Perkins et al v. Federal Fruit & Produce Company, Inc. et al

Filing 145

MEMORANDUM OPINION AND ORDER. By Judge James A. Parker on 6/22/2012. (sahsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge James A. Parker, sitting by designation
Civil Case No. 11-cv-00542-JAP-KLM
RICHARD PERKINS, individually and
RICHARD MILLER, individually,
Plaintiffs,
v.
FEDERAL FRUIT & PRODUCE COMPANY, INC.,
a Colorado corporation, and
MICHAEL MARTELLI, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
This case was tried before a jury from May 16, 2012, through May 25, 2012. The jury
returned a verdict in favor of Plaintiff Richard Perkins (Plaintiff Perkins) and Plaintiff Richard
Miller (Plaintiff Miller) against Defendant Federal Fruit and Produce Company, Inc. (Defendant
FFP) and Defendant Michael Martelli (Defendant Martelli). The Court asked counsel for
Plaintiffs and counsel for Defendants to submit proposed judgments reflecting the jury’s verdict.
Counsel have submitted separate proposed judgments; the judgments exhibit a disagreement on
the jury’s findings and awards of damages. After carefully examining the jury’s answers to
several Special Interrogatories provided to the jury and the jury’s award of damages on the
claims, the Court will enter a Judgment. This MEMORANDUM OPINION AND ORDER
explains the Court’s reasoning behind the Judgment.
I. Standard of Review
“The Seventh Amendment protects a party’s right to a jury trial by ensuring that factual

determinations made by a jury are not thereafter set aside by the court . . . . Thus, under the
Seventh Amendment, the court may not substitute its judgment of the facts for that of the jury.”
Ag Servs. of Am., Inc. v. Nielsen, 231 F.3d 726, 730–31 (10th Cir. 2000), cert. denied, 532 U.S.
1021 (2001). Accordingly, the Court is bound by both the jury’s explicit findings of fact as well
as any findings necessarily implicit in its verdict. Bartee v. Michelin N. Am., Inc., 374 F.3d 906,
912–13 (10th Cir. 2004). The Seventh Amendment right to a jury trial, however, does not permit
a court to enter a judgment when a jury’s verdict is internally inconsistent or when an award of
damages results in double recovery for the same injury. Johnson v. Ablt Trucking Co., Inc., 412
F.3d 1138, 1139 (10th Cir. 2005). If a jury verdict cannot be explained by evidence in the
record and it is apparent that the jury duplicated an award, “the court, either sua sponte or on
motion of a party, should reduce the judgment by the amount of the duplication,” and thereby
prevent double recovery. Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1459 (10th Cir. 1997).
II. The Claims and The Jury Verdict
Plaintiff Richard Perkins presented a total of six claims: 1) a claim of disparate treatment
against Defendant FFP; 2) a claim of disparate treatment against Defendant Martelli; 3) an
unlawful discharge claim against Defendant FFP; 4) an unlawful discharge claim against
Defendant Martelli; 5) a retaliation claim against Defendant FFP; and 6) a retaliation claim
against Defendant Martelli. Plaintiff Richard Miller presented two claims: 1) a retaliation claim
against Defendant FFP, and 2) a retaliation claim against Defendant Martelli.
In addition to jury instructions, the parties stipulated to Special Interrogatories that were
submitted to the jury on each claim and agreed that the jury’s answers to the Special
Interrogatories would constitute the jury’s verdict. The jury received a total of eight sets of
Special Interrogatories, one for each claim listed above.

A. Plaintiff Perkins’ Disparate Treatment Claims1
The first set of Special Interrogatories concerned Plaintiff Perkins’ disparate treatment
claim against Defendant FFP. In the answers to these Special Interrogatories, the jury answered
“yes” when asked whether Plaintiff Perkins’ race was a motivating factor that prompted
Defendant FFP to subject him to adverse employment actions. An “adverse employment action”
was defined in the jury instructions as
a significant change in employment status, such as hiring, firing/termination, layoff,
failure to promote, reassignment with significantly different responsibilities, disciplinary
action which undermines an employee’s position, or a decision causing a significant
change in wages and benefits. An adverse employment action is not limited to monetary
losses of benefits or wages, but it must be more than a mere inconvenience or alteration
in job responsibilities.
See Jury Instructions (Doc. No. 143-6 at 7.) On this claim, the jury awarded damages in the
amount of $10,000.00 to compensate Plaintiff Perkins for emotional pain and mental anguish.
The jury also answered “yes” when asked whether a higher management official at FFP acted
with malice or reckless indifference to Plaintiff Perkins’ federally protected rights, and the jury
found that Defendant FFP did not act in a good faith attempt to comply with the law. The jury
awarded $65,000.00 in punitive damages on this claim based on these findings. Both Plaintiffs’
and Defendants’ proposed judgments awarded a total amount of $75,000.00 to Plaintiff Perkins
on this claim. The Court will award this amount in its Judgment.
The second set of Special Interrogatories concerned Plaintiff Perkins’ disparate treatment
claim against Defendant Martelli. In response to these Special Interrogatories, the jury answered

