Hudson v. AIH Receivable Management Services
Filing
224
MEMORANDUM AND ORDER denying 199 Defendant's Motion for Judgment as a Matter of Law; denying 201 Defendant's Motion for New Trial. Signed by District Judge Julie A. Robinson on 10/29/2012. (pp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
LINDA D. HUDSON,
)
)
Plaintiff,
)
)
v.
)
)
AIH RECEIVABLE MANAGEMENT
)
SERVICES,
)
)
Defendant.
)
__________________________________________)
Case No. 10-cv-2287-JAR
MEMORANDUM AND ORDER
Plaintiff filed this action based on claims arising out of her employment at Defendant
AIH Receivable Management Services (“AIH”) and her termination. At trial, the jury heard
evidence on Plaintiff’s only remaining claims—her retaliation and racially hostile work
environment claims—and returned a verdict for Plaintiff on her hostile work environment claim
and for Defendant AIH on the retaliation claim.
The matter currently comes before the Court on Defendant’s Motion for Judgment as a
Matter of Law (Doc. 199) and Motion for a New Trial (Doc. 201). Both motions are fully
briefed, and the Court is prepared to rule. As explained more fully below, the Court denies both
of the motions.
I.
Background
Plaintiff filed this action asserting claims against AIH for race discrimination,
harassment, hostile work environment and retaliation in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”),1 the Kansas Act Against Discrimination (“KAAD”),2 and 42 U.S.C.
§ 1981; age discrimination and harassment in violation of the Age Discrimination in
Employment Act (“ADEA”)3 and the KAAD; sexual harassment and hostile work environment
in violation of Title VII and the KAAD; and whistle-blower retaliation in violation of Kansas
law. Defendant filed a motion for summary judgment and the Court granted the motion in part
and denied it in part.4 The Court granted summary judgment to Defendant on Plaintiff’s claims
under Title VII, on Plaintiff’s age discrimination claims under the ADEA and the KAAD, on
Plaintiff’s claim of a sexually hostile work environment under the KAAD, on Plaintiff’s claims
of retaliation under § 1981 and the KAAD that are not based on her termination, and on
Plaintiff’s claim of whistle-blower retaliation under Kansas law. The Court denied summary
judgment on Plaintiff’s claim of a racially hostile work environment under § 1981 and the
KAAD, and on Plaintiff’s claim of retaliation based on her termination under § 1981 and the
KAAD.
The matter was tried to a jury and at the close of evidence, Defendant moved for
judgment as a matter of law under Fed. R. Civ. P. 50(a),5 which the Court took under
advisement. The jury returned a verdict in favor of Plaintiff on Plaintiff’s claim of hostile work
environment racial harassment.6 The jury awarded Plaintiff compensatory damages on this claim
1
42 U.S.C. § 2000e, et seq.
2
K.S.A. § 44-1001, et seq.
3
29 U.S.C. § 621, et seq.
4
Docs. 92, 133.
5
Doc. 180.
6
Doc. 188.
2
in the amount of $50,000.7 The jury also awarded punitive damages against Defendant in the
amount of $75,000.8 The jury found in favor of Defendant on Plaintiff’s claim of retaliation.9
The Court denied Defendant’s motion for judgment as a matter of law.10 Defendant filed the
instant motions, renewing its motion for judgment as a matter of law pursuant to Fed. R. Civ. P.
50(b) and requesting a new trial pursuant to Fed. R. Civ. P. 59(a).
II.
Standards
A.
Renewed Motion for Judgment as a Matter of Law
A court may grant a renewed motion for judgment as a matter of law under Federal Rule
of Civil Procedure 50(b) if “the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue.”11 “[A] party is entitled to
judgment as a matter of law only if all of the evidence, viewed in the light most favorable to the
nonmoving party, reveals no legally sufficient evidentiary basis to find for the nonmoving
party.”12 “Judgment as a matter of law ‘is warranted only if the evidence points but one way and
is susceptible to no reasonable inferences to support the party opposing the motion.’”13 The
Court must consider all of the evidence in the record, construing it in the light most favorable to
7
Id.
8
Id.
9
Id.
10
Doc. 192.
11
Fed. R. Civ. P. 50(a)(1).
12
Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1195 (10th Cir. 2012) (citing Burrell v. Armijo, 603
F.3d 825, 832 (10th Cir. 2010)).
13
Id. (citing Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999) (citation and quotation
omitted).
