James Henry, et al v. Corpcar Services Houston, Ltd., et al

Filing

UNPUBLISHED OPINION FILED. [13-20744 Affirmed in Part and Remanded] Judge: WED , Judge: JLW , Judge: CH Mandate pull date is 02/18/2015 [13-20744]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-20744

FILED
January 27, 2015
Lyle W. Cayce
Clerk

JAMES L. HENRY,

Plaintiff - Appellee Cross-Appellant
HOMER RANDLE,
Plaintiff - Appellee
v.
CORPCAR SERVICES HOUSTON, LIMITED, doing business as Carey of
Houston; CORPCAR SERVICES HOUSTON C.L., LIMITED,
Defendants - Appellants Cross-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-2417
Before DAVIS, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
A jury found for Plaintiffs James Henry and Homer Randle on their Title
VII hostile work environment claims against their former employer CorpCar
Services of Houston, Ltd. (“CorpCar”). The jury also found for Henry on his
Title VII retaliation claim against CorpCar. CorpCar appeals the district

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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court’s denial of its motion for judgment as a matter of law. Henry crossappeals the amount of attorney’s fees awarded. We AFFIRM in part and
REMAND for further proceedings consistent herewith.
I. Factual Background
CorpCar is a limousine service company in Houston, Texas.
Plaintiffs are African-American former employees of CorpCar.

The

CorpCar

employed Randle as a chauffeur and Henry as a chauffeur and trainer.
In the spring of 2009, various African-American CorpCar employees
asked for time off for June 19th, known as “Emancipation Day” or
“Juneteenth”—a holiday officially recognized by the State of Texas that
commemorates the 1865 announcement in Texas of the abolition of slavery.
Tex. Gov’t Code 662.003(b)(4). Approximately 75% of CorpCar’s chauffeurs
were African-American, and in prior years, many employees had asked for time
off for Juneteenth. For the 2009 Juneteenth, Henry asked general manager
Andy Vanhaverbeke, assistant general manager Stan Alcott, and the dispatch
department not to schedule him for runs so he could attend various events and
speaking engagements. Henry discussed with Vanhaverbeke in particular the
significance of Juneteenth.
CorpCar scheduled multiple safety meetings for June 18th, 19th, and
20th and required their employees to attend at least one of the meetings. Some
of CorpCar’s employees expressed disappointment at the scheduling of the
meetings on and around the Juneteenth holiday. Christopher Wolfington,
CorpCar’s CEO, hired a singing telegram to perform, in costume, at the
mandatory meetings.
Plaintiffs Henry and Randle attended the June 18th meeting, as did
Wolfington, Vanhaverbeke, and Alcott. To the surprise of the employees in
attendance, a white woman in a black gorilla suit entered the meeting. The
door was closed behind her and Alcott stood as if to guard the exit. The woman
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in the gorilla suit sang, danced, touched employees, and sat in their laps. She
did Tarzan yells and repeatedly referred in a suggestive manner to “big black
lips,” “big black butt,” and bananas.

This went on for approximately ten

minutes. Wolfington, Vanhaverbeke, and Alcott were all seen laughing, and a
CorpCar employee videoed the performance, later posting it online to YouTube.
The woman in the gorilla suit specifically directed part of her
performance at Henry. She called him by name and started approaching him
while Vanhaverbeke, who was also videoing with his cell phone, leaned in to
Henry and stated, “Okay. Here’s your Juneteenth.” The performer then said
to Henry, “James, are you ready for this? Here’s your Juneteenth. Oh, these
nice big black hairy lips. Don’t you want some? Oh, that nice banana in your
pants. You could have worked for La Bare’s. Oh, don’t you want to make me
scream.”
While CorpCar had safety meetings in the past, performances were
never before part of the meetings. Management explained that the gorilla
performance was intended to raise morale and lighten the mood.

