Anthony Ash v. Tyson Foods, Inc.

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16135 DECEMBER 16, 2011
________________________ JOHN LEY
CLERK
D. C. Docket No. 96-03257-CV-RRA-M
ANTHONY ASH,
et al.,
Plaintiffs,
JOHN HITHON,
Plaintiff-Appellant-
Cross-Appellee,
versus
TYSON FOODS, INC., a corporation,
Defendant-Appellee-
Cross-Appellant,
THOMAS HATLEY, an individual,
Defendant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(December 16, 2011)
ON PETITION FOR REHEARING
Before CARNES and PRYOR, Circuit Judges, and DOWD,* District Judge.
CARNES, Circuit Judge:
The last opinion we issued in this case, Ash v. Tyson Foods, Inc., 392 F.
App’x 817 (11th Cir. 2010) (Ash IV), was the fourth one in a series from this
Court. See Ash v. Tyson Foods, Inc., 31 F. App’x 938 (11th Cir. 2002) (Ash I);
Ash v. Tyson Foods, Inc., 129 F. App’x 529 (11th Cir. 2005) (Ash II), vacated,
546 U.S. 454, 126 S. Ct. 1195 (2006), reinstated, Ash v. Tyson Foods, Inc., 190 F.
App’x 924 (11th Cir. 2006) (Ash III).
After our Ash IV opinion issued, John Hithon filed a petition for rehearing
en banc, which also operates as a petition for panel rehearing. See 11th Cir. R.
35-5. We grant that petition and vacate our earlier Ash IV opinion in this case,
except that we incorporate by reference the facts and the long procedural history
of this case that were set out in our earlier opinion, see Ash IV, 392 F. App’x at
818–24, although we will also repeat some of it now for the convenience of the
reader.
I.
*
Honorable David D. Dowd, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.
This case at one time involved multiple plaintiffs and multiple claims. It is
now down to one plaintiff and one claim. This appeal involves that one remaining
plaintiff, John Hithon, who is African-American, and his one remaining claim,
which is a 42 U.S.C. § 1981 racial discrimination claim based on Tyson Foods’
failure to promote him to shift manager at its Gadsden, Alabama chicken
processing plant. See Ash IV, 392 F. App’x at 818–19.
A.
Two shift manager slots became open at that plant in the summer of 1995
after the then-new plant manager, Tom Hatley, who is white, denied raises to the
white woman and the white man who had held those jobs. According to Hatley,
the Gadsden plant was performing poorly and he thought the two managers did not
deserve raises. In response they quit, and Hatley later filled their two shift
manager positions with white men, first Randy King and then Steve Dade. That
happened in July and August of 1995. In December of 1996, this lawsuit was
filed. In it Hithon claimed that Tyson discriminated against him based on his race
by promoting King and Dade to the two shift manager positions.
Ash I involved Hithon and five other plaintiffs who brought, among other
claims, race and sex discrimination and retaliation claims against Tyson. In an 89-
page opinion, the district court denied Tyson’s motion for summary judgment on:
3
Hithon and Anthony Ash’s promotion discrimination claims, two other plaintiffs’
retaliation claims, and one other plaintiff’s fraudulent inducement of employment
claim. The court granted Tyson’s motion for summary judgment as to all of the
other claims, and it later certified its judgment as final under Federal Rule of Civil
Procedure 54(b), permitting the plaintiffs to appeal. They did, and this Court
affirmed the district court’s order in Ash I.
B.
After proceedings resumed in the district court on the claims that had
survived summary judgment, the court granted Tyson’s motion to sever, holding
that the promotion discrimination claims of Hithon and Ash would be tried
separately from those of the three other remaining plaintiffs.1 Ash and Hithon’s
case went to trial, and the jury returned a verdict in their favor, awarding each of
them $250,000 in compensatory damages and $1.5 million in punitive damages.
The district court held that Hithon and Ash had presented insufficient evidence of
pretext, and it granted Tyson’s Rule 50(b) motion for judgment as a matter of law
on Ash’s and Hithon’s claims.
In Ash II we affirmed all of the district court’s judgment except for the part
that disposed of Hithon’s 42 U.S.C. § 1981 claim. On that claim we held there
1
Those three other plaintiffs later agreed to the dismissal of their claims with prejudice.
4
was enough evidence for a reasonable jury to find that racial discrimination was
the reason that Hithon, who is African-American, was not promoted to shift
manager. See Ash II, 129 F. App’x at 534. Our holding focused on and was
dependent upon the factual premise that Hithon had not been interviewed until
after one of the two open shift manager positions had already been filled by Randy
King. We explained in Ash II:
[W]e conclude that Hithon presented a sufficient case of
discrimination because he demonstrated that [plant manager] 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 Gads[d]en 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 [co-plaintiff] Ash’s claims, but the court erred in granting the
motion for judgment as a matter of law on Hithon’s claims.
Ash II, 129 F. App’x at 534. As we later explained in our Ash IV opinion,
however, our judgment in Ash II was vacated by the Supreme Court for two
reasons:
Our judgment [in Ash II] was vacated by the Supreme Court. Ash v.
Tyson Foods, Inc., 546 U.S. 454, 126 S. Ct. 1195, 163 L. Ed. 2d 1053
(2006) (per curiam). The Court concluded that: “The judgment of
the Court of Appeals, and the trial court rulings it affirmed, may be
correct in the final analysis. In the course of its opinion, however, the
Court of Appeals erred in two respects, requiring that its judgment
5
now be vacated and the case remanded for further consideration.” Id.
at 456, 126 S. Ct. at 1196.
First, the Supreme Court took issue with this Court’s analysis of the
racial implications of the word “boy.” It instructed us that while the
use of the word “boy” does not always evidence racial animus, neither
is its use without modifiers always benign. Id., 126 S. Ct. at 1197.
The Court stated: “The speaker’s meaning may depend on various
factors including context, inflection, tone of voice, local custom, and
historical usage.” Id.
Second, the Court rejected the “jump off the page and slap you in the
face” standard for inferring pretext based on a comparison of
qualifications. Id. at 456–57, 126 S. Ct. at 1197. Finally, the
Supreme Court directed this Court to “determine in the first instance
whether the two aspects of its decision here determined to have been
mistaken were essential to its holding” and remanded for further
proceedings consistent with its opinion. Id. at 458, 126 S. Ct. at
1198.
Ash IV, 392 F. App’x at 822.
C.
In Ash III, which was issued after the case came back before us on remand
from the Supreme Court, we once again addressed the evidence in the record (of
the first trial) about Hatley’s use of the word “boy,” concluding:
After reviewing the record, we conclude once again that the use of
“boy” by Hatley was not sufficient, either alone or with the other
evidence, to provide a basis for a jury reasonably to find that Tyson’s
stated reasons for not promoting the plaintiffs was racial
discrimination. The usages were conversational and as found by the
district court were non-racial in context. But even if somehow
construed as racial, we conclude that the comments were ambiguous
6
stray remarks not uttered in the context of the decisions at issue and
are not sufficient circumstantial evidence of bias to provide a
reasonable basis for a finding of racial discrimination in the denial of
the promotions. The lack of a modifier in the context of the use of the
word “boy” in this case was not essential to the finding that it was not
used racially, or in such a context as to evidence racial bias, in the
decisions at issue, even if “boy” is considered to have general racial
implications. The statements were remote in time to the employment
decision, totally unrelated to the promotions at issue, and showed no
indication of general racial bias in the decision making process at the
plant or by Hatley. Moreover, there is nothing in the record about the
remaining factors to support an inference of racial animus in the use
of the term “boy.”
