Anthony Ash v. Tyson Foods, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 19, 2005
No. 04-11695
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-03257-CV-RRA-M
ANTHONY ASH,
JOHN HITHON,
Plaintiffs-Appellants,
EDDIE BULLOCK, et al.,
Plaintiffs,
versus
TYSON FOODS, INC.,
a corporation,
Defendant-Appellee,
THOMAS HARTLEY, an individual,
Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 19, 2005)
Before DUBINA, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Appellants Anthony Ash and John Hithon, black males, (collectively “the
appellants”) appeal the district court’s orders (1) granting Tyson Foods, Inc.’s
renewed motion for judgment as a matter of law, pursuant to Fed. R. Civ. P. 50(b),
on their 42 U.S.C. § 2000e et seq. (“Title VII”) and 42 U.S.C. § 1981discrimination claims, and (2) alternatively granting Tyson’s motion for a new
trial, pursuant to Fed. R. Civ. P. 50(c), on the basis that the jury’s punitive and
compensatory damages awards were excessive and unsupported by the evidence.
We affirm in part and reverse and remand in part.
During the summer of 1995, the appellants, who were superintendents at
Tyson’s Gadsen, Alabama poultry plant, applied for two shift manager positions at
the Gadsen plant. Thomas Hatley, the Gadsen plant manager, decided to hire
Randy King and Steve Dade, white males, for the two shift manager positions.
Following Hatley’s decision to choose King and Dade for the shift manager
positions, the appellants filed suit, claiming, inter alia, that their failure to be
promoted to the shift manager positions violated their rights under Title VII and 42
U.S.C. § 1981.
A. Judgment as a Matter of Law
2
On appeal, the appellants initially argue that the district court should not
have granted Tyson’s renewed motion for judgment as a matter of law because it
had denied the motions for judgment as a matter of law at trial and there were no
intervening events to justify the court to change its mind. The appellants then
contend that Tyson’s reasons for not promoting them were pretextual. In support
of the pretext argument, the appellants argue that: (1) Hatley provided shifting
reasons for his decision not to hire them; (2) Hatley used qualifications that
(a) were not required by company policy, and (b) excluded the appellants;
(3) Hatley only checked references for black candidates and did not review King’s
or Dade’s performance reviews or personnel files; (4) Hatley lied about a college
degree requirement for the shift manager position; (5) Hatley offered King the shift
manager position before interviewing Hithon for the job; (6) Hatley hand-picked
Dade for the shift manager position despite telling the superintendents that he
would hold the position open before deciding on the promotion; (7) Tyson failed to
prove that the Gadsen plant was losing money when Ash and Hithon were
superintendents; and (8) Hatley’s decision was made in an atmosphere where black
employees were treated differently, including Hatley’s cool demeanor toward the
appellants and his statements referring to the appellants as “boys.”
We review a district court’s grant of a Fed. R. Civ. P. 50(b) renewed motion
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for judgment as a matter of law de novo and apply the same standard as the district
court. See Abel v. Dubberly, 210 F.3d 1334, 1337 (11th Cir. 2000). In reviewing
the evidence, we draw all factual inferences and resolve all credibility
determinations in favor of the non-moving parties, which in this case are Ash and
Hithon. Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1344-45 (11th Cir.
2000). However, “the non-movant must put forth more than a mere scintilla of
evidence suggesting that reasonable minds could reach differing verdicts[,]” and
must show “[a] substantial conflict in the evidence . . . before a matter will be sent
to the jury.” Abel, 210 F.3d at 1337. “Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 150, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000) (citation and
internal quotation omitted). “A motion for judgment as a matter of law will be
denied only if reasonable and fair-minded persons in the exercise of impartial
judgment might reach different conclusions.” Abel, 210 F.3d at 1337 (citation,
internal punctuation and quotation omitted).
Title VII of the Civil Rights Act of 1964 prohibits an employer from
“discriminat[ing] against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such individual’s race . . . .”
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42 U.S.C. § 2000e-2(a)(1). Under 42 U.S.C. § 1981, every person in the United
States:
shall have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens, and shall be subject to
like punishment, pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.
42 U.S.C. § 1981(a). This statute is interpreted as “afford[ing] a federal remedy
against discrimination in private employment on the basis of race.” Johnson v.
Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1720, 44
L.Ed.2d 295 (1975). When a case of intentional discrimination is brought under
either Title VII or § 1981, we employ the McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), framework. See Cooper
v. Southern Co., 390 F.3d 695, 724 n.16 (11th Cir. 2004).