Henry,

Randle, and other African-American employees, however, were extremely
offended, embarrassed, and angered by the performance, which coincided with
Juneteenth. In light of the historical use of such imagery against AfricanAmericans, they perceived the performance as CorpCar comparing them to
gorillas. At trial, CorpCar management admitted that they were aware of
African-Americans being compared to such primates and that such a
comparison was racially offensive.
Immediately after the meeting, Randle confronted Alcott, stating, “[t]his
is a very racist act that you have put upon us. Do you not realize that today is
the celebration day leading into tomorrow for Juneteenth and freedom? Do
you fully understand that? This is very racist. Why would you do this?” Henry
also complained to Alcott that the performance was offensive, inappropriate,
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unprofessional, and not funny. Alcott told Henry, “You’re a grown man. Get
over it.” Alcott relayed to Vanhaverbeke that some of the chauffeurs did not
find the performance to be funny. Alcott and Vanhaverbeke both testified that
they did not recognize at that time that their employees found the performance
to be racially offensive.
Henry also told dispatch-department employees about the performance.
A manager who was present said, “Did you enjoy it, your Juneteenth?”
The next day, Juneteenth, dispatch called Henry at 2:30 a.m. to assign
him two special runs for that morning. Henry informed dispatch that he had
requested to be off for the day, but they told him he was required to report to
work at 7:00 a.m. to complete the runs. Henry arrived at work at 6:45 a.m.
and waited over two and a half hours before he was assigned a run. Dispatch
claimed that his first run had been cancelled. While he waited, dispatch asked
him to open the front gate for a car. The gate was an automatic gate that
dispatch normally operated themselves, but, according to dispatch, it was
stuck. Henry did as requested, only to find he had opened the gate for the same
woman in the gorilla suit. She said, “James, I’m here for you again. This is
your big black woman. You need her. Here’s—come scratch on my little hairy
butt for me.”
The woman in the gorilla suit went on to perform at three more of the
safety meetings. Wolfington explained at trial that the later performances
were “better” and “funnier.”
Henry met with Alcott again briefly on Juneteenth, expressing disbelief
that the performer had returned. Alcott told Henry to “get over it.” In the
months after the events of Juneteenth, Henry continued to voice complaints to
Alcott and Vanhaverbeke about the gorilla incidents. CorpCar management
generally ignored his concerns.
For the months following the Juneteenth incident, Henry’s weekly
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earnings averaged out to $100 less per week than he was earning for those
months prior to the Juneteenth incident. Henry attributes this decrease to
dispatch and management retaliating against him for complaining about the
gorilla incidents by assigning him fewer and less valuable runs. However,
there was testimony that this reduction in earnings was attributable to an
annual slowdown in the demand for limousine services that occurred during
July and August. Indeed, out of CorpCar’s top ten chauffeurs based on average
hours per week, seven experienced a decrease in average hours during this
period. Three experienced a greater decrease in average hours than Henry.
Both before and after the Juneteenth incidents, Henry ranked second in the
company in terms of total revenue.
Sometime after the Juneteenth incidents, Henry performed six training
sessions for new chauffeurs, for which he was to be paid $100 a session. Henry
was never paid for these sessions, and Alcott said this was because he did not
know how to enter it into the accounting system. Henry believed this was in
retaliation for him complaining about the gorilla incidents.

Henry also

believed that dispatch and management retaliated against him by assigning
him odd hours, with longer spans of times between runs, such that he was not
able to get more than a few hours of sleep each night. As a result, Henry grew
increasingly unable to work at CorpCar and he ultimately resigned in October
2009.
II. Procedural Posture
The Plaintiffs filed suit against CorpCar alleging a racially hostile work
environment and retaliation under Title VII of the Civil Rights Act of 1964.
After a three-day trial, the jury returned a verdict in favor of Henry and Randle
finding that: (1) the Plaintiffs were subjected to a hostile work environment
because of their race; (2) the defendants knew or should have known that the
offending conduct was racial harassment; (3) the defendants took an adverse
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employment action against Henry; and, (4) both Plaintiffs should recover
damages against the defendants. The jury awarded Henry $600 in back pay
and $50,000 in compensatory damages and Randle $12,500 in compensatory
damages.

