Tony Sayger v. Riceland Foods, Inc.

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Michael J. Melloy and Bobby E. Shepherd AUTHORING JUDGE:Diana E. Murphy (PUBLISHED) [4096926] [12-3301, 12-3395]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3301
___________________________
Tony Sayger
lllllllllllllllllllll Plaintiff - Appellant
v.
Riceland Foods, Inc.
lllllllllllllllllllll Defendant - Appellee
___________________________
No. 12-3395
___________________________
Tony Sayger
lllllllllllllllllllll Plaintiff - Appellee
v.
Riceland Foods, Inc.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 25, 2013
Filed: November 18, 2013
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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
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MURPHY, Circuit Judge.
Tony Sayger brought this action against Riceland Foods under 42 U.S.C.
§ 1981, Title VII, the Arkansas Civil Rights Act, and other statutes, alleging
retaliatory discharge after being a witness in an internal investigation into a complaint
about a manager. After the district court1 granted summary judgment to Riceland on
Sayger's Title VII and ACRA claims, his § 1981 claim proceeded to trial. The jury
awarded Sayger approximately $60,000 in compensatory damages and back pay. The
district court denied both Riceland's motion for judgment as a matter of law and
Sayger's motion for a new trial on punitive damages, but it granted in part Sayger's
motion to amend the judgment to include equitable relief. Both parties appeal.
I.
Tony Sayger is a Caucasian hired in 1999 as a maintenance worker in the
Riceland Foods rice division warehouse in Stuttgart, Arkansas. In 2009 Sayger was
working in the Warehousing, Packaging, and Shipping (WPS) department. He later
testified that he heard supervisor Ralph Crane frequently use offensive language
about black employees. This included "calling them 'niggers,' degrading their work,
[and] saying they stunk." When Sayger asked him to stop, Crane just said "he would
treat the niggers for what they were." According to Sayger, black employees were
1

The Honorable Brian S. Miller, now Chief Judge, United States District Court
for the Eastern District of Arkansas.
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offended by Crane's remarks. There was also trial testimony from others about
Crane's use of racist language, including from warehouse superintendent Rick Chance
and several former Riceland employees.
In spring 2009 two of Sayger's white coworkers, Rick Turney and Randy
Bennett, spoke to the division human resources manager, David Hoover, about filing
a grievance for an incident in which Crane made offensive remarks. Hoover testified
that he also checked with several other employees about the incident. Although one
of them told Hoover that he had heard Crane use racist language, Crane said he did
not remember when Hoover asked about it. Hoover did no further investigation after
that point. Turney filed a grievance in April 2009, alleging that Crane had said that
a black Riceland employee "smelled like a nigger." As Turney's supervisor, Crane
was required to answer and sign the statement. Crane responded that he had "no
recollection of having made those statements." Turney took the next step provided
by the company grievance policy and submitted his grievance to the WPS manager,
Martin Jones.
Jones then took statements from Randy Bennett and another Riceland employee
who had been listed as a witness. Bennett confirmed Turney's allegation about Crane,
but the other employee answered that he did not remember what had occurred.
Bennett later testified that Jones had responded to his statement by asking, "Are you
just trying to ruin [Crane's] career?" Jones concluded that "[i]nconsistent statements
given by each witness do not support the alleged grievance." Therefore, "a[n] offense
ha[d] not been committed." The rice division manager at Stuttgart, Scott Lindsey,
upheld Jones' decision on review.
A second grievance was later filed by Turney based on additional racist
remarks by Crane. When the company failed to respond to the second grievance,
Turney filed a third. Turney and Bennett then both wrote letters to human resources
director Linda Dobrovich. Bennett's letter listed dates, descriptions, and witnesses
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for six separate incidents when Crane made offensive statements. Sayger was one of
the listed witnesses. Dobrovich interviewed seven employees in May, including
Turney, Bennett, and Sayger. Sayger stated that he spoke with Dobrovich for 20 to
30 minutes while she took "about two pages" of notes, and he told her about Crane's
derogatory comments to black employees. Dobrovich summarized her findings in a
report to Jones and Lindsey, stating that "there seem[ed] to be a pattern of
inappropriate language and use of derogatory racial comments" by Crane. She
recommended that Crane attend diversity training if he continued in his managerial
role. Although she had "concerns" about him as a manager, she would "trust your
judgment on the proper action to be taken." Crane attended diversity training in July
2009, but no other discipline was ever recorded in his employee file.
