven't stipulated but I mean there is no dispute that he's black. We just think it may be confusing. And if he doesn't prove one of the elements, then —
THE COURT: Then you win.
MS. WALLER: Correct. So we just think it reads confusing.
MR. GILBERT: Objection.
MS. WALLER: We would request that the language would instead read, "And to find for defendant, everyone must agree that defendant did not discriminate against Hall because of his race and did not unlawfully retaliate against him."
MR. GILBERT: Objection.
THE COURT: Well, that's confusing. The one thing I might do is change the word "all" to "each" so it's consistent with the paragraph right above it. "To find for Plaintiff Hall, every one of you must agree that Mr. Hall has failed to prove each of the elements — to find for the defendant, every one of you must agree that Mr. Hall has failed to prove each of the essential elements of his claims by a preponderance of the evidence." I think it should be consistent. So I'll change the "all" to "each". But I think your suggestion is confusing.
MS. WALLER: That's the only objection that we have on page 18, your Honor.
THE COURT: All right. So we'll change "all" to "each."
(Tr. 1363-64). Defendant's objection then was not the same as it is now in its motion for new trial. Defendant did not object on the same grounds as it does now in the post-trial motion for new trial, nor did Defendant renew its objection after the Court modified the instruction following Defendant's initial objection. Thus, Defendant did not effectively make its current objection to this instruction prior to the jury's deliberation.
Defendant's proposed instruction fails to take into account Plaintiffs other two claims for hostile work environment and wrongful termination. Therefore, it would not have been an accurate statement.
Federal Rule of Civil Procedure 51 provides in relevant part that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." The failure to object constitutes waiver of this issue on appeal. See Libbey-Owens-Ford Co. v. Insurance Co. of N. Am., 9 F.3d 422, 427 (6th Cir. 1993). Because Defendant failed to object on these same grounds, Defendant effectively waived its objection.
While "[o]bvious and prejudicial error in instructing the jury constitutes grounds for a new trial even if the party assigning the instructions as error failed to object before the trial court," Fryman v. Federal Crop Ins. Co., 936 F.2d 244, 248 (6th Cir. 1991), taken together with the instructions as a whole, the Court finds no such "obvious and prejudicial error" here and therefore DENIES the motion for new trial on this instruction. See Bath Body Works, Inc. v. Luzier Personalized Cosmetics, Inc., 76 F.3d 743, 749 (6th Cir. 1996).
(2) Hostile Work Environment
Defendant maintains that the jury was erroneously instructed that a mere "offensive" work environment is sufficient to establish liability under a hostile work environment claim.
On the claim of hostile work environment, the Court instructed the jury as follows:
[T]he plaintiff must prove the following by a preponderance of the evidence:
a. the plaintiff was a member of a protected class, that is, that plaintiff was African-American;
b. the plaintiff was subject to unwelcome racial harassment;
c. the harassment complained of was based on race;
d. the charged racial harassment was sufficiently severe or pervasive that it had the effect of unreasonably interfering with plaintiffs work performance or that it created an intimidating, hostile or offensive work environment; and
e. the employer knew or should have known of the acts of racial harassment but failed to implement prompt and appropriate corrective action.
To show a racially hostile working environment, Plaintiff must establish that the alleged conduct constituted an unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee's ability to do his job.
Occasional simple teasing, offhand comments, and isolated incidents ordinarily do not amount to discrimination under Title VII. However, continuous conduct, such as an abundance of racial epithets and racially offensive graffiti, may constitute severe and pervasive harassment.
In determining whether or not the plaintiff has proved that his work environment was hostile or abusive, you must look at all the circumstances. The circumstances may include the frequency of the conduct complained of, its severity; whether it was physically threatening or humiliating, or merely offensive; whether it unreasonably interfered with the plaintiffs work performance; and the effect on plaintiffs psychological well-being. No single factor is required in order to find a work environment hostile or abusive.
(Doc. No. 199, pp. 9-10).