The jury awarded punitive damages of $90,000 to Henry and

$10,000 to Randle.

The district court reduced Henry’s damage award to

$50,000 pursuant to 42 U.S.C. § 1981a(b)(3)(A).
The Plaintiffs filed motions requesting attorney’s fees and costs. The
district court granted Henry’s motion in part, awarding him $54,648 in
attorney’s fees and $3,480 in costs. The district court granted Randle’s motion
in full, awarding him $74,950 in attorney’s fees and $366 in costs. CorpCar
filed a motion for judgment as a matter of law and, in the alternative, for a new
trial. The district court denied CorpCar’s motion and entered final judgment.
CorpCar timely appealed the denial of its motion for judgment as a matter of
law or for a new trial.

Henry cross-appealed as to the district court’s

determination of attorney’s fees and costs.
III. Discussion
We review the denial of a motion for judgment as a matter of law de novo.
EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 451 (5th Cir. 2013) (en banc).
Judgment as a matter of law is proper when “the facts and inferences point so
strongly and overwhelmingly in the movant’s favor that reasonable jurors
could not reach a contrary conclusion.”

Id. at 451 (citation and internal

quotation marks omitted). We must draw all reasonable inferences in the light
most favorable to the verdict and “cannot reverse a denial of a motion for
judgment as a matter of law unless the jury’s factual findings are not supported
by substantial evidence, or if the legal conclusions implied from the jury’s
verdict cannot in law be supported by those findings.” Id. at 452 (citation and
internal quotation marks omitted).

“However, we will not sustain a jury

verdict based only on a mere scintilla of evidence.” SMI Owen Steel Co. v.
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Marsh USA, Inc., 520 F.3d 432, 437 (5th Cir. 2008) (citation and internal
quotation marks omitted).
We review the denial of a motion for a new trial for clear abuse of
discretion. Travelers Cas. & Sur. Co. v. Ernst & Young LLP, 542 F.3d 475, 482
(5th Cir. 2008). “Because ‘[o]ur review of the district court’s denial of a motion
for a new trial is more deferential than our review of a motion for judgment as
a matter of law,’ any such challenge is subsumed in our analysis of the denial
of a motion for judgment as a matter of law.” Wackman v. Rubsamen, 602 F.3d
391, 399 (5th Cir. 2010) (quoting Travelers Cas., 542 F.3d at 482). 1
A. Hostile Work Environment
The creation of a hostile work environment is a proscribed form of
discrimination under Title VII. See Harris v. Forklift Sys., 510 U.S. 17, 21
(1993).

A hostile work environment is one that “is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” Id. (citation and internal quotation marks
omitted). To ensure that Title VII does not become a “general civility code,”
only “extreme” conduct will be found sufficiently severe or pervasive: “simple
teasing, offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms and conditions of
employment.”

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)

(citations and internal quotation marks omitted). We evaluate the severity of
harassment by considering whether a reasonable person in the plaintiff’s
position would find the work environment hostile or abusive. See Oncale v.