Both Bennett and Turney received notice on June 30, 2009 that they would be
terminated on July 30. Subsequently, Sayger received a "Layoff Notice" from
Riceland on October 30, 2009, indicating that he would be laid off on November 12
and terminated if not recalled within nine months. Sayger later testified in a jury trial
brought against Riceland by Bennett and Turney in April 2011; a verdict in favor of
the plaintiffs resulted. Bennett v. Riceland Foods, No. 5:11CV00104-JMM. Sayger
filed a charge of discrimination with the EEOC against Riceland on May 5, 2010 and
he brought this action in federal court in April 2011.
In this case Sayger raised both federal and state claims including claims under
42 U.S.C. § 1981, Title VII, the Family and Medical Leave Act, the Arkansas Civil
Rights Act of 1993 (ACRA), and a state law negative reference claim. The district
court granted summary judgment in favor of Riceland on the Title VII and ACRA
claims, Sayger's Family and Medical Leave Act claim, and his state law negative
reference claim. Sayger's § 1981 claim then proceeded to trial. The court granted
Riceland's motion in limine prior to trial, excluding evidence of the outcome in the
separate case brought by Bennett and Turney.

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At trial Sayger testified that Turney had asked him to be a witness on his
grievance and that Crane started to treat him "worse" after he participated in the
human resources investigation. Sayger also reported that he heard Crane say that
"two troublemakers are fixing to leave here" a few weeks prior to the termination of
Bennett and Turney. Just three to four weeks before Sayger was fired, Crane told
Sayger "[t]here is fixing to be some more troublemakers leaving here." Riceland
argued at trial that it laid off Sayger, Bennett, and Turney as part of "cost reduction"
involving over 40 positions, but Sayger presented evidence questioning the cost
effectiveness of firing maintenance workers. Warehouse superintendent Rick Chance
testified that he had never before seen maintenance workers laid off because they are
"considered essential to the production." Superintendent Chance also stated that after
his prior testimony about the three layoffs, Lindsey disciplined him for "poor job
performance" despite his having worked at Riceland for 12 years and "never [having]
had one thing less than superior." There was also evidence that Hoover, Jones, and
Crane all were involved in the decisions to terminate Bennett, Turney, and Sayger.
The jury returned a verdict for Sayger on his § 1981 claim, awarding him
$30,000 in compensatory damages and $30,608 in back pay. The district court denied
both Riceland's motion for judgment as a matter of law and Sayger's motion for a new
trial on punitive damages. Sayger also moved to amend the judgment. The district
court granted him prejudgment interest as to back pay, but denied front pay,
reinstatement, and prejudgment interest on his compensatory damages. Sayger
appeals from the summary judgment on his ACRA claim, the denial of his motion for
a new trial on punitive damages, the partial denial of equitable relief, and the grant
of Riceland's motion in limine to exclude evidence of the verdict in the action brought
by Bennett and Turney. Riceland cross appeals the denial of its motion for judgment
as a matter of law.

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II.
Riceland cross appeals the denial of its motion for judgment as a matter of law
on Sayger's § 1981 claim. Fed. R. Civ. P. 50. Our review is de novo, but the
evidence is viewed "in the light most favorable to the jury verdict, giving the verdict
the benefit of all reasonable inferences." Jones v. Nat'l Am. Univ., 608 F.3d 1039,
1046 (8th Cir. 2010). Judgment as a matter of law "is appropriate only when all the
evidence points one way and is susceptible of no reasonable inference sustaining the
position of the nonmoving party." Commercial Prop. Invs., Inc. v. Quality Inns Int'l,
Inc., 61 F.3d 639, 644 (8th Cir. 1995) (internal quotation marks omitted). Riceland
argues that the district court erred in denying its motion because Sayger was not
seeking to vindicate the rights of minorities and failed to present evidence of causality
or pretext.
Section 1981 guarantees to all persons the same right to contract "as is enjoyed
by white citizens," 42 U.S.C. § 1981(a), and encompasses claims of retaliation.
CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008). We "apply the same
analysis" to § 1981 retaliation claims and to retaliation claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Takele v. Mayo Clinic, 576 F.3d
834, 838 (8th Cir. 2009). Although the wording of § 1981 differs from that of Title
VII, the underlying retaliation analysis is the same and we may look to Title VII
precedent to inform our analysis of the elements under § 1981. See Kim v. Nash
Finch Co., 123 F.3d 1046, 1056 (8th Cir. 1997).