At the Jury Charging Conference, the following colloquy ensued:
MS. WALLER: Your Honor, we have just a few things on page 10, in the hostile work environment section, what would be number 4. We have listed intimidating, hostile or offensive work environment. And I think the law is fairly clear, offensive is not enough and intimidating is not enough, but those are factors that can be considered. So it's our position that section should read hostile work environment. And if we want to somehow later define that, that would be more accurate because mere offensive is not enough.
MR. GILBERT: Objection. I submit to the court that the law is actually the reverse of what was just said.
THE COURT: Well, this came out of the Sixth Circuit the Quanex Case. That's where I took it out of the Sixth Circuit case, the Quanex Case on hostile work place. I took the language from there. But if it's in that case, it's staying in.
MS. WALLER: Also, your Honor, just further down on the same section, the paragraph begins, "To show a racially hostile working environment, the plaintiff must establish that the alleged conduct constituted an unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee's ability to do his job."
We would request that the court again just have unreasonably abusive work-related environment, and adversely affected the employee's ability to do his job. Because our review is that's what the law states on that proposition. That it's got not only is it abusive, offensive, but it adversely affects.
THE COURT: This is right out of — I'm sorry, it is right out of the Quanex case, page 36, 191 F.3d 647. It uses "or." So I'm going to go with "or." That's what the Sixth Circuit has said. I'm going to make sure this is — I have a source, another recent Sixth Circuit case, or Devitt and Blackmar for the language we have on number four, hostile work environment.
MS. WALLER: Thank your, Honor.
THE COURT: If I can validate what I have in there, I'm going to go with it. If I can't, I'll change it, but I think it's correct.
MS. WALLER: And I believe the things that I raised are all the things we had for page 10.
(Tr. 1341-1343).
As indicated at the Jury Charging Conference, the Court based its instructions upon the recent Sixth Circuit decision in Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999). In that case, the Sixth Circuit set forth the following standard for a hostile workplace claim:
We have held that to show a racially hostile working environment, a plaintiff must establish "that the alleged conduct constituted an unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee's ability to do his or her job."Jackson v. Quanex Corporation, 191 F.3d 647, 666 (6th Cir. 1999) (emphasis added), (quoting Davis v. Mansanto Chemical Co., 858 F.2d 345, 349 (6th Cir. 1988)).
Similarly, in Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999), in listing the elements for hostile work environment claim, the Sixth Circuit stated:
"The elements and burden of proof are the same, regardless of the discrimination context in which the claim arises." Crawford v. Medina Gen'l Hosp., 96 F.3d 830, 834 (6th Cir. 1996); Allen v. Michigan Dep't of Corrections, 165 F.3d 405 (6th Cir. 1999). In order to establish a prima facie case of hostile work environment based on either race or religion, Hafford must establish the following five elements:
1. He was a member of a protected class;
2. He was subjected to unwelcomed racial and/or religious harassment;
3. The harassment was based on race or religion;
4. The harassment had the effect of unreasonably interfering with Hafford's work performance by creating an intimidating, hostile, or offensive work environment; and
5. The existence of employer liability.
See Risinger v. Ohio Bureau of Workers' Compensation, 883 F.2d 475, 484 (6th Cir. 1990). In determining whether an environment is one that a reasonable person would find hostile or abusive and that the plaintiff in fact did perceive to be so, courts look at all of the circumstances, including:
[T]he frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23, 114 S.Ct. 367; Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 251 (6th Cir. 1998).Id. at 512.
And again in Allen v. Michigan Dept. of Corrections, 165 F.3d 405, 410 (6th Cir. 1999), the Sixth Circuit stated:
In order to establish a hostile work environment claim, a plaintiff must show that the harassment consisted of "severe or pervasive conduct." See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, ___, 118 S.Ct. 2257, 2265, 141 L.Ed.2d 633 (1998) (citations omitted); See also Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988) (stating that a plaintiff must show "repeated slurs"). With respect to this requirement, we have stated that all that the victim of racial harassment need show is that the alleged conduct constituted an unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee's ability to do his or her job. Davis, 858 F.2d at 349.
Thus, Sixth Circuit case law clearly supports the Court's instruction. Moreover, the Court specifically instructed the jury that "merely offensive" conduct was not sufficient to violate the law. (Doc. No. 199, pp. 9-10).