Because our conclusions on the motion for judgment as a matter of law adequately
dispose of all of CorpCar’s issues, we do not separately address its arguments for a new trial.
See Smith v. Xerox Corp., 602 F.3d 320, 336 n.64 (5th Cir. 2010), abrogated on other grounds
by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
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Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); Boh Bros., 731 F.3d at 453. 2
We are to consider “‘all the circumstances,’ including the ‘frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Faragher, 524 U.S. at 787–
88 (quoting Harris, 510 U.S. at 23). This totality-of-the-circumstances inquiry
relies on “[c]ommon sense[] and an appropriate sensitivity to social context.”
Oncale, 523 U.S. at 82.
CorpCar challenges the jury’s verdict on the ground that the conduct at
issue was not sufficiently severe or pervasive. Because the incidents in this
case primarily occurred over two days, CorpCar emphasizes the lack of
frequency. Nonetheless, it is well established that “[u]nder the totality of the
circumstances test, a single incident of harassment, if sufficiently severe, could
give rise to a viable Title VII claim.” EEOC v. WC&M Enters., 496 F.3d 393,
400 (5th Cir. 2007); see Faragher, 524 U.S. at 788 (implying that an isolated
incident, if “extremely serious,” can produce a hostile work environment);
Harris, 510 U.S. at 21 (hostile work environment involves “severe or pervasive”
conduct (emphasis added) (citation and internal quotation marks omitted));
Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th Cir. 2007)
(“An egregious, yet isolated, incident can alter the terms, conditions, or
privileges of employment and satisfy the fourth element necessary to
constitute a hostile work environment.”); Harvill v. Westward Commc’n,
L.L.C., 433 F.3d 428, 434–35 (5th Cir. 2005) (explaining that conduct need not
be both severe and pervasive to be actionable under Title VII); La Day v.
Catalyst Tech., Inc., 302 F.3d 474, 483 (5th Cir. 2002) (same). Construing the

The Plaintiff must also subjectively find the conduct hostile or abusive. See
Faragher, 524 U.S. at 787. There is no dispute that this requirement is met in this case.
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evidence in the light most favorable to the verdict, we hold that the conduct
occurring here was sufficiently severe to constitute actionable discrimination,
despite its brief tenure.
The jury could easily find from the evidence that CorpCar was
pejoratively comparing its African-American employees to gorillas: AfricanAmericans have historically been subjected to such comparisons; the woman
in the gorilla suit repeatedly emphasized the “black” aspects of her gorilla suit;
management scheduled the performances on and around Juneteenth even
though they were aware of its significance to African-Americans; and
statements such as “Here’s your Juneteenth” were made by Vanhaverbeke, the
woman in the gorilla suit, and another manager. See Jones v. UPS Ground
Freight, 683 F.3d 1283, 1297 (11th Cir. 2012) (“‘Given the history of racial
stereotypes against African-Americans and the prevalent one of AfricanAmericans as animals or monkeys, it is a reasonable—perhaps even an
obvious—conclusion that’ the use of monkey imagery is intended as a ‘racial
insult’ where no benign explanation for the imagery appears.” (quoting United
States v. Jones, 159 F.3d 969, 977 (6th Cir. 1998))). “‘To suggest that a human
being’s physical appearance is essentially a caricature of a jungle beast goes
far beyond the mere unflattering; it is degrading and humiliating in the
extreme.’” Green v. Franklin Nat’l Bank, 459 F.3d 903, 911 (8th Cir. 2006)
(quoting White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 (4th Cir. 2004)).
Consequently,

