Wilson v. KTG, Kruger USA
Filing
118
ORDER denying 107 Plaintiff's Motion for New Trial. Signed by Magistrate Judge Tu M. Pham on 08/06/2019. (jmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JOSEPH WILSON,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
K.T.G. (USA), INC.,
Defendant.
16-cv-02508-TMP
ORDER DENYING PLAINTIFF’S MOTION FOR NEW TRIAL
Before the court is plaintiff Joseph Wilson’s Motion for
New
Trial,
filed
on
December
27,
2018.
(ECF
No.
107.)
Defendant K.T.G. (USA), Inc. (“K.T.G.”) responded on January 24,
2019.
(ECF No. 115.)
For the following reasons, the motion is
DENIED.
I. BACKGROUND
On
February
7,
2011,
Wilson,
who
is
African-American,
started working as a Unitizer/Loader Operator for K.T.G. 1
On
February 25, 2013, Anthony Dix, who is also African-American,
became
through
Wilson’s
Wilson’s
Discipline
1A
Policy
supervisor
and
remained
termination.
in
place
with
K.T.G.
his
has
escalating
supervisor
a
up
Progressive
punishment
for
more in-depth discussion of the facts surrounding this case
can be found in this court’s summary judgment order. See Wilson
v. K.T.G. (USA), Inc., No. 2:16-cv-2508, ECF No. 51, 2018 WL
4571604 (W.D. Tenn. Sept. 24, 2018).
employee misconduct: for the first instance of misconduct, the
employee is orally reprimanded; for the second, the employee
receives a written warning; for the third, the employee receives
a final written warning and a suspension; and for the fourth,
the employee is terminated.
Dix has the sole discretion to
discipline an employee who is under his supervision for that
employee’s first three acts of misconduct.
able
to
suspend
an
employee
without
K.T.G.’s Human Resource department.
Dix is therefore
involving
anyone
from
Utilizing his discretion,
Dix first disciplined Wilson on September 30, 2013, for failing
to clean up a product spill and placing pallets in front of the
area of the spill.
On November 5, 2013, Dix disciplined Wilson
for talking on his cell phone at work.
incidents,
Wilson
filed
internal
Dix’s “harassing” behavior.
After each of these
grievances
complaining
about
For example, on October 22, 2013,
Wilson filed a grievance in which he stated that Dix had been
bullying and harassing him and “has made my job a hostile work
environment” based on “my ethic [sic] age.”
78-79.)
On
discrimination
November
with
the
6,
2013,
EEOC,
Wilson
Charge
No.
(ECF No. 32-3 at
filed
a
charge
490-2014-00128
“Charge”), in which he alleged as follows:
Since Anthony Dix became my supervisor he consistently
harasses and scrutinizes my work. On October 2, 2013,
I received a write up from Dix. On or about October
29, 2013, I filed a grievance concerning Dix’s
harassing behavior. On November 5, 2013, I received a
-2-
of
(the
written-up [sic] from Dix. I believe I have been
discriminated against because of my race (Black) and
retaliated against in violation of Title VII[.]
(ECF No. 37-4 at 20.)
Sometime
in
December
2017,
Dix
suspended
Wilson
for
allegedly failing to complete a Receiving Report, which loaders,
such as Wilson, were required to complete.
Wilson contended
that completing the Receiving Report was not required and that
Dix
actually
suspended
protected activity.
him
in
retaliation
for
engaging
in
Dix’s decision to suspend Wilson was made
without input from or involvement of any other K.T.G. supervisor
or Human Resources’ employee.
At the time Dix suspended Wilson,
Dix
had
was
aware
that
Wilson
filed
internal
grievances;
however, Dix had no knowledge that Wilson had filed the Charge.
Ann Fleck, K.T.G’s Human Resources Manager, had no knowledge of
Wilson’s internal grievances when Dix suspended Wilson.
Fleck
did not know that Wilson had filed the internal grievances until
January 2014, which was after Dix suspended Wilson.
111 at 44.)
(ECF No.
In addition, Fleck did not know that Wilson had
filed the Charge until late December 2013 or early January 2014
(after Dix suspended Wilson).
