Roger Cleveland Golf Company Inc v. Prince et al

Filing 140

RESPONSE in Opposition re 131 MOTION for New Trial MOTION for Judgment as a Matter of Law Motion for New Trial, Motion for Relief from Judgment, 135 Supplemental MOTION for Judgment as a Matter of LawSupplemental MOTION for New TrialSupplemental MOTION for Relief from Judgment Response filed by Roger Cleveland Golf Company Inc.Reply to Response to Motion due by 5/19/2011 (Attachments: # 1 Exhibit A - Prince Trial Testimony Excerpts, # 2 Exhibit B - Gingrich Trial Testimony Excerpts, # 3 Exhibit C - Jury Charges & Motions Excerpts, # 4 Exhibit D - Campbell v. BP, # 5 Exhibit E - Golson v. Green Tree Financial, # 6 Exhibit F - Laubach v. Khajawai, M.D., # 7 Exhibit G - East Tennessee Natural Gas v. Acres in Wythe County, VA, # 8 Exhibit H - Coach v. Gata)(McElwaine, John)

Exhibit E

Page 1

DEITRA R. GOLSON, Plaintiff-Appellee, v. GREEN TREE FINANCIAL
SERVICING CORPORATION, Defendant-Appellant.
No. 00-2365
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
26 Fed. Appx. 209; 2002 U.S. App. LEXIS 472
September 24, 2001, Argued
January 10, 2002, Decided
NOTICE:
[**1] RULES OF THE FOURTH
CIRCUIT COURT OF APPEALS MAY LIMIT
CITATION TO UNPUBLISHED OPINIONS. PLEASE
REFER TO THE RULES OF THE UNITED STATES
COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY:
Appeal from the United States
District Court for the District of South Carolina, at
Columbia. Matthew J. Perry, Jr., Senior District Judge.
(CA-98-3206-3-10BD).
DISPOSITION: Affirmed.

COUNSEL: ARGUED: Regina Hollins Lewis,
NEXSEN, PRUET, JACOBS & POLLARD, L.L.C.,
Columbia, South Carolina, for Appellant.
Lawrence J. Needle, LAWRENCE J. NEEDLE, P.A.,
Columbia, South Carolina, for Appellee.
ON BRIEF: Susan P. McWilliams, NEXSEN, PRUET,
JACOBS & POLLARD, L.L.C., Columbia, South
Carolina, for Appellant.
JUDGES: Before MICHAEL,
GREGORY, Circuit Judges.
OPINION
[*211] PER CURIAM:

TRAXLER,

and

Deitra R. Golson brought an action against her
former employer Green Tree Financial Servicing
Corporation under Title VII, asserting that she was fired
because she was pregnant. See 42 U.S.C.A. § 2000e(k),
2000e-2(a)(1) (West 1994). A jury found in favor of
Golson on her pregnancy discrimination claim and
awarded her $ 1,500 in compensatory damages, $ 30,000
in back pay, and $ 230,000 in punitive damages. 1 After
trial, Green [**2] Tree moved under Rule 50(b) for
judgment as a matter of law, arguing that there was
insufficient evidence to sustain the jury's verdict that
Green Tree had discriminated against Golson on the basis
of pregnancy or that Golson was entitled to punitive
damages. The district court denied the motion. Green
Tree appeals the denial of its Rule 50(b) motion.
1
Golson also alleged that Green Tree
discriminated against her on the basis of race, but
the jury rejected this claim.
Under Rule 50(b), the district court should grant a
motion for judgment as a matter of law if "there is no
legally sufficient evidentiary basis for a reasonable jury
to find for the nonmoving party on that issue."
DeJarnette v. Corning, Inc., 133 F.3d 293, 297 (4th Cir.
1998) (internal quotation marks and alterations omitted).
We review de novo a district court's denial of a Rule
50(b) motion for judgment as a matter of law. See
Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 279 (4th
Cir. 1999). "If, viewing [**3] the facts in the light most
favorable to the non-moving party, there is sufficient
evidence for a reasonable jury to have found in [its]