3
the jury’s verdict, and keeping in mind that “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of
a judge.”14 If, after examining the evidence, the Court finds that the trial contained evidence
upon which a jury could have properly returned a verdict against the movant, the Court must
deny the motion for judgment as a matter of law.15
B.
Motion for New Trial
Under Federal Rule of Civil Procedure 59(a), a court may grant a new trial on all or some
of the issues on motion of a party “after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court.”16 Motions for new trial are
committed to the sound discretion of the district court.17 Courts do not regard motions for new
trial with favor and only grant them with great caution.18
“If ‘a new trial motion asserts that the jury verdict is not supported by evidence, the
verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the
evidence.’”19 If a new trial motion is based on an error at trial, the court must not grant the
motion unless the error prejudiced the party’s substantive rights.20
14
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000) (citation omitted); see also Rocky
Mountain Christian Church v. Bd. of Cnty. Commr’s, 613 F.3d 1229, 1235 (10th Cir. 2010).
15
See Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir. 1988).
16
Fed. R. Civ. P. 59(a)(1)(A).
17
See Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1193 (10th Cir. 1997).
18
Franklin v. Thompson, 981 F.2d 1168, 1171 (10th Cir. 1992).
19
M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 762–63 (10th Cir. 2009) (quoting Anaeme v.
Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir. 1999)).
20
See Henning v. Union Pac. R.R., 530 F.3d 1206, 1216–17 (10th Cir. 2008) (citing Fed. R. Civ. P. 61).
4
III.
Discussion
A.
Defendant’s Motion for Judgment as a Matter of Law
1. Insufficient evidentiary basis to support a hostile environment
Defendant claims that Plaintiff failed to introduce evidence that 1) racial harassment was
so pervasive or severe that it altered the terms of Plaintiff’s employment, and that 2) Travis
Joyce’s comments stemmed from racial animus. The Court must determine whether there was
evidence upon which the jury could have properly returned the verdict in favor of Plaintiff’s
claim of a racially hostile work environment.
Federal cases construing Title VII have been used as persuasive authority by the Kansas
courts in interpreting and applying the KAAD,21 and the elements of a plaintiff’s case are the
same under § 1981 and Title VII.22 To establish a hostile work environment, a plaintiff must
show that “under the totality of the circumstances, the harassment was pervasive or severe
enough to alter the terms, conditions, or privileges of employment, and that the harassment was
based on or stemmed from his race.”23 Plaintiff must establish that the environment would be
“reasonably perceived (objectively), and is perceived (subjectively), as hostile or abusive.”24 In
addition, a plaintiff must be able to point to “more than a few isolated incidents of racial
21
See, e.g., Labra v. Mid–Plains Constr., Inc., 90 P.3d 954, 957 (Kan. Ct. App. 2004); see also Best v. State
Farm Mutual Auto. Ins. Co., 953 F.2d 1477, 1480 n.2 (10th Cir. 1991); Cubie v. Bryan Career Coll., Inc., 244 F.
Supp. 2d 1191, 1200 (D. Kan. 2003).
22
Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991).
23
Stewart v. Bd. of Comm’s for Shawnee Cnty., Kan., 216 F. Supp. 2d 1265, 1278 (D. Kan. 2002) (citations
omitted).
24
Lewis v. Standard Motor Prods., Inc., 203 F. Supp. 2d 1228, 1235 n.31 (D. Kan. 2002) (citing Nieto v.
Kapoor, 268 F.3d 1208, 1220 (10th Cir. 2001) (citations omitted)).
5
enmity.”25 “Mere snubs, unjust criticisms, and discourteous conduct are not actionable; to
establish a hostile work environment, plaintiff must show that the alleged harassment is
excessive, opprobrious, and more than casual conversation.”26 This Court has held that:
Harassment must be sufficiently severe or pervasive, and the court
should consider all of the circumstances, including: the frequency
of the discriminating 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.27
Defendant argues that even assuming that all the incidents Plaintiff complains about are
true, the incidents were not so severe or pervasive so as to alter the terms, conditions, or
privileges of employment. Defendant argues that the offensive language occurred only a few
times over a seven year period. However, Travis Joyce was hired four months before Plaintiff
was terminated, and all of the incidents occurred in this four month period. Defendant cites
Bolden v. PRC Inc.,28 as support for its argument.