Ash III, 190 F. App’x at 926. As for comparative qualifications, this Court held
that the “‘jump off the page test’ was not essential to [our] initial conclusion that
the comparative qualifications evidence did not provide sufficient evidence of
pretext.” Id. at 927. We stated:
On this record, we conclude that the plaintiffs did not meet their
burden under Cooper to show that the disparities between their
qualifications and the qualifications of King and Dade were “of such
weight and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the
plaintiff for the job in question.”
Id. (quoting and applying the standard from Cooper v. Southern Co., 390 F.3d
695, 732 (11th Cir. 2004)).
After reaching those conclusions, we “reinstate[d] the previous holdings of
our [Ash II ] decision.” Ash III, 190 F. App’x at 927. Those previous holdings in
7
Ash II, which we reinstated in Ash III, included a remand for a new trial on
Hithon’s § 1981 claim that Tyson’s failure to promote him to shift manager was
based on racial discrimination. See Ash II, 129 F. App’x at 536. That remand for
a new trial in Ash II and Ash III was not on the basis of insufficient evidence to
support the jury’s finding that the reason Tyson had not promoted Hithon to shift
manager was racial discrimination. Instead, we specifically held that there was
enough evidence to support that finding, which is why we “reverse[d] the district
court’s grant of judgment as a matter of law in favor of Tyson on Hithon’s
discrimination claims.” Ash III, 190 F. App’x at 927.
The reason we reversed the judgment as a matter of law in favor of Tyson
on Hithon’s promotion discrimination claim in Ash II and Ash III was that we
concluded Hithon had established a prima facie case of discrimination, and there
was some evidence (at the first trial) that could lead a reasonable jury to find that
Hatley had not interviewed Hithon until he had already hired King. Ash II, 129 F.
App’x at 534. That particular evidence about the timing of the interviews for that
slot was enough to support the jury’s verdict in favor of Hithon and against Tyson
on the § 1981 racial discrimination claim.
If there had not been any further issues requiring a new trial, in Ash III we
would have affirmed the judgment in favor of Hithon based on the evidence
8
presented at the first trial. But there were other issues that did require a new trial.
The district court had alternatively ruled that Hithon had not presented enough
evidence to support a compensatory damages award in the amount of $250,000 or
to support any punitive damages award at all. We affirmed those rulings, which
meant that the case had to be sent back for a second trial notwithstanding the
sufficiency of the evidence to support Hithon’s § 1981 claim. Ash III, 190 F.
App’x at 927 (“[W]e affirm the district court’s order alternatively granting a new
trial because there was insufficient evidence to support the jury’s punitive
damages award, and the compensatory damages award was excessive.”).
D.
During the second trial, the one that followed our decision in Ash III, there
were a number of changes in the evidence. One thing that changed was the
evidence about the timing of the King hire,2 which went to the issue of pretext.
The evidence at the second trial ruled out the factual conclusion that the evidence
in the first trial would have allowed the jury to reach about the timing of events
that were crucial to filling the shift manager position that went to King.
2
King was already working as a shift manager at a Tyson plant in Arkansas when Hatley
chose him to fill one of the shift manager slots at the Gadsden plant. Technically speaking, King
made a lateral move and was actually transferred instead of being “hired” or “promoted,” but to
simplify matters we follow the parties’ lead and refer to him in this opinion as having been hired
for the shift manager position at the Gadsden plant.
9
The evidence at the second trial, which included Hithon’s own testimony on the
subject, established that Hithon had met with Hatley (the decision maker) and had
discussed his interest in the shift manager position before King was hired, not
afterwards as the evidence at the first trial had indicated. That change meant that,
unlike the situation at the first trial, which is the evidence we were considering in
Ash II and Ash III, at the second trial there was no evidence that Hatley had failed
to even talk with Hithon until after the slot that went to King had been filled. So,
the racial discrimination claim could not survive at the second trial on the theory
that pretext was shown by the failure of Hatley to talk with Hithon about one of
the slots until he had already filled it with King. That theory was out.
As we explained in our earlier Ash IV opinion, during the liability phase of
the second trial Tyson sought judgment as a matter of law at the close of Hithon’s
evidence and then moved for a directed verdict at the close of all evidence. Ash
IV, 392 F. App’x at 819. The district court denied those motions. Id. In its
verdict the jury answered special interrogatories and found that Hatley did not
discriminate against Hithon based on race when he hired King for one of the two
shift manager positions, but he did discriminate when he promoted Steve Dade to
the other open shift manager position. See id. at 824. The jury awarded Hithon
10
compensatory damages in the amount of $335,000 and $1,000,000 in punitive
damages. Id. at 819.
After the jury returned its verdict, Tyson renewed its motion for judgment as
a matter of law under Rule 50(b), and the district court denied that motion in part
and granted it in part. See id. The court ruled that there was enough evidence for
Hithon’s discrimination claim to have gone to the jury but that there was not
enough “evidence to support a finding that Hatley’s actions warranting punitive
damages could be imputed to Tyson.” Id. Tyson had also filed a Rule 59 motion
for remittitur of the jury’s compensatory damages award or, alternatively, a new
trial, which the court denied. See id. The result was that the district court entered
judgment for Hithon in the amount of $35,000.00 for back pay, $29,049.33 for
back pay interest, and $300,000.00 for mental anguish, for a total award of
$364,049.33 in compensatory damages, but the court set aside the jury’s award of
$1,000,000 in punitive damages. All of that led to this appeal by Hithon and
cross-appeal by Tyson.
II.
Hithon’s appeal challenges the district court’s judgment vacating the jury’s
punitive damages award. Tyson’s cross-appeal challenges: the district court’s
refusal to enter judgment in its favor based on the law of the case; the court’s
11
denial of its motion for judgment as a matter of law based on insufficient evidence
of discrimination; a number of evidentiary rulings the court made; and the court’s
refusal to order remittitur of the jury’s award of compensatory damages. We will
begin by addressing each of the issues raised in Tyson’s cross-appeal, since
Hithon’s appeal depends on the judgment in his favor on the discrimination claim
surviving Tyson’s cross-appeal.
A.
Tyson first contends that in Ash III this Court remanded the case for the sole
purpose of determining whether Hatley, the decision maker for Tyson, racially
discriminated against Hithon when he selected King for the first available shift
manager job, not whether he did so when he selected Dade for the second shift
manager position to become available. Tyson argues that the law of the case, as
established in Ash III, precluded the jury from considering whether Hatley
discriminated against Hithon in promoting Dade to fill that second slot. “We
review de novo the district court’s application of the law of the case doctrine.”
Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285 (11th Cir. 2004).
Under the law of the case doctrine, the district court and this Court are
bound by findings of fact and conclusions of law made by this Court in an earlier
appeal of the same case. Friedman v. Mkt. St. Mortg. Corp., 520 F.3d 1289, 1294
12
(11th Cir. 2008). There are, however, some exceptions to this doctrine, including
the presentation of “substantially different” evidence at a retrial. Id. at 1295
(quotation marks omitted). Our predecessor Court recognized that when a district
court’s judgment has been reversed and the case has been remanded for a new trial
the parties are permitted to introduce new evidence: “The parties [are] free on
such a reversal to introduce other evidence and to present by amendment new
issues, if not inconsistent with what the appellate court had adjudged.” Doran v.