This case proceeded to a jury trial in November 2018 to
resolve
a
single
issue
-
whether
-3-
Dix
suspended
Wilson
in
retaliation for the grievances Wilson filed. 2
Prior to trial, on
November 12, 2018, K.T.G. filed a motion in limine seeking to
exclude evidence regarding the Charge.
(ECF No. 61.)
The next
day, the court held a pretrial conference and when Wilson was
asked about K.T.G.’s motion in limine, he asserted that filing a
response in opposition to the motion was unnecessary because he
did not oppose the motion.
unopposed motion.
trial
Wilson’s
representation,
The court therefore granted the
(ECF No. 65.)
position
Wilson
changed.
argued
that
However, on the morning of
Contrary
while
to
the
his
Charge
earlier
itself
should not be admitted, evidence referencing the Charge should
be
admitted.
As
one
example,
Wilson
argued
that
statements
where Wilson references that he filed the Charge, within his
Exhibit 13, should be admitted.
Copy of Wilson’s Exhibit 13.)
(See ECF No. 107-1, Unredacted
The court disagreed with Wilson
and again ordered that evidence regarding the Charge would not
be admitted.
(ECF No. 96.)
After the parties presented closing arguments, the court
instructed the jury.
the
following
During its deliberations, the jury asked
question:
“For
Mr.
Wilson’s
Grievances
to
be
protected activities under Title VII, do the grievances have to
allege prohibited discrimination.”
2Wilson
(ECF No. 103 at 2.)
After
raised several other claims that the court dismissed at
the summary judgment stage. (ECF No. 51.)
-4-
discussing
that
question
with
the
parties,
the
court
took
a
lengthy recess to consider the parties’ arguments and to review
Sixth Circuit case law.
that
it
would
give
the
The court then notified the parties
jury
the
following
supplemental
instruction:
To come within the protection of Title VII, the
plaintiff must prove that he challenged an employment
practice that he reasonably believed was unlawful.
Title VII does not restrict the manner or means by
which an employee may oppose an unlawful employment
practice. The manner of opposition must be reasonable,
and that opposition must be based on a reasonable and
good faith belief that the opposed practice was
unlawful. In other words, a violation of Title VII’s
retaliation provision can be found whether or not the
challenged
practice
ultimately
is
found
to
be
unlawful. Title VII does not protect an employee if
his
opposition
is
merely
a
vague
charge
of
discrimination. Although vague complaints do not
constitute opposition, the law does not require that
the plaintiff’s complaint be lodged with absolute
formality, clarity, or precision.
(ECF No. 104.)
The court explained to the parties the bases for
this supplemental instruction:
And, then, second, this supplemental instruction, let
me explain to you what I've done. First of all, I've
taken the first sentence from the protected activity
section of the Yazdian opinion. The only change I made
in Yazdian, it says, "Yazdian must establish," and
that was a summary judgment issue at trial, so I
substituted that by saying that, "The plaintiff must
prove that he challenged an employment practice that
he believed was unlawful."
The second sentence, which Plaintiff asked to include,
says, "Title VII does not restrict the manner or means
by which an employee may oppose an unlawful employment
practice."
-5-
The third sentence of Yazdian, I'm not including, the
one that read, "Indeed, a demand that the supervisor
cease
his
or
her
harassing
conduct
constituted
protected activity covered under Title VII."
I think that would be misleading to the jury because
the way it reads, it sounds like I'm telling them what
would be found - what they should find, excuse me, and
that's confusing and misleading and inappropriate as
part of the jury instruction. So that sentence of
Yazdian that begins with the demand that a supervisor
cease, I am not including in the instruction.
The next sentence of my instruction, “The manner of
opposition must be reasonable and that opposition must
be based on a reasonable and good-faith belief that
the opposed practice was unlawful," comes partly from
Yazdian on page 646, and that's actually consistent
with the existing instruction about a good-faith
belief that we have in instruction No. 10, good-faith
belief.
That quote is from - is taken from Yazdian quoting
Johnson, and Johnson – that language - and I have a
copy of the Johnson opinion at the podium if anyone
wants to look at that, but it's taken from the 6th
Circuit opinion in Johnson.