courts

have

repeatedly

found

that

intentionally

comparing African-Americans to apes is highly offensive such that it
contributes to a hostile work environment. See, e.g., Allen v. Potter, 152 F.
App’x 379, 382–83 (5th Cir. 2005) (unpublished) (offensive comments such as
“Look at the monkeys” and “Don’t feed the Monkeys,” along with other animal
comparisons, raised genuine issue of fact as to severity or pervasiveness);
Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (triable issue raised
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with regard to hostile work environment where, inter alia, supervisors verbally
assailed African-American employees with physically humiliating comparisons
to monkeys), abrogated on other grounds by Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53 (2006); see also Jones, 683 F.3d at 1300–01 (repeated
appearance of banana peels on employee’s truck); Green, 459 F.3d at 911
(employee called a monkey); Webb v. Worldwide Flight Serv., Inc., 407 F.3d
1192, 1193–94 & n.3 (11th Cir. 2005) (same); White, 375 F.3d at 298 (same);
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (AfricanAmericans described as monkeys); Daniels v. Pipefitters’ Ass’n Local Union No.
597, 945 F.2d 906, 910, 924 (7th Cir. 1991) (same).
Considering “all the circumstances,” we cannot avoid observing that the
gorilla comparison in this case went well beyond “a mere offensive utterance.”
Harris, 510 U.S. at 23. Indeed, the caricature that occurred in this case went
beyond most any other intentional and offensive ape or monkey comparison
that we have found in the case law. It took the form of an extended charade
involving a woman in a black gorilla costume, which CorpCar management
paid for and required employees to attend. At the meeting that Henry and
Randle attended, management guarded the door, videoed, and emphasized the
comparison by stating, “Here’s your Juneteenth.” Moreover, the evidence gives
rise to an inference that this performance was scheduled to coincide with and
mock the Juneteenth holiday on which African-Americans in Texas celebrate
freedom from slavery. A mandatory, dramatic performance mocking freedom
from slavery for African-Americans in this country is exceedingly offensive and
egregious. Considering the conduct in light of the “social context,” Oncale, 523
U.S. at 82, the severity of the harassment is apparent.
Another factor demonstrating severity is the physically humiliating
nature of the incidents. See Harris, 510 U.S. at 23; La Day, 302 F.3d at 482
(finding conduct to be “physically ‘humiliating’; even if not ‘threatening’”). The
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woman in the gorilla suit touched employees and sat in their laps while making
comments that were both sexually suggestive and racially degrading.

To

Henry in particular she stated, “Oh, that nice banana in your pants. You could
have worked for La Bare’s. Oh, don’t you want to make me scream.” The jury
was entitled to find that the overarching theme of the performance was that
the African-American employees’ physical features were akin to those of a
gorilla.
The jury could also find that the incidents unreasonably interfered with
the employees’ work performance. Harris, 510 U.S. at 23. “Title VII comes
into play before the harassing conduct leads to a nervous breakdown.

A

discriminatorily abusive work environment, even one that does not seriously
affect employees’ psychological well-being, can and often will detract from
employees’ job performance, discourage employees from remaining on the job,
or keep them from advancing in their careers.” Id. at 22. At trial, there was
testimony that the Plaintiffs were unable to focus on and retain the
information that was passed on during the safety meeting because they were
reeling from what had just occurred. Randle’s immediate reaction was to
confront management. Thereafter, he became angry, withdrawn, uninvolved,
and isolated. Henry suffered from severe anxiety, depression, anger, and
nervousness, and sought professional counseling. Partially because of the
harassment, Henry resigned from CorpCar a few months later.
All in all, of the factors to be considered, the only one not weighing in
favor of the verdict is frequency. This is but one factor to be considered, and
“no single factor is required.” Id. at 23. Even so, this factor does not weigh
sufficiently strongly to set aside the verdict. This was not a solitary occurrence:
CorpCar brought the woman in the gorilla suit back to perform at three more
meetings on Juneteenth even after Henry and Randle complained. Henry was
also required to come in on Juneteenth, after he had been given the day off,
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apparently to open the gate for the woman in the gorilla suit. During this
second incident, he endured further racially offensive comments.
Having considered the totality of the circumstances in the light most
favorable to the jury’s verdict, we cannot conclude that the facts and inferences
point so strongly and overwhelmingly in CorpCar’s favor that reasonable jurors
would be unable to reach a contrary conclusion. See Boh Bros., 731 F.3d at
451.