Petroleum Mgmt. Corp., 576 F.2d 91, 93 (5th Cir. 1978) (quotation marks and
alteration omitted).3
When we issue “a limited mandate, . . . the trial court is restricted in the
range of issues it may consider on remand,” United States v. Davis, 329 F.3d
1250, 1252 (11th Cir. 2003), but our Ash III remand was not limited to the failure
to promote Hithon to the shift manager slot that King filled. While we might not
have reversed and remanded for a new trial but for the evidence at the first trial
concerning the King slot, the fact remains that we did not limit the new trial to the
issue of whether Hithon had been discriminated against with regard to that one
slot. We could have limited it in that way, but we did not. Instead, our remand
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
13
language stated that we: “reverse the district court’s grant of judgment as a matter
of law in favor of Tyson on Hithon’s discrimination claims.” Ash III, 190 F.
App’x at 927 (emphasis added). The use of the plural “claims” instead of the
singular “claim” indicates that we intended to leave open for the second trial both
the discrimination claim about the King slot and the discrimination claim about the
Dade slot. There were no other “claims” left in the case. The “claims” language
in our statement of reversal and remand established that we were sending the case
back for another trial on both the King slot and the Dade slot, leaving open the
possibility that different evidence at the second trial might establish that Tyson
had discriminated against Hithon based on race in filling the Dade slot. And there
was new and substantially different evidence at the second trial, including the
testimony of a number of witnesses who had not testified at the first trial.4
B.
Tyson contends that, even putting aside law of the case considerations, it
was entitled to judgment as a matter of law at the second trial. It argues that the
evidence did not support the jury’s finding that Hatley discriminated against
4
At the first trial there was testimony from nine witnesses on the liability issue, while at
the second trial there was testimony from twelve witnesses on that issue. And some of the
witnesses who testified at both trials gave testimony at the second trial that was more favorable
to the plaintiff than their testimony at the first trial had been.
14
Hithon on the basis of race in filling the second shift manager position because
there was insufficient evidence that the proffered race-neutral reasons for selecting
Dade instead of Hithon were pretextual.
“We review the denial of a motion for a judgment as a matter of law de
novo, and apply the same standards as the district court.” Goldsmith v. Bagby
Elevator Co., 513 F.3d 1261, 1275 (11th Cir. 2008). “We will reverse only if the
facts and inferences point overwhelmingly in favor of one party, such that
reasonable people could not arrive at a contrary verdict.” Id. (quotation marks
omitted). We view all the evidence and draw all inferences from it in the light
most favorable to Hithon because he is the nonmoving party. See id.
When pretext is the issue, and judgment as a matter of law to the defendant
is under consideration, we “must evaluate whether the plaintiff has demonstrated
such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (quotation marks
omitted). Having considered the parties’ arguments on rehearing and carefully
revisited the record, for the reasons discussed below we are convinced that enough
evidence was presented at the second trial for a reasonable juror to reject as
15
unworthy of credence Tyson’s proffered reasons for promoting Dade and to justify
the verdict in favor of Hithon on the § 1981 racial discrimination claim. See id. at
1538.
1.
Tyson’s proffered race-neutral reason for promoting Dade instead of Hithon
was that the Gadsden plant had been performing poorly and Hatley wanted
someone who had not been part of management during the plant’s period of poor
performance. We have held that when the proffered race-neutral reason “is one
that might motivate a reasonable employer, an employee must meet that reason
head on and rebut it, and the employee cannot succeed by simply quarreling with
the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th
Cir. 2000) (en banc). Tyson’s proffered reason was race-neutral and could have
motivated a reasonable employer’s selection decision, if it were true.
Hithon, however, did meet and rebut that proffered reason head on at the
second trial. He presented evidence that the Gadsden plant was not performing as
poorly as Tyson presented it to be, and that Dade himself had come from a Tyson
plant that was performing so poorly it had been closed. Dade worked at the Boaz,
Alabama plant before he came to the Gadsden, Alabama plant. Human resources
manager (at the complex level) Richard Allan Trotter testified at the second trial
16
that the Boaz plant had closed because of poor performance. Human resources
manager (at the plant level) Everneza Higgins testified that the Boaz plant was
rumored to have closed because of poor performance. Hatley, by contrast,
testified that the Boaz plant had closed because of lack of demand for the kind of
meat that plant produced. The testimony conflicted about why the Boaz plant
where Dade had served in a managerial position had closed. The jury was entitled
to resolve that conflict in the testimony and reasonably could have done so by
crediting the testimony of the two human resources managers and finding that the
plant from which Dade transferred had done at least as poorly as the Gadsden
plant. From that the jury would have had sufficient reason to disbelieve Tyson’s
proffered reason for selecting Dade instead of Hithon, especially in light of the
other evidence that Hithon presented at the second trial.
2.
In addition to meeting head on Hatley’s proffered reason for promoting
Dade and presenting evidence that it was false, Hithon presented evidence at the
second trial that Dade, unlike Hithon, failed to meet the minimum written and
unwritten requirements for the shift manager position. The written requirements
for the shift manager position were listed on a “job summary” and included “three
to five years experience.” It was undisputed that Hithon had thirteen years of
17
experience in the poultry industry when he applied for the shift manager job, while
Dade had only two. And there was testimony at the second trial indicating that the
required “experience” was poultry production experience. Human resources
manager Higgins testified that there was “a question” about whether Dade met the
minimum written requirements for the shift manager job. Lola Hithon, John
Hithon’s wife who worked in human resources at the Gadsden plant, testified that
Dade did not meet the minimum written requirements. She told the jury that:
“One of the minimum requirements for that position is that a person have three to
five years experience. And from my knowledge of Steve [Dade], his background
in poultry, he did not meet that requirement.” Anthony Ash, a former
superintendent at the plant and a former plaintiff in this case, testified that Dade
did not have the three to five years required experience.
In addition to presenting evidence about the written requirement of three to
five years experience for the shift manager position, Hithon presented evidence at
the second trial that there was an unwritten requirement that an applicant have
experience in both first and second processing to be seriously considered for a
shift manager position. Four management level former employees of Tyson, who
18
had worked at the Gadsden plant, testified that they had been told that experience
in both stages of processing was necessary.5
Ash was one of the four. He testified at the second trial that having
experience in both first and second processing was “a criteria for becoming a shift
manager or a superintendent.” According to Ash, “[i]f you wanted those jobs, you
had to work both processes.” He testified that Hatley himself told him that
experience in both types of processing was required, which is significant because
Hatley was the one who decided who would fill the shift manager positions.
Dale Carroll was another of the four witnesses who gave such testimony.
Carroll, who was promoted to shift manager at the Gadsden plant in 1994, was the
manager who quit after Hatley denied him a raise and whose slot was later filled
by Dade. He testified at the second trial that he had “been told” that “you needed”
first and second processing experience to be promoted to shift manager. Before
becoming a shift manager Carroll had one year of experience in first processing
and four years of experience in second processing.
James Blake, an African-American superintendent who had applied for a
shift manager position about the same time Hithon did, was the third person who
5
According to the evidence, “first processing” refers to the initial stages of processing a
chicken, which includes killing, while “second processing” involves the later stages.
19
testified at the second trial about the necessity of experience in both types of
processing. He testified that he was “told that if you wanted to move up to a shift
manager, you had to have both first and second processing experience.” Hithon
himself was the fourth witness on this matter. He testified that former plant
manager John Pittard told him that he “needed to be a superintendent in first
processing and second processing in order to be a shift manager.”
In addition to those four witnesses who testified that experience in both
types of processing was required, two others testified at the second trial that it was
desirable even if not absolutely required. John Pittard was plant manager at the
Gadsden plant from 1986 to 1994. He testified that while “there is no hard fast
rule” about the steps required before one could become a shift manager, “[m]ost of
the time” people who were promoted to shift superintendent or shift manager had
worked in either first or second processing, although “[t]hey could possibly come
out of one of the . . . support departments.” And he also testified that the “best
candidate” for shift manager “would have experience on both ends of the plant.”
