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Bjerke v. Nash Finch Company

United States District Court, D. North Dakota, Southeastern Division
Dec 4, 2000
Civil No. A3-98-134 (D.N.D. Dec. 4, 2000)


Civil No. A3-98-134.

December 4, 2000.


I. Brief Factual Background

This case was tried to a jury on June 5-12, 2000. The jury returned a verdict in favor of the plaintiff on her Equal Pay Act claim and under the North Dakota Human Rights Act and awarded damages in the amount of $31,897. Before the court is defendant's Motion for Judgment as a Matter of Law and Alternatively a New Trial and/or a Remittitur of Damages (Doc. #212). Also before the court is the plaintiff's Motion for Award of Liquidated Damages (Doc. #208). For the following reasons defendant's motions are DENIED and plaintiff's Motion for Award of Liquidated Damages is GRANTED.

II. Discussion

A. Judgment as a Matter of Law

Defendant Nash Finch has made a motion pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. This rule provides, in relevant part,

If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment no later than 10 days after entry of judgment- and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may:

(1) If a verdict is returned:

(A) Allow the judgment to stand,

(B) Order a new trial, or

(C) Direct entry of judgment as a matter of law;. . . .

The Eighth Circuit Court of Appeals has noted that the standard for setting aside a jury verdict is rigorous. TEC Floor Corp. v. Wal-Mart Stores, Inc., 4 F.3d 599, 601 (8th Cir. 1993).

"In ruling on a motion for [judgment as a matter of law], the district court must (1) consider the evidence in the light most favorable to the prevailing party, (2) assume that all conflicts in the evidence were resolved in favor of the prevailing party, (3) assume as proved all facts that the prevailing party's evidence tended to prove, and (4) give the prevailing party the benefit of all favorable inferences that may reasonably be drawn from the facts proved. That done, the court must then deny the motion if reasonable persons could differ as to the conclusions to be drawn from the evidence."

Id. (quoting Western Am., Inc. v. Aetna Cas. and Sur. Co., 915 F.2d 1181, 1183 (8th Cir. 1990)); Gulbranson v. Duluth, Missabe and Iron Range Railway Co., 921 F.2d 139, 141 (8th Cir. 1990).

In support of its motion for judgment as a matter of law defendant first asserts that the plaintiff did not prove her prima facie case. The court disagrees. It is the opinion of the court that a reasonable jury could find that the plaintiff established with sufficient clarity that she was paid a lower rate than her male counterparts who performed the same or similar work before, during or after her employment. Defendant Nash Finch also asserts that it proved the pay differential was based on a legitimate nondiscriminatory factor other than sex, including different entry level requirements and red circle rates. Again, the jury was permitted to consider the evidence presented by the defendant in support of its alleged defenses. The jury rejected the defenses asserted by the defendant and found in favor of the plaintiff. Therefore, viewed in a light most favorable to the prevailing party, a reasonable jury could conclude, and in fact did conclude, that defendant failed to meet its burden with respect the to the affirmative defenses. In accordance with the standard earlier articulated, see TEC Floor Corp. v. Wal-mart Stores, Inc., 4 F.3d 599, 601 (8th Cir. 1993), defendant's motion for judgment as a matter of law is DENIED.

B. New Trial

Defendant Nash Finch argues that it is entitled to a new trial because the verdict is against the greater weight of the evidence and "due to errors over objections in jury instructions and improper evidentiary ruling." Each of these asserted grounds for new trial will be addressed in turn.

In order to grant a motion for new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure, the court must find that the jury verdict was "against the `clear weight', `overwhelming weight', or `great weight', of the evidence." Beckman v. Mayo Foundation, 804 F.2d 435, 439 (8th Cir. 1986) (citations omitted). The court may rely upon its own recollection and evaluation of the evidence while considering whether a verdict is against the weight of the evidence. White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992). Furthermore, the court is free to weigh the evidence and disbelieve witnesses. Id. In fact, the court may grant a new trial even if there is substantial evidence to sustain the verdict. Id. Great deference is given to the trial judge's decision on this issue. Brown by Brown v. Syntex Laboratories, Inc., 755 F.2d 668, 673 (8th Cir. 1985). The court, however, should not overturn a verdict merely because it would find differently than the jury. Fireman's Fund Ins. Co. v. AALCO Wrecking Co., Inc., 466 F.2d 179, 187 (8th Cir. 1972), cert. denied, 410 U.S. 930 (1973). Instead, the court should overturn a verdict only if the court is left with a firm conviction that the jury has erred. Id.; Beckman, 804 F.2d at 439 ("The district court can only disturb a jury verdict to prevent a miscarriage of justice." (citations omitted)).