Our conclusion is supported by cases of this court that have found

similarly egregious incidents to be sufficiently severe or pervasive despite their
brief duration. E.g., Schexnayder v. Bonfiglio, 167 F. App’x 364, 366 (5th Cir.
2006) (unpublished) (finding upper management’s repeated improper sexual
advances over the course of two days supported jury’s verdict); Allen, 152 F.
App’x at 382–83 (finding that employees raised genuine issues of fact as to
severity or pervasiveness when they were required to work in a cage for one
and one half hours and coworkers threw peanuts and bananas at them and
placed a sign on the cage that read, “Do not feed the animals.”); La Day, 302
F.3d at 476, 482–83 (finding sufficient summary judgment evidence of severity
or pervasiveness from three brief incidents of sexually offensive conduct, with
two incidents occurring on the same day). 3 We thus affirm the district court’s
denial of CorpCar’s motion for judgment as a matter of law and new trial as it
pertains to the jury’s finding that the Plaintiffs were subjected to a hostile work
environment.
B. Punitive Damages
Proving punitive damages presents “a higher standard than the showing
necessary for compensatory damages, satisfied in ‘only a subset of cases

Although Schexnayder and Allen are not “controlling precedent,” we cite them for
their “persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing
5TH CIR. R. 47.5.4).
3

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involving intentional discrimination.’” Boh Bros., 731 F.3d at 467 (quoting
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534 (1999)). Under Title VII,
punitive damages are recoverable only if the employer “engaged in a
discriminatory practice . . . with malice or with reckless indifference to [an
employee’s] federally protected rights.” 42 U.S.C. § 1981a(b)(1). “The terms
‘malice’ 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.” Kolstad, 527 U.S. at 535. Malice has been described as
“evil motive or intent,” and reckless indifference has been described as “a
‘subjective consciousness’ of a risk of injury or illegality and a ‘criminal
indifference to civil obligations.’” Id. at 536 (quoting Smith v. Wade, 461 U.S.
30, 37 n.6, 41, 56 (1983)). “Pointing to evidence of an employer’s egregious
behavior would provide one means of satisfying the plaintiff’s burden to
‘demonstrate’ that the employer acted with the requisite ‘malice or . . . reckless
indifference,’” but “an employer’s conduct need not be independently
‘egregious’ to satisfy §1981a’s requirements for punitive damages award.” Id.
at 539, 546 (quoting 42 U.S.C. § 1981a(b)(1)).
At the conclusion of trial, the district court instructed the jury on the
above standards with the following;
If you find that [CorpCar] is liable for the injuries of the plaintiff
in question, you may also award punitive damages if the plaintiff
in question has proved by clear and convincing evidence that
[CorpCar] acted with malice or reckless indifference to the
plaintiff’s right not to be subjected to racial harassment or
discrimination . . . . An action is taken with malice if a person
knows that it violates federal law prohibiting discrimination and
does it anyway. An action is taken with reckless indifference if
with knowledge that certain conduct violates the law, fails to take
curative action . . . . If you determine that [CorpCar’s] conduct was
so shocking and offensive as to justify an award of punitive
damages, you may exercise your discretion to award those
damages.
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In reviewing the record in the light most favorable to the verdict, we are
satisfied that the jury could reasonably infer that CorpCar’s “conduct was so
shocking and offensive as to justify an award of punitive damages.” As to
malice, the record reflects that CorpCar, through its representatives, acted
with “evil motive or intent.” Id. at 536. CorpCar hired a white female to dress
as a gorilla to perform at mandatory meetings the day before, and on,
Juneteenth. At trial, Henry described the events at the meeting as follows:
As we got into the meeting, they shut the door. Later, a lady came
in dressed in a black ape costume very -- out of disorder. She come
in. They shut the door, kind of guarded the door. She starts
singing, dancing, touching on people, sitting in their laps, making
racial slurs. And, for some apparent reason, she knew my name,
and that kind of infuriated me. Mr. [Vanhaverbeke] quickly, when
he saw that I was upset, moved to my left and got in close to me.
And he had his iPhone out. I was like, "Why is he filming all this?"
And he kind of leaned over to me and he said, "Okay. Here's your
Juneteenth." The lady come over also and said, "James, are you
ready for this? Here's your Juneteenth." And she began to start
singing and making slurs like, "Oh, these nice big black hairy lips.
Don't you want some? Oh, that nice banana in your pants," you
know. "You could have worked for La Bare's," you know. "Oh," you
know, "don't you want to make me scream," you know, just all
provocative, sexual overtone. When they noticed that I was getting
upset, they kind of moved their positions around; but they were –
still had this smirk on their face. And I kind of looked at Mr.
Wolfington, then I looked at Mr. [Vanhaverbeke]. . . . [W]hen I
looked at the door, how it was guarded, I looked at the upper
management, you really just felt helpless.
One of the employees videotaped a portion of the performance and put it on
YouTube. The employee told CorpCar management he had taken that action,
and at the time of trial management had taken no steps to remove this graphic
record of the events causing Plaintiffs’ such embarrassment and humiliation
as the object of their employer’s offensive racial joke.
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After the meeting, Henry approached Alcott, his immediate supervisor,
and complained that he was racially offended by the comparison of AfricanAmericans to gorillas and the mocking of the significance of Juneteenth. He
told Alcott, “I do not like to be portrayed as an ape. Because I’m wearing a
black suit, do I look like an ape? Is that why you gave me the chauffeur cap so
I’ll have a complete ape suit?”