The next two sentences, actually, “The manner of
opposition must be reasonable and the opposition must
be based on a reasonable and good-faith belief that
the opposed practice was unlawful. In other words, a
violation of Title VII's retaliation provision can be
found whether or not the challenge practice ultimately
is found to be unlawful." Again, that's taken from
Johnson.
And the last two sentences, "Title VII does not
protect an employee" - I did leave out the word
"however" to not highlight this sentence, but "Title
VII does not protect an employee if his opposition is
merely a vague charge of discrimination and, although
vague complaints do not constitute opposition, the law
does not require that the plaintiff's complaint be
lodged
with
absolute
formality,
clarity,
or
precision."
-6-
Ms. Collins,
instruction?
do
you
wish
to
be
heard
on
this
(ECF No. 113 at 26:7-28:18.)
Wilson
objected
instruction.
to
the
last
two
sentences
at
the
The court overruled Wilson’s objection and gave
the jury the above-quoted supplemental instruction.
113
of
28-29.)
Ultimately,
the
jury
returned
a
(ECF No.
verdict
in
K.T.G.’s favor and the court subsequently entered judgment in
conformity with the verdict.
present
motion,
Wilson
argues
(ECF Nos. 105; 106.)
that
a
new
trial
is
In the
warranted
because (1) the court improperly excluded evidence regarding the
Charge; and (2) the supplemental jury instruction was erroneous.
(ECF No. 107.)
II. ANALYSIS
After a jury trial, a court may grant a new trial “for any
of the reasons for which new trials have heretofore been granted
in actions at law in the courts of the United States.”
Civ. P. 59(a)(1)(A).
Fed. R.
“A new trial is appropriate when the jury
reaches a ‘seriously erroneous result as evidenced by (1) the
verdict being against the [clear] weight of the evidence; (2)
the damages being excessive; or (3) the trial being unfair to
the moving party in some fashion, i.e., the proceedings being
influenced by prejudice or bias.’”
Cummins v. BIC USA, Inc.,
727 F.3d 506, 509–10 (6th Cir. 2013) (quoting Static Control
-7-
Components, Inc. v. Lexmark Int'l, Inc., 697 F.3d 387, 414 (6th
Cir. 2012)).
Furthermore, “a motion for a new trial will not be
granted unless the moving party suffered prejudice.”
Tompkin v.
Philip Morris USA, Inc., 362 F.3d 882, 891 (6th Cir. 2004). “The
burden of showing harmful prejudice rests on the party seeking
the new trial.”
Simmons v. Napier, 626 F. App'x 129, 132 (6th
Cir. 2015) (quoting Tobin v. Astra Pharm. Prods., Inc., 993 F.2d
528, 541 (6th Cir. 1993)).
The Sixth Circuit has explained that
“the governing principle in the district court's consideration
of a motion for a new trial is whether, in the judgment of the
trial judge, such course is required in order to prevent an
injustice[.]”
Park W. Galleries, Inc. v. Hochman, 692 F.3d 539,
544 (6th Cir. 2012) (quoting Davis v. Jellico Cmty. Hosp. Inc.,
912 F.2d 129, 133 (6th Cir. 1990)).
trial
thus
bears
“a
heavy
burden.”
The party seeking a new
Miller
v.
Am.
President
Lines, Ltd., 989 F.2d 1450, 1466 (6th Cir. 1993).
A.
Wilson’s Exhibit 13 – Reference to the EEOC Charge
Relevant evidence is generally admissible.
402.
a
Fed. R. Evid.
“Evidence is relevant if: (a) it has any tendency to make
fact
more
or
less
probable
than
it
would
be
without
the
evidence; and (b) the fact is of consequence in determining the
action.”
Fed. R. Evid. 401(a-b).
However, relevant evidence is
excludable “if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice,
-8-
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”
Evid.
403.
“[I]f
a
mistake
has
been
made
Fed. R.
regarding
the
admission or exclusion of evidence, a new trial will not be
granted
unless
the
outcome at trial.”
evidence
would
have
caused
a
different
Tompkin, 362 F.3d at 891 (quoting Morales v.