Randy King, a white male who was promoted to shift manager in 1995, testified at
the second trial that he had first and second processing experience. He acquired
that experience in order to “obtain[] knowledge” because he “had aspirations to
learn it all and wanted to run it someday.”
20
Viewing the testimony of those six witnesses in the light most favorable to
Hithon, a jury reasonably could have found that Tyson had made experience in
first and second processing a necessary qualification for the shift manager
position, and that everyone recognized that it was highly desirable.
And it was undisputed that Hithon had extensive experience in both first and
second processing. There was evidence that Dade, by contrast, had either little or
no experience in either type of chicken processing. According to Ash, Dade had
worked in the personnel department—not in processing— at the Boaz plant before
he came to the Gadsden plant. Lola Hithon, who worked in human resources,
testified that Dade had human resources experience but that she was “not aware
of” his having any experience processing chickens.
There was also evidence presented that Dade had so little experience in
chicken processing that Ash and Hithon had to train him when he took over as
shift manager. Ash testified that Dade
told [him] that he didn’t know anything about the processing area,
that they had promoted him into the job and that he knew that I had
plenty of knowledge of the processing and that he would rely on me
to train him. And he said he was going to be like a monkey on my
back and he wanted to drain me of all the knowledge that I knew in
order for him to succeed.
21
Hithon testified that Dade admitted to him that “he didn’t have any production
experience, but he was willing to learn new things and he was going to drain all of
our minds.” Human resources manager Higgins testified that Hithon had
complained to her that Dade “didn’t know the job” and that “he and Mr. Ash were
having to train [Dade].”6
Hatley testified that Dade had worked as a “superintendent” at the Boaz
plant. Former shift manager Dale Carroll testified that Dade had been a
“supervisor” at Boaz. Higgins testified that Dade had “some production
experience.” Higgins did not say how much production experience Dade had, but
it could not have been much because he had worked in the poultry industry for
only a little over two years when he was promoted to the shift manager position at
the Gadsden plant.
In other words, there was a conflict in the evidence about whether Dade
completely lacked any processing experience, but no witness testified that he had
any significant processing experience. It was undisputed, as we have noted, that
Hithon had 13 years processing experience. A reasonable jury could have
concluded either that Dade had no processing experience or, at best, that he
6
Higgins did not testify, however, that Hithon ever said to her that he thought the
promotion of Dade or the fact that he had to train Dade was racially discriminatory.
22
certainly did not have as much as Hithon. Thus, a reasonable jury could have
found that Hithon met both the written and unwritten requirements for a shift
manager position, while Dade met neither of them. See Vessels v. Atlanta Indep.
Sch. Sys., 408 F.3d 763, 772 (11th Cir. 2005) (“[W]here the qualifications
disparity is not the sole basis for arguing pretext, the disparity need not be so
dramatic to support an inference of pretext.” (emphasis omitted)).
3.
In addition, as we discussed in our now-vacated Ash IV opinion, there was
testimony presented at the second trial about two occasions when Hatley used the
word “boy” in reference to African-American male employees.7 On one occasion
the comment was directed at Ash, and on another occasion the comment was
directed at Hithon. Hithon’s counsel elicited the following testimony from Ash
7
Tyson contends that the district court’s decision to admit testimony about Hatley’s use
of the word “boy” was an abuse of discretion because the law of the case mandated that these
were just “stray remarks.” In Ash III our statements about the use of the word “boy” were based
on the testimony presented at the first trial, see Ash III, 190 F. App’x at 926, and at the second
trial Hithon was free to present new or additional evidence about the term, see Doran, 576 F.2d at
93. The district court did not abuse its discretion in admitting that testimony in light of the
Supreme Court’s instruction that the term may be evidence of racial animus, depending on
“various factors including context, inflection, tone of voice, local custom, and historical usage.”
Ash, 546 U.S. at 456, 126 S. Ct. at 1197. In Ash III we discussed the context of Hatley’s use of
the term but concluded “there is nothing in the record about the remaining factors to support an
inference of racial animus in the use of the term ‘boy.’” Ash III, 190 F. App’x at 926. At the
second trial Hithon introduced additional evidence that developed the record regarding those
remaining factors.
23
about the time in July 1995 (before the promotion decisions at issue) when Hatley
used the word “boy” when talking to Ash:
[I]t was break time, it was lunch time. And we were just sitting in the
cafeteria having lunch. And Mr. Hatley walks up to the table without
saying anything, but he just said, “Boy, you better get going.”
So I looked at him. I was shocked that he said it, because, you know, I felt
like he said it in a mean and derogatory way.
Ash testified that Hatley’s use of the word was offensive to him:
A. Because, you know, being in the South, and everybody know[s]
being in the South, a white man says boy to a black man, that’s an
offensive word.
Q. What do you equate that to, using the word “boy” to a black man?
A. I equate that to just a racial comment because you might as well
use the “N” word if you are going to say that.8
8
After Ash gave that answer, plaintiff’s counsel said: “He might as well have walked up
and said ‘nigger’ to you; right?” Tyson argued in its brief to this Court that plaintiff’s counsel
engaged in misconduct and attempted to stir the passions of the jury by interjecting that word into
the litigation —a word that no one had ever accused Hatley or anyone else at the plant of using.
We agree with Tyson that plaintiff’s counsel’s interjection of that word, which the witness
himself apparently was unwilling to utter, was an improper attempt to inflame the jury. If
Tyson’s attorney had requested a mistrial and been denied one, we would face the question of
whether to reverse the judgment on this ground. However, Tyson’s attorney did not request a
mistrial on this ground and conceded to us at oral argument that he had made a strategic decision
not to seek one. An attorney who gambles and loses at trial cannot expect to play a different
hand in the court of appeals.
24
Ash described Hatley’s tone as “mean and demeaning, degrading.” He testified
that in response to the comment his wife had told Hatley: “‘He’s not a boy. He’s
a man.’”
Ash’s wife also testified about that same incident involving her husband.
She described how she was having lunch in the cafeteria with her husband and her
sister when Hatley used “boy” to refer to Ash. She testified that when he did it
Hatley “just looked at [her] with a smirk on his face like it was funny and then he
walked off.”
Hithon himself was not present when Hatley referred to Ash as “boy,” but
on a different occasion Hatley referred to Hithon himself as “boy” in speaking to
him. Sometime after May but before July 1995, as he was leaving a conference
room, Hithon heard Hatley say “hey, boy.” Hithon testified: “More than likely we
were talking about numbers of some kind. And as I was leaving, [Hatley] said,
‘Hey, boy.’ And I hesitated, but I continued to walk.” Hithon described Hatley’s
tone of voice as “extremely condescending.” He explained that the term “was
offensive” to him and that it was racially derogatory.9
9
An amicus brief that was submitted in support of Hithon’s petition for rehearing
recounted the facts incorrectly when discussing the evidence at the second trial about the one
occasion when Hatley used the word “boy” in reference to Ash and the other occasion when
Hatley used the word in reference to Hithon. Amici assert: “At the second trial, following Ash
III, counsel elicited testimony that Hithon and Ash were having lunch in the cafeteria in July
1995 (before the promotion decision at issue) when Hatley “walk[ed] up to the table without
25
In our now-vacated Ash IV opinion, we concluded that the evidence about
the use of the word “boy” that was presented at the second trial “was not ‘new and
substantially different’ enough for us to revisit the conclusion of law made in our
Ash III decision after the Supreme Court’s remand.” Ash IV, 392 F. App’x at 833
(citation omitted), but we now reach a different conclusion. Some new and
substantially different evidence about Hatley’s use of the word “boy” was
presented at the second trial, see supra p.15 n.4, and that evidence cannot be
considered in isolation. We instead must consider it in combination with all of the
other evidence.
