Opinion
C 97-221-MJM
July 6, 2001
OPINION and ORDER
I. Introduction
Plaintiff Wilma McGrane ("McGrane") commenced this action November 25, 1997, against her former employer, Defendant Proffitt's Inc., d/b/a/ Younkers (`Younkers"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and Chapter 216 of the Iowa Code, the Iowa Civil Rights Act ("ICRA"), as well as alleging actions for Defamation and Intentional Infliction of Emotional Distress. On December 26, 2000, the Court granted Younker's motion for summary judgment as to McGrane's Defamation and Intentional Infliction of Emotional Distress claims; the Court denied Younker's motion for summary judgment in all other respects. On February 6, 2001, following a week-long trial, a jury returned a verdict in favor of McGrane on her claim of sex discrimination brought pursuant to Title VII and ICRA, but found in favor of Younkers on McGrane's age discrimination claim brought pursuant to the ADEA and ICRA. The jury awarded McGrane $165,000 in emotional distress damages and $116,012 in lost wages, for a total of $281,102. Younkers now moves for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), for a new trial pursuant to Federal Rule of Civil Procedure 59(a), or, in the alternative, for remittitur of damages.
II. Background
Wilma McGrane was hired by Defendant Younkers in 1974 as a part-time salesperson. She later became a full-time salesperson and worked there in that capacity until her employment was terminated on October 10, 1996. McGrane's termination was the impetus for this lawsuit.
McGrane's tenure at Younkers was marked by an excellent sales record; having sold as much as $333,000 worth of merchandise in one year, and having received numerous honors and awards in recognition of her exceptional sales. Her tenure was also marred by a history of attendance problems heavily documented by one of her immediate supervisors in particular, Leslie Volz. In fact, when McGrane was ultimately terminated, she was told by the store manager, also Volz's immediate supervisor, Renee Golinvaux, that her termination grew out of her "failure to keep a schedule."
The nature and extent of McGrane's attendance problems became the center of this lawsuit. Indeed, the pivotal issue for the jury was whether McGrane's attendance problems constituted a legitimate business reason for terminating McGrane's employment, or as McGrane argued, were merely pretext for Younker's discriminatory motive for terminating her.
III. Discussion
Younkers moves for judgment as a matter of law, for a new trial, or, in the alternative, for remittitur of damages. While different legal standards are applicable to each of Younkers' motions, there is a great deal of overlap with regards to the facts underpinning each legal theory. As such, the Court will organize its opinion in accordance with the jury's three findings — (1) liability for sex discrimination; (2) award of emotional distress damages; and (3) award of back pay — analyzing each of Younkers' motions as they relate to those findings. Any issues left unresolved by the foregoing will be addressed in the concluding portion of the opinion.
A. Standards of Review
1. Judgment as a Matter of Law
Judgment as a matter of law under Fed.R.Civ.P. 50(b) is only warranted "`when there is a complete absence of probative facts to support the conclusion reached' so that no reasonable juror could have found for the nonmoving party." Foster v. Warner Entertainment Co., 205 F.3d 1189, 1194 (8th Cir. 2001) (quoting Blackmon v. Pinkerton Sec. Investigative Servs., 182 F.3d 629, 635 (8th Cir. 1999)); see also Otting v. J.C. Penney Co., 223 F.3d 704, 708 (8th Cir. 2000) (explaining "JAML is proper when there is insufficient evidence to support the jury's verdict"). Therefore, such a motion should only be granted "when all the evidence points in one direction and is susceptible to no reasonable interpretation supporting the jury verdict." Blackmon, 182 F.3d at 635 (internal citations omitted). A court ruling on a Rule 50(b) motion "must analyze the evidence in the light most favorable to the prevailing party and must not engage in a weighing or evaluation of the evidence or consider questions of credibility." See Dace v. ACF Indus., Inc., 722 F.2d 374, 375-76 (8th Cir. 1983), supplemented, 728 F.2d 976 (1984).
2. Motion for a New Trial
Like a motion for judgment as a matter of law, a party seeking to obtain a new trial pursuant to Rule 59 based on the sufficiency of the evidence faces an onerous burden. United States v. Big D Enters., Inc., 184 F.3d 924, 929 (8th Cir. 1999), cert. denied, 529 U.S. 1018 (2000). Indeed, a new trial is only appropriate if the verdict was against the great weight of the evidence so as to constitute a miscarriage of justice. Foster, 250 F.3d at 1196 (citing Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir. 2000)); Larson v. Farmers Co-op Elevator, 211 F.3d 1089, 1095 (8th Cir. 2000). A district court enjoys broad discretion in deciding whether to grant a motion for a new trial under Rule 59, and where the court "balances and weighs the evidence based upon the proper legal standard, the court's denial of a Rule 59 motion is virtually unassailable." Pulla v. Amoco Oil Co., 72 F.3d 648, 656 (8th Cir. 1995).
3. Remittitur of Damages
A district court should grant remittitur only when the award is so excessive as to shock the court's conscience. Tritton Corp. v. Hardrives, Inc., 85 F.3d 343, 347 (8th Cir. 1996).
B. Sex Discrimination Claim
It is often stated that "[t]he question facing triers of fact in discrimination cases is both sensitive and difficult" because, in part, "there will seldom be `eyewitness' testimony as to the employer's mental processes." U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983). For precisely this reason, the Supreme Court created what has come to be known as the McDonnell Douglas burdenshifting framework — a framework to analyze discrimination claims that are based principally on circumstantial evidence, such as the case at bar. See McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973). The Supreme Court has elucidated on this approach many times, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-12 (1993); Texas Dept of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981), most recently in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).