The defendants in Smith v. Northwest Financial Acceptance,29 also relied on Bolden in
contending that the evidence was insufficient to establish pervasive harassment because Plaintiff
did not produce evidence of a steady barrage of comments.30 The court in Smith, held that:
However, Defendants’ reliance on Bolden is misplaced because
25
Id. (citations omitted).
26
Stewart, 216 F. Supp. 2d at 1280 (citing Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 561-62 (D.
Kan. 1995)).
27
Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998)).
28
43 F.3d 545, 551 (10th Cir. 1994).
29
129 F.3d 1408 (10th Cir. 1997).
30
Smith, 129 F.3d at 1414.
6
this case involves more than isolated incidents of sexual
harassment. In Bolden, we held that only two overtly racial
comments and one arguably racial remark over the course of the
plaintiff’s eight years of employment did not constitute pervasive
conduct. . . . The record reflects that in this case Plaintiff presented
evidence of approximately six statements made by Mr. Mangus to
her over her twenty-three month employment.[] There is also
testimony that such sexually disparaging remarks were repeated
frequently. We note that while courts have tended to count events
over time to determine pervasiveness, the word “pervasive” is not
a counting measure. The trier of fact utilizes a broader contextual
analysis. It begins with the number, sequence, and timing of the
conduct. The factfinder then looks at the nuances of an
environment that is imposed by each instance of discriminatory
behavior.31
The court in Smith also noted that the “test is a disjunctive one, requiring that the
harassing conduct be sufficiently pervasive or severe to alter the terms, conditions, or privileges
of Plaintiff’s employment.”32 However, the two grounds “are, to a certain degree inversely
related; a sufficiently severe episode may occur as rarely as once . . ., while a relentless pattern
of lesser harassment that extends over a long period of time also violates the statute.”33 In
determining whether the conduct was “severe,” the court considered the intimate setting of the
office, which was a relatively small, open space without partitions or walls.34 The court found
that this public setting only increased the humiliation, and thus the severity of the discriminatory
conduct.35 Furthermore, unambiguous racial epithets fall on the “more severe” end of the
31
Id. at 1414-15 (citations omitted).
32
Smith, 129 F.3d at 1413 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)).
33
Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008) (citing Cerros v. Steel Techs., Inc.,
288 F.3d 1040, 1047 (7th Cir. 2002)).
34
Smith, 129 F.3d at 1414.
35
Id.
7
spectrum.36
Plaintiff kept a journal documenting the racially discriminatory statements made by
Joyce, and testified that it was difficult to document everything because Joyce said so many
things that were discriminatory. Plaintiff testified that during her first training session after
Joyce started working at AIH, he told her she was too dumb and old and that Martha was his
friend and would believe anything he said. Plaintiff testified that Joyce quoted lines from the
movie The Color Purple. Plaintiff testified that Joyce would stand up, look directly at her, and
quote the line “I may be black, I may be ugly, but dear God I’m here,” and indicate that at least
he has a job—more than he can say about someone else. Plaintiff testified that Joyce found her
weak point and he knew it got to her, and he dwelled on it and continued to use it to taunt her
pretty much daily. Plaintiff testified that Ms. Booze would say to Joyce “I thought you weren’t
going to say anything racial today,” to which Joyce would respond “I forgot we had a snitch
here.” Plaintiff testified that she heard Joyce call her a “nigger bitch” twice, and quite a few
times he called her old, dumb and black and too stupid to know when to quit. Plaintiff testified
that Mr. Holtgraves and Ms. Thornhill would sit in the middle of the collection floor and laugh at
Joyce’s comments, which was very demeaning. She testified that Thornhill quit speaking to her
and for lunch Plaintiff would sit in the stairwells or sit in her car, even in inclement weather.
Plaintiff testified that she started losing her hair and her sleep and relationship with her husband
were affected.
36
See Tademy v. Union Pac. Corp., 614 F.3d 1132, 1145 (10th Cir. 2008) (citing Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 185 (4th Cir. 2001) (“Far more than a mere offensive utterance, the word ‘nigger’ is pure
anathema to African-Americans. Perhaps no single act can more quickly . . . create an abusive working environment
than the use of an unambiguously racial epithet such as ‘nigger’ . . . “); Cerros v. Steel Techs., Inc., 288 F.3d 1040,
1047 (7th Cir. 2002) (“While there is no ‘magic number’ of slurs that indicate a hostile work environment, we have
recognized before that an unambiguous racial epithet falls on the ‘more severe’ end of the spectrum.”).