In light of the foregoing law, the jury instruction on hostile work environment, as given by the Court, fully comports with the applicable law and was in direct accord with Sixth Circuit precedent. The Court's instruction did not unfairly prejudice the Defendant. Accordingly, Defendant's motion for new trial based on this alleged jury instruction is DENIED.
(3) Motivating Factor
Defendant contends that it was reversible error for the Court to give the jury "motivating factor" instructions as to Plaintiffs racial discrimination, wrongful termination, and retaliation claims. (Doc. 174, p. 10). Defendant claims that this case is a pretext case and as a result, the Court should have instructed the jury that race or retaliation must be a "determinative" rather than "motivating" factor for any adverse employment action.
Defendant bases its argument that this is a pretext case upon its belief that Plaintiff failed to present direct evidence in support of its claims. (Doc. 174, p. 11). The notion that a mixed motive case must be supported by direct evidence stems from Justice O'Connor's concurring opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that opinion, Justice O'Connor distinguished the situation in McDonnell Douglas from that which was currently before the Court:
First, McDonnell Douglas itself dealt with a situation where the plaintiff presented no direct evidence that the employer had relied upon a forbidden factor under Title VII in making an employment decision. . . . In the face of inferential proof, the employer's burden was deemed to be only one of production; the employer must articulate a legitimate reason for the adverse employment action. . . . I do not think that the employer is entitled to the same presumption of good faith where there is direct evidence that it has placed substantial reliance on factors whose consideration is forbidden by Title VII.Id. at 270.
While Justice O'Connor emphasized the difference between direct and indirect evidence, the plurality in Price Waterhouse spoke of mixed motive cases, not in terms of direct evidence, but rather, in terms of whether both legitimate and illegitimate concerns motivated the employer's decision. Id. at 1788. Indeed, the plurality noted that "[t]he very premise of a mixed motives case is that a legitimate reason was present [for the adverse employment decision]." Id. at 1792. This case clearly satisfies the plurality's definition of a mixed motive case because it involves a discharge that the employer claims was based upon legitimate reasons (e.g., time stealing) but that at least some evidence suggests was based in part upon discriminatory animus.
Although Justice O'Connor's references to direct evidence were never espoused by a majority of the Supreme Court, a number of Circuit Courts have adopted Justice O'Connor's distinction between cases involving direct evidence and cases involving indirect evidence. See e.g. Febres v. Challenger Caribbean Corp., 214 F.3d 57 (1st Cir. 2000); Watson v. Southeastern Pennsylvania Transportation Authority, 207 F.3d 207 (3rd Cir. 2000). The Sixth Circuit has alluded to the existence of such a distinction, but it is unclear whether such references refer merely to burden shifting, or to a different standard entirely. See, e.g., Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997) ("If a plaintiff can produce direct evidence of discrimination then the McDonnell Douglas-Burdine paradigm is of no consequence."); Terbovitz v. Fiscal Court of Adair County, 825 F.2d 111, 114-115 (6th Cir. 1987) ("The McDonnell Douglas formula is inapplicable, however, to cases in which the Title VII plaintiff presents credible, direct evidence of discriminatory animus."). The distinction matters little here, because Plaintiffs case was a mixed motive case regardless of whether one defines that classification based upon the motives of the employer or the presentation of direct evidence.
a. Discrimination/Wrongful Termination
The Court disagrees with Defendant's contention that Plaintiff failed to introduce direct evidence in support of his discrimination and wrongful termination claims. "In discrimination cases, direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Jacklyn v. Schering-Plough Healtheare Prod. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). At trial, numerous witnesses testified to behavior by Plaintiffs supervisors that, if believed, requires a conclusion that discrimination was at least a motivating factor in Defendant's adverse treatment of Mr. Hall.
For example, Plaintiff testified that one of his supervisors, Robert Wolfe, said to him: "Look boy, I'll send you back to the cotton field. . . . The thing about you blacks, you can't tell if you wash your face or not." (Tr. 1409). The same supervisor subsequently denied Plaintiff the opportunity to make a scheduled run to Buffalo that would have enabled him to receive overtime pay. (Tr. 1415-16). Plaintiff testified that another supervisor, Dan Richey, repeatedly accepted paperwork from Caucasian drivers while refusing to even acknowledge his presence. (Tr. 1405). When Plaintiff confronted him about this practice, Mr. Richey purportedly told Mr. Hall that he had a problem with him because of his race and his attitude. (Tr. 1406).