1

The Court’s instructions to the jury referred to this claim as a race discrimination claim;
however, the Special Interrogatories referred to this claim as a disparate treatment claim. When
asked by the jury as to the meaning of “disparate treatment,” the Court stated that the meaning of
disparate treatment in the Special Interrogatory was the same as the jury instruction defining race
discrimination. See Jury Instructions (Doc. No. 143-6 at 7); Jury Note (Doc. No. 143-9); and
Answer (Doc. No. 143-10).

“yes” when asked whether Plaintiff Perkins’ race was a motivating factor that prompted
Defendant Martelli to subject him to adverse employment actions. On this claim, the jury
awarded damages in the amount of $10,000.00 to compensate Plaintiff Perkins for emotional
pain and mental anguish. The jury also answered “yes” when asked whether Defendant Martelli
acted with malice or reckless indifference to Plaintiff Perkins’ federally protected rights, and the
jury found that Defendant Martelli did not act in a good faith attempt to comply with the law.
The jury awarded $65,000.00 in punitive damages on this claim based on these findings. Both
Plaintiffs’ and Defendants’ proposed judgments awarded a total amount of $75,000.00 to
Plaintiff Perkins on this claim. The Court will award this amount in its Judgment.
The damages awarded to Plaintiff Perkins on his claims for disparate treatment against
Defendant FFP and Defendant Martelli are supported by the evidence and are not duplicative.
The evidence showed that Defendant FFP acted through agents other than Defendant Martelli,
such as Defendant FFP’s operations manager Angel Mondragon, and this evidence supports a
separate award against Defendant FFP for its disparate treatment of Plaintiff Perkins on the basis
of race. Also, based on the inclusion of both $75,000.00 awards in the Defendants’ proposed
judgment, the Court infers that Defendants did not consider these two awards to be duplicative.
See Mason, 115 F.3d at 1460 (“[M]ultiple punitive damage awards on overlapping theories of
recovery may not be duplicative at all, but may instead represent the jury’s proper effort to
punish and deter all the improper conduct underlying the verdict.”). Therefore, the Court will
award to Plaintiff Perkins $75,000.00 on his disparate treatment claim against Defendant FFP,
and the Court will separately award $75,000.00 on Plaintiff Perkins’ disparate treatment claim
against Defendant Martelli.

B. Plaintiff Perkins’ Retaliation Claims
The fifth set of Special Interrogatories concerned Plaintiff Perkins’ retaliation claim
against Defendant FFP. In response to these Special Interrogatories, the jury answered “yes”
when asked whether Plaintiff Perkins opposed racially discriminatory treatment by filing
grievances and by making reports to Defendant FFP. The jury also answered “yes” when asked
if Plaintiff Perkins was discharged from his employment by Defendant FFP because he opposed
racially discriminatory treatment. On this claim, the jury awarded Plaintiff Perkins damages to
compensate for a net loss of wages and benefits from the date of discharge to the date of trial in
the amount of $26,697.00. This amount is consistent with the evidence presented at trial from
Plaintiff’s expert economist Dr. Pat Pacey.
The sixth set of Special Interrogatories concerned Plaintiff Perkins’ retaliation claim
against Defendant Martelli. In response to these Special Interrogatories, the jury answered “yes”
when asked if Plaintiff Perkins opposed racially discriminatory treatment by filing grievances
and by making reports to Defendant Martelli and the jury answered “yes” when asked if
Plaintiff Perkins was discharged from his employment by Defendant Martelli because he
opposed racially discriminatory treatment. On this claim, the jury awarded Plaintiff Perkins
damages to compensate for a net loss of wages and benefits to the date of trial in the amount of
$26,697.00.
In the Judgment the Court will award a total of $26,697.00 plus interest to compensate
Plaintiff Perkins for the net loss of wages and benefits to the date of trial on Plaintiff Perkins’
retaliation claims. The Court will award this single amount against Defendant FFP and
Defendant Martelli, jointly and severally, because Plaintiff Perkins may collect only one award
of damages for the loss of wages and benefits. If both awards are entered into the Judgment, the