8
Ms. Booze testified that The Color Purple is not a comedy, it’s about a black woman that
is raped by her father and then forced to marry an older man that treated her badly. Booze
testified that if she had heard Joyce making racial slurs, she would find his pantomiming of “I
may be old, I may be black, etc.” to be offensive. But, she testified that she did not hear any of
these other alleged racial comments by Joyce. The Court finds that there was a legally sufficient
evidentiary basis for the jury to find that Plaintiff met her burden of showing a racially hostile
work environment that was so severe or pervasive so as to alter the terms, conditions, or
privileges of her employment.
Defendant also argues that Plaintiff produced no evidence that Joyce’s comments were
the product of racial animus nor that he harbored racist sentiments. Plaintiff and former
employees, Christine Blake and Leigh Dillard, testified that Travis Joyce used racial slurs and
made racially offensive comments in the workplace. They testified to frequently hearing Joyce
quote movie lines from The Color Purple. Plaintiff testified that Joyce caller her a “nigger” at
least twice, and Blake testified that she heard Joyce call Plaintiff a “black bitch,” and heard
Joyce say “nigger” in the office between ten and fifteen times. There was evidence that Joyce:
announced that he was the gay KKK; referred to the South rising again; referred to those mad
black slave people killing themselves on crack cocaine; quoted lines from The Color Purple;
referred to African-Americans being “lazy asses on welfare;” and referred to throwing a nigger
under the bus. The Court finds that there was sufficient evidence of racial animus presented to
the jury.
2. Insufficient evidentiary basis to award punitive damages
Defendant also argues that Plaintiff failed to prove by clear and convincing evidence that
9
Defendant acted with willful conduct, wanton conduct, fraud or malice.37 “Punitive damages
may be assessed against a corporate employer for the acts of an employee when the challenged
conduct is authorized or ratified by the corporation or by a “person expressly empowered to do
so on behalf of the . . . employer.”38 “Malice” is defined as “a state of mind characterized by an
intent to do a harmful act without a reasonable justification or excuse,”39 and “willful conduct”
means an “act performed with a designed purpose or intent on the part of a person to do wrong or
to cause injury to another.”40 “An act performed with a realization of the imminence of danger
and a reckless disregard or complete indifference to the probable consequences of the act is a
wanton act.”41 “[A]n employer can be liable for punitive damages, even if it does not know it is
violating an employee’s rights, ‘so long as the employer appreciates the wrongfulness,
harmfulness, or injuriousness of the act itself.”42 This awareness can be inferable from the
intentional discrimination evidence supporting the underlying claim.43
At trial, AIH’s witnesses did not present evidence that they followed their harassment
policy or took actions based on the complaints, but rather AIH’s defense was that no complaints
were made. Yet Plaintiff and her witnesses testified that not only did they complain about some
37
See Kan. Stat. Ann. § 60-3702(c).
38
Hysten v. Burlington N. Santa Fe Ry. Co., 530 F.3d 1260, 1276 (10th Cir. 2008) (citations omitted); see
Kan. Stat. Ann. § 60-3702(d)(1).
39
Hysten, 530 F.3d at 1276; Doc. 187 at 23 (Instruction No. 21).
40
Id.
41
Doc. 187 at 23.
42
Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1200 (10th Cir. 2012) (citing Hysten v. Burlington N.
Santa Fe Ry. Co., 530 F.3d 1260, 1277 (10th Cir. 2008)).
43
Hysten, 530 F.3d at 1277 (citation omitted); see also Harsco Corp. v. Renner, 475 F.3d 1179, 1188 (10th
Cir. 2007) (The pervasiveness of the harassment can properly lead to an inference of knowledge.).
10
of the racially offensive conduct, management was actually present when it occurred. Plaintiff
testified that Mr. Holtgraves and Ms. Thornhill would sit in the middle of the collection floor and
laugh at Joyce’s comments. Plaintiff testified that she complained to Martha Thornhill about
Joyce’s racially discriminatory and inappropriate comments, but Thornhill merely laughed and
told Plaintiff to “get over it or quit.” Dillard and Blake likewise testified about complaining to
Thornhill and receiving the same response as Plaintiff. There was testimony that their
complaints were never noted, no interviews were conducted and there was no follow-up.