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26 Fed. Appx. 209, *211; 2002 U.S. App. LEXIS 472, **3

favor, we are constrained to affirm the jury verdict." Lack
v. Wal-Mart Stores, Inc., 240 F.3d 255, 259 (4th Cir.
2001). Having carefully reviewed the record in the light
most favorable to Golson, we conclude that the district
court did not commit reversible error in denying Green
Tree's motion for judgment as a matter of law on the
pregnancy discrimination claim or as to Green Tree's
liability for punitive damages. We also reject Green
Tree's argument that the jury's award of punitive damages
is excessive.
A.
First, the evidence was sufficient to support the jury's
verdict that Green Tree engaged in pregnancy
discrimination. In appropriate circumstances, "a
plaintiff's prima facie case, combined with sufficient
evidence to find that the employer's asserted justification
is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated." Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148, 147 L. Ed. 2d
105, 120 S. Ct. 2097 (2000). To establish a prima facie
case, Golson was [**4] required to present evidence (1)
establishing that she is a member of a protected class; (2)
establishing that she was performing her work
satisfactorily at the time of her discharge; (3) [*212]
showing that she was actually discharged; and (4)
demonstrating that she was treated less favorably than
nonpregnant employees, or supporting a reasonable
inference of discrimination. See Lawrence v. Mars, Inc.,
955 F.2d 902, 905-06 (4th Cir. 1992). Only the second
and fourth elements are in dispute.
Viewed in the light most favorable to Golson, the
evidence demonstrates that Golson was performing
adequately at the time of her discharge. Golson was
employed as a collector of delinquent loans in Green
Tree's Columbia office until she was dismissed in
September 1997. Collectors were given performance
goals each month for the number of accounts that they
were expected to bring current. A collector who
consistently failed to meet the goal was subject to
probation and potential dismissal if the sub-par
performance continued. Golson's production was
generally outstanding during the first half of 1997. By the
summer, Golson was pregnant and had so informed
Green Tree. Golson was forced [**5] to miss work from
July 23 to August 5 with pregnancy-related medical
problems and was admitted to the hospital for three of the
days that she missed. While Golson was away, Green

Tree assigned a new employee to close Golson's accounts
for the month. Golson's accounts fell short of the
performance goal in July. However, there was testimony
from Debra Paxton, one of Golson's supervisors, that if a
collector provided written verification from a doctor that
he or she was not able to work for three or more days,
then Green Tree would not hold the collector account
able for his or her goals that month. During her absence,
Golson provided just such a doctor's note to Thad Pope,
one of her supervisors. Nevertheless, when Golson
returned in August, Pope placed her on 90-day probation
for failure to meet her performance goals. Golson was
told to improve her numbers in August but she was not
given a specific goal. In early September, even though
she had indeed improved the status of her accounts,
Golson was terminated for failing to meet specific
performance goals. Viewing the testimony in Golson's
favor, the jury could have reasonably concluded that
Golson was not responsible for the poor numbers [**6]
in July and that she had done all that was expected of her
in August. On this record, we cannot conclude that "there
is no legally sufficient evidentiary basis for a reasonable
jury to find" in Golson's favor, DeJarnette, 133 F.3d at
297 (internal quotation marks and alterations omitted), on
the question of whether she was performing adequately at
the time of her discharge.
The evidence was also sufficient to support a
reasonable inference of discrimination. Such an inference
could be drawn, for example, from the evidence that
Green Tree did not hold other collectors responsible for
their accounts if they were absent for medical reasons for
longer than three days and could provide a doctor's letter
to that effect. Even though Golson provided Pope with a
doctor's note, Green Tree did not excuse her from her
performance goal. Considering this evidence with
testimony that Golson was not held accountable for her
accounts when she was on medical leave in 1996 for a
condition unrelated to pregnancy, the jury could
reasonably infer that Green Tree excused nonpregnant
employees who presented a similar doctor's verification.
There was also evidence that in April 1997, Golson
[**7] told Pope and Ira Usry, to whom Pope reported,
that she was considering becoming pregnant, in which
case she would either need Green Tree to transfer her to a
less stressful position that demanded fewer and more
standard work hours, or she would need to seek such a
position from another employer. [*213] Golson was
assured that if she became pregnant, Green Tree would