At the first trial there was virtually no evidence about the factors relating to
the use of the word “boy” that the Supreme Court set forth in the Ash III remand:
“context, inflection, tone of voice, local custom, and historical usage.” Ash, 546
U.S. at 456, 126 S. Ct. at 1197. At the second trial, Ash, Ash’s wife, and Hithon
testified about their perception of Hatley’s tone of voice or facial expression when
he used the term. Ash testified about his understanding of the word’s implications
saying anything, [and then] said ‘Boy, you better get going.’” In reality, there was no testimony
or other evidence that Hithon was present when that statement was made to Ash. Instead, Ash
and his wife both testified that only they and Mrs. Ash’s sister were present. Despite Hithon’s
absence during that incident, amici assert that “Hithon also testified that Hatley addressed him as
‘boy’ a second time.” (emphasis added). That is simply not true. The record shows that Hithon
testified about only a single occasion when Hatley referred to him as “boy.” Although we
welcome amicus curiae briefs that are helpful, misstatements of facts are not helpful.
26
in terms of local custom and historical usage, and Hithon elaborated on that
subject as compared to his testimony in the first trial. And the evidence about the
timing of the comment to Ash was also different at the second trial. At the first
trial Ash and his wife testified that the comment in the cafeteria was made
sometime after the promotion decisions at issue in this case, but at the second trial
they testified that the comment was made just before the promotion decisions.
The jury’s verdict on Hithon’s two claims suggests that, even with the new
evidence, Hatley’s use of the word “boy” alone did not establish discrimination.
The same evidence about Hatley’s use of that word applied to both the King slot
and the Dade slot. Yet the jury decided against Hithon on the King slot, and
Hithon has not challenged that part of the verdict on appeal. It follows that
Hatley’s use of the word “boy” was not enough by itself to convince the jury of
racial discrimination. But we do not view that evidence by itself in relation to
Hithon’s claim about the Dade slot, which the jury did resolve in Hithon’s favor.
4.
Instead, we consider all of the evidence cumulatively, viewing it in the light
most favorable to Hithon, to determine whether it is enough for a reasonable jury
to have found that Tyson discriminated against Hithon based on race by promoting
Dade to the shift manager position. As we have discussed, there was enough
27
evidence for a reasonable jury to have found pretextual Tyson’s proffered race-
neutral reason of wanting a shift manager who had not been in management at the
failing plant; to have found that there was a written job requirement of three to
five years experience in the poultry business, which Hithon met but Dade did not;
to have found that there was also an unwritten job requirement of experience in
first and second processing, which Hithon met but Dade did not; and to have
found that Hatley, the decision maker, used the word “boy” in a racially
demeaning way to refer to Hithon and another African-American male employee
on two occasions just before the decision was made.
In light of all of the evidence, we cannot say that “the facts and inferences
point overwhelmingly in favor of one party, such that reasonable people could not
arrive at a contrary verdict.” Goldsmith, 513 F.3d at 1275 (quotation marks
omitted). The verdict could have gone either way, and it went Hithon’s way. We
cannot say that the evidence he presented at the second trial was not sufficient to
demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Combs, 106 F.3d at
1538 (quotation marks omitted). Accordingly, we reject Tyson’s challenge to the
sufficiency of the evidence to support a verdict that Tyson discriminated against
28
Hithon on the basis of race when it failed to promote him to the shift manager
position that went to Dade.
III.
Tyson also challenges a number of the district court’s rulings admitting
evidence during the damages phase of the bifurcated second trial. The evidence in
question related to claims on which Tyson had prevailed at the summary judgment
stage. That evidence involved: Hithon’s demotion from his superintendent
position; Dade’s negative evaluation of him; the denial of a pay raise to Hithon in
1996; the taking away of his office and restricting his long distance calls; Tyson’s
temporary promotion of Hithon’s wife to a shift manager position after Dade left;
and what Hithon alleged was his constructive discharge. Tyson argues that the
district court confused the jury by instructing it as follows about the limitations on
considering some of that evidence: “This questioning is not to get into the
question of whether he was wrongfully denied [the shift manager] position after
Dade left. Nothing to do with that. It’s just how applying for that position and
perhaps his wife getting it temporarily instead of him would affect his mind.”
That instruction is not a model of clarity, but Tyson did not object to it when it
was given.
29
As for the evidence Tyson complains about, the district court did not abuse
its discretion by admitting that evidence. It was arguably relevant to the issue of
whether Hithon suffered mental anguish, and if so how much, after Tyson racially
discriminated against him by promoting Dade instead of Hithon to the shift
manager position. Hithon was not using that evidence to establish liability, and
the district court gave a limiting instruction to which Tyson did not object. It
charged the jury:
Let’s be clear about one thing. Sometimes evidence is admissible for
one purpose and improper for another purpose. You found one event
of discrimination. I instruct you that there is no other wrongful
employment act of the defendant in this case, and you must not think
so.
For example, after the act of discrimination you found in this case, the
evidence showed that Mrs. Hithon was temporarily named shift
manager, the very job that the plaintiff wanted. The fact that the
plaintiff did not get the job at that time has nothing to do with this
case except to the extent you find it relevant to the plaintiff’s mental
anguish claim.
We presume that the jury followed that instruction. See United States v. Lopez,
649 F.3d 1222, 1237 (11th Cir. 2011) (“We presume that juries follow the
instructions given to them.”).
30
IV.
The compensatory damages part of the judgment against Tyson totaled
$364,049.33, of which $300,000 was for mental anguish Hithon suffered. The
district court denied Tyson’s post-trial motion for remittitur of the $300,000
amount or, in the alternative, a new trial. Tyson challenges the district court’s
denial of that motion.
Our review of a district court’s decision not to remit compensatory damages
is “highly deferential.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1315 (11th
Cir. 2001). And “[w]e are particularly deferential to the fact finder’s
determination of compensatory damage awards for intangible, emotional harms
because the harm is so subjective and evaluating it depends considerably on the
demeanor of the witnesses.” Id. (quotation marks omitted). We have held that
“[w]hen an award of damages has been reviewed and upheld by the trial judge, it
is entitled to a presumption of validity.” Ferrill v. Parker Grp., Inc., 168 F.3d 468,
476 (11th Cir. 1999); see also Sykes v. McDowell, 786 F.2d 1098, 1105 (11th Cir.
1986) (“A jury verdict may be vacated as excessive only if it is so large as to
shock the conscience.” (quotation marks omitted)).
Tyson contends that the amount of the jury’s award for mental anguish
indicates bias, passion, and prejudice. It argues that Akouri v. Fla. DOT, 408 F.3d
31
1338 (11th Cir. 2005), is the “most comparable case.” The Akouri case, however,
is not comparable because Akouri did not present any evidence of mental anguish
while Hithon did. See id. at 1345–46.
Akouri, a native of Lebanon, had unsuccessfully applied for three
promotions over the course of six years. Id. at 1341. A supervisor told Akouri
that he was not promoted to one of those positions because “it supervised white
employees, as opposed to black or Hispanic employees, and that they would not
take orders from him, particularly if he had an accent.” Id. Akouri brought
discrimination claims against his employer under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. Id. The jury awarded him $552,000 in mental
anguish damages. Id. at 1342. Finding that Akouri had failed to prove that he had
suffered mental anguish, the district court entered judgment notwithstanding the
verdict, reducing the jury’s award to nominal damages. Id. It did so because
Akouri had presented no evidence at all to support any mental anguish damages.