Plaintiff testified that he reported the above incidents to Michael Madigan, one of the supervisors involved in Defendant's decision to terminate Plaintiff. Mr. Madigan himself testified that despite Plaintiffs complaints, he took no disciplinary action with respect to either individual. (Tr. 448, 490). When Plaintiff asked Mr. Madigan why no action had been taken against Mr. Wolfe for his racist remarks, Mr. Madigan reportedly said, "I am behind my men 90 percent. . . . [I]f you feel you are discriminated [against] go file the charge." (Tr. 1412). Plaintiff further testified that he went to Mr. Madigan on a number of occasions to complain about racist graffiti in the company bathrooms as well as Ku Klux Klan literature that had been placed in his locker and posted on a company bulletin board. (Tr. 1452). Mr. Madigan made no effort to find out who was responsible for the graffiti and told Plaintiff that he could do nothing about the Ku Klux Klan literature until Plaintiff found out who had placed it in his locker. Id. Mr. Madigan refused to take action even though he knew that the company had previously offered a $1000 reward to any employee who provided information as to the persons responsible for posting sexually explicit documents. (Tr. 512).
Mr. Hall's testimony was bolstered by the testimony of other Consolidated Freightways employees. James Adams, an African American employee, testified that he heard Mr. Wolfe make racist remarks to Mr. Hall and that he also had been the target of Mr. Wolfe's racist remarks. (Tr. 1190). Mr. Adams also verified Mr. Hall's difficulties with Mr. Richey. He testified that when Mr. Richey was supervising Mr. Hall he went out of his way to make life miserable for Mr. Hall. Id. Mr. Adams described Mr. Richey as "very, very crass and very belligerent toward African Americans in general." Id. Finally, Mr. Adams testified that Mr. Madigan referred to a Caucasian employee who admitted to posting racist literature as a "dummy" but for admitting to his act. (Tr. 1259).
A Caucasian co-worker of Mr. Hall's, William Barron, testified that he overheard one supervisor, Larry Gleason, say to other supervisors immediately after Mr. Hall left the room, "You know how those people are. They don't want to work anyway." (Tr. 697). Mr. Barron further testified that he observed Mr. Richey berating Mr. Hall for standing around while on the clock. (Tr. 667-668). Mr. Barron and the other Caucasian employee who were standing with Mr. Hall at the time received no similar reprimand. Id.
Ricky Peterson, an African American supervisor testified that a number of Caucasian employees were caught stealing time and "they were brought in and nothing was done to them." (Tr. 1017). Mr. Peterson also testified that when he mentioned at a management meeting that a Caucasian employee had been caught stealing time, both Mike Madigan and Jim Lyons laughed. (Tr. 1042). Mr. Peterson also testified about the company's refusal to put an end to a constant parade of racist graffiti and literature that he and other African Americans found highly offensive. He told jurors that he sent two emails to Mr. Lyons advising him of the need to take action against the posting of racist graffiti and literature in the workplace. (Tr. 976, 984). Mr. Lyons failed to respond to either message so Mr. Peterson sent a third email, this time copying Mr. Lyons' supervisors. Mr Lyons allegedly responded to that email by saying that he didn't believe the company had a racial problem and that supervisors had been meeting about the racial situation and enforcing a policy of no racial harassment. (Tr. 988). Mr. Peterson testified that when checked with the other supervisors, he learned that no such meetings had taken place. (Tr. 1183).
Finally, Mr. Peterson testified that when a Caucasian employee who admitted posting racist literature was disciplined at Mr. Peterson's insistence, management level employees took up a collection for the suspended employee and kept that money in the company safe. (Tr. 1027, 1029). According to Mr. Peterson, Mr. Madigan and Mr. Lyons were aware of the collection and laughed when another supervisor said, "the only problem with Howie Hone was that he was so stupid he admitted he put [racist literature] up on the board." (Tr. 1029).