Under this framework, a plaintiff must first establish a prima facie case of discrimination. Reeves, 530 U.S. at 142 (citing Burdine, 450 U.S. at 252-53). In the instant case, McGrane successfully met this burden by establishing: (i) at the time she was fired, she was a member of the class protected by Title VII (a woman); (ii) she was otherwise qualified for the position; and (iii) she was discharged by the Defendant, Younkers. See Reeves, 530 U.S. at 142 (detailing prima facie case for plaintiff in age discrimination case); see also LaCroix v. Sears, Roebuck Co., 240 F.3d 688, 693 (8th Cir. 2001) (detailing prima facie case for plaintiff in sex discrimination case). The burden then shifts to the employer to produce evidence that the plaintiff was rejected for a legitimate, nondiscriminatory business reason. Reeves, 530 U.S. at 142 (citing Burdine, 450 U.S. at 254). And again in the instant case, Younkers met this burden by offering admissible evidence sufficient for the trier of fact to conclude that McGrane was fired because of her failure to adhere to the company's attendance policy.
There is a fourth element of the prima facie case that can be satisfied by a showing that the plaintiff was replaced by a person outside the protected class. See Davenport v. Riverview Gardens School District, 30 F.3d 940, 944 (8th Cir. 1994). However, "such proof is not required" in order to shift the burden of proof to the defendant, and therefore is not relevant to this Court's discussion. Id. (citing Walker v. St. Anthony's Medical Center, 881 F.2d 554, 558 (8th Cir. 1989) (finding no such per se requirement has traditionally been imposed in Title VII cases and extending that reasoning to ADEA cases)).
At this stage of the analysis, "the McDonnell Douglas framework — with its presumptions and burdens — disappear[s], and the sole remaining issue [is] discrimination vel non." Reeves, 530 U.S. at 142 (internal quotations omitted). A plaintiff is then afforded the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. at 143 (internal quotations omitted). In this vein, the Reeves court emphasized that a plaintiff may attempt to establish intentional discrimination by showing pretext, that is "by showing that the employer's proffered explanation is unworthy of credence." Id. (quoting Burdine, 450 U.S. at 256). The issue of pretext was the Supreme Court's focus in Reeves and will be this Court's focus as well given pretext was principal to the jury's finding of intentional discrimination in the instant case.
The Reeves Court clarified "that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Reeves, 530 U.S. at 148 (emphasis added). The Court cautioned however, that "[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability." Id. Instead "[w]hether judgment as a matter of law is appropriate in any particular case will depend on a number of factors." Id. The factors articulated by the Reeves court include:
the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.Id. at 148-49 (reversing lower court's grant of judgment as a matter of law where lower court erroneously held a showing of pretext alone was insufficient to prove intentional discrimination).
Bearing in mind the Supreme Court's proscriptions on viewing discrimination cases through the lens of pretext, this Court turns to the evidence supporting liability in this case, and begins its analysis with the evidence of Younkers' business reason for McGrane's discharge. Again, Younkers maintains McGrane was fired for her inability to keep a schedule. Younkers proffered extensive evidence regarding McGrane's attendance infractions. The jury heard testimony from Volz, McGrane's immediate supervisor, Golinvaux, the store manager, and other supervisors and co-employees alike that McGrane repeatedly failed to comply with her schedule.
McGrane, in turn, made a substantial showing that Younkers' basis for her discharge was suspect. McGrane offered evidence to support a jury finding that Younkers' failed to follow its disciplinary policy by not utilizing standard forms to record her infractions, by not informing her of those infractions as they were recorded, and by not employing a progressive disciplinary scheme to allow her to curb the behavior prior to her termination. Moreover, McGrane's evidence revealed that Golinvaux, the store manager who participated in the decision to terminate McGrane, represented to the corporate human resources director that the company's disciplinary policy had been followed when in fact it had not.
McGrane also offered evidence to support a jury finding that Volz's record keeping of McGrane's purported attendance infractions was at times false and/or fabricated. For example, the jurors heard testimony that one of the purported incidents of tardiness occurred when McGrane was out of the country on vacation. Similarly, two of Volz's records indicated that McGrane was late to work because she took her daughter to school; however the two days on which this allegedly occurred the school was closed.
In addition, McGrane offered sufficient evidence to support a jury finding that male employees with attendance infractions were treated differently. Specifically, the jury heard evidence about Don Haugen ("Haugen"), another salesperson in the men's department, who had a fellow employee clock him out after he left, allowing Haugen to be paid for time he did not work. Upon learning of this, Volz filled out the proper disciplinary review form, had a meeting with Haugen about the infraction and gave him a reprimand. Likewise, the jury heard evidence about Troy Sills ("Sills"), another male salesperson with attendance problems. The jury heard evidence that Sills was given repeated warnings about his attendance infractions and corresponding documentation was placed in his personnel file. It was only after this objective data regarding his attendance problems had accumulated in his personnel file that he was terminated. By contrast, the jury heard evidence that Volz kept numerous informal notes about McGrane's purported attendance infractions, that Volz did not utilize the proper disciplinary forms and she failed to inform McGrane of said infractions prior to her termination.