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26 Fed. Appx. 209, *213; 2002 U.S. App. LEXIS 472, **7

place her in such a position with the company. In June
1997, after Golson informed Green Tree that she was in
fact pregnant, Pope and Usry repeated that they intended
to transfer Golson to a department that imposed a less
demanding schedule provided that Golson train her
replacement, which she did. However, when Golson
returned from her pregnancy-related absence, Green Tree
not only failed to transfer her but dismissed her shortly
thereafter. From this evidence, the jury could infer that
Green Tree used the promise of a transfer as an
inducement for Golson to keep working and to stay long
enough for Green Tree to find a replacement who was not
pregnant. On the whole, we conclude that there is
sufficient evidence to support Golson's prima facie case
for pregnancy discrimination.
There was also sufficient evidence for the jury [**8]
to reject Green Tree's asserted nondiscriminatory reasons
for dismissing Golson. Green Tree's primary justification
for firing Golson was that she failed to meet the company
collection goals. Pope testified that Golson was held
accountable for her goals because she failed to apply
formally for a medical leave of absence; however, Pope
admitted he was told by Barb Didrikson, the head of the
Human Resources Department for Green Tree, that
Golson was required only to procure a doctor's letter of
disability. Pope also denied that he even received a
doctor's excuse from Golson, but there was evidence that
Golson delivered the document by hand to Green Tree
and placed it on Pope's desk. Despite the apparent
importance of a doctor's letter of disability, Pope
conceded he did not discuss this topic with Golson.
Furthermore, Golson was issued a 90-day probationary
notice, over which time she was directed to improve her
performance. Green Tree, however, dismissed her after
only 30 days. Viewing the evidence and the inferences to
be drawn from the evidence in Golson's favor, we are
satisfied that the record supports the jury's rejection of
Green Tree's nondiscriminatory explanation for
dismissing [**9] her. 2 Moreover, this evidence, coupled
with Golson's prima facie case, is sufficient to allow the
jury to conclude that Green Tree unlawfully
discriminated. See Reeves, 530 U.S. at 148.
2 We also note that, during cross examination,
Pope's testimony about what Golson told him
about her pregnancy was impeached by his prior
statements at deposition, adding further fuel to
Golson's argument that Green Tree's reason for
letting her go was unworthy of credence.

B.
Punitive damages are available for a Title VII
violation when the discriminatory action was conducted
"with malice or with reckless indifference to the federally
protected rights" of the plaintiff. 42 U.S.C.A. §
1981a(b)(1) (West 1994). The terms "malice" and
"reckless indifference" refer to "the employer's
knowledge that it may be acting in violation of federal
law." Kolstad v. American Dental Ass'n, 527 U.S. 526,
535, 144 L. Ed. 2d 494, 119 S. Ct. 2118 (1999). Under §
1981a, "an employer [**10] must at least discriminate in
the face of a perceived risk that its actions will violate
federal law." Id. at 536. Even if malice or reckless
indifference is demonstrated, the plaintiff must still prove
that liability for punitive damages should be imputed to
the employer. See id. at 539. The determination of
whether liability should be imputed requires a court to
decide whether the decisionmaker was employed in a
managerial capacity and, if so, whether the manager
[*214] was acting within the scope of his employment
when the decision was made. See Lowery v. Circuit City
Stores, Inc., 206 F.3d 431, 443 (4th Cir.), cert. denied,
531 U.S. 822, 148 L. Ed. 2d 31, 121 S. Ct. 66 (2000).
Even then, however, "in the punitive damages context, an
employer may not be vicariously liable for the
discriminatory employment decisions of managerial
agents where these decisions are contrary to the
employer's good-faith efforts to comply with Title VII."
Kolstad, 527 U.S. at 545 (internal quotation marks
omitted).
Significantly, Green Tree does not argue that there is
no evidence of malice or reckless indifference, nor does
[**11] Green Tree challenge that Pope and Usry were
employed in managerial capacities or that they were
acting within the scope of their employment when they
dismissed Golson. Green Tree's only argument is that the
decision of Pope and Usry to terminate Golson because
of her pregnancy should not be imputed to Green Tree
because the company engaged in a good-faith effort to
ensure compliance with Title VII. See Kolstad, 527 U.S.
at 545. Because Green Tree has elected to challenge its
liability for punitive damages solely on the basis that it
engaged in goodfaith efforts to comply with Title VII, we
will assume that there was sufficient evidence of malice
or reckless indifference to sustain an award of punitive
damages.
It is Green Tree's burden to establish that it has