"In ruling upon a new trial motion, a district court may set aside a jury verdict if the court has determined that the verdict is against the clear weight of the evidence or that the granting of a new trial is necessary to prevent injustice." Crowley Beverage Company v. Miller Brewing Company, 862 F.2d 688, 690 (8th Cir. 1988). See also VanSteenburgh v. Rival Company, 171 F.3d 1155, 1160 (8th Cir. 1999) ("A new trial is appropriate if the verdict is against the weight of the evidence and if allowing it to stand would result in a miscarriage of justice"). Further, the court is entitled to interpret the evidence and judge the credibility of witnesses, "but it may not usurp the role of the jury by granting a new trial simply because it believes other inferences and conclusions are more reasonable." VanSteenburgh, 171 F.3d at 1160. See also Beckman v. Mayo Foundation, 804 F.2d 435, 439 (8th Cir. 1996) ("The district court has discretion to grant or deny a new trial based on its reading of the evidence."). "A district court's denial of a motion for a new trial based on the sufficiency of the evidence is `virtually unassailable on appeal' and will be disturbed only upon a finding of a clear abuse of discretion." Stephens v. Rheem Manufacturing Company, 220 F.3d 882, 885 (8th Cir. 2000).

In this case the defendant invites the court to substitute its judgment for that of the jury. Based upon a review of the evidence and its recollection of the testimony at trial, this court declines the invitation. The court finds that the verdict is not only not against the weight of the evidence, but that a reasonable jury was justified in reaching a verdict in favor of the plaintiff based on the evidence presented.

Nash Finch's position that the inclusion of the jury instruction defining "bona fide seniority system" was improper is again rejected by the court. Defendant asserts that the pay differential was based on a "specific" seniority system as opposed to a "bona fide" seniority system. The court views this as simply a "play on words" and that there is no real distinction in law between the two positions. Thus, it is the court's continued position that it was proper to advise the jury what type of seniority system would qualify as a defense. In addition, the defendant's requested instructions regarding factor other than sex and red circle rates were also given to the jury, permitting the defendant to argue its defenses to the jury.

Further, the court rejects the defendant's position that a new trial is warranted because the court deferred ruling on an evidentiary issue raised in one of defendant's motions in limine. The defendant had every opportunity to object to the evidence at the time of trial and chose not to so object, for whatever reason. In addition, the court's recollection is that much of the testimony came in through questioning by defense counsel and through defense witnesses. The admission of this evidence is hardly grounds for granting a new trial. Therefore, defendant's motion for new trial is DENIED.

C. Remittitur

Nash Finch contends that the verdict in the amount of $31,897 is excessive and the court should grant a remittitur in accordance with the calculations the defendant now provides. Remittitur is only appropriate when "the verdict is so grossly excessive as to shock the court's conscience." American Business Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135, 1146 (8th Cir. 1986) (citing Ouachita National Bank v. Tosco Corp., 716 F.2d 485, 488 (8th Cir. 1983)). The Eighth Circuit will only reverse a denial of remittitur when "pressed to conclude that the verdict represents a monstrous or shocking injustice." Id. (citing Vanskike v. Union Pacific Railroad Co., 725 F.2d 1146, 1149-50 (8th Cir. 1984)). The appellate court has recognized its scope over a damage award as "extremely narrow" and has stated it will not reverse "except for a manifest abuse of discretion." Id. (citing Murray v. Faribanks Morse, 610 F.2d 149, 152-53 (3rd Cir. 1979)). Such injustice is simply not present in the award in this case. Plaintiff presented testimony through her expert as to the amount of back pay to be awarded. Defendant neither objected to the expert's calculations nor provided contrary evidence at the time of trial. The jury's award was based on the only evidence presented to it and cannot be said to shock the conscience or demonstrate a shocking injustice. Accordingly, defendant's motion for remittitur is DENIED.

The issue of prejudgment interest is addressed in the liquidated damages portion of this opinion.