Under McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, the plaintiff
must first establish a prima facie case of discrimination, which a plaintiff
establishes in a failure to promote case by showing that: (1) “he is a member of a
protected class”; (2) “he was qualified for and applied for the promotion”; (3) “he
was rejected”; and (4) “other equally or less qualified employees who were not
members of the protected class were promoted.” Combs v. Plantation Patterns,
106 F.3d 1519, 1539 n.11 (11th Cir. 1997) (citations omitted). Once a prima facie
5
case is developed, the defendant has the burden of producing a legitimate,
non-discriminatory reason for its decision. See Reeves, 530 U.S. at 142, 120 S.Ct.
at 2106. Once these two burdens have been met, the McDonnell Douglas
framework disappears, and the sole issue is whether the employer acted
discriminatorily. Id. at 142-43, 120 S.Ct. at 2106. The plaintiff always has the
ultimate burden to prove that discrimination existed and may establish
discrimination “by showing that the employer’s proffered explanation is unworthy
of credence.” Id. (citation and internal quotation omitted). Therefore, “a plaintiff’s
prima facie case, combined with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.” Id. at 148, 120 S.Ct. at 2109. However, an
employer would be entitled to judgment as a matter of law where “the plaintiff
created only a weak issue of fact as to whether the employer’s reason was untrue
and there was abundant and uncontroverted independent evidence that no
discrimination had occurred.” Id. (citations omitted).
We have held that isolated general racial comments “are not direct evidence
of discrimination because they are either too remote in time or too attenuated
because they were not directed at the plaintiff, . . . [. However,] we have not held
that such comments can never constitute circumstantial evidence of
6
discrimination.” Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291 (11th Cir.
1998) (citation omitted). When a racial comment is provided as evidence, we
examine whether the comment “when read in conjunction with the entire record,
[is] circumstantial evidence of those decision makers’ discriminatory attitude. If
so, the court must then determine whether such circumstantial evidence, along with
other evidence . . ., might lead a reasonable jury to disbelieve [the employer’s]
proffered reason for [not promoting the employee].” Id. at 1292. While the use of
“boy” when modified by a racial classification like “black” or “white” is evidence
of discriminatory intent, see Browning v. President Riverboat Casino-Missouri,
Inc., 139 F.3d 631, 635 (8th Cir. 1998) (indicating that the use of “that white boy”
was evidence of a discriminatory attitude), the use of “boy” alone is not evidence
of discrimination. See Ruby v. Springfield R-12 Public School Dist., 76 F.3d 909,
912 (8th Cir. 1996) (holding that referring to the appellant as “boy” and comments
about clothing and blacks committing more crimes were not evidence of pretext);
Bonner v. Home Depot, 323 F.Supp.2d 1250, 1258-59 (S.D. Ala. 2004), aff’d, No.
04-12887 (11th Cir. 2004) (finding that a single reference to a plaintiff as “boy”
was not evidence of pretext).
We have noted that “[s]tanding alone, deviation from a company policy does
not demonstrate discriminatory animus.” Mitchell v. USBI Co., 186 F.3d 1352,
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1355-56 (11th Cir. 1999) (citation omitted). However, we have also observed that
deviation from company policy can be circumstantial evidence of discrimination,
especially where the rules were bent or broken to give a non-minority applicant an
advantage. See Carter v. Three Springs Residential Treatment, 132 F.3d 635, 644
(11th Cir. 1998); see also Berg v. Fla. Dept. of Labor and Employment Sec., Div.
of Vocational Rehab., 163 F.3d 1251, 1255 (11th Cir. 1998) (suggesting that
failure to adhere to or inconsistent application of policies may be circumstantial
evidence of discrimination where there is a showing that the policies were applied
to others). Additionally, a plaintiff’s showing that an employer’s reason for not
following a company policy was pretextual does not establish intentional
discrimination without a finding that the employer acted because of race. See
Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 528 (11th Cir. 1983).
Finally, we have indicated that the issue in discrimination cases is not
whether one employee is better qualified than another because we do not sit in
judgment of an employer’s decision. See Cooper v. Southern Co., 390 F.3d 695,
732 (11th Cir. 2004). As a result, “[i]n a failure to promote case, a plaintiff cannot
prove pretext by simply showing that []he was better qualified than the individual
who received the position that []he wanted.” See Lee v. GTE Florida, Inc.,
226 F.3d 1249, 1253 (11th Cir. 2000). Pretext can be established through
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comparing qualifications only when “the disparity in qualifications is so apparent
as virtually to jump off the page and slap you in the face.” Cooper, 390 F.3d at
732 (citation and internal quotation omitted). However, an employee’s showing
that the employer hired a less qualified candidate is probative of whether the
employer’s reason is pretextual, but not proof of pretext. Lee, 226 F.3d at 1253.