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26 Fed. Appx. 209, *214; 2002 U.S. App. LEXIS 472, **11

engaged in a goodfaith effort to comply with Title VII
such that it may avoid punitive damages for conduct by
one of its managers or supervisors that might otherwise
warrant submission of punitive damages to a jury. See
e.g., Romano v. U-Haul, Int'l, 233 F.3d 655, 670 (1st Cir.
2000), cert. denied, 122 S. Ct. 41, 151 L. Ed. 2d 14
(2001); Passantino v. Johnson & Johnson Consumer
Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000); [**12]
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d
278, 286 (5th Cir. 1999). To satisfy its burden of
demonstrating good faith under Title VII, Green Tree
relied on the existence of its employee handbook, given
to each new hire, which sets forth Green Tree's general
"Equal Employment Policy" and encourages employees
to report immediately "any type" of discrimination or
harassment to a supervisor or to the Human Resources
Department. This policy is posted in all of Green Tree's
offices. However, the mere existence of an
antidiscrimination policy or the presentation of seminars
touching on the anti-discrimination laws does not
automatically satisfy the good-faith requirement,
although it is some evidence of good faith. See Lowery,
206 F.3d at 445-46. Evidence that an employer is not
sincerely committed to enforcing the policy may
undermine the existence of a company-wide policy. See
id. at 446.
There is nothing in the record showing precisely
what was included in Green Tree's "Equal Employment
Policy." We do know, however, what was not included in
the policy -- any mention of pregnancy discrimination.
Accordingly, no matter how [**13] effectively the policy
in the handbook was disseminated, Green Tree failed to
notify its employees that discrimination on the basis of
pregnancy violates Title VII. Furthermore, even though
Didrikson testified that Green Tree tried to enforce its
"Equal Employment Policy" through "other activities,"
there were no specifics given and there was no evidence
that Green Tree required or even offered follow-up
training or education on Title VII compliance. The only
other evidence that Green Tree offered to show good
faith was the issuance of a company newsletter which
included a toll-free number for employees to lodge
general complaints. In sum, there is nothing [*215] in
the record to show that Green Tree ever made its
managers and supervisors aware that pregnancy
discrimination is a form of gender discrimination that
violates Title VII.
Moreover, there was evidence from which a jury

could have reasonably concluded that although Green
Tree had a general antidiscrimination policy in place, the
company was not committed to enforcing it. Viewing the
evidence in the light most favorable to Golson, the
evidence showed that when Golson was placed on
probation, she complained to Pope that she was being
[**14] treated unfairly because she had been out due to
her pregnancy and, despite the doctor's letter she
provided, Golson was still being held accountable for her
goals. In essence, Golson complained to her supervisor,
as the handbook required, that she was being unfairly
treated because of her pregnancy. Pope conceded that he
is required to report to the Human Resources Department
any complaint asserting unfair treatment or
discrimination, and that he would report a complaint of
pregnancy discrimination immediately. Pope then
testified he would have told Didrikson that Golson
believed that she had been unfairly placed on probation.
A reasonable jury could conclude that Pope informed
Didrikson, the head of Human Resources, that Golson
believed she was being mistreated and that the
mistreatment was because of her pregnancy. And, there
was evidence that the Human Resources Department had
Golson's letter from her doctor that indicated her absence,
which led to her probation and termination, was related to
her pregnancy. Nevertheless, Didrikson ignored Golson's
complaint and failed to take any investigatory steps.
There is no evidence of any follow-up questioning by
Didrikson of either Pope [**15] or Golson, and the jury
was left with the clear impression that Green Tree, in
spite of its announced policy, ignored completely
Golson's complaint.
Having carefully reviewed the record on appeal in
the light most favorable to Golson, we are not convinced
that a reasonable juror could only conclude that Green
Tree engaged in a good-faith effort to comply with Title
VII. Accordingly, we refuse to disturb the jury's
conclusion that punitive damages were warranted against
Green Tree in this case.
C.
On a motion for a new trial, the court may set aside a
verdict and grant a new trial if the punitive damages
award will result in a miscarriage of justice. See Atlas
Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99
F.3d 587, 594 (4th Cir. 1996). If the punitive damages
award is grossly excessive, it may violate due process.
See BMW of North America, Inc. v. Gore, 517 U.S. 559,