D. Liquidated Damages

Plaintiff seeks liquidated damages in the amount of the back pay award pursuant to Title 29 United States Code section 216(b). This section provides, in relevant part:

Any employer who violates the provisions of section 206 or 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.
29 U.S.C. § 216(b) (emphasis added). The Eighth Circuit has recognized the applicability of the FLSA liquidated damages provision to Equal Pay Act claims, stating: "The district court has the discretion to deny liquidated damages under the Equal Pay Act if `the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation.'" McKee v. BiState Development Agency, 801 F.2d 1014, 1018 (8th Cir. 1986) (quoting 29 U.S.C. § 260)). In Jarrett v. ERC Properties, Inc., 211 F.3d 1078 (8th Cir. 2000) the court held that an award of liquidated damages is mandatory upon a finding of a violation of the FLSA "unless the employer can show good faith and reasonable grounds for believing that it was not in violation of the FLSA." Id. at 1083 (citing Braswell v. City of El Dorado, 187 F.3d 954, 957 (8th Cir. 1999)). The standard of review of the court's determination of "good faith" is clear error and the court is to be awarded great deference in resolving the liquidated damages issue. Id. (citing Herman v. Roosevelt Fed. Sav. Loan Ass'n, 569 F.2d 1033, 1035 (8th Cir. 1978)); see also Soto v. Adams Elevator Equipment Company, 941 F.2d 543 (7th Cir. 1991) (An award of liquidated damages by the district court will not be reversed absent an abuse of discretion).

The Second Circuit, in addressing an application for liquidated damages, set out the employer's heavy burden, stating:

The employer bears the burden of proving good faith and reasonableness, but the burden is a difficult one, with double damages being the norm and single damages the exception. To establish good faith, the employer must take active steps to ascertain the dictates of the FLSA and then act to comply with them.

Herman v. RSR Security Services Ltd., 172 F.3d 132, 142 (2nd Cir. 1999) (citations omitted).

The court finds that Nash Finch has failed to prove the requisite good faith. In response to the motion for liquidated damages Nash Finch simply reiterated its alleged justifications for the pay differential. In addition, contrary to the burden articulated by the Second Circuit, Nash Finch demonstrated no action to ascertain whether its practice of paying the packroom employees less than the general warehouse employees was in violation of the law, despite having the violation brought to its attention on a number of occasions. The jury found that Nash Finch paid plaintiff less than her male counterparts for equal work duties, based solely on her sex, and rejected all of the defendant's contentions to the contrary. That finding alone is sufficient to support a liquidated damage award in this case. See McKee v. Bi-State Development Agency, 801 F.2d 1014, 1019-20 (8th Cir. 1986) (Reversing the district court's denial of liquidated damages, the court stated: "The district court's finding that Bi-State acted in good faith cannot be reconciled with the jury verdict of discrimination due to sex. . . . Bi-State's practice of paying different wages to employees who performed the same job clearly violated the Act."); Herndon v. Wm. A. Straub, Inc., 17 F. Supp.2d 1056, 1063 (E.D.Mo. 1998). Plaintiff's Motion for an Award of Liquidated Damages is GRANTED.

Defendant asserts that, in the event plaintiff prevails on her claim for liquidated damages, she is not entitled to receive prejudgment interest in addition to the liquidated damages award. The court agrees. The Eighth Circuit, recognizing that prejudgment interest and liquidated damages are intended to serve the same purpose, has held that the plaintiff is not entitled to double recovery, stating: "It is settled that the FLSA does not permit successful plaintiffs to obtain prejudgment interest in addition to liquidated damages because that would enable them to obtain double recovery." Gibson v. Mohawk Rubber Company, 695 F.2d 1093, 1101 (8th Cir. 1982). Therefore, plaintiff shall receive liquidated damages in the amount equal to the verdict awarded by the jury but shall not receive any prejudgment interest on either the verdict amount or the amount of liquidated damages.

III. Conclusion

For the foregoing reasons, IT IS ORDERED that:

1. Defendant's Motion for Judgment as a Matter of Law and/or New Trial and Motion for Remittitur (Doc. # 212) is DENIED.

2. Plaintiff's Motion for Liquidated Damages (Doc. # 208) is GRANTED. IT IS SO ORDERED.

Summaries of

Bjerke v. Nash Finch Company

United States District Court, D. North Dakota, Southeastern Division
Dec 4, 2000
Civil No. A3-98-134 (D.N.D. Dec. 4, 2000)
Case details for

Bjerke v. Nash Finch Company

Case Details

Full title:Debra I. Bjerke, Plaintiff, v. Nash Finch Company, Defendant

Court:United States District Court, D. North Dakota, Southeastern Division

Date published: Dec 4, 2000


Civil No. A3-98-134 (D.N.D. Dec. 4, 2000)