Younkers argues McGrane's evidence of the dissimilar treatment of males is not probative of discrimination because McGrane is not similarly situated in all relevant respects to her male counterparts. Younkers contends McGrane's attendance problems were far more severe than that of Haugen and Sills and, in addition, McGrane was insubordinate to her superiors. Her situation, Younkers concludes, is so dissimilar that a negative inference of discrimination cannot be drawn from the differing treatment.
"To show that employees are similarly situated, a plaintiff need only establish that he or she was treated differently than other employees whose violations were of `comparable seriousness.'" Lynn v Deaconess Med. Center-West, 160 F.3d 484, 488 (8th Cir. 1998) (finding nurse sleeping on duty similarly situated to nurse with performance problems) (citing Ricks v. Riverwood Int'l Corp., 38 F.3d 1016, 1019 (8th Cir. 1994)). Here Haugen, Sills and McGrane were all salespersons with purported attendance problems. The jury heard evidence that the company had procedures to deal with those employees with repeated attendance infractions. In this instance, Haugen and Sills were given the benefit of having their infractions disciplined in accordance with company procedure and McGrane did not. Contrary to Younkers' assertions, the fact that McGrane's attendance problems were different in kind or arguably more frequent does not alter the probative value of McGrane's evidence which reveals that males with attendance problems were treated in conformity with the store's disciplinary policy while she was not. The jury was free to draw a negative inference from the differing treatment between the male salespeople and McGrane.
Based on the aforementioned evidence, the jury could reasonably disbelieve Younkers' purported business reason for terminating McGrane's employment, draw negative inferences therefrom, and consider whether the reason was pretext for intentional discrimination. To bolster her showing of pretext, McGrane offered additional evidence of gender-biased, derogatory statements made about her by her immediate supervisor, Volz. Specifically, McGrane's evidence revealed Volz referred to her as a "fucking bitch" on multiple occasions. Younkers expends much of its brief taking issue with the relevancy of this evidence and the effect this evidence had on the outcome of the trial. Younkers makes three inter-related arguments: (1) the phrase "fucking bitch" is not discriminatory; (2) Volz's use of the phrase is not probative of discrimination, and (3) the Court's decision to admit Volz's use of the phrase into evidence was prejudicial error and warrants a new trial.
First, Younkers appears to be arguing that the phrase "fucking bitch" has evolved into somewhat of an innocuous insult with no relation to gender. A review of the case law demonstrates that comments similar to the one at issue in this case are sometimes deemed nondiscriminatory. See e.g., Scusa v. Nestle v. U.S.A. Co., Inc., 181 F.3d 958, 964 (8th Cir. 1999) (finding defendant's comment "you fucking girls better get your stories straight" was not probative of sexual harassment). However, the cases proffered by Younkers do not support its static interpretation of this phrase and this Court is not inclined to afford it such a benign interpretation. For instance, in Scusa, a case cited by Younkers, the court held the challenged comment in that case was not probative of discrimination because the plaintiff admitted that the defendant used profanity toward males and females alike and the comments made toward her had nothing to do with her sex. Id. Similarly, in Gartman v. Gencorp. Inc., 120 F.3d 127 (8th Cir. 1997), another case relied upon by Younkers, the court held defendant's comment "Shit, another gal" was not probative of discrimination because the comment was referring to another person besides the plaintiff, and it was not made contemporaneously to the adverse employment action. Likewise, in Montgomery v. John Deere Co., 169 F.3d 556, 560-1 (8th Cir. 1999), the court found a plaintiff with a weak prima facie showing of discrimination, at best, and no showing of pretext, could not rely solely on the comment "old fart" as a sufficient basis for an inference of age discrimination. Finally, the court in Ruby v. Springfield R-12 Public Schools District, 76 F.3d 909 (8th Cir. 1996), found where plaintiff failed to rebut the employer's legitimate business reason for its adverse employment action, discriminatory comments by a supervisory employee were not sufficient to show pretext. These cases do not, as Younker suggests, substantiate a claim that Volz's comment is not discriminatory. Rather they call on courts considering the probative value of said discriminatory comments to look at the circumstances in which the comments were made — such as who made them, and about whom they were made — to determine whether they give credence to properly drawn inferences of discrimination already established from the plaintiff's pretext or a prima facie showing.