Plaintiff also complained to Toni Booze, an AIH manager, who told her to keep quiet because
Joyce was “Martha’s boy” and Plaintiff would be the one to get in trouble. There was also
testimony that Booze told Joyce “I thought you weren’t going to say anything racial today,” to
which Joyce would respond “I forgot we had a snitch here.” The jury was also presented with
evidence that Joyce was a “super-collector,” was “Martha’s boy” and was protected by
Defendant.
The Court finds that Plaintiff introduced sufficient evidence to support the jury’s award
of punitive damages. There was a legally sufficient evidentiary basis for the jury to find that
Defendant acted in a willful, wanton and malicious manner toward Plaintiff. Viewing the
evidence in the light most favorable to Plaintiff, the Court finds that there was sufficient
evidence for the jury to conclude that Plaintiff was subjected to a racially hostile work
environment and that punitive damages were warranted. The Court cannot say that the evidence
points but one way and is susceptible to no reasonable inferences supporting Plaintiff’s claim.
B.
Defendant’s Motion for a New Trial
Defendant argues that it is entitled to a new trial on Plaintiff’s race-based hostile work
11
environment claim, because “[t]he Court inverted its application of FRE 608 by permitting the
Plaintiff to argue that the credibility of AIH’s employees could be attacked by specific instances
of prior bad conduct and refusing to provide AIH the opportunity to present opinion and
reputation evidence of Mrs. Hudson’s poor veracity.”44 Specifically, Defendant argues that over
its objection, Plaintiff was permitted to elicit testimony regarding Joyce’s impersonation of
Duval Lewis, a debtor, in his attempts to collect a debt, and was also permitted to inquire into
Joyce and Thornhill’s initial dishonesty to investigators regarding this incident. Defendant
argues that this evidence was not independently relevant to any issue in the lawsuit and was used
to paint Joyce and Thornhill as liars. Defendant also requests a new trial on the basis that the
verdict was against the overwhelming weight of the evidence. In the alternative, Defendant
seeks remittitur.
1. Impeachment of Joyce and Thornhill with specific instances of prior bad acts
Defendant argues that the introduction of Joyce and Thornhill’s untruthfulness was
completely unrelated to Plaintiff’s claims of a hostile work environment, and although the Court
allowed the admission to establish pretext in terminating Plaintiff as part of Plaintiff’s retaliation
claim, Plaintiff did not limit its use of this evidence to establish pretext, but instead used the
prior bad acts or wrongs to attack Joyce and Thornhill’s credibility while they were on the
witness stand.
Rule 404(b) of the Federal Rules of Evidence provides:
Evidence of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion
the person acted in accordance with the character. . . . This
44
Doc. 202 at 2.
12
evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. . . . 45
Plaintiff presented evidence that on January 29, 2009, Joyce called an insurance company
impersonating a debtor, and told them to send him a check at AIH’s address. The Court ruled
that the evidence of Joyce’s impersonation of a debtor was relevant to the issue of pretext, i.e.,
what information Defendant possessed about employees when managers decided who to
downsize for the alleged reduction in force (“RIF”). The Court excluded evidence regarding the
criminal investigation, but allowed evidence that the situation was brought to AIH’s attention
and what happened within the company—i.e. whether they investigated or took disciplinary
action, because it was evidence of pretext. Both Joyce and Thornhill admitted that they lied
during the investigation into the impersonation. Plaintiff used the evidence to show that
Defendant’s reason for terminating her was pretextual — that no reasonable employer would
retain Joyce over Plaintiff, given his misconduct. Although the jury did not find for Plaintiff on
her retaliation claim, this evidence was relevant to the issue of pretext. Proving pretext was an
essential element of Plaintiff’s retaliation claim and the probative value of this evidence
outweighed the prejudicial effect against Defendant.
Defendant attempted to admit similar evidence regarding Plaintiff. Defense counsel
asked Christine Blake whether Plaintiff was standing or sitting when Plaintiff called the
insurance company and portrayed herself as another employee—Megan Alterman. Blake
responded that she was unaware of when she did that. Following this inquiry, a bench
conference was held out of the hearing of the jury. The Court emphasized that it was allowing
45
Fed. R. Evid. 404(b)(1) and (2).