Id.
We affirmed the district court’s judgment, explaining that any inferences
made by the jury based on Akouri’s demeanor while testifying at trial were not
enough to support the award of damages for mental anguish. Id. at 1344. There
was nothing in the record to support that award, because Akouri “made no attempt
32
to describe any kind of harm, mental, emotional, or otherwise, arising from the
discrimination.” Id. at 1345. We reasoned that “if Akouri [had] suffered
emotional pain or distress, it could have been presented by one or more direct
questions during his testimony.” Id. at 1346 n.6.
By contrast, when Hithon testified during the damages phase of the trial, his
counsel did question him about his emotional pain and distress. Hithon answered
that the denial of the promotion had caused him to become physically ill: he could
not eat or sleep; he was nauseated; he had chest pains, digestive problems, and
numbness in his arm. He lost about 40 pounds between July and November 1995.
He testified that it was “extremely degrading” to train Dade for the job that he had
wanted for himself. He lost his self-esteem. Co-workers asked Hithon why he did
not get the job and they made jokes about what had happened. Dade gave him a
negative performance evaluation, which was the first one Hithon had ever gotten
in his 13 years at Tyson. Then in March 1996, when Dade left Tyson, Hithon’s
wife was promoted to acting shift manager, making her his supervisor, even
though Hithon had more experience than she did, and she had not even applied for
the shift manager job.
In support of Hithon on the mental anguish issue, his wife recounted how,
until he was denied the promotion in 1995, the couple had no marital problems,
33
but after that, Hithon’s “whole attitude” changed and he would come home and
close himself in the bedroom, not speaking to his wife or children. His
relationship with his wife and children deteriorated, and friends noticed his strange
behavior. She testified that Hithon often vomited before work, and he lost a lot of
weight.
Human resources manager Higgins testified that Hithon came to her and
told her about Dade’s promotion and complained that it was “not fair.”10 He was
“pretty upset.” She testified that before then Hithon had always been
“down-to-earth” and “very calm” and “very rational,” and she had “never really
seen him emotional.” In 20 years of knowing him, she had never seen him as
upset as he was after he was denied the promotion. Based on all of that evidence,
and applying our highly deferential standard of review, we conclude that the
district court did not abuse its discretion in denying Tyson’s motion for remittitur
of the mental anguish component of the compensatory damages award.
V.
We turn now to Hithon’s appeal, in which he contends that the district court
erred by vacating the jury’s award against Tyson of $1,000,000 in punitive
10
Higgins did not testify, however, that Hithon had ever complained to her that the
unfairness of the promotion decision involved any racial discrimination.
34
damages. We review de novo a district court’s decision to grant a motion for
judgment as a matter of law that vacates a punitive damages award. Toole v.
Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000).
A plaintiff seeking punitive damages against an employer for job
discrimination faces daunting obstacles under the law established by decisions of
the Supreme Court and this Court. “Punitive damages are disfavored by the law
and are awarded solely to punish defendants and deter future wrongdoing.”
Ferrill, 168 F.3d at 476 (quotation marks omitted). “The Supreme Court has
directed that, for the issue of punitive damages to reach the jury in a section 1981
case, the plaintiff must come forward with substantial evidence that the employer
acted with actual malice or reckless indifference to his federally protected rights.”
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1280 (11th Cir. 2002) (citing
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536–37, 119 S. Ct. 2118, 2125–26
(1999)) (emphasis added). “Malice means an intent to harm and recklessness
means serious disregard for the consequences of one’s actions.” E.E.O.C. v.
W&O, Inc., 213 F.3d 600, 611 (11th Cir. 2000) (alteration and quotation marks
omitted).
“[P]unitive damages will ordinarily not be assessed against employers with
only constructive knowledge of harassment.” Miller, 277 F.3d at 1280 (quotation
35
marks omitted). Instead, punitive damages are available only if “the
discriminating employee was high up the corporate hierarchy or . . . higher
management countenanced or approved his behavior.” Id. (alteration and
quotation marks omitted).
Moreover, “in the punitive damages context, an employer may not be
vicariously liable for the discriminatory employment decisions of managerial
agents where these decisions are contrary to the employer’s good-faith efforts to
comply with [§ 1981].” Kolstad, 527 U.S. at 545, 119 S. Ct. at 2129 (quotation
marks omitted);11 see also Miller, 277 F.3d at 1280 (“[T]he Supreme Court has
held that employers may assert a good faith defense to vicarious liability for
punitive damages where the employment decisions of managerial agents . . . are
11
Kolstad involved a Title VII claim, but we have held that an award of punitive damages
on a § 1981 claim, just like one under Title VII, 42 U.S.C. § 1981a, must be supported by proof
that the employer’s conduct was malicious or recklessly indifferent. See Ferrill, 168 F.3d at 476
(“Under § 1981, punitive damages may be awarded when the defendant’s conduct is shown to be
motivated by evil motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.” (quotation marks omitted)); see also Miller, 277 F.3d at
1280 (holding that a plaintiff with a § 1981 claim must present “substantial evidence that the
employer acted with actual malice or reckless indifference to his federally protected rights”);
Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th Cir. 2009) (noting that “discrimination claims . .
. brought under the Equal Protection Clause, 42 U.S.C. § 1981, or Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2, are subject to the same standards of proof and employ the
same analytical framework”).
36
contrary to the employer’s good-faith efforts to comply with [§ 1981].” (quotation
marks omitted)).
Applying the law established in all of those decisions, the district court
determined after the damages verdict was returned that the evidence did not
present a jury question on the punitive damages issue. In doing so, the court
correctly distinguished the question of whether there was sufficient evidence that
in deciding to promote Dade instead of Hithon, Hatley discriminated on the basis
of race from the question of whether there was sufficient evidence to support an
award of punitive damages against Tyson—not against Hatley the decision maker,
but against Tyson the employer. See, e.g., Kolstad, 527 U.S. at 534–46, 119 S. Ct.
at 2124–29 (distinguishing between the facts that will support an award of
compensatory damages and the additional facts required for an award of punitive
damages); Miller, 277 F.3d at 1275–81 (analyzing the two issues separately and
reversing the award of punitive damages while affirming the award of
compensatory damages); Dudley, 166 F.3d at 1323 (same).
The district court gave three reasons why the jury’s award of punitive
damages against Tyson could not stand: 1) Hithon had “not attempted to refute
the argument that Hatley was not far enough up in the corporate hierarchy to
impute his actions to his employer”; 2) “[i]t is undisputed that Tyson’s higher
37
management was never informed of Hatley’s discriminatory acts or that they
approved of his behavior in any way”; and 3) “[i]t is undisputed that Tyson had
implemented several policies to prevent discrimination in promotion and hiring
decisions.”
A.
The first two reasons the district court gave for setting aside the punitive
damages award relate to the requirement that they cannot be awarded against a
corporate employer without proof that either the employer itself knew about or
ratified the discriminatory acts, or the decision maker who discriminated was far
enough up in the corporate hierarchy that his discriminatory acts should be
imputed to the corporate employer. See Miller, 277 F.3d at 1280; Dudley, 166
F.3d at 1323.12 There was no dispute in the evidence about the facts relating to
this requirement for punitive damages, because there was no evidence to support a
finding that Hithon had carried his burden of establishing it.