The remaining cases cited by Younkers are inapposite to the present analysis because they deal with derogatory comments purported to be direct evidence of discrimination. The cases that Younkers cites, and the legal precedent on which they rely, consider whether discriminatory remarks are direct evidence of discrimination in order to determine whether a plaintiff is relieved of the intractable burden of proof in the above-described McDonnell Douglas framework, and instead afforded the beneficial "mixed motive" burden shifting analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989). See Clearwater v. Independent School District Number 166, 231 F.3d 1122, 1126 (8th Cir. 2000) (finding comments toward Native Americans about pitching a tent and "scrub Indian ponies" were not "sufficiently related to the adverse employment action in question" to constitute direct evidence of discriminatory motive) ; Simmons v. Oce-USA, Inc., 174 F.3d 913, 916 (8th Cir. 1999) (holding racial slurs made by decision-maker two years prior to plaintiff's termination were not direct evidence of discrimination and alone were also insufficient to show pretext); Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426-28 (8th Cir. 1999) (holding reference to employees as "kids" two years prior to adverse employment action was not direct evidence of discrimination); Buckholz v. Rockwell Int'l, Corp., 120 F.3d 146 (8th Cir. 1997) (holding hiring supervisor's comment that "young kids" he hired "sure were sharp" did not show specific link between discriminatory animus and decision not to hire applicant, as required to entitle applicant to mixed-motive jury instruction); Kriss v. Sprint Communication Company, 58 F.3d 1276 (8th Cir. 1995) (finding evidence that employer called a woman "ugly" and another woman "bitch" not direct evidence of discrimination); and Phillip v. ANR Freight System, Inc., 61 F.3d 669 (8th Cir. 1995) (finding failure to show specific link between adverse employment decision and supervisor's comment "old man" was insufficient to warrant mixed-motive jury instruction). These courts did not hold, as Younkers appears to suggest, that discriminatory remarks in the workplace are in no way relevant to a prima facie showing of discriminatory animus if they do not constitute direct evidence of discrimination. And unlike the plaintiffs in the above-cited cases, McGrane's case of discrimination does not rise and fall on Volz's derogatory comments; that is, McGrane has not alleged that the comments constitute direct evidence of discrimination warranting a shift of the burden of proof to Younkers. Instead, McGrane maintains that these comments, together with her other evidence of pretext, is probative of discrimination.
Younkers' second, but related argument, is that Volz's use of the phrase "fucking bitch" is not probative of discrimination. This Court disagrees. Substantial evidence in this case revealed Volz was the impetus behind McGrane's discharge. The jury heard evidence that Volz relentlessly compiled records about McGrane's purported attendance infractions. The jury heard that she compiled these records without McGrane's knowledge and without affording McGrane the benefit of a progressive disciplinary process. Similarly, the jury heard evidence that Volz fabricated at least one of these records and others were simply false. In short, it was the actions taken by Volz which led to the decision to terminate McGrane's employment and Volz's state of mind and credibility was therefore very much at issue. Accordingly, Volz's use of a derogatory, gender-based phrase to describe McGrane, contemporaneously made with her other suspect actions and McGrane's termination, was relevant to the jury's inquiry of whether Volz had a discriminatory motive. See Fisher v. Pharmacia Upjohn, 225 F.3d 915, 919 (8th Cir. 2000) (finding stray discriminatory remarks constitute circumstantial evidence that, when considered together with other evidence, may give rise to a reasonable inference of discrimination).
Finally, Younkers maintains that it is entitled to a new trial because admitting this evidence was prejudicial error. Specifically, Younkers contends the evidence was more prejudicial than probative and to the extent it should have been admitted, Younkers contends it was entitled to a "stray remarks" jury instruction. A trial court is granted wide discretion in making determinations about the admission of evidence. Morgan v. Arkansas Gazette, 897 F.2d 945, 952 (8th Cir. 1990). This Court ruled Volz's gender-based comment was relevant to the jury's inquiry of discrimination for the all reasons stated earlier in this opinion. And again, while the Court is aware that there will be instances where such terms are not probative of discrimination, when the comment was made about the plaintiff, and made by someone party to the challenged employment decision, contemporaneous to that decision, this is not such an instance. This evidence was not more prejudicial than probative and its admission did not affect the substantive rights of Younkers. See Yannacopoulos v. Gen. Dynamics Corp., 75 F.3d 1298, 1301 (8th Cir. 1996).
As to the stray remarks instruction, the instruction under consideration by the Court was the following:
The Plaintiff contends that certain remarks were made in relation to her sex by the Defendant's employees. In evaluating whether to consider these remarks as evidence of discrimination on the basis of the Plaintiff's sex, you should take the remarks into consideration only if they were made by or in the presence of decisionmakers. If these remarks were made by or in the presence of nondecisionmakers, these statements were stray remarks and have nothing to do with the decision to terminate the Plaintiff.
"Stray remarks" are "statements by nondecisionmakers," or "statements by decisionmakers unrelated to the decisional process itself." Price Waterhouse, 490 U.S. at 276-77 (O'Connor concurring). The challenged comments in the instant case were made by a person party to the decision to terminate the plaintiff, they were made about the plaintiff, and they were made contemporaneous with her termination. They do not constitute stray remarks and an instruction referencing stray remarks would have been misguided and only served to confuse the jury.
Younkers also takes issue with the Court's admission of another statement by Volz. The jury heard evidence that prior to Volz becoming McGrane's supervisor, Volz stated "if she was in charge of the Men's Department, Mrs. McGrane would be out." For the same reasons the Court found Volz's gender based comments relevant, the Court finds this statement was probative of Volz's motive and intent as a party to the challenged adverse employment action, and therefore relevant to the jury's inquiry.
In summary, the aforementioned evidence is precisely the type of the evidence the Reeves' Court indicated would bolster a showing of pretext. See Reeves, 530 at 148-49 (listing factors). McGrane's prima facie case was strong because she proffered uncontroverted evidence of her extraordinary sales to establish she was qualified for the position. Likewise, she offered substantial evidence that Younker's explanation for her termination was not worthy of credence. Finally, she offered the additional evidence of Volz's comments to prove discriminatory intent. For these reasons, the Court finds the jury finding of liability on McGrane's sex discrimination claim is supported by sufficient evidence. Younkers' motions for judgment as a matter of law and for a new trial as to liability are therefore denied.
Although at the close of trial the Court expressed some reservation about submitting McGrane's sex discrimination claim to the jury, and actually believed she had a stronger case of age discrimination than that of sex discrimination, the Court ultimately felt then, as it does now, that there was ample evidence upon which the jury could find liability on either claim.