13
evidence of Joyce’s misconduct because Defendant was aware of it when it made its decision to
terminate Plaintiff pursuant to the alleged RIF. Thus, it was probative of pretext. The Court
indicated that if Plaintiff did a similar act it would be relevant if AIH knew about it before it
made the decision to terminate Plaintiff. Defendant did not revisit the issue nor attempt to
present a witness that could testify that AIH knew about Plaintiff’s conduct before she was
terminated. This is understandable considering AIH’s defense to Plaintiff’s whistle blower claim
was that AIH was unaware prior to Plaintiff’s termination that Plaintiff was the one that called
the insurance company to report Joyce.
Defendant also points to Plaintiff’s counsel’s closing argument and argues that Plaintiff’s
use of this evidence, in direct contravention of the Court’s order (which permitted the use of this
evidence solely as pretext evidence), entitles Defendant to a new trial. However, Defendant did
not object to Plaintiff’s counsel’s closing argument,46 and the Court instructed the jury that
statements, objections or arguments the lawyers make are not evidence.47
The Court finds that this evidence was relevant and probative of pretext.48 Furthermore,
the probative value of this evidence is not outweighed by Rule 403 considerations.
2. Refusal to allow Defendant to present evidence of Plaintiff’s poor reputation for
veracity
Defendant argues that four former co-workers of Plaintiff — Shayla Williams, Ben Kind,
46
See Glenn v. Cessna Aircraft Co., 32 F.3d 1462, 1465 (10th Cir.1994) (holding that “[a] party who waits
until the jury returns an unfavorable verdict to complain about improper comments during opening statement and
closing argument is bound by that risky decision and should not be granted relief”).
47
Doc. 187 at 33 (Instruction No. 31).
48
Defendant argues that the evidence should have been limited to establishing pretext. The Court notes that
it is not aware of Defendant proposing a limiting instruction at the jury instruction conference.
14
Darlene Prier, and Dorothy Russell — were willing to speak to Plaintiff’s reputation for poor
veracity, and that testimony should have been admitted, citing FRE 608(a).
Federal Rule of Evidence 608(a) states:
A witness’s credibility may be attacked or supported by testimony
about the witness’s reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an
opinion about that character. But evidence of truthful character is
admissible only after the witness’s character for truthfulness has
been attacked.49
Because Defendant’s motion is based on an alleged error at trial, the Court must first
determine whether it erred in excluding the evidence, and if so, the Court must then determine
whether the error prejudiced Defendant’s substantive rights. Here, the Court finds no error in its
decision to exclude the proffered testimony. Even if the Court erred in excluding this testimony,
a new trial based upon an erroneous evidentiary ruling is warranted only if that error
prejudicially affected the substantial rights of a party. Based on the proffers of testimony, the
Court finds that even if the exclusion was erroneous, it did not prejudicially affect Defendant’s
substantial rights.
The Court found that the probative value of evidence that former employees had an issue
with Plaintiff several years ago was outweighed by prejudice, and therefore the Court limited the
focus to 2008-2009.50 Defendant sought to call Shayla Williams as a witness to present evidence
that Plaintiff had a history of not getting along with her coworkers. Ms. Williams had not
49
Fed. R. Evid. 608(a).
50
Defendant alleged in the Pretrial Order that Plaintiff was selected for the RIF due in part to her attitude
and performance after she was moved to the medical route (January 28, 2009). The Court allowed Defendant to
rebut Plaintiff’s evidence that Plaintiff was a great performer before that time period (while collecting on the
financial route). However, because Defendant did not preserve the issue of her performance and attitude before she
was moved to the medical route, the Court limited the extent of this testimony.
15
worked at Defendant for five or six years. The Court ruled that because Ms. Williams left the
company in 2005, and no other witness had testified regarding that time period, the evidence was
outside the relevant time frame and there was not a close enough temporal connection. The
Court did advise Defendant that similar evidence would be permissible if it was within the
relevant time frame. The Court did allow Defendant to make an offer of proof by questioning
Ms. Williams. In reviewing the offer of proof, nothing in Ms. William’s testimony speaks to
Plaintiff’s reputation for poor veracity. Ms. William’s proffered testimony alleges that Plaintiff
had a tendency to be rude, irritable, failed to acknowledge the success of her coworkers, and
used non-racial profanity in the workplace.
Similarly, Defendant made an offer of proof by questioning Darlene Prier. When asked if
she thought Plaintiff was an honest person, Prier replied that she used to think so, but she just
really didn’t know. When asked if she thought Plaintiff was honest or dishonest, Prier replied “I
would guess dishonest.” Finally, when asked if she would believe Plaintiff if she was testifying
under oath, Prier replied “I would like to say yes, but honestly I don't know.” Defendant also
made a proffer for two more witnesses— Dorothy Russell and Ben Kind. Defendant proffered
that they would testify to the effect that they would not believe Plaintiff if she testified under
oath.