Am. Honda Motor Co., Inc., 151 F.3d 500, 514 (6th Cir. 1998));
Decker v. GE Healthcare Inc., 770 F.3d 378, 391 (6th Cir. 2014)
(“An erroneous evidentiary ruling amounts to reversible error,
justifying a new trial, only if it was not harmless; that is,
only
if
citation
it
affected
and
quotation
the
outcome
omitted)).
of
“To
the
trial.”
(internal
demonstrate
prejudice
stemming from evidentiary error, it is not sufficient merely to
show that the district court made a mistake in admitting or
excluding certain evidence.”
Simmons, 626 F. App’x at 132.
Wilson argues that he is entitled to a new trial because
“the blanket exclusion of any reference to Plaintiff’s protected
conduct with the EEOC likely swayed the jury.”
5.)
(ECF No. 107 at
Specifically, Wilson contends that the court improperly
redacted his Exhibit 13 by removing statements stating that he
“filed a charge of racial discrimination with the EEOC.”
at 4.)
(Id.
On November 12, 2018, K.T.G. filed a motion to exclude
Wilson’s Charge and any references to the Charge.
(ECF No. 61.)
The next day, the court held a pretrial conference.
-9-
At this
conference, Wilson was asked about K.T.G.’s motion seeking to
exclude evidence regarding the Charge.
Wilson asserted that it
was unnecessary for him to respond to the motion because he did
not oppose the motion.
Accordingly, the court orally granted
K.T.G.’s
motion.
(ECF
No.
however,
Wilson
attempted
65.)
to
On
the
relitigate
morning
this
of
trial,
issue.
After
hearing further arguments, the court again ruled that evidence
regarding the Charge, including references to the Charge made
within Wilson’s Exhibit 13, would be excluded, and subsequently
entered a written order to that effect.
(ECF No. 96; ECF No.
114 at 32-34.)
Assuming,
arguendo,
that
Wilson
has
not
waived
his
objection to the court’s evidentiary ruling, see K.C. ex rel.
Calaway v. Schucker, No. 02-2715-STA, 2013 WL 5972192, at *4
(W.D.
Tenn.
merits.
Wilson in
The
Nov.
only
8,
2013),
issue
retaliation
for
at
Wilson’s
trial
filing
was
argument
whether
grievances.
fails
Dix
As
on
suspended
this
court
previously stated:
[E]vidence relating to the November 6, 2013 EEOC
Charge is irrelevant to the present retaliation claim.
See Fed. R. Evid. 402. The court has previously ruled
that, based on the record submitted with the summary
judgment briefing, no reasonable juror could find that
either Wilson’s supervisor or K.T.G.’s Human Resources
Manager knew about the November 6, 2018 EEOC Charge
prior to the suspension. Because the court has already
determined that, as a matter of law, the EEOC Charge
was not a basis for the alleged retaliation, the EEOC
-10-
the
Charge is irrelevant to determining
unlawfully retaliated against Wilson.
whether
K.T.G.
Second, to the extent that evidence regarding the EEOC
Charge
is
relevant,
any
probative
value
is
substantially
outweighed
by
the
risk
of
undue
prejudice, confusing the issue, misleading the jury,
or needlessly presenting cumulative evidence. See Fed.
R. Evid. 403. The EEOC Charge referred to two prior
written disciplinary notices that Wilson received, and
asserted that K.T.G. discriminated against Wilson on
the basis of race. Evidence regarding the disciplinary
notices and grievances Wilson filed in response is
otherwise
admissible,
so
introducing
additional
evidence in the form of the EEOC Charge is needlessly
cumulative. Furthermore, allowing references to the
EEOC Charge presents a significant threat of confusing
the issue, misleading the jury, and subjecting K.T.G.
to undue prejudice.
(ECF No. 96 at 2-3.)
Wilson has again failed to provide the
court
to
with
any
basis
references to the Charge.
conclude
that
it
disturb
the
above
order
excluding
Moreover, even if the court were to
erroneously
excluded
evidence
Charge, a new trial would not be warranted.
regarding
the
Wilson has not
established that a verdict would have been returned in his favor
if Exhibit 13 would have been admitted in its entirety.
For
these reasons, Wilson is not entitled to a new trial on these
grounds.
B.