III. Damages
McGrane was awarded $165,000 in emotional distress damages and $116,012 in lost wages. Younkers maintains it is entitled to judgment as a matter of law, or a new trial on damages because the awards are not supported by sufficient evidence and/or they are excessive. In the alternative, Younkers seeks remittitur of McGrane's damages. The Court will address each award separately.
A. Emotional Distress Damages
A claim for compensatory "damages for emotional distress must be supported by competent evidence of `genuine injury.'" Foster v. Time Warner Entertainment Co., 250 F.3d 1189, 1196 (8th Cir. 2001) (quoting Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 531 (8th Cir. 1999)); Carey Piphus, 435 U.S. 247, 264 n. 20 (1978). In order to establish such a claim, "a plaintiff must offer specific facts as to the nature of his or her [emotional injury] and its causal connection to the allegedly violative actions" of the defendant. Hammond v. Northland Counseling Center, Inc., 218 F.3d 886, 893 (8th Cir. 2000).
Younkers contends McGrane failed to produce sufficient evidence of emotional injury, or that her emotional distress was caused by its violative actions. More specifically, Younkers challenges McGrane's showing because she did not suffer physical manifestations from her emotional distress, nor did she seek medical treatment for her purported injury.
McGrane need not, as Younkers asserts, produce medical evidence in support of her claim to emotional distress damages. Kim v. Nash Finch, 123 F.3d 1046, 1065 (8th Cir. 1997). Her testimony, along with the circumstances surrounding her termination, can suffice to sustain her burden in this regard. Id. (citing see, e.g., Wilmington v. J.I. Case Co., 793 F.2d 909, 922 (8th Cir. 1986) (finding testimony of plaintiff and other witnesses about plaintiff's deterioration in health, mental anxiety, humiliation, and emotional distress resulting from working conditions and discharge was sufficient); and Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1272-73 (8th Cir. 1981) (finding testimony of plaintiff about humiliation or mental distress was sufficient)).
McGrane's evidence for emotional distress was based on two forms of testimony: her own and that of her deceased husband seen by the jury via a previously recorded video. As to her injury, there was testimony that McGrane felt sick to her stomach, cried, experienced heightened anger and anxiety, lost sleep and suffered a decrease in energy level. The jury heard testimony that McGrane was quite good at her job at Younkers, she was praised by Younkers' management and customers alike and took great pride and enjoyment in her work. The evidence supported a finding that it was the loss of her employment which caused the emotional injuries she sustained.
Younkers maintains that the admission of McGrane's deceased husband's video deposition was prejudicial error and affected its substantive rights. Specifically, Younkers sought exclusion of the video on the grounds that it was irrelevant, highly emotional and unfairly prejudicial given it revealed an individual in the advance stages of cancer whose death was imminent.
Younkers' initial assertion that the testimony of McGrane's husband was irrelevant is completely without merit. McGrane was claiming an emotional injury based on discriminatory treatment by her employer. There is likely no better individual to comment on another person's emotional debility than a person who sees them everyday, who has lived with them for more than twenty years, and is intimately familiar with that person's changing emotional state. McGrane's spouse's account of her emotional condition after her termination is entirely relevant. See Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 357 (8th Cir. 1997) (relying on plaintiff's spouse to support emotional distress award); Kim, 123 F.3d at 1065 (relying on plaintiff's wife's testimony about her husband's anxiety, sleeplessness, stress depression, high blood pressure, headaches, and humiliation suffered).
Alternatively, and somewhat more persuasively, Younkers argues that the highly emotional nature of the video warranted its exclusion because it was more prejudicial than probative. Younkers contends family members were "openly weeping" during the video and the jury's excessive emotional damage award is reflective of the prejudicial nature of playing such emotionally charged testimony. If McGrane's husband had still been alive during the trial, the fact that he was clearly in the advanced stages of cancer and likely to die in the near future, would not have been grounds to exclude his testimony. Thus, Younkers' argument for prejudice must be limited to the contention that playing testimony of a deceased person was so prejudicial as to substantially affect its rights.
Central to this Court's inquiry is whether the probative value of Mr. McGrane's testimony was " substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." Fed.R.Evid. 403 (emphasis added). As explained above, Mr. McGrane's testimony was particularly relevant to the issue of McGrane's emotional state. He testified at length about the extreme humiliation McGrane experienced due to her termination, which, incidentally, easily could have been the impetus behind the large emotional damage award. Reviewing Mr. McGrane's testimony in its entirety, the Court finds its probative value was not offset by its prejudicial nature. Younkers is not entitled to a new trial on these grounds. See Odgen, 214 F.3d at 1011 (denying motion for new trial based on the admission of lewd videotape where defendant failed to show its exclusion would have warranted a different result).