Alcott replied, “Get over it.” Henry then

proceeded to the dispatch office where he ran into another CorpCar manager.
This manager turned to Henry and said, “Did you enjoy it, your Juneteenth?”
Henry then approached Vanhaverbeke and said, “Mr. Andy, I need to talk to
you about this gorilla situation.

It’s not funny.”

Vanhaverbeke “kind of

smirked and turned and went back into his office.”
Henry had specifically asked, and was approved, to be off from work the
next day, Juneteenth, in order to speak at several celebration events.
Notwithstanding that prior approval, CorpCar called Henry into work and
instructed him to manually open the “usually automatic” security gate for a
vehicle. When Henry opened the gate, the occupant of the vehicle was the same
gorilla performer. She said, “James, I’m here for you again. This is your big
black woman. You need her. Here’s - - come scratch on my little hairy butt for
me.”
Randle corroborated Henry’s testimony on what occurred during the
meeting. He then explained to the jury how he felt about the performance by
stating:
It's one thing to read about it. It's one thing to have watched Civil
Rights videos, movies, testimonies. But to be put in that situation
as an educated African-American or any person, education or not,
and to be forced and subject to that type of humiliation,
degradation, knowing that if you did not attend this meeting you
would lose 100 percent of your income, and then for -- to have the
company CEO sitting in there laughing, enjoying, it's -- I don't even
-- I don't know if there are any words to express it.
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Like Henry, Randle rushed to Alcott’s office after the meeting. Once there, he
got in Alcott’s face — about two feet from him — and emphatically asked,
“What was that?” He told Alcott “this was unprofessional, it was uncalled for
in a corporate setting . . . . I’m offended. I’m pissed off. . . .” Alcott told Randle
to come by the next day and they would talk about it. The next day, Alcott
refused to meet with Randle because Alcott attended the next meeting with
the same gorilla performance.
As stated before, the first mandatory, dramatic performance mocking
African-Americans’ freedom from slavery in this country was offensive and
insulting in the extreme.

CorpCar then brought the offensive gorilla-

performance back the next day, Juneteenth, for three more performances
similar in content. And this was after the Plaintiffs explained to the CorpCar
managers how and why it was so offensive to them as African-Americans.
Because of the egregious nature of CorpCar’s conduct, we are satisfied that a
reasonable jury could infer that CorpCar acted with the “evil intent” of making
Plaintiffs and other African-American employees the butt of an extremely
offensive racial slur and joke.
The evidence also supports a jury finding that CorpCar acted with
reckless indifference to the Plaintiffs’ rights. Wolfington, CorpCar’s CEO,
testified that he knew comparing African-Americans to apes or gorillas was
racially offensive; yet, Wolfington hired the performer.