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26 Fed. Appx. 209, *215; 2002 U.S. App. LEXIS 472, **15

562, 134 L. Ed. 2d 809, 116 S. Ct. 1589 (1996). Green
Tree argues only that Golson's award of punitive
damages is excessive under BMW. 3 Accordingly, we
must determine if Golson's award was so excessive that it
violated due process.
3
BMW examined the excessiveness of a
punitive damages award imposed in state court,
see 517 U.S. at 574, but courts have examined
punitive damages awards in Title VII actions
under a BMW analysis, see, e.g., Romano, 233
F.3d at 672-74. Because Green Tree limits its
argument to BMW's analytical framework, and
Golson does not object, we assume without
deciding that BMW's due process analysis applies
in these circumstances. But see Perez v. Z Frank
Oldsmobile, Inc., 223 F.3d 617, 625 (7th Cir.
2000), cert. denied, 531 U.S. 1153, 148 L. Ed. 2d
971, 121 S. Ct. 1099 (2001).
[**16]
"Fundamental to the due process analysis is whether
the defendant received fair notice that the conduct in
question was prohibited and what the potential penalty
[*216] for engaging in that conduct could be." Romano,
233 F.3d at 672; see BMW, 517 U.S. at 574. BMW offers
us three guideposts to use when examining whether an
award is excessive under the due process clause: (1) the
"degree of reprehensibility" of the wrongdoing; (2) "the
disparity between the harm or potential harm suffered by
[Golson] and [her] punitive damages award"; and (3) "the
difference between this remedy and the civil penalties
authorized or imposed in comparable cases." BMW, 517
U.S. at 575. These guideposts are aimed at helping courts
determine the ultimate issue of whether the defendant
received sufficient notice of the size of the potential
sanction that could be imposed for the wrongdoing at
issue. See id. at 574.

Golson was awarded punitive damages under 42
U.S.C.A. § 1981a, which imposes a $ 300,000 damages
cap for employers the size of Green Tree. See 42
U.S.C.A. § 1981a(b)(3)(D). [**17] In light of the
statutory cap on damages, an employer has notice of the
range of damages that could be imposed if a trier of fact
concludes that the employer violated Title VII and that it
did so "with malice or with reckless indifference to the
federally protected rights" under 42 U.S.C.A. §
1981a(b)(1). See Romano, 233 F.3d at 673. Furthermore,
the fact that the jury's award of punitive damages was
well below the statutory maximum and comes within the
range that Congress considers reasonable is a strong
indicator that Golson's award was not unconstitutional.
See EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1249
(10th Cir. 1999); Romano, 233 F.3d at 673.
Having carefully considered the record in light of the
other BMW factors, we are not persuaded that Golson's
award of punitive damages must be vacated. The record
supports the view that Green Tree's conduct was
reprehensible if Mrs. Golson is given the benefit of all
favorable inferences from the evidence as we must.
Furthermore, the ratio of punitive to actual damages is
not unconstitutionally high. Although Golson was
awarded compensatory damages of [**18] only $ 1,500,
we may consider her award of $ 30,000 in back pay for
purposes of determining the ratio, see EEOC v. W & O,
Inc., 213 F.3d 600, 615 (11th Cir. 2000), resulting in a
punitive damages to actual damages ratio of
approximately 7:1. See id. at 616 (upholding an 8.3 to 1
ratio of punitive damages to back pay in a pregnancy
discrimination case). Accordingly, we affirm the award
of punitive damages.
AFFIRMED