Supplemental Jury Instruction #24 – Protected Activity
Federal Rule of Civil Procedure 51(d) recognizes that a
litigant may object to a proposed jury instruction he or she
finds
erroneous
and
object
if
instruction he or she requested.
a
court
fails
The rule provides:
-11-
to
give
an
(1) Assigning Error. A party may assign as error:
(A) an error in an instruction actually given, if
that party properly objected; or
(B) a failure to give an instruction, if that
party properly requested it and - unless the court
rejected the request in a definitive ruling on the
record - also properly objected.
Fed.
R.
Civ.
P.
51(d)(1)(A-B).
“The
Court
considers
jury
instructions as a whole ‘to determine whether they fairly and
adequately
jury.’”
submitted
the
issues
and
applicable
law
to
the
Cone v. Hankook Tire Co., No. 14-1122, 2017 WL 3611756,
at *2 (W.D. Tenn. Aug. 22, 2017) (quoting
Nolan v. Memphis City
Schs., 589 F.3d 257, 264 (6th Cir. 2009)); Pivnick v. White,
Getgey & Meyer Co., 552 F.3d 479, 488 (6th Cir. 2009) (“Our
inquiry into jury instructions is limited to whether, taken as a
whole,
the
instructions
adequately
inform
the
jury
of
the
relevant considerations and provide the jury with a sound basis
in law with which to reach a conclusion.”
(quoting United
States v. Wells, 211 F.3d 988, 1002 (6th Cir. 2000))).
“A party
is not entitled to a new trial based upon alleged deficiencies
in the jury instructions unless the instructions, taken as a
whole, are misleading or give an inadequate understanding of the
law.”
Tannenbaum v. Fed. Ins. Co., 608 F. App’x 316, 319 (6th
Cir. 2015) (quoting Arban v. West Publ’g Corp., 345 F.3d 390,
404
(6th
discretion
Cir.
in
2003)).
wording
its
“[A]
trial
court
is
jury
instructions
and
-12-
given
will
broad
not
be
reversed as long as the charge correctly states the substance of
the law.”
Mengelkamp v. Lake Metro. Hous. Auth., 549 F. App’x
323, 331 (6th Cir. 2013) (quoting United States v. L'Hoste, 609
F.2d 796, 805 (5th Cir. 1980)).
Wilson argues that a new trial is warranted because the
court’s supplemental jury instruction was erroneous.
107 at 5-6.)
Wilson’s
During its deliberations, the jury asked whether
grievances
must
allege
prohibited
discrimination
qualify as protected activity under Title VII.
2.)
(ECF No.
to
(ECF No. 103 at
Wilson initially requested that the court simply answer the
question
“no.”
(ECF
No.
113
at
6:19-6:24.)
Subsequently,
utilizing the Sixth Circuit’s decisions in Yazdian v. ConMed
Endoscopic
Techs.,
Inc.,
793
F.3d
634
(6th
Cir.
2015)
and
E.E.O.C. v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015),
Wilson asked that the jury be instructed as follows:
Title VII does not restrict the manner or means by
which and employee may oppose and unlawful employment
practice. . . . Indeed, a demand that a supervisor
cease
his
or
her
harassing
conduct
constitutes
protected activity covered by Title VII.
(Id. at 14.)
the
following
The court ultimately proposed, and later utilized,
jury
instruction,
which
was
based
on
language
taken from Sixth Circuit cases:
To come within the protection of Title VII, the
plaintiff must prove that he challenged an employment
practice that he reasonably believed was unlawful.
Title VII does not restrict the manner or means by
which an employee may oppose an unlawful employment
-13-
practice. The manner of opposition must be reasonable,
and that opposition must be based on a reasonable and
good faith belief that the opposed practice was
unlawful. In other words, a violation of Title VII’s
retaliation provision can be found whether or not the
challenged
practice
ultimately
is
found
to
be
unlawful. Title VII does not protect an employee if
his
opposition
is
merely
a
vague
charge
of
discrimination. Although vague complaints do not
constitute opposition, the law does not require that
the plaintiff’s complaint be lodged with absolute
formality, clarity, or precision.
(ECF No. 104.)
of
this
Wilson objected to only the last two sentences
instruction,
and
the
court
overruled
the
objection.