To succeed on his § 1981 claim, Sayger first must establish a prima facie case
of retaliation by demonstrating: "(1) that he[] engaged in statutorily protected activity;
(2) an adverse employment action was taken against him[]; and (3) a causal
connection exists between the two events." Gilooly v. Mo. Dep't of Health and
Senior Servs., 421 F.3d 734, 739 (8th Cir. 2005). Riceland would then have to show
a "legitimate, non-retaliatory reason" for the adverse action. Takele, 576 F.3d at 839.
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Sayger then had to show by a preponderance of the evidence that Riceland's proffered
reason was pretextual. Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir.
2011). Riceland argues that Sayger did not satisfy either the first or third
requirements and failed to show pretext.
An individual who is not a minority may bring a § 1981 claim if he or she has
been "discriminated or retaliated against for attempting to 'vindicate the rights of
minorities protected by' § 1981, because allowing such discrimination or retaliation
to stand unchallenged 'would give impetus to the perpetuation of racial restrictions.'"
Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1146 (8th Cir. 2012) (citing
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969)). Title VII's
antiretaliation provision protects employees who "opposed any practice made an
unlawful employment practice by this subchapter" and employees who have "made
a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3.
As Riceland points out, in Gacek the plaintiff failed to show pretext; we thus
declined to discuss whether or not deposition testimony for a coworker's racial
discrimination suit was protected under § 1981. Gacek, 666 F.3d at 1146. We
observed there that while such testimony was "likely" protected under Title VII, that
did not mean that it necessarily was under § 1981. Id. We have concluded since
then, however, that "statutorily protected activity" for a retaliation claim under § 1981
is conduct covered by Title VII. Davis v. Jefferson Hosp. Ass'n, 685 F.3d 675, 684
(8th Cir. 2012). In Davis, we explained that Title VII prohibits discrimination
"against an employee who has opposed any practice made unlawful by Title VII or
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding or hearing under the statute." Id. (internal quotation marks omitted). The
question here is whether Sayger's serving as a witness in the internal investigation
was conduct vindicating the rights of minorities, a question we have not yet decided.

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Even though the language of § 1981 and Title VII differs, our precedent
establishes that the analysis is the same for both. Takele, 576 F.3d at 838. Cases
interpreting opposition under Title VII are thus instructive in determining whether
conduct "vindicate[d] the rights of minorities" and is therefore protected under
§ 1981. The Supreme Court has explained that answering an employer's questions
in an internal investigation can be opposition within the meaning of Title VII even
if it does not qualify as participation in an "investigation, proceeding, or hearing."
Crawford v. Metro. Gov't of Nashville and Davidson Cnty., Tenn., 555 U.S. 271,
276–80 (2009). As the Court stated in Crawford, there is "no reason to doubt that a
person can 'oppose' by responding to someone else's question just as surely as by
provoking the discussion." Id. at 277. The Court explained that "nothing in [Title
VII] requires a freakish rule protecting an employee who reports discrimination on
her own initiative but not one who reports the same discrimination in the same words
when her boss asks a question." Id. at 277–78. Otherwise, "prudent employees
would have a good reason to keep quiet about Title VII offenses against themselves
or against others." Id. at 279.
The Court's analysis in Crawford is helpful in analyzing whether Sayger acted
to vindicate the rights of minorities. We conclude that someone who has
substantiated a complaint of a civil rights violation has demonstrated opposition to
that violation and acted to vindicate the rights of minorities. Such an individual
should therefore receive the same protection against retaliation as the person who
filed the original complaint. If employees who give evidence or respond to questions
during internal inquiries into alleged discrimination are not protected from retaliation,
it would impede any internal efforts to address discrimination. When Sayger reported
to Dobrovich that he had witnessed offensive conduct by Crane, he demonstrated his
opposition to it and acted to vindicate the rights of the minority employees. Sayger
later testified at trial that he was opposed to Crane's conduct and had previously asked

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him to stop making offensive remarks. In reporting Crane's conduct to Dobrovich,
Sayger was engaging in "statutorily protected activity" under § 1981.
Riceland argues that Sayger did not establish the necessary cause and effect
between Sayger's statutorily protected activity and Riceland's adverse employment
action. To show a causal connection, Sayger "must prove the desire to retaliate was
the but for cause of [his] termination – that is, that the unlawful retaliation would not
have occurred in the absence of the alleged wrongful action or actions of [his
employer]." Wright v. St. Vincent Health Sys., 730 F. 3d 732, 737 (8th Cir. 2013)
(internal quotation marks omitted). We have previously concluded that "[t]he passage
of time between events does not by itself foreclose a claim of retaliation," and cause
may be shown even when there is a period of six months between the protected
activity and an adverse employment action. Smith v. St. Louis Univ., 109 F.3d 1261,
1266 (8th Cir. 1997) (recognized as abrogated on other grounds by Torgerson v. City
of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)).