That said, viewing the evidence in its entirety, the Court finds that, although the evidence supports an award of some compensatory damages, an award of $165,000 is not supported by the record evidence and must be reduced. While the testimony of McGrane and her husband aptly portrays a women who suffered an emotional injury, it does not describe emotional and/or physical complaints which are especially intense. In short, their testimony does not reveal the type of severe emotional distress which would warrant such a large award. See e.g. Kim, 123 F.3d at 1067 (upholding $100,000 damage award where plaintiff, wife and children testified about plaintiff's anxiety, sleeplessness, stress, depression, high blood pressure, headaches, and humiliation from being fired); Thorne v. Welk Investment, 197 F.3d 1205, 1211-12 (8th Cir. 1999) (citing with approval Sixth Circuit case, and the cases cited therein, Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215-16 (6th Cir. 1996) (upholding $50,000 award where plaintiff testified that she continued to suffer nightmares, weight loss during her pregnancy (an undesirable occurrence often leading to low birth weight of the baby), and excessive nervousness); DeNieva v. Reyes, 966 F.2d 480, 487 (9th Cir. 1992) (upholding award where plaintiff testified to suffering emotional distress manifested by insomnia, dizziness and vomiting and received $50,000 compensatory damages); Secretary of HUD v. Blackwell, 908 F.2d 864, 872-73 (11th Cir. 1990) (upholding $40,000 award upheld on basis of testimony regarding humiliation, insomnia and headaches)); but see Moody v. Pepsi-Cola Metropolitan Bottling Co., 915 F.2d 201, 210 (6th Cir. 1990) (upholding $150,000 award where plaintiff was shocked and humiliated and forced to live apart from family because of termination). The Court finds an award of $100,000 better reflects the type of emotional injury sustained in this case, and reduces the award accordingly. See e.g. Ross v. Douglas Cty., 234 F.3d 391, 397 (8th Cir. 2000) (upholding $100,000 award for emotional distress as not excessive where victim of race discrimination suffered emotional and financial strain after leaving hostile work environment where he was taunted with racial epithets).
As stated earlier, Younkers moved for judgment as a matter of law or new trial on the premise that the emotional damage award was excessive. "A verdict is not excessive unless the result is `monstrous' or `shocking.'" Thorne, 197 F.3d at 1211-12 (quoting Jenkins v. McLean Hotels, Inc., 859 F.2d 598, 600 (8th Cir. 1988)). Having granted Younkers' claim of remittitur, the Court finds the damage award does not shock the conscience and denies Younkers' claim for a new trial.
B. Back Pay
McGrane sought and was awarded damages for lost wages, vacation and holiday pay which totaled $116,012. Younkers maintains there is insufficient evidence to support the award and it is entitled to judgment as a matter of law, a new trial or remittitur.
McGrane also sought damages for the loss of her employee discount, $9000, which the jury rejected.
McGrane's actual earnings and mitigation efforts are not in dispute. Thus, the only question for this Court to address is whether the record supports the damage award for the estimated earnings McGrane would have earned had she not been terminated. McGrane premised her lost wages claim on the notion that she would make $7,800 for the remainder of 1996; $34,426 in 1997; $36,426 in 1998; $38,029 in 1999; $39,702 in 2000; and $3,000 prior to trial in 2001. McGrane derived her expected income figures, in part, by looking to the earnings of another salesperson in the men's department, Don Haugen. As both Haugen and McGrane were paid on a commission basis, evidence of his comparative sales and earnings were looked to in support for McGrane's back pay award.
Haugen, however, gave inconsistent testimony about his past earnings; that is, at one point he testified his earning increased steadily each year since 1996, and then later he testified his earnings remained a flat $14.00 an hour since 1996. Therefore depending on which testimony the jury chose to believe, Haugen's floor earnings were $35,000 or $30,000. Recognizing this inconsistency, McGrane argues that inasmuch as McGrane consistently out earned Haugen while she was employed by Younkers, the jury award need not be confined to his earnings as a ceiling.
After careful review of the record, this Court finds an award of $116,012 for back pay is not supported by the record, and an award of $103,159.55 more accurately reflects her total lost wages. Indeed, McGrane appears to concede as much in her brief, recognizing the significant inconsistencies in the record, and stating in response "Mrs. McGrane wants no more than the $103,159.55 easily supported by this record . . ." Accordingly, the Court grants Younkers' motion for remittitur, and decreases McGrane's award by $12,852.45 for a total lost wage award of $103,159.55. Likewise the Court denies Younkers' motions for judgment as a matter of law and a new trial based on excessive verdict. IV. Remaining Grounds for a New Trial
The remaining issues for the Court to address are threefold. First Younkers raises two evidentiary challenges that it maintains warrant a new trial. Second, Younkers requests a new trial based on allegedly improper conduct and remarks of Plaintiff's counsel.
A. Evidentiary Issues
First, Younkers maintains the Court's exclusion of McGrane's unemployment compensation documents was prejudicial error. The Eighth Circuit has long held this type of evidence is inadmissible. See, e.g, Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir. 1984) (holding "that in an employment discrimination case the admission of administrative findings, such as an EEOC reasonable cause determination, is to be left to the sound discretion of the trial court"). In this instance, the Court was particularly concerned by the fact that McGrane was not represented by counsel during the unemployment proceedings while Younkers was represented. For these reasons, and those stated in the trial record the Court finds the probative value of the Unemployment Board's findings would have been outweighed by their prejudicial value.
Younkers also contends that the Court's exclusion of Defendant's exhibit RR, regarding a meeting among McGrane, Golinvaux and Volz, was prejudicial error. This memorandum documents the fact that McGrane "consistently arrived late" and is evidence that Golinvaux and Volz specifically met with McGrane to discuss her attendance problem. Younkers sought its admission to rebut McGrane's assertion that she was not duly informed of the company's documentation of her attendance infractions.