Defendant contends that the testimony of Mr. Hall and his co-workers reflects nothing more than indirect evidence of discrimination. (Doc. No. 196, p. 7). The Court disagrees. In Talley v. Bravo Pitino Restaurant, 61 F.3d 1241 (6th Cir. 1995), the Sixth Court of Appeals held that evidence very similar to the evidence in this case constituted direct evidence of discriminatory conduct by an employer. The evidence in that case consisted of affidavits by two restaurant employees who claimed that two of the plaintiffs supervisors had made racist remarks. Id. at 1249. In Talley, the Sixth Circuit rejected the defendant's argument that the plaintiff had failed to present direct evidence. Id. Like the evidence in Talley, the evidence in this case reveals that Plaintiffs supervisors regularly engaged in discriminatory language and conduct that could not possibly be viewed as merely isolated or ambiguous.
Nor is the Court convinced by Defendant's argument that Plaintiff did not offer direct evidence of racist behavior or remarks by supervisors with decision making authority. (Doc. No. 196, p. 8). Supervisors Hall and Richey both had decision making authority which materially affected Plaintiffs ability to do his job and reap the benefits of his work. Plaintiff also presented evidence regarding the deliberate inaction of Mr. Madigan and Mr. Lyons, both of whom were involved in the decision to terminate him. Defendant's argument that this is a pretext case because it involved no direct evidence is therefore without merit.
Even if this case were deemed to be a pretext case, Defendant is unable to cite to any Sixth Circuit case specifically holding that a "motivating factor" instruction in a pretext case is improper. (Doc. No. 174, p. 14). Indeed, there appears to be some interchangeability in Sixth Circuit discussions concerning the appropriate standard. For instance, in Cesaro v. Lakeville Community School District, 953 F.2d 252, 254 (6th Cir. 1992), cert. denied, 506 U.S. 867 (1992), the Sixth Circuit wrote, "Whether plaintiffs case is characterized as a pretext case or a mixed motive case, plaintiffs burden is to prove her gender played a part in the board's decision not to hire her as Director of Special Education (emphasis added)." Similarly, in Kahl v. Mueller Co., unreported, 173 F.3d 855 (6th Cir. 1999), the Court wrote in one paragraph that if an employer meets its burden of production in a pretext case, "the plaintiff must submit admissible evidence to prove that the employer's non-discriminatory reason was not the true reason for the discharge and that the plaintiffs age was a motivating factor in the employer's decision (emphasis added)." Id. at **5. In the following paragraph, however, the Court states that the plaintiff bears the burden of proving that "that discrimination was a determining factor in the termination decision." Id. The inconsistency in the Court's language suggests that perhaps the key distinction between mixed motive cases and pretext cases is the burden shifting and not a supposed difference between the terms "determinative" and "motivating." Finally, "motivating factor" is the standard enunciated in the most recent publication of Devitt, Blackmar Wolff's Federal Jury Practice and Instructions on employment discrimination, which includes discharge based upon discrimination:
Part VI. Instructions for Civil Actions Governed by Federal Law
Chapter 104. Discrimination in Employment — Civil Rights Act of 1991
s 104.03 THE ESSENTIAL ELEMENTS OF PLAINTIFF'S CLAIM
In order for Plaintiff ________ to establish (his) (her) claim against Defendant ________ (he) (she) has the burden of proving that the defendant's actions were, more likely than not, motivated by the plaintiffs (race) (color) (sex) (religion) (national origin) (filing of a claim of discrimination).
In order for the Plaintiff ________ to recover on the (his) (her) claim against Defendant ________, the plaintiff must prove that the defendant intentionally discriminated against plaintiff, that is, plaintiffs (race) (color) (religion) (sex) (national origin) (filing of a claim of discrimination) must be proven to have been a motivating factor in defendant's decision (not to hire) (not to promote) (to terminate) the plaintiff.
The mere fact that plaintiff is a (woman) (Hispanic) (etc.) and was (not hired) (not promoted) (terminated) (etc.) is not sufficient, in and of itself, to establish plaintiffs claim under the law.