The Court found that this generic evidence was not particularly probative and that it
would be prejudicial to bring in coworkers to give generic opinions as to Plaintiff’s honesty,
noting that the jury had already heard favorable and unfavorable things about almost every
witness in the case, and had sufficient evidence to weigh their credibility. For example, the jury
was presented with testimony that Plaintiff hid accounts from Joyce and was untruthful in telling
16
Joyce that Defendant did not settle accounts and did not order credit reports.
The Court finds that, in light of the proffers of testimony and the other evidence available
to the jury, even if the Court erred in excluding this testimony, a new trial is not warranted
because any such error did not prejudicially affect Defendant’s substantial rights.
3. Verdict against the overwhelming weight of the evidence
Defendant claims that the verdict was against the overwhelming weight of the evidence
because 1) the testimony of Plaintiff and her primary witness, Christine Blake, differed as to the
number of times Joyce used a racial epithet — Plaintiff testified that Joyce used a racial epithet
three times while Blake testified that he used the racial epithet at least ten times; 2) Joyce
worked well with African-Americans and therefore his difficult relationship with Plaintiff was
not caused by her race; and 3) a preponderance of the witnesses testified that Joyce never uttered
racial epithets and three of those witnesses are African-American and would be very sensitive to
such language.
Defendant’s arguments are unpersuasive. The variance in the number of times Plaintiff
and Blake heard Joyce say “nigger” does not establish that the jury’s verdict was
overwhelmingly against the weight of the evidence. Plaintiff may not have been present or may
not have overheard each instance when Blake heard Joyce use this racial epithet. Blake
continued to work there after Plaintiff was terminated.
The fact that other African-Americans testified that they had a good working relationship
with Joyce is also insufficient to show that the verdict was against the overwhelming weight of
the evidence. “[A] claimant in a hostile environment harassment case must show that the
environment would be reasonably perceived (objectively), and is perceived (subjectively), as
17
hostile or abusive.”51 The jury was instructed that in determining whether a reasonable person
would find the work environment to be hostile or abusive, they
must consider the evidence from the perspective of a reasonable
person. This is an objective standard that requires you to look at
the evidence from the perspective of a reasonable person’s reaction
to a similar environment under similar circumstances.52
The jury could have concluded that certain witnesses were not credible, or that they feared for
their jobs, or that they were aware that Defendant favored Joyce and failed to discipline him, or
that Joyce was “protected” and “Martha’s boy.” The jury could have believed their testimony
that they were unaware of the racial comments, and only heard the reciting of lines from The
Color Purple. The jury could have interpreted Ms. Booze’s testimony that she got along with
Joyce in several different ways — the jury could have found her not credible, could have found
that she was getting along with him in the same manner she instructed Plaintiff to because he
was “Martha’s boy” or possibly that Joyce treated Booze differently than Plaintiff because she
was a high level manager. The fact that some employees testified that they got along with Joyce
does not prevent the jury from finding that the objective standard was met.
The jury was instructed regarding its role in determining the weight and credit to be
given to the testimony of each witness. The jury was instructed that “[t]he testimony of a fewer
number of witnesses concerning any fact may be more credible than the testimony of more
witnesses to the contrary,”53 and that:
51
Nieto v. Kapoor, 268 F.3d 1208, 1220 (10th Cir. 2001) (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 22
(1993)).
52
Doc. 187 at 9 (Instruction No. 8).
53
Doc. 187 at 28 (Instruction No. 26).