The Court refused to admit this memorandum because it constituted hearsay not within a recognized exception. It does not, as Younkers contends, constitute a business record because it was not kept in the course of regularly conducted business activity. See Fed.R.Evid. 803(6). Moreover, the document contained inconsistent dates further underpinning its unreliability. For these reasons, the Court found the proper foundation was not laid to admit exhibit RR into evidence. The Court notes moreover, that Younkers was permitted to openly read from the exhibit and examine the witnesses about its content. Therefore, assuming arguendo the Court did abuse its discretion in excluding the exhibit, Younkers' substantive rights were not affected.
"[A] new trial is not warranted on the basis of an evidentiary ruling unless the evidence was so prejudicial that a new trial would likely produce a different result." Odgen, 214 F.3d at 1011. Younkers has not established the aforementioned evidentiary rulings substantially affected its rights nor has it shown that ruling in the alternative would have like by produced a different result. For these reasons, Younkers' motion for a new trial based on these two evidentiary challenges is denied.
B. Improper Argument by Plaintiff's Counsel
"A new trial should be granted where the improper conduct of counsel in closing argument `causes prejudice to the opposing party and unfairly influences a jury's verdict.'" Alhom v. American Steamship Co., 144 F.3d 1172, 1181 (8th Cir. 1998) (quoting Pappas v. Middle Earth Condominium Ass'n, 963 F.2d 534, 540 (2d Cir. 1992)). If, as here, a party fails to make a timely and adequate objection concerning the challenged conduct, the objection is waived and the matter is reviewed only for "plain error." Cross v. Cleaver, 142 F.3d 1059, 1067 (8th Cir. 1998) (citing Rush v. Smith, 56 F.3d 918, 922 (8th Cir. 1995) (en banc) (finding where a party failed to lodge a timely objection to the trial judge's comments, this court reviewed only for "plain error")). "The district court has wide discretion in such matters, . . . and its superior vantage point requires deference unless the statements were `plainly unwarranted and clearly injurious.'" Alhom, 144 F.3d at 1181.
Younkers takes issue with multiple comments made by Plaintiff's counsel in his closing argument. One such comment was Plaintiff's counsel's reference to the "secret" files on McGrane kept by Volz. Younkers contends the comments were contrary to an earlier ruling by the Court excluding such evidence. Plaintiff's counsel stated:
. . . and [Volz] said, well, when I made these notes, when I made these secret notes and hid them in the red file and put then in my cabinet drawer, well that was counseling.
They kept a secret file on her, with hidden notes, on an event that didn't happen or at least on days when it didn't happen.
While it is true the Court initially granted Younkers' pretrial motion in limine excluding evidence regarding a "secret red file" kept by Volz, as the trial progressed evidence came in substantiating McGrane's claim that such a file existed and was kept without her knowledge. In fact, Volz herself indicated it was red. Accordingly, Plaintiff's counsel's reference to the file in closing arguments was proper argument supported by the trial evidence.
Younkers also argues that Plaintiff's counsel improperly implored the sex-plus age theory of recovery during closing argument in violation of this Court's order. At summary judgment the Court entertained McGrane's "sex plus age" theory of recovery under Title VII. See Opinion and Order, November 2000. This theory of recovery was spawned by a Supreme Court ruling, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), which upheld a discrimination challenge to a company's policy not to accept women with pre-school aged children. Circuit courts and district courts followed suit recognizing the theory in a host of instances. See Sprogis v. United Airlines, 444 F.2d 1194, 1194-1198 (7th Cir. 1971) (finding challenge to policy that women be unmarried in order to apply for position was actionable under Title VII); Jefferies v. Harris Cty. Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) (recognizing sex-plus race); Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) (recognizing black women as protected subclass under Title VII); Hall v. Missouri Highway and Transportation Commission, 995 F. Supp. 1001, 1005 (E.D.Mo. 1998) (recognizing sex-plus age); Graham v. Bendix Corp., 585 F. Supp. 1036, 1047 (N.D.Ind. 1984) (same). However, as the case at bar progressed this Court found the evidence would not support a finding based on the sex-plus theory and precluded its submission to the jury. For this reason, Younkers finds fault with following statement of Plaintiff's counsel at closing argument:
Wilma McGrane was treated unfairly because of two things that she can't control, she is, and was, a mature woman.
. . . . .
This incident isn't about September 22. It's about the fact that Wilma McGrane is a mature woman and mature human being, who had dignity who insisted on that dignity.
Because McGrane was pursuing both an age discrimination claim and a sex discrimination claim, both concepts were argued to the jury. While this comment does suggest Plaintiff's counsel improperly merged the two concepts, Younkers must also show it was substantially prejudiced by this improper argument to warrant a new trial. See Odgen, 214 F.3d at 1011 (finding defendant was not entitled to a new trial absent a showing that exclusion of challenged evidence would have changed the outcome of the trial). The jury was properly given separate instructions on sex discrimination and age discrimination as two different theories of recovery. The jury found for McGrane on her sex discrimination claim and found for Younkers on her age discrimination claim. One would think that were the jury unduly influenced by Plaintiff's counsel's reference to McGrane as a "mature woman" it would have found in her favor on both her age and her sex claims. In any event, to the extent Plaintiff's counsel improperly merged the two theories of recovery into one simply by referring to the Plaintiff as a "mature woman," Younkers has failed to show how it was prejudiced by the statements and is not entitled to a new trial on these grounds.