In order for Plaintiff ________ to recover on (his) (her) claim against Defendant ________ the plaintiff must prove that the defendant intentionally discriminated against plaintiff. The plaintiff must prove that:
1. The defendant intentionally made plaintiffs working conditions so intolerable that a reasonable person would feel forced to resign, and
2. Plaintiffs (race) (color) (religion) (sex) (national origin) (filing of a claim of discrimination) was a motivating factor in the defendant's conduct, and
3. Plaintiff, in fact, resigned.
In showing that plaintiffs (race) (color) (religion) (sex) (national origin) was a motivating factor, plaintiff is not required to prove that (his) (her) (race) (color) (religion) (sex) was the sole motivation or even the primary motivation for defendant's decision. The plaintiff need only prove that (race) (color) (religion) (sex) (national origin) played a part in the defendant's decision even though other factors may also have motivated the defendant.
If you find from the evidence that (race) (color) (religion) (sex) (national origin) was, more likely than not, a motivating factor in the defendant's employment decision (not to hire) (not to promote) (to terminate) you should so indicate on the verdict form.
(Defendant ________ claims that even if (race) (color) (religion) (sex) (national origin) were motivating factors in (his) (her) (its) decision, the defendant would have taken the same action concerning the plaintiff in the absence of the unlawful motive.
If you find that Defendant _______ would have, more likely than not, made the same employment decision (not to hire) (not to promote) (to discharge) concerning the plaintiff even if the unlawful motive was not present, you should so indicate on the verdict form.)
Fed. Jury Prac. Instr. § 104.03 (Treatise Pocket Part).
Based on the foregoing, the Court finds that its instructions on "motivating factor" with regard to Plaintiffs discrimination and wrongful termination claims were in accordance with Sixth Circuit precedent. Defendant's motion for a new trial on this basis is DENIED.
b. Retaliation
Defendant also contends that the Court erroneously instructed the jury on Plaintiffs retaliation claim. The Court instructed the jury as follows:
To prove this claim, Mr. Hall must prove by a preponderance of the evidence that Consolidated Freightways retaliated against plaintiff for filing these charges. Mr. Hall does not have to prove that retaliation was Consolidated Freightways' only motive, but he must prove that Consolidated Freightways intentionally acted, at least in part to retaliate. To determine that question, you should analyze the proof in the following mariner:
Plaintiff Hall must first prove a prima facie case of retaliation.
To establish a prima facie case of retaliation under Title VII, Plaintiff James Hall must show that:
One, he engaged in protected activity, that is, that he filed charges of discrimination against Defendant Consolidated Freightways. Two, that this exercise of protected civil rights was known to Defendant Consolidated Freightways. Three, the Defendant Consolidated Freightways thereafter took an adverse employment action against the plaintiff. And four, there was a causal connection between the protected activity and the adverse employment action.
A causal connection requires Plaintiff Hall to offer evidence sufficient to raise the inference that his protected activity was the likely reason for the adverse action. The mere fact that the activity occurred after Mr. Hall engaged in a protected activity is not sufficient to support an inference of retaliation.
If the plaintiff demonstrates the above four elements, a presumption of retaliation is raised. The defendant must then articulate some legitimate non-retaliatory explanation for its actions.
In other words, the defendant has the opportunity to rebut this presumption by offering evidence of a neutral business reason for its actions.
If the defendant does not articulate such a reason, you may find in plaintiffs favor on the retaliation claim.
If Defendant Consolidated Freightways does offer a nonretaliatory reason, then you must decide whether Plaintiff Hall has proved, by a preponderance of the evidence, that the explanation given by Defendant Consolidated Freightways was not the true reason for its actions, i.e., that it was a pretext. Plaintiff may do so by showing that the reason or reasons offered by defendant either:
One, have no basis in fact, or
Two, were not the actual motive for the adverse employment decision against plaintiff, or
Three, were a factor in the decision, but were insufficient to motivate the adverse employment decision.
(Doc. No. 199, pp. 28-30). Defendant contends that these instructions were erroneous in that they allowed jurors to find that retaliation was a motivating, rather than determinative factor in the adverse employment decision. The Court disagrees.