18
In weighing the testimony of a witness you should consider the
witness’s relationship to the plaintiff or defendant; any interest the
witness may have in the outcome of the case; the witness’s manner
while testifying; the opportunity and ability to observe or acquire
knowledge concerning the facts about which the witness testified;
the witness’s candor, fairness and intelligence; and the extent to
which the witness has been supported or contradicted by other
credible evidence. You may, in short, accept or reject the
testimony of any witness in whole or in part.54
The Court cannot find that Defendant has proved that the verdict is clearly, decidedly, or
overwhelmingly against the weight of the evidence. Instead, the Court finds that the trial
contained evidence upon which a jury could have properly returned a verdict for Plaintiff on her
claim of a racially hostile work environment with damages. Even if the Court would have
reached a different decision, “[a] new trial is not warranted simply because the court would have
reached a different verdict.”55
4. Remittitur
Defendant also argues that the Court should exercise its authority to reduce the verdict to
be in line with Kansas and federal law. “When a court concludes that there was error only in the
excessive damage award, but not error tainting the finding of liability, it may order a remittitur or
grant a new trial if the plaintiff refuses to accept the remittitur.”56 “A remittitur is a substitution
of the court’s judgment for that of the jury regarding the appropriate award of damages.”57
Defendant argues that it is a small, family debt collection company, is insolvent and has
54
Doc. 187 at 29 (Instruction No. 27).
55
Crumpacker v. Kansas, 2004 WL 3186196, *4 (D. Kan. 2004) (citing Boyce v. Comm’r of Dickinson
Cnty., 857 F. Supp. 794, 797 (D. Kan. 2004).
56
Klein v. Grynberg, 44 F.3d 1497, 1504 (10th Cir. 1995).
57
Cartel Asset Mgmt. v. Ocwen Fin. Corp., 249 Fed. App’x. 63, 80–81 (10th Cir. 2007) (quoting Johansen
v. Combustion Eng’g, 170 F.3d 1320, 1331 (11th Cir. 1999)).
19
no insurance coverage. Defendant also argues that the Court should take into consideration that
Congress and the Kansas legislature have acknowledged the excessive costs of civil rights
litigation on small employers. The Civil Rights Act of 1964 entails damages caps of $50,000
(combined punitive and compensatory) on the smallest employers.58 Likewise, under the
KAAD, damages are capped at $2,000.59 Thus, Defendant argues that Federal and State law
suggest that the smallest of corporations are unable to pay more than $50,000. However, the
Tenth Circuit has previously held that “[S]ection 1981 does not have a statutory cap that limits
punitive damages as does Title VII.”60 Likewise, in Miller v. Prosoco, Inc.,61 a similar argument
was made and the court noted that Section 1981a(b)(4) specifically states, that “[n]othing in this
section shall be construed to limit the scope of relief available under section 1977 of the Revised
Statutes (42 U.S.C. § 1981),” and held that “[i]t does not appear, then, that plaintiff's claim for
punitive damages pursuant to section 1981 is limited to $50,000.00 as defendants so contend.”62
Finally, Defendant argues that the evidence does not support an award of $50,000 for
emotional distress. There is no evidence that the jury’s verdict was excessive or resulted from
passion or prejudice. The jury’s award of $75,000 in punitive damages was one and a half times
58
42 U.S.C.A. § 1981a (b)(3).
59
K.S.A. § 44-1005(k).
60
Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1117 (10th Cir. 2001); See also Bogle v. McClure,
332 F.3d 1347, 1362 (11th Cir. 2003) (“Congress has not seen fit to impose any recovery caps in cases under §
1981(or § 1983), although it has had ample opportunity to do so since the 1991 amendments to Title VII.”).
61
No. 93–2353–JWL, 1994 WL 481759, *10 (D. Kan. Aug. 3, 1994).
62
Id.; accord West v. Boeing Company, 851 F. Supp. 395, 399 n. 5 (D. Kan. 1994) (there are no caps on
compensatory and punitive damages similar to those in Title VII in racial discrimination claims under 42 U.S.C. §
1981).
20
the compensatory damage award.63 The Court cannot find that the jury’s award is so excessive
that it shocks the judicial conscience and raises an irresistible inference that passion, prejudice,
corruption, or other improper cause invaded the trial.64 The Court denies Defendant’s request for
a new trial or remittitur.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Judgment as a Matter of Law (Doc. 199) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for New Trial (Doc. 201) is
DENIED.
IT IS SO ORDERED.
Dated: October 29, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
63
See Haberman v. The Hartford Ins. Group, 443 F.3d 1257, 1271-72 (10th Cir. 2006) ($100,000 punitive
damage award was not constitutionally excessive, even though that award was twenty times the $5,000 actual
damage verdict); Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091, 1116-17 (10th Cir. 2001) (1.1 million dollar
punitive award which was approximately twenty times the $56,000 compensatory damage verdict was not
constitutionally excessive).
64
See Therrein v. Target Corp., 617 F.3d 1242, 1257 (10th Cir. 2010).
21
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