12
Dudley also held that there could be no punitive damages unless the discriminatory acts
were “egregious.” 166 F.3d at 1322–23. The Supreme Court in Kolstad rejected the requirement
of egregiousness, 527 U.S. at 535, 119 S. Ct. at 2124, but did not abrogate Dudley’s requirement
that there could be no punitive damages based on constructive knowledge unless the decision
maker were high in the corporate hierarchy. Our later decision in Miller recognizes that Kolstad
did not affect that part of Dudley; Miller reiterates and applies Dudley’s high-in-the-hierarchy
rule. See Miller, 277 F.3d at 1280; see also Kolstad, 527 U.S. at 541, 119 S. Ct. at 2127 (citing
that part of our decision in Dudley, 166 F.3d at 1322–23, with favor for the proposition that
“agency principles limit vicarious liability for punitive damages awards”).
38
Hithon presented no evidence at all that the higher corporate officials of
Tyson countenanced or approved Hatley’s discrimination based on race or even
knew that he was alleged to have done it until Hithon filed his lawsuit a year after
he was denied the promotion. Not only that, but there was not any evidence that
Hithon had asserted to any officials at the local plant, or elsewhere, that he thought
that he had been denied the promotion because of his race. He did say that he
thought the promotion decision was “not fair,” but there was no evidence he ever
said it was because of his race. There is no evidence he complained about racial
discrimination to Higgins, the local plant’s human resources manager, or to
anyone else, including his own wife. At the time Hithon was denied the
promotion, Lola Hithon was a shift human resources manager at the Gadsden
plant. Her duties included investigating complaints. She testified as a witness for
her husband at the trial, yet neither she nor he testified that at the time he was
denied the promotion, or at anytime before the lawsuit was filed, Hithon had told
her that he thought the reason he was denied the promotion was racial
discrimination. So far as the record shows, he did not assert that to anyone, much
less to anyone at the corporate headquarters in Arkansas.
Counsel for Hithon does not dispute this. Instead, she takes the position
now, as she did during the damages phase of the trial, that it did not matter
39
because Hatley was manager at the local plant. She argued to the jury: “Now, the
defendant may come in here and argue and say, well, you’ve got to show corporate
headquarters knew about this. Our position is, Hatley was as high as you can get
at Gadsden, high as you can get for this man.” The problem with her position is
that it is flatly contrary to the law of this circuit.
Hithon’s own evidence establishes without dispute that Tyson is a huge,
multi-national company. Its annual report, which was admitted as a plaintiff’s
exhibit at trial, shows that Tyson is an $11 billion corporation with 107,000
employees and more than 300 facilities and offices in 28 states and 20 countries.13
Instead of acknowledging how difficult those facts made it for Hithon to
establish that Hatley was high in the Tyson corporate hierarchy, Hithon’s counsel
instead sought to sidestep that requirement. She urged the local jurors to send the
big corporation a big message. After reminding the jury what a big corporation
Tyson was, she implored: “I want you as a jury in Gadsden, Alabama, to tell them,
13
In her argument to the jury during the damages phase, Hithon’s counsel stated that the
jury could “look in the book” and see that “they are in 80 countries—plants all over the world.”
To the extent counsel meant that Tyson had plants in 80 countries, “the book” does not say that.
Instead, Tyson’s annual report, which she put into evidence, showed that while Tyson was
“providing products and services to customers throughout the United States and more than 80
countries,” its approximately 107,000 employees were “employed at more than 300 facilities and
offices in the United States and around the world.” We do not mean to suggest that her mistaken
statement was material. Under either scenario—plants in 80 countries or sales in 80 countries
with more than 300 facilities and offices around the world—the result is the same.
40
‘You are not going to make decisions like this anymore.’” Of course, it was
undisputed that Tyson—the big, multi-national corporation with more than
100,000 employees and with plants all over the world—had not made the decision
about who would be promoted to shift manager at the Gadsden plant; a local plant
manager had made it.
The law does not allow a jury to impose punitive damages on an employer
based on the decision of one who is not high enough in the corporate hierarchy
simply because the jury wants to send a big corporation a big message. See
Kolstad, 527 U.S. at 529–30, 119 S.Ct at 2122 (“Punitive damages are limited . . .
to cases in which the 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.” (quotation marks omitted) (emphasis added)). Nor
does the law allow a jury to impose punitive damages simply on the basis that the
decision maker was in charge of one of the hundreds of plants and offices that the
employer had worldwide.
Hithon’s counsel also argued to the jury that punitive damages were
warranted against Tyson because the Gadsden plant, which Hatley managed, had
1,400 employees. However, her own exhibit (Tyson’s annual report) showed that
Tyson had a total of 107,000 employees, which means that less than 1.5 percent of
41
Tyson’s employees worked at the Gadsden plant. That exhibit also showed Tyson
had hundreds of facilities and offices around the world, and Hatley was just one
manager of one of its plants.
Our decision in Dudley is instructive. We found in that case that evidence
supported the jury’s verdict that a Wal-Mart store manager or co-manager, or both,
had “misused the authority delegated to them by Wal-Mart: they discriminated
against plaintiff on account of her race, demoting her.” Dudley, 166 F.3d at 1323.
Nonetheless, we reversed the jury’s award of $250,000 in punitive damages. Id. at
1322–23. We did so because: “Neither [the manager or co-manager of the store]
is high enough up Wal-Mart’s corporate hierarchy—if they can be said to be in the
corporate management hierarchy at all—to allow their discriminatory acts to be
the basis for punitive damages against the corporation.” Id. at 1323. The same is
true in this case. Like the store manager and co-manager of Wal-Mart in Dudley,
as a local plant manager for Tyson, a multi-national corporation with hundreds of
facilities and offices worldwide, Hatley—if he can be said to be in the corporate
hierarchy at all—is not high enough up in it to allow his discriminatory acts to be
a basis for punitive damages against the corporation.
In explaining its decision to set aside the punitive damages award in this
case, the district court listed six levels of Tyson officials, outside the local plant,
42
who were above all of the plant managers, like Hatley, in the corporate hierarchy:
“the Complex Manager, the Regional Manager, the Division Vice President, the
Senior Vice President of Operations, and the Executive Vice President of
Operations,” and “[p]resumably there is also a president who is over the Executive
Vice President of Operations.” The district court also found that it was
“undisputed that Tyson’s higher management was never informed of Hatley’s
discriminatory acts or that they approved of his behavior in any way,” and even if
Hatley did act with malice or reckless indifference, his actions could not be
imputed to Tyson. We agree. Hithon failed to offer any evidence that “higher
management countenanced or approved [Hatley’s] behavior,” Miller, 277 F.3d at
1280 (quotation marks omitted), or even knew anything about the racial
discrimination before the lawsuit was filed. And the undisputed evidence shows
that Hatley, a manager at one of hundreds of Tyson’s facilities and offices
worldwide, was not high enough up in the corporate hierarchy at Tyson, if he was
in the hierarchy at all, to meet the Dudley requirement for imputing his
discriminatory conduct to Tyson.
B.
The district court also based its decision to set aside the award of punitive
damages on the fact that Hatley’s conduct in making the promotion decision based
43
on race was contrary to Tyson’s good faith efforts to comply with job
discrimination laws. The legal premise for that reasoning is well established. See
Kolstad, 527 U.S. at 545, 119 S. Ct. at 2129; see also Miller, 277 F.3d at 1280.
The Kolstad decision could not have been any clearer about it. In that decision the
Supreme Court forthrightly held:
In light of the perverse incentives that the Restatement’s “scope of
employment” rules create, we are compelled to modify these principles to
avoid undermining the objectives underlying Title VII. Recognizing Title
VII as an effort to promote prevention as well as remediation, and observing
the very principles underlying the Restatements’ strict limits on vicarious
liability for punitive damages, we agree that, in the punitive damages
context, an employer may not be vicariously liable for the discriminatory
employment decisions of managerial agents where these decisions are
contrary to the employer’s good-faith efforts to comply with Title VII. . . .