The Sixth Circuit has specifically stated that a plaintiff who alleges that he or she was retaliated against by an employer for filing a discrimination charge need only establish that the filing of the charge "was a `substantial' or `motivating' factor in the employer's decision."Ison v. Lakeland Regional Health System, unreported, 149 F.3d 1183 (6th Cir. 1998) (concerning allegations of retaliation in connection with the filing of a discrimination charge with the EEOC), see also, Hile v. Pepsi Cola General Bottlers, Inc., unpublished, 108 F.3d 1377 (6th Cir. 1997) (applying "substantial or motivating factor" standard in case involving claim of retaliation based upon age and disability); King v. Gould, unpublished, 124 F.3d 198 (6th Cir. 1997) ("In order to succeed on a claim of retaliation under a disparate treatment claim, a plaintiff must `produce evidence that her protected expression was a substantial or motivating factor' in the defendant's decision to take the adverse job action.") quoting, Hartsel v. Keys, 87 F.3d 795, 803 (6th Cir. 1996));Sowards v. Loudon County, 203 F.3d 426, 431 (6th Cir. 2000) (concerning alleged wrongful termination of employee who exercised First Amendment rights).
Moreover, model federal jury instructions from at least two sources employ the motivating factor language in their instructions for retaliation claims. See, e.g., 3 Edward J. Devitt, Charles B. Blackmar Michael A. Wolff, Federal Jury Practice and Instructions § 104.05 Racial Discrimination in Employment — retaliatory Treatment Under § 1981 (1987) ("Plaintiff does not have to prove that retaliation was defendant's only motive, but he must prove that defendant intentionally acted at least in part to retaliate."); Committee on Pattern Jury Instructions, District Judges Association, Eleventh Circuit, Eleventh Circuit Pattern Jury Instructions § 1.9.3 Miscellaneous Issues retaliation (2000) ("[I]t must be shown that the protected activity by the Plaintiff was a substantial, motivating cause that made a difference in the Defendant's decision.").
Based on the foregoing, the Court finds that its instructions with regard to Plaintiffs retaliation claim were in accordance with Sixth Circuit precedent. Defendant's motion for a new trial on this basis is DENIED.
B. Introduction of Irrelevant and Unfairly Prejudicial Evidence and Improper Exclusion of Evidence
Defendant maintains that the jury was presented with a multitude of irrelevant and prejudicial facts by witnesses who testified that they believed Consolidated Freightways engaged in various alleged acts of discrimination that had nothing to do with Hall. Defendant contends that the introduction of this additional testimony was also, by itself, reversible error that should entitle Defendant to a new trial. (Doc. No. 174, pp. 17-18).
A district court may order a new trial if it "has improperly admitted evidence and a substantial right of a party has been affected." Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). The admissibility or exclusion of evidence involves a question for which considerable discretion is left to the trial court. Hawthorne Educational Services, Inc. v. Friedman, unpublished opinion, 2000 WL 799339 (6th Cir. June 8, 2000), citing United States v. Markarian, 967 F.2d 1098, 1103 (6th Cir. 1992), cert. denied, 507 U.S. 942 (1993). A district court has "broad discretion" in deciding whether to admit potentially prejudicial evidence, United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993), and the decision to admit such evidence will not be overturned on appeal absent a clear abuse of discretion. United States v. Thomas, 49 F.3d 253, 258 (6th Cir. 1995); see also United States v. Zipkin, 729 F.2d 384, 389-90 (6th Cir. 1984).
With regard to the testimony of other employees and their similar experiences, the Court followed the authority of Jackson v. Quanex, 191 F.3d 647 (6th Cir. 1999) in allowing them to corroborate Plaintiffs claims. In Quanex, the Sixth Circuit held that it was error for a district court to ignore evidence concerning the defendant employer's discriminatory conduct toward employees other than the plaintiff:
Given that analysis of this claim required a consideration of all of the circumstances, the district court committed error when it deemed irrelevant the overwhelming discriminatory conduct towards other African-American employees at Quanex.Id. at 660. Under the totality of the circumstances standard advocated inQuanex, a court must allow introduction of evidence from other employees or coworkers in order to allow Plaintiff the opportunity to show a pattern or practice of racially offensive conduct. Thus, while Plaintiff himself did not witness, nor was prejudiced by, the experiences of James Adams or Ricky Peterson, their testimony was admissible to prove pattern and practice, as well as the totality of the circumstances.