awards would be duplicative and erroneous as a matter of law. In Cache La Poudre Feeds, LLC
v. Land O’ Lakes, Inc., the court stated
The Tenth Circuit has held that “[w]here a jury awards duplicate damages, the court,
either sua sponte or on motion of a party, should reduce the judgment by the amount of
the duplication.” United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219,
1235 (10th Cir. 2000) (citing Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1459
(10th Cir. 1997)). “It is well established that ‘double recovery is precluded when
alternative theories seeking the same relief are pled and tried together.’ ” Mason, 115
F.3d at 1459 (citing Clappier v. Flynn, 605 F.2d 519, 530 (10th Cir. 1979)).
No. 04-cv-00329, 2008 WL 269451, *3 (D. Colo. Jan. 29, 2008) (unreported decision).
On the retaliation claims, the jury awarded Plaintiff Perkins damages for emotional pain
and mental anguish against Defendant FFP in the amount of $50,000.00, and the jury awarded
Plaintiff Perkins damages for emotional pain and mental anguish against Defendant Martelli in
the amount of $50,000.00. Defendants included both of these awards in their proposed
judgment. The Court finds that these awards are not duplicative because there was evidence
from which the jury could have found that Plaintiff Perkins suffered emotional pain and mental
anguish with respect to both Defendant FFP’s and Defendant Martelli’s retaliatory actions.
Thus, the Court will include both awards of $50,000.00 in its Judgment for a total award of
$100,000.00 to compensate for emotional pain and mental anguish caused by Defendant FFP’s
and Defendant Martelli’s retaliation.
Lastly, the jury awarded Plaintiff Perkins punitive damages against Defendant FFP on
Plaintiff Perkins’ retaliation claim against Defendant FFP in the amount of $350,000.00. The
jury awarded Plaintiff Perkins punitive damages against Defendant Martelli in the amount of
$150,000.00. Based on the total award of damages contained in Defendants’ proposed
judgment, it is reasonable to infer that Defendants agreed to include both of these punitive
damage awards. The Court will enter a Judgment awarding both of these damage amounts

because they are not duplicative. Mason, supra.
C. Plaintiff Perkins’ Unlawful Discharge Claims
The third set of Special Interrogatories concerned Plaintiff Perkins’ unlawful discharge
claim against Defendant FFP. In response to these Special Interrogatories, the jury answered
“yes” when asked whether Defendant FFP’s decision to terminate Plaintiff Perkins’ employment
was motivated by both race and non-racial reasons. The jury answered “no” when asked
whether Defendant FFP proved that it would have made the same decision to terminate Plaintiff
Perkins’ employment if race played no role in the decision. On this claim, the jury awarded
Plaintiff Perkins damages against Defendant FFP to compensate for the net loss of wages and
benefits to the date of trial in the amount of $3,000.00.
The fourth set of Special Interrogatories concerned Plaintiff Perkins’ unlawful discharge
claim against Defendant Martelli. In response to these Special Interrogatories, the jury answered
“yes” when asked whether Defendant Martelli’s decision to terminate Plaintiff Perkins’
employment was motivated by both race and non-racial reasons. The jury answered “no” when
asked whether Defendant Martelli proved that he would have made the same decision to
terminate Plaintiff Perkins’ employment if race played no role in the decision. On this claim, the
jury awarded Plaintiff Perkins damages against Defendant Martelli to compensate for the net loss
of wages and benefits to the date of trial in the amount of $6,500.00. However, the evidence
does not support either the award of $3,000.00 or the award of $6,500.00. Plaintiff Perkins will
receive, in the Judgment, an award of $26,697.00 against Defendant FFP and Defendant
Martelli, jointly and severally, for the net loss of wages and benefits on Plaintiff Perkins’
retaliation claims. Thus, the Court will omit the awards of $3,000.00 and $6,500.00 from the
Judgment because these awards are duplicative, inconsistent, and not supported by the evidence.