After reviewing the record in the present case, we conclude that Ash did not
present sufficient evidence for a reasonable jury to find that Tyson discriminated
against him because none of the evidence applicable to his claims establishes
discrimination. However, we conclude that Hithon presented a sufficient case of
discrimination because he demonstrated that Hatley interviewed him after Hatley
had already hired King, indicating that Hatley’s stated reasons for rejecting Hithon
– his lack of a college degree, his position as a manager at a financially troubled
plant, and his lack of experience outside of the Gadsen plant – were pretextual.
This evidence of pretext along with Hithon’s prima facie case of discrimination
was sufficient for the jury to decide whether Tyson discriminated. Accordingly,
we conclude that the district court did not err in granting Tyson’s motion for
judgment as a matter of law on Ash’s claims, but the court erred in granting the
motion for judgment as a matter of law on Hithon’s claims.
B. New Trial
9
Because the district court did not err in granting judgment as a matter of law
in favor of Tyson on Ash’s claims, the issue of whether the court should have
alternatively granted a new trial is moot for Ash. However, because we conclude
that the district court erred in granting a motion for judgment as a matter of law on
Hithon’s claims, we turn to his appeal of the district court’s alternative grant of a
new trial.
On appeal, Hithon argues that the district court erred in alternatively
granting Tyson’s motion for a new trial because: (1) the court’s order provided no
basis for its decision, making it impossible for him to appeal specific grounds for
the decision or to allow it to be reviewed at the appellate level; (2) the court’s
decision that the ratio between the punitive and compensatory damages awards was
premature as the court failed to determine back pay and attorney’s fees; and (3) he
presented sufficient evidence to support the jury’s award of compensatory
damages. Also, Hithon adopts his district court brief, contesting the district court’s
decision to grant a new trial.
1. Standard of Review
We review a district court’s grant of a new trial for an abuse of discretion.
F.D.I.C. v. Stahl, 89 F.3d 1510, 1514 (11th Cir. 1996). In employing the abuse of
discretion standard for granting new trials, we use a more stringent approach. Id.10
The district court “should grant a motion for a new trial when
the verdict is against the clear weight of the evidence or will result in
a miscarriage of justice, even though there may be substantial
evidence which would prevent the direction of a verdict. . . . Because
it is critical that a judge does not merely substitute his judgment for
that of the jury, new trials should not be granted on evidentiary
grounds unless, at a minimum, the verdict is against the great--not
merely the greater--weight of the evidence.”
Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th
Cir. 2001) (internal citations and quotations omitted).
2. Punitive Damages
“[P]unitive damages ‘are awarded solely to punish defendants and deter
future wrongdoing.’” U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 616 (11th Cir.
2000) (quoting Walters v. City of Atlanta, 803 F.2d 1135, 1147 (11th Cir. 1986).
We have held that punitive damages are available under § 1981. See Claiborne v.
Illinois Cent. R. R., 583 F.2d 143, 154 (5th Cir. 1978);1 see also Johnson v.
Railway Express Agency, Inc., 421 U.S. at 460, 95 S.Ct. at 1720 (stating in dictum
that punitives are available in § 1981 actions). Under Title VII, punitive damages
are also available if the plaintiff shows the employer “engaged in a discriminatory
practice or discriminatory practices with malice or with reckless indifference to the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we
adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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federally protected rights of an aggrieved individual.” See 42 U.S.C.
§ 1981a(b)(1). However, where a plaintiff has both Title VII and 42 U.S.C. § 1981discrimination claims, the plaintiff is not constrained by the damage caps under
Title VII and may recover under § 1981. See 42 U.S.C. § 1981a(a)(1), (b)(4).
“[A]ny case law construing the punitive damages standard set forth in § 1981a . . .
is equally applicable to clarify the common law punitive damages standard with
respect to a § 1981 claim.” See Lowery v. Circuit City Stores, Inc., 206 F.3d 431,
441 (4th Cir. 2000).
As a result, punitive damages are available under 42 U.S.C. § 1981 when an
“employer has engaged in intentional discrimination and has done so with malice
or with reckless indifference to the federally protected rights of an aggrieved
individual.” Kolstad v. American Dental Ass’n, 527 U.S. 526, 529-30, 119 S.Ct.