(ECF No. 113 at 28-29.)
In his motion for a new trial, Wilson again argues that the
last
two
sentences
of
the
supplemental
instruction,
reference “vague complaints,” are contrary to law.
at 6.)
which
(ECF No. 107
Wilson specifically argues that “[w]hile a Court or
attorneys reviewing the statement that a ‘vague complaint does
not constitute opposition’ has the benefit of the context and
explanations
provided
by
the
multiple
cases
that
followed
Booker, this jury did not, and to have that statement about
‘vague’ complaints reiterated twice, to a lay person, it is not
difficult to see how they rendered the verdict they did.”
(Id.)
The court rejects this argument and finds that Wilson “has not
discharged
instructions
his
were
heavy
burden
erroneous
Cone, 2017 WL 3611756, at *2.
or
to
that
show
they
that
misled
the
the
Court's
jury.”
Out of the twenty-seven pages of
-14-
jury
instructions,
Wilson
only
challenges
the
sentences of the supplemental jury instruction.
final
two
The court finds
that the jury instructions were proper because “as a whole, they
‘fairly and adequately submitted the issues and applicable law
to the jury.’”
Troyer v. T.John.E. Prods., 526 F. App’x 522,
525 (6th Cir. 2013) (quoting Arban, 345 F.3d at 404).
Further,
the court finds that the last two sentences of the supplemental
jury instruction, which Wilson challenges, accurately describe
the governing legal standard and neither misled nor confused the
jury.
Wilson
argues
supplemental
jury
that
the
instruction
challenged
comes
from
portion
the
Sixth
of
the
Circuit’s
decision in Booker v. Brown & Williamson Tobacco, Co., 879 F.2d
1304,
131
(6th
Cir.
1989),
which
has
been
“clarified
distinguished by the Sixth Circuit many times since 1989.”
No.
107
at
5.)
While
the
Sixth
Circuit
has
and
(ECF
factually
distinguished Booker in subsequent cases, it has, on numerous
occasions,
reaffirmed
that
“Title
VII
does
not
protect
an
employee . . . if his opposition is merely a ‘vague charge of
discrimination.’”
has
also
Yazdian, 793 F.3d at 645.
clarified
that
“[a]lthough
vague
The Sixth Circuit
complaints
do
not
constitute opposition, ‘Booker does not . . . require that the
plaintiff's
complaint
clarity, or precision.’”
be
lodged
with
absolute
formality,
Id. at 645 (quoting Stevens v. Saint
-15-
Elizabeth
Med.
Ctr.,
Inc.,
533
F.
App’x
624,
631
(6th
Cir.
2013)); see also Mumm v. Charter Twp. of Superior, 727 F. App’x
110, 112-13 (6th Cir. 2018) (“[W]hile a complaint need not be
lodged with absolute formality, clarity, or precision, a vague
charge
of
opposition
discrimination
to
an
is
unlawful
insufficient
employment
to
constitute
practice.”
(internal
citation and quotation omitted)); Braun v. Ultimate Jetcharters,
LLC, 828 F.3d 501, 511 (6th Cir. 2016) (“As UJC notes, however,
a
vague
charge
of
discrimination
.
.
.
is
insufficient
to
constitute opposition to an unlawful employment practice. . . .
Still,
these
complaint
be
holdings
do
lodged
with
not
require
absolute
that
the
formality,
plaintiff's
clarity,
or
precision.” (internal citation and quotation omitted)); Stevens,
533 F. App’x at 631 (“We have held, [in Booker,] that a vague
charge of discrimination in an internal letter or memorandum is
insufficient to constitute opposition to an unlawful employment
practice. Booker does not, however, require that the plaintiff's
complaint
be
lodged
with
absolute
formality,
clarity,
precision.” (internal citation and quotation omitted)).
or
The two
sentences of jury instructions that Wilson now challenges trace
the exact wording used by the Sixth Circuit in those decisions.
Accordingly, the court concludes that the jury instructions were
proper.
III. CONCLUSION
-16-
For these reasons, Wilson’s Motion for New Trial is DENIED.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
August 6, 2019
Date
-17-
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