[G]iving punitive damages protection to employers who make good-faith
efforts to prevent discrimination in the workplace accomplishes Title VII’s
objective of motivating employers to detect and deter Title VII violations.
Kolstad, 527 U.S. at 545–46, 119 S. Ct. at 2129 (alterations, citations, and
quotation marks omitted) (emphasis added). As we have already noted, the
analytical framework and rules about employer liability under Title VII and § 1981
are the same. See supra p.37 n.11.
The factual basis for the district court’s conclusion that Tyson had
established the Kolstad good faith defense in this case is unassailable—it is based
on uncontradicted evidence. The evidence is undisputed that Tyson made
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“good-faith efforts to comply with” the anti-discrimination laws. Those efforts
included a written company policy forbidding racial and other unlawful types of
discrimination, communication of that policy to all decision makers and other
employees, and training on the policy.
Tyson’s Equal Employment Opportunity, Fair Employment Practice,
Personnel Policy required that all “management team members” be “responsible
for complying with the provisions of the Equal Employment Opportunity Policy.”
The “Personnel Actions” part of the policy stated:
All actions concerning company people should be in the spirit of and
consistent with the principles of Equal Employment Opportunity.
Such actions include, but are not limited to the following:
recruitment, training, compensation, transfers, return from layoffs,
education, hiring, promotion, benefits, layoffs, company sponsored
training, social and recreational programs. All personnel decisions
regarding the above are made without regard to race, color, religion,
age, national origin, disability, veterans’ status, or sex (except where
sex is a bona fide occupational qualification).
(formatting altered) (emphasis added). That employment opportunity policy was
included in Tyson’s policy manual. Tyson also had an additional written policy
titled “Management Standards of Behavior,” which unequivocally required that
“Managers/Supervisors must ensure that the work environment under their
supervision is free from all discrimination. . . .”
45
As part of its effort to prevent discrimination in the workplace, Tyson
ensured that its employees, including its managers, were well aware of and were
trained on its anti-discrimination policy. The “Management Standards of
Behavior” policy required that “[t]he Site Personnel Managers reinforce this
policy by conducting yearly training sessions with all management personnel
regarding this policy.” Higgins, the human resources manager at the Gadsden
plant, was the site personnel manager responsible for that training. She testified
that she had “been training” other managers, including plant managers, on Tyson’s
policies and procedures as part of their corporate training for the twenty years that
she had worked in human resources for Tyson. It was undisputed that Hatley
himself was well aware of Tyson’s policy prohibiting racial and other forms of
unlawful discrimination in promotion and other decisions. He had been trained on
the anti-discrimination policy, and he knew racial discrimination was against the
law as well as against the policy.
The evidence that Tyson had made “a good faith effort to comply with” the
law prohibiting racial discrimination in the workplace, see Kolstad, 527 U.S. at
545, 119 S. Ct. at 2129, was overwhelming, uncontradicted, and undisputed. No
reasonable jury could find to the contrary from the evidence. Yet this jury
accepted the invitation of Hithon’s counsel to do just that. In her argument at the
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damages stage, counsel did not point to any evidence indicating that Tyson had
failed to make a good faith effort to prevent racial discrimination. She did not
suggest anything at all that the company could have done but failed to do. Instead,
she urged the jury to, in effect, misapply the law by assessing punitive damages
against Tyson because of Hatley’s conduct notwithstanding the company’s good
faith efforts to prevent racial discrimination.
Counsel argued that while Tyson had “nice policies” prohibiting
discrimination, “they don’t follow them.” She argued that punitive damages were
necessary “to punish” Tyson for not following its policies, even though the only
evidence that anyone had not followed those policies was the one decision Hatley
made to promote Dade instead of Hithon. Counsel urged the jury to assess
punitive damages against Tyson as a way of “you going back and telling Tyson
their decision was wrong.” The wrong decision was Hatley’s decision not to
promote Hithon because of his race, a decision contrary to Tyson’s policies and
good faith efforts to prevent unlawful discrimination. Counsel asked rhetorically:
“What amount of money is going to make Tyson pay attention to the fact that they
have to follow their own policies and they have to follow the law?”
Again, counsel for Hithon never suggested that there was any evidence at all
before the jury that Tyson, as distinguished from Hatley, had ever failed to follow
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its own anti-discrimination policy or that Tyson was even aware that Hatley had
allegedly failed to do so until after this lawsuit was filed. She urged the jury to
assess punitive damages anyway, using an argument with enough hot air to float a
dirigible, an argument unmoored from the law. And the jury did as she urged,
awarding $1,000,000 of punitive damages in addition to the $335,000 in
compensatory damages. As we have discussed, one of the reasons the district
court vacated the punitive damages award was that it was “undisputed that Tyson
had implemented several policies to prevent discrimination in promotion and
hiring decisions.”
The district court did not err. The theory that Hithon’s counsel pitched to
the jury, and pitches to us, is that an employer’s good faith efforts to prevent
discrimination in employment decisions do not matter so long as someone in a
position to make a hiring or promotion decision violates that policy even once. If
accepted, that theory would butcher precedent and eviscerate the good faith
defense.
The only time that any type of damages, including punitive damages, are
ever considered is when there has been an unlawfully discriminatory job action.
Before the question of whether punitive damages can be assessed comes up, there
always will have been a finding that someone to whom the employer has delegated
48
the authority to make an employment decision has misused that authority to
discriminate unlawfully. If, as Hithon’s counsel insists, a single misuse of
managerial authority resulting in discrimination establishes that the employer did
not make good faith efforts to prevent that discrimination, then the good faith
defense does not exist. Under her theory the only time that the good faith defense
to vicarious liability for punitive damages could come into play would be when
there was no violation of the job discrimination laws to begin with, and therefore
no basis for compensatory or punitive damages. Counsel has not explained to us
the utility of a defense that exists only when there is no need for it. Her version of
the good faith defense is a defense that has no purpose, serves no function, and
makes no sense.
Counsel’s makeover of the good faith defense is also contrary to the
Supreme Court’s decision in Kolstad that even where the decision maker has
discriminated with the requisite “evil motive,” 527 U.S. at 538, 119 S. Ct. at 2126,
that alone is not enough “for imputing liability to an employer in the punitive
damages context,” id. at 540, 119 S. Ct. at 2127. The Court decided, instead, that
“in the punitive damages context” an employer may not be held “vicariously liable
for the discriminatory employment decisions of managerial agents where these
decisions are contrary to the employer’s good faith efforts to comply with” anti-
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discrimination laws. Id. at 545, 119 S. Ct. at 2129 (quotation marks omitted).
Hatley was, at most, one of hundreds of managerial agents for Tyson at its plants
scattered around the world. Under the Kolstad precedent, Tyson cannot be held
vicariously liable for Hatley’s decision to promote Dade instead of Hithon to the
shift manager position at the Gadsden plant, because that “discriminatory
employment decision[] of [a] managerial agent[]” was “contrary to [Tyson’s] good
faith efforts to comply with” anti-discrimination laws. Id., 119 S. Ct. at 2129.
Hithon’s counsel urges us to reinstate the $1 million punitive damages
award for a reason that is contrary to the law laid down in Kolstad. Supreme
Court precedent is not like the ash on a cigarette, to be flicked off whenever
convenient. The district court followed the Kolstad decision in setting aside the
punitive damages award, and we follow that decision in affirming the district
court’s judgment.14
AFFIRMED.
14
Because we are affirming the district court’s judgment vacating the punitive damages
award on the two grounds discussed in this part of our opinion, we have no occasion to address
Tyson’s alternative argument that the award was constitutionally excessive.
50