2118, 2122, 144 L.Ed.2d 494 (1999) (quotation omitted). “‘[M]alice’ or ‘reckless
indifference’ pertain to the employer’s knowledge that it may be acting in violation
of federal law, not its awareness that it is engaging in discrimination.” Id. at 535,
119 S.Ct. at 2124. “Malice means ‘an intent to harm’ and recklessness means
‘serious disregard for the consequences of [one’s] actions.’” U.S. E.E.O.C. v.
W&O, Inc., 213 F.3d at 611 (citation omitted) (alteration in original). Intentional
discrimination will not rise to the level of maliciousness or recklessness where the
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employer: (1) is “unaware of the relevant federal prohibition”; or
(2) “discriminates with the distinct belief that its discrimination is lawful.”
Kolstad, 527 U.S. at 536-37, 119 S.Ct. at 2125. A plaintiff does not have to show
egregiousness or outrageous discrimination to prove punitive damages although
this is one form of proof. Id. at 538-39, 119 S.Ct. at 2126. Not only must the
plaintiff show maliciousness or recklessness, but he must also impute liability to
the employer. Id. at 539, 119 S.Ct. at 2126. The Supreme Court has held that an
employer will not be held liable for punitive damages where “the discriminatory
employment decisions of managerial agents . . . are contrary to the employer’s
good-faith efforts to comply with [42 U.S.C. § 1981].” See id. at 545, 119 S.Ct. at
2129 (quotation omitted). In the absence of evidence of a good-faith effort to
comply with § 1981, an employer will be liable for actions of its agent when the
agent served the employer in a managerial capacity and committed the intentional
discrimination at issue while acting in the scope of employment. See id. at 542-43,
119 S.Ct. at 2128.
As initial matters, we first conclude that Hithon first cannot adopt arguments
from his district court brief contesting Tyson’s motion for a new trial. See Four
Seasons Hotels and Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4
(11th Cir. 2004) (“reject[ing] the practice of incorporating by reference arguments
13
made to district courts, and . . . hold[ing] that [the appellant] . . . waived the
arguments it ha[d] not properly presented for review”). Second, Hithon’s
argument that the district court failed to give reasons for its decision to grant a new
trial as required by Fed. R. Civ. P. 50(c) is without merit because the court stated
its reasons by determining that the compensatory and punitive damages awards
were “against the great weight of the evidence and [were] outrageously excessive
and shocking to the judicial conscience.”
We conclude that the district court did not abuse its discretion in granting a
new trial on the basis of the jury’s punitive damages award because the evidence
was insufficient to support an award of punitive damages as Hithon has failed to
present any evidence that Hatley knew he was violating federal law when he failed
to promote Hithon. Moreover, because Hithon failed to establish that Hatley acted
with malice or reckless indifference to his federal rights, we conclude that the
district court did not err in granting a new trial on the punitive damages award.
3. Compensatory Damages
This court has stated that “[a]lthough compensable damage must be proven, .
. . general compensatory damages, as opposed to special damages, need not be
proven with a high degree of specificity.” Ferrill v. Parker Group, Inc., 168 F.3d
468, 476 (11th Cir. 1999). “Compensatory damages may be inferred from the
14
circumstances” or proven through testimony. Id. (citation and internal quotation
omitted). Evidentiary shortcomings go to the amount of loss, not to the issue of
damages. Id. Under § 1981, compensatory damages encompass: (1) emotional
harms such as humiliation and insult; (2) intangible, psychological injuries; or
(3) financial, property, or physical harms. Id. (citations omitted). There is no
requirement that emotional damages be proven through medical evidence or expert
testimony. See Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997)
(holding that “medical or other expert evidence was not required to prove
emotional distress and that there was sufficient evidence of emotional distress”)
(persuasive authority).
After reviewing the record, we conclude that the district court did not abuse
its discretion in granting the motion for a new trial on the compensatory damages
award because Hithon provided insubstantial evidence to support the jury’s
$250,000 compensatory damages award.
For the foregoing reasons, we affirm the district court’s grant of judgment as
a matter of law in favor of Tyson on Ash’s discrimination claims. We reverse the
district court’s grant of judgment as a matter of law in favor Tyson on Hithon’s
discrimination claims. However with respect to Hithon, we affirm the district
court’s decision to alternatively grant a new trial because there was insufficient
15
evidence to support the jury’s punitive damages award and the compensatory
damages award was excessive. We remand this case for the district court to
conduct further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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