Finally, Younkers argues Plaintiff's counsel acted improperly when he urged the jury to punish Younkers for its violative actions. Pursuant to Younkers' motion the Court preliminarily ruled that any evidence regarding punitive damages be excluded pending the Court's final decision on the matter. The Court ultimately found McGrane failed to proffer sufficient evidence of willfulness to put the issue of punitive damages before the jury. Its ruling notwithstanding, Plaintiff's counsel broached the subject on voir dire and was admonished by the Court to cease that line of questioning. Plaintiff's counsel also made the following comments to the jury during closing argument that Younkers maintains inflamed the jury and were impermissible under the Court's ruling:
And you need to make what our society deems to be a uniquely moral judgment, a judgment that isn't defined as the judge said by any precise mathematical equation. What — how do you compensate Wilma McGrane for walking around without her dignity, with her self-esteem being [flattened], with her being devastated the past four and a half years. I can't tell you, I can't go to some W-2's and tell you what that number is. I can suggest to you numbers that you might want to use, some you'd think are good, some are bad, some are high, some are low, I think you'll have a difference of opinion when you try to reconcile what that number is in the jury room. So it's for you to make the decision but here's one way I thought about it, for at least a year, they knew they were going to fire her, those two managers were looking for excuses, trying to set her up, they couldn't do it, and during that year, Wilma McGrane brought three hundred and thirty-two thousand dollars into that store. They let her bring that money into that store, knowing full well that she wasn't going to be there. That's money Younker's [sic] shouldn't have. Is that enough money to restore Wilma McGrane's dignity? I don't know. Is twenty or thirty thousand dollars? I don't think so. The number may be higher, higher than one I suggested, which is one I respectfully suggest you give some consideration to, to let the people who fired Wilma McGrane know, its not the people who are sitting over at this table, but it's to let the people that make the decisions, that make the policies and that don't follow those rules know and understand what value we place on the respect and dignity and experience of people in our work force. To let them know and understand that you — that dignity is involved when these decisions are made so that they think maybe just a little bit harder before they're made.
McGrane maintains these comments were permitted under the auspices of her ADEA claim. In order to prove an ADEA claim a plaintiff must prove willfulness, which means simply "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1082 (8th Cir. 2000) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)); see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993). A plaintiff is entitled to liquidated damages for a showing of willfulness which, although not equivalent to punitive damages, are punitive in nature. See Williams v. Valentec Kisco, Inc., 964 F.2d 723, 729 (8th 1992) (citing Rademaker v. Nebraska, 906 F.2d 1309, 1313 (8th Cir. 1990); and Bruno v. Western Elec. Co., 829 F.2d 957, 967 (10th Cir. 1987)). Therefore, while Plaintiff's counsel appears to have overstepped the bounds of the Court's order prohibiting a discussion of punishment, the comments can fairly be construed as a discussion of willfulness. Moreover, the Court does not find the comments were substantially prejudicial such that they warrant a grant of a new trial.
In short, while the Court does find some of Plaintiff's counsel's comments were inappropriate, his comments separately or together did not prejudice the substantial rights of Younkers and a "miscarriage of justice" would not result in the absence of a new trial. See Cross, 142 F.3d at 1067 (finding new trial is only warranted where "the error prejudices the substantial rights of a party and would result in a miscarriage of justice if left uncorrected"); see also Yannacopoulos, 75 F.3d at 1304 (explaining that "[p]lain error is error which has a serious effect on the fairness of the proceedings").
Younkers also argues that the following comments of Plaintiff's counsel improperly inflamed the jury and warrant a new trial:
What did Younker's [sic] do? Listen to what their top executive said, testified, they cut her legs off, its kind of hard to pursue happiness when your legs have been cut off [sic]. And that's what they did and they knew that's what they were doing, now you tell me if you think that those two young girls weren't just at this time [laughing] about that over a fuzzy navel or something after they did it.
The Court would agree with Younkers that these comments are inappropriate. Indeed, the Court finds it quizzical that counsel for a plaintiff in an age discrimination suit would employ such provocative aged-based comments as "young girls" to describe twenty and thirty year old women, only to embellish the tactless image further by suggesting they laugh about their violative actions over cocktails. The Court's curiosity about Plaintiff's counsel's tactics notwithstanding, these comments could not be seen as substantially prejudicing Younkers. Indeed, the comments appear to have backfired given the jury ultimately found in favor of the Defendant on Plaintiff's age discrimination claim.
V. Conclusion
By way of summary, the Court finds the jury's finding of liability for sex discrimination was supported by substantial evidence. Younkers' motions for judgment as a matter of law and a new trial challenging that finding are denied.
The Court finds the jury's award for emotional damages totaling $165,000 was not supported by the record evidence. The Court grants Younker's motion for remittitur and decreases the award to $100,000. All other challenges to the jury's award for emotional damages are denied.
Finally, the Court finds the jury's award for lost wages, $116,012, was not supported by the evidence. The Court grants Younkers' motion for remittitur and decreases the award to $103,159.55. Younkers' remaining challenges to McGrane's award of lost damages are denied.
ORDER
In accordance with the opinion filed herewith, it is ORDERED:
(1) The Defendant's motion for a new trial is DENIED. (Doc. 116)
(2) The Defendant's motion for judgment as a matter of law is DENIED. (Doc. 116).
(3) The Defendant's motion for remittitur is GRANTED in part. (Doc. 116)
Done and so ordered this 6th day of July, 2001.