On the unlawful discharge claims, the jury also awarded Plaintiff Perkins damages for
emotional pain and mental anguish against Defendant FFP in the amount of $5,000.00, and the
jury awarded Plaintiff Perkins damages for emotional pain and mental anguish against
Defendant Martelli in the amount of $15,000.00. The Court will include both the $5,000.00
award and the $15,000.00 award in the Judgment because the evidence shows that employees
and agents of Defendant FFP other than Defendant Martelli were involved in the decision to
terminate Plaintiff Perkins’ employment. Thus, the evidence supports a separate finding that
Plaintiff Perkins suffered emotional pain and mental anguish from both the actions of Defendant
FFP’s agents and the actions of Defendant Martelli.
Lastly, the jury awarded Plaintiff Perkins punitive damages against Defendant FFP for
unlawful discharge in the amount of $65,000.00. The jury awarded Plaintiff Perkins punitive
damages against Defendant Martelli for unlawful discharge in the amount of $65,000.00. The
jury found that both Defendant FFP and Defendant Martelli acted with malice or reckless
indifference to Plaintiff Perkins’ federally protected rights. Hence, the Court will enter a
Judgment awarding both of these damage amounts because they are not duplicative.
D. Defendants’ Omission of Unlawful Discharge Damages
In Defendants’ proposed judgment, Defendants have omitted the jury’s award of
damages to Plaintiff Perkins on either of the unlawful discharge claims because Defendants
contend that this award is duplicative of the award of damages for retaliation. Defendants argue
that the unlawful discharge claims and the retaliation claims involved the same conduct, the
termination of Plaintiff Perkins’ employment. However, the Special Interrogatories regarding
the unlawful discharge claims asked the jury to determine whether “Plaintiff Richard Perkins’
race was a motivating factor that prompted Defendant FFP to [discharge Plaintiff Perkins from

employment.]” The jury answered “yes” to this special interrogatory. The same special
interrogatory was presented to the jury on Plaintiff Perkins’ unlawful discharge claim against
Defendant Martelli, and the jury answered “yes” to this special interrogatory as well. On the
retaliation claims, the jury was asked whether Defendant FFP “discharged Plaintiff Perkins from
his employment because he opposed racially discriminatory treatment[.]” The jury answered
“yes” to this interrogatory. The same special interrogatory was presented to the jury on Plaintiff
Perkins’ retaliation claim against Defendant Martelli, and the jury answered “yes” to this
interrogatory as well. From the wording of these special interrogatories, the jury clearly
imposed liability on both Defendant FFP and Defendant Martelli for discharging Plaintiff
Perkins, each for two different unlawful motivations: 1) Plaintiff Perkins’ race; and 2) Plaintiff
Perkins’ opposition to racial discrimination. Since the unlawful discharge claims and the
retaliation claims were based on different conduct by Defendant FFP and Defendant Martelli, the
damage awards for emotional pain and mental anguish and for punitive damages are not
duplicative. The Court will include all of these awards in the Judgment. See J.M. ex rel. Morris
v. Hilldale Indep. Sch. Dist. No. 1-29, 397 Fed. Appx. 445, 460 (10th Cir. 2010) (upholding jury
verdicts for high school student on her Title IX discrimination claim, § 1983 claim, and
negligent supervision claim even though all three claims related to her sexual relationship with
teacher because awards were not duplicative).
E. Plaintiff Miller’s Claims of Retaliation
The seventh set of Special Interrogatories concerned Plaintiff Miller’s claim for
retaliation against Defendant FFP. In response to these Special Interrogatories, the jury
answered “yes” when asked whether Defendant FFP discharged Plaintiff Miller because he
opposed racially discriminatory treatment. The jury awarded Plaintiff Miller damages to

compensate for emotional pain and mental anguish in the amount of $50,000.00. The jury
answered “yes” when asked whether a higher management official of Defendant FFP acted with
malice or reckless indifference to Plaintiff Miller’s federally protected rights. The jury answered
“no” when asked whether a higher management official of Defendant FFP acted in a good faith
attempt to comply with the law. The jury awarded punitive damages against Defendant FFP in
the amount of $50,000.00. Finding no error in this verdict, the Court will include both of these
amounts in the Judgment.
The eighth set of Special Interrogatories concerned Plaintiff Miller’s claim for retaliation
against Defendant Martelli. However, these Special Interrogatories were fatally flawed, and as
discussed in the next section, the Court must order a new trial on this claim.
III. New Trial On Plaintiff Miller’s Retaliation Claim Against Defendant Martelli
Rule 59(d) provides that the Court sua sponte may order a new trial “for any reason that
would justify granting one on a party’s motion.” Fed. R. Civ. P. 59(d). Under Rule 59(a), a new
trial may be granted “on all or some of the issues and to any party. . . .” Fed. R. Civ. P. 59(a).
With respect to Plaintiff Miller’s claim against Defendant Martelli for retaliation, the jury was
asked the following special interrogatories:

Do you find from a preponderance of the evidence:
1.
That Plaintiff Richard Miller opposed racially discriminatory treatment by
reporting racially discriminatory treatment to Angel Mondragon?
Answer Yes or No _____
2
That Plaintiff Richard Miller opposed racially discriminatory treatment by
testifying in Roberto Villa Moreno’s arbitration?
Answer Yes or No ____
3.
That Defendant Michael Martelli discharged Plaintiff Richard Miller?
Answer Yes or No _____
4.
That Defendant Michael Martelli discharged Plaintiff Richard Miller
because he opposed racially discriminatory treatment?
Answer Yes or No ___
Note: If you answered No any of the above questions, you need not answer the
remaining questions.
6. (a) That Defendant Michael Martelli acted with malice or reckless
indifference to Plaintiff Richard Miller’s federally protected rights?
Answer Yes or No _____
(b) If your answer is Yes, that Defendant Michael Martelli had not acted in a
good faith attempt to comply with the law?
Answer Yes or No _____
(c) If your answer is Yes, what amount of punitive damages, if any, should be
assessed against Defendant Michael Martelli? $ ________________.
(Special Interrogatory on Richard Miller’s Retaliation Claim Against Michael Martelli (Doc. No.
143-12)). The jury answered “yes” to all of the questions in paragraphs 1-4. The jury answered
“yes” to the interrogatory in paragraph 6(a), and the jury answered “no” to the interrogatory in
paragraph 6(b). The jury entered the amount of $200,000 in punitive damages in the blank
provided in paragraph 6(c). However, Paragraph 5 was omitted from this Special Interrogatory:
5.
That Plaintiff Richard Miller should be awarded damages to compensate
for emotional pain and mental anguish?
Answer Yes or No _____
If your answer is Yes, in what amount? $ ______________
This paragraph was included in the parties’ stipulated Special Interrogatories. The Court
inadvertently omitted paragraph 5 from the Special Interrogatory submitted to the jury. Thus,
the jury was not given the opportunity to award damages to Plaintiff Miller for emotional pain
and mental anguish. The evidence presented at trial, however, could have supported an award of

damages to Plaintiff Miller for emotional pain and mental anguish. Hence, the Court finds that
this eighth set of Special Interrogatories contained a fatal error. This omission rendered the
jury’s verdict on Plaintiff Miller’s retaliation claim against Defendant Martelli incomplete.
Therefore, since an essential component of the damages requested by Plaintiff Miller was
omitted and since sufficient evidence was presented at trial that could have supported an award
of damages for emotional pain and mental anguish, the Court will sua sponte order a partial new
trial on damages for Plaintiff Miller’s claim of retaliation against Defendant Martelli.
Defendants argue that the punitive damage award against Defendant Martelli is invalid
because the jury did not award compensatory damages to Plaintiff Miller. The only
compensatory damages that were available for the jury to award to Plaintiff Miller, however,
were damages for emotional pain and mental anguish. Plaintiff Miller stipulated to this limit
because he previously received a settlement in which he was compensated for his back wages
and benefits. Thus, the jury was not given the opportunity to award compensatory damages. See
generally, Jones v. Rent-A-Center, Inc., 281 F. Supp. 2d 1277, 1288 (D. Kan. 2003) (stating,
“punitive damages should only be awarded if the defendant’s culpability, after having paid
compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to
achieve punishment or deterrence.”) (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 419 (2003)). Since the jury was not given the opportunity to consider compensatory
damages on Plaintiff Millers’ retaliation claim against Defendant Martelli, the Court will grant a
partial new trial on damages related to this claim.

IT IS ORDERED that a new trial is granted only on the damages that should be awarded
to Plaintiff Richard Miller on his claim of retaliation against Defendant Michael Martelli.
Entered on June 22, 2012, in Denver, Colorado.

SENIOR UNITED STATES DISTRICT JUDGE