Moreover, the Court did not permit this testimony to be without limitation. The Court specifically instructed that it would allow their testimony only insofar as it related to instances that were similar in nature to Plaintiffs allegations. Additionally, Plaintiff was not permitted to introduce evidence of the lawsuits filed by other employees as they were not germane to Plaintiffs expenences.
The Court also notes that Defendant was permitted to introduce evidence of Plaintiffs 1988 discrimination charge against his union over Plaintiffs vigorous objection. The Defendant used this evidence to show that Plaintiffs claims of discrimination were meritless, the grievance having been dismissed. The Court found that such grievance specifically related to his employment and was therefore relevant. Defendant's remaining arguments are without merit and the motion for new trial is DENIED on this evidentiary point as well.
Accordingly, Defendants Motion for New Trial (Doc. No. 172) is DENIED in full.
III. PLAINTIFF'S MOTION FOR PREJUDGMENT INTEREST
"The goal of Title VII is to `make persons whole for injuries suffered on account of unlawful employment discrimination.'" Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228, 1233 (6th Cir. 1996) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)). The Sixth Circuit has recognized that in making a plaintiff whole, it may be appropriate to award prejudgment interest, See Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1170 (6th Cir. 1996), amended, 97 F.3d 833 (6th Cir. 1996), and damages for emotional harm.
An award or denial of prejudgment interest is within the sound discretion of the trial judge and will not be disturbed unless the court abused its discretion. Id. "A court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." Phelan v. Bell, 8 F.3d 369, 372 (6th Cir. 1993) (quoting Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir. 1985)).
An award of "prejudgment interest . . . is an element of complete compensation" in a Title VII back pay award. Loeffler v. Frank, 486 U.S. 549, 558 (1988) (citations omitted). Prejudgment interest helps to make victims of discrimination whole and compensates them for the true cost of money damages they incurred. West Virginia v. United States, 479 U.S. 305, 310 (1987). The Sixth Circuit commonly awards prejudgment interest on back pay awards. See EEOC v. Wilson Metal Casket, 24 F.3d 836, 841-42 (6th Cir. 1994), citing EEOC v. Wooster Brush Co., 727 F.2d 566, 578 (6th Cir. 1984) (prejudgment interest added to "back pay awards [has] become reasonably common"). Moreover, victims of discrimination should not be penalized for delays in the judicial process and prejudgement interest helps alleviate the value of lost money. See Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1170 (6th Cir. 1996), amended, 97 F.3d 833 (6th Cir. 1996).
While Plaintiff moves for prejudgment interest on the entire judgment amount, the Court limits the award of prejudgment interest to the back pay award. Accordingly, Plaintiffs motion for prejudgment interest is GRANTED in part and DENIED in part. Plaintiff is GRANTED prejudgment interest (at the statutory rate often percent per annum from the date the complaint was filed) only as to that portion of the $50,000 compensatory damage award that is directly attributable to back pay, i.e., $2,400.
The Budd Co. v. Admiral Insurance Company, 52 F.3d 324 (6th Cir. 1995); Lilley v. BTM Corp., 958 F.2d 746 (6th Cir. 1992), cert. denied, BTM Corp. v. Lilley, 506 U.S. 940 (1992); Perception, Inc. v. Sensor Adaptive Machines, Inc., 2000 WL 1022682 (6th Cir. 2000).
IV. CONCLUSION
In conclusion, Defendant's Rule 50 Motion for Partial Judgment as a Matter of Law, or in the Alternative, Motion to Alter Judgment/Grant Remittitur/Grant New Trial ( Doc. No. 171) is GRANTED in part and DENIED in part. The motion is GRANTED with respect to Defendant's request to reduce the damages award in accordance with the statutory cap, the motion is DENIED in all other respects.
Defendant's Rule 59 Motion for New Trial ( Doc. No. 172) is DENIED in full.
Plaintiffs Motion for Prejudgment Interest ( Doc. No. 169) is GRANTED in part and DENIED in part.
IT IS SO ORDERED.