Alcott also had

extensive knowledge of the history of Juneteenth, its social significance to
African Americans in Texas, and the offensive nature of comparing AfricanAmericans to gorillas. Both company officials laughed and smirked during the
performance and told Plaintiffs in a mocking manner, “Here’s your
Juneteenth.” Any doubt about the officials’ indifference towards the Plaintiffs’
rights is removed when they brought the performer back for repeat
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performances after Plaintiffs explained in detail how and why they were
offended. The jury could have readily inferred that Wolfington, Alcott, and
Vahaverbeke subjectively understood that comparing African-Americans to
gorillas at mandatory meetings near Juneteenth, violates federal law.
CorpCar, therefore, engaged in intentional discrimination with reckless
indifference towards the rights of the Plaintiffs. See Rhines v. Salinas Constr.
Techs, Ltd., 574 F. App’x 362, 364 n. 2 (5th Cir. 2014) (unpublished) (punitive
damage award for hostile work environment claim was affirmed when
supervisors called an employee “mayate,” which is Spanish for “ni—er” or
“monkey.”); cf. Baty v. Willamette Indus., 172 F.3d 1232, 1244-45 (10th Cir.
1999) (punitive damage award was affirmed for hostile work environment
claim because management did not respond to plaintiff’s complaints and
management condoned the harassment.).
Accordingly, we affirm the award of punitive damages.
C. Attorney’s Fees
Henry cross-appeals the district court’s award of attorney’s fees, arguing
that the court committed clear error by not awarding Henry the full amount of
attorney’s fees requested after specifically finding that CorpCar’s arguments
in opposition lacked merit. We agree with Henry that the district court’s
attorney’s fees award lacks clarity as to the reasons for the award. On remand,
the district court should make a clarified attorney’s fees determination as it
pertains to Henry, “explain[ing] with a reasonable degree of specificity the
findings and reasons upon which the award is based.” Forbush v. J.C. Penney
Co., 98 F.3d 817, 823 (5th Cir. 1996) (citation and internal quotation marks
omitted).
IV. Conclusion
We therefore AFFIRM the award of damages made to both Henry and
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Randle under Title VII based on a hostile work environment. 4

We also

REMAND for further findings and proceedings if necessary on the attorney’s
fee award to Henry.

The way this trial was structured and the way the verdict and judgment were
rendered makes it unnecessary for us to consider CorpCar’s challenge to the jury’s finding of
liability on Henry’s retaliation claim.
4

The special verdict returned by the jury did not distinguish between damages due to
Henry under his hostile work environment claim or his retaliation claim. For example,
Henry’s $50,000 compensatory damages award for pain and suffering was not distinguished
between retaliation and the hostile work environment claim. Such distinction was not
necessary because both claims were brought under Title VII and both allow recovery for the
same elements of damage. In its instructions, the court simply told the jury that it should
consider “the sum of money, if any, . . . that would compensate the plaintiff for back pay and
benefits, emotional pain and suffering, inconvenience, mental anguish and loss of enjoyment
of life caused by being subjected to racial discrimination based on retaliation and/or a hostile
work environment based upon race.” The unobjected to instruction of course is the law of
this case. See Green v. Am. Tobacco Co., 325 F.2d 673, 676 (5th Cir. 1963); see also Wright
& Miller, Federal Practice & Procedure, Civil 3d § 2558 at 177-178 (2008). Also, the total
award to Henry of $140,600, which includes a $90,000 punitive damage award on the hostile
work environment claim, was capped at $50,000 pursuant to 42 U.S.C. § 1981a(b)(3)(A). This
was not objected to and is not challenged on appeal. This statutory cap was imposed on the
total judgment and not on any individual items. So, this makes it doubly unnecessary to
speculate about whether the jury awarded any particular item of damages based on one claim
as opposed to the other.

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