We conclude that Sayger presented sufficient evidence of causation for a jury
to find that he would not have been dismissed had he not served as a witness. Sayger
had testified that prior to the terminations of Bennett and Turney and prior to Sayger's
own dismissal, Crane made statements about "troublemakers" being gone from
Riceland. There was evidence that the same managers who defended Crane or failed
to investigate complaints were involved in the decisions to fire Bennett, Turney, and
Sayger. Evidence also linked complaints and testimony by Bennett, Turney, and
Chance to subsequent terminations or disciplines. Although there were five months
between the interview with Dobrovich and Sayger's layoff, that did not eliminate the
evidence of retaliation. See Smith, 109 F.3d at 1266.
When taken in the light most favorable to Sayger, the evidence shows that
Riceland viewed the complaints about Crane as a greater problem than his own
behavior. Sayger presented evidence that Riceland did not take the complaints about
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Crane's conduct seriously despite its internal conclusion that the allegations were
likely true and that it was "reasonable to question the truthfulness of [Crane's]
denial." The managers involved were aware of the allegations and made almost no
effort to investigate them. When presented at trial with evidence of Crane's conduct,
division manager Lindsey answered that, "Crane does not participate or promote a
hostile work environment in any way, according to Riceland." Crane received no
discipline other than diversity training. He also obtained a rating of "Exceptional"
for cooperativeness on his employee evaluation six months after Dobrovich reported
the substantiated allegations against him. Riceland's failure to investigate complaints
about Crane and its later failure to punish his conduct permitted an inference that the
company simply viewed those who complained as "troublemakers."
Although Riceland provided a nondiscriminatory reason for Sayger's layoff,
asserting at trial that it was part of a "cost reduction plan," we conclude that he
presented sufficient evidence for the jury to find by a preponderance of the evidence
that the proffered reason was pretextual. While Riceland stated that Sayger's layoff
was economically motivated, both Sayger and Bennett testified that they spoke to
managers about open positions at the company without any encouragement or
success. Sayger also presented evidence casting doubt on the cost effectiveness of
laying off three maintenance workers, including testimony that such workers were
rarely laid off because they were considered "essential."
On appeal, Riceland argues that the district court erred in its causation
instruction by using a "motivating factor" standard rather than a "determining factor"
test. Riceland did not properly appeal the jury instructions, however, or move for a
new trial based on them. Fed. R. App. P. 3(c)(1)(B). We therefore limit our review
to the denial of its motion for judgment as a matter of law, a topic designated in the
notice of cross appeal. Id.; see also United HealthCare Corp. v. Am. Trade Ins. Co.,
Ltd., 88 F.3d 563, 573 (8th Cir. 1996). Judgment as a matter of law would only be
appropriate if all evidence pointed in Riceland's favor. See Commercial Prop. Invs.,
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Inc., 61 F.3d at 644. We conclude that, taking all inferences in Sayger's favor, the
evidence was sufficient for the jury to find retaliation. The district court therefore
properly denied Riceland's motion for judgment.
Sayger asserts that the district court improperly granted summary judgment on
his Title VII and ACRA claims. We first address the issue of whether Sayger's Title
VII claim was properly preserved on appeal. A notice of appeal must "designate the
judgment, order, or part thereof being appealed." Fed. R. App. P. 3(c)(1)(B). We
"construe notices of appeal liberally," but we "only have jurisdiction when the
appellant's intent to challenge a particular order or judgment is apparent and the
adverse party will suffer no prejudice if review is permitted." USCOC of Greater Mo.
v. City of Ferguson, Mo., 583 F.3d 1035, 1040 (8th Cir. 2009). Although Sayger
argues in his briefs that his Title VII claim was timely, he did not reference that claim
either in his notice of appeal or amended notice of appeal. Sayger therefore failed to
preserve his Title VII claim on appeal.
Even if Sayger had properly preserved his Title VII claim on appeal, summary
judgment would have been in order because his claim was untimely. Our review is
de novo. Argenyi v. Creighton Univ., 703 F.3d 441, 446 (8th Cir. 2013). Under Title
VII a plaintiff must file an administrative charge with the EEOC within 180 days of
the "alleged unlawful employment practice." 42 U.S.C. § 2000e-5(e)(1). The accrual
date occurs "when the plaintiff receives notice of a termination decision." Dring v.
McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir. 1995). Sayger argues that
his EEOC charge was timely filed on May 5, 2010 because his layoff occurred on
November 12, 2009. The statute of limitations actually began to run when Sayger
received the layoff notice on October 30, 2009. The district court thus correctly
dismissed Sayger's Title VII claim as untimely. Moreover, even if Sayger's Title VII
claim had been timely, he could have only recovered compensatory and punitive
damages under it if he did not recover any under § 1981. 42 U.S.C. § 1981a(a)(1);
see Kim, 123 F.3d at 1063.
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It is not necessary to address the district court's grant of summary judgment on
Sayger's state law claim under ACRA because that statute would not entitle Sayger
to any additional relief beyond his § 1981 claim. Potential remedies under ACRA are
injunctive relief, compensatory and punitive damages, and costs and attorney fees at
the court's discretion. See Ark. Stat. Ann. §§ 16-123-107(b), -108. Under § 1981,
Sayger is entitled to equitable and legal relief, including compensatory damages,
punitive damages, and costs including attorney fees at the court's discretion. 42
U.S.C. § 1988(b); see Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 459–60
(1975). The standard for punitive damages is also identical under § 1981 and ACRA.
Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 497 (8th Cir. 2002).
Sayger appeals the district court's grant of Riceland's motion to exclude
evidence of the jury verdict in Bennett v. Riceland Foods, No. 5:11CV00104-JMM.
We review a district court's ruling on a motion in limine for abuse of discretion.
ACT, Inc. v. Sylvan Learning Sys., Inc., 296 F.3d 657, 669 (8th Cir. 2002). An
employer's "past discriminatory policy and practice" may show that its proffered
reasons for disparate treatment are pretextual and may thus be admissible. Hawkins
v. Hennepin Technical Ctr., 900 F.2d 153, 155–56 (8th Cir. 1990). On the other hand
a jury verdict is not evidence, but merely "findings of fact, based on the evidence
presented to it." Anderson v. Genuine Parts Co., Inc., 128 F.3d 1267, 1272 (8th Cir.
1997). In Anderson we concluded there was no reversible error in not admitting a
verdict from a similar case involving the same employer; we noted that the district
court had provided the plaintiff with "ample opportunities" to present the facts from
the prior case. Id. Here, Sayger's retaliation claim arose from the same facts as those
in the prior claims of Bennett and Turney. Bennett testified at Sayger's trial, and
Turney's deposition testimony was also presented. Sayger thus had "ample
opportunities" to introduce relevant facts from the prior case, and the jury verdict
itself was not admissible evidence. Id.

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Sayger appeals the district court's denial of his motion for a new trial on the
issue of punitive damages. We review for abuse of discretion. Jones, 608 F.3d at
1047–48. An abuse of discretion occurs "if a relevant factor that should have been
given significant weight is not considered, if an irrelevant or improper factor is
considered and given significant weight, or if a court commits a clear error of
judgment in the course of weighing proper factors." Aaron v. Target Corp., 357 F.3d
768, 774 (8th Cir. 2004). The standard for punitive damages is the same under
§ 1981 and Title VII. Kim, 123 F.3d at 1063. A plaintiff must show "malice" or
"reckless indifference," 42 U.S.C. § 1981a(b)(1), in respect to the employer's
knowledge that it is "acting in violation of federal law." Kolstad v. Am. Dental Ass'n,
527 U.S. 526, 535 (1999). Sayger did not show that Riceland's managers knew it
would be a violation of federal law to retaliate against him for acting as a witness in
its internal investigation. We conclude that the district court did not abuse its
discretion by denying Sayger's motion for a new trial on punitive damages.
Sayger also appeals the partial denial of his motion to amend the judgment to
include certain forms of equitable relief, focusing on the denial of his reinstatement.
We review for abuse of discretion, Innovative Home Health Care, Inc. v. P.T.-O.T.
Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998), and apply the same
standard to a decision on whether to award equitable remedies, Standley v. Chilhowee
R-IV Sch. Dist., 5 F.3d 319, 321–22 (8th Cir. 1993). Sayger argues that the district
court erred by denying him reinstatement, which would have served as a future
deterrent to illegal action. Riceland responds that the court did not abuse its
discretion by denying front pay or reinstatement because Sayger had not presented
evidence of lost wages for 2011 or 2012 and had expressed concern about continued
retaliation if he were reinstated. We see no abuse of discretion in denying him
reinstatement.
III.
Accordingly, we affirm the judgment of the district court.
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