Allen v. Radio One of Texas II, LLC
Filing
165
ORDER DENYING MOTIONS FOR JUDGMENT AS A MATTER OF LAW AND FOR NEW TRIAL on 154 MOTION for New Trial, 153 Renewed MOTION for Judgment.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CORINA T. ALLEN,
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Plaintiff,
v.
RADIO ONE OF TEXAS II, LLC,
Defendant.
CIVIL ACTION NO. H-09-4088
ORDER DENYING MOTIONS FOR JUDGMENT
AS A MATTER OF LAW AND FOR NEW TRIAL
After a three day trial, the Jury on May 19, 2011, returned a
Verdict in favor of Plaintiff Corina T. Allen (“Allen”) on all
controlling
questions
regarding
Allen’s
Title
VII
retaliation
claim; and the Court, having subsequently received and considered
additional evidence and arguments of the parties on June 7, 2011,
regarding the equitable relief sought by the parties, rendered on
June 9, 2011 its Order on Equitable Relief and Other Post-Trial
Issues (Document No. 139).
2011.
Final Judgment was entered on June 9,
Now pending are Defendant Radio One of Texas II, LLC’s
Renewed Motion for Judgment as a Matter of Law, and, in the
alternative, Motion for New Trial and/or Remittitur (Document No.
153),
and
Plaintiff
Corina
T.
Allen’s
Motion
for
New
Regarding Gender Discrimination Claims (Document No. 154).
Trial
Legal Standards
A motion for judgment as a matter of law should be granted if
there is no “legally sufficient evidentiary basis for a reasonable
jury to find for a party.”
Pineda v. United Parcel Service, Inc.,
360 F.3d 483, 486 (5th Cir. 2004) (citing FED . R. CIV . P. 50(a)).
“A court should grant a post-judgment motion for judgment as a
matter of law only when the facts and inferences point so strongly
in favor of the movant that a rational jury could not reach a
contrary verdict.” Allstate Ins. Co. v. Receivable Fin. Co.,
L.L.C., 501 F.3d 398, 405 (5th Cir. 2007) (internal quotations
omitted).
When evaluating the sufficiency of the evidence, the
Court views all evidence and draws all inferences in the light most
favorable to the verdict.
Id.
“A party is entitled to a new trial when the jury verdict is
against the great weight of the evidence.”
Deloach v. Delchamps,
Inc., 897 F.2d 815, 820 (5th Cir. 1990).
When a jury verdict
results from passion or prejudice, a new trial, not remittitur, is
the
proper
remedy;
damage
awards
however, are subject to remittitur.
that
are
merely
excessive,
Wells v. Dallas Indep. Sch.
Dist., 793 F.2d 679, 683-84 (5th Cir. 1982).
A denial of a motion
for new trial is subject review only for abuse of discretion.
v. Exxon Co., U.S.A., 618 F.2d 1111, 1115 (5th Cir. 1980).
2
King
Radio One’s Motions
Radio One seeks judgment as a matter of law, raising several
points that are considered below:
1.
Contrary to Radio One’s argument, there was legally
sufficient evidence to support the Jury’s rejection of Radio One’s
proferred non-retaliatory reason for refusing to accept advertising
from Plaintiff and finding that Radio One’s motivating reason for
refusing the advertising was because she had filed an EEOC charge
against the company.
Allen presented substantial evidence of
retaliation, including evidence that Radio One’s Vice President and
General Manager of its Houston office told Plaintiff that his
company would not do business with Allen because of her litigation
against it.1
The Jury heard Abernethy’s voice on a recorded
telephone call telling Allen that Radio One’s counsel (referring to
its
associate
general
counsel
Sundria
Ridgley
at
Defendant’s
corporate offices in Maryland), had told him not to do business
with Allen because of Allen’s pending litigation against Radio
One.2
The only action that Allen had against Radio One was her
Title VII claim pending in the E.E.O.C., and Ridgley herself had
signed Radio One’s response to Allen’s EEOC claim.
In addition to
other evidence of retaliation, the audiotape itself is ample
1
See Document No. 147 at 51-52 (Abernethy Tr.).
2
See id. at 31.
3
evidence from which a rational jury could conclude that Radio One
retaliated against Allen for commencing a Title VII action against
it.
2.
Allen may recover damages for the harm that Radio One
committed, because she is a “person[] aggrieved”: the retaliation
was directed at Allen, not her company.
42 U.S.C. §2000e-5(f)(1);
see also Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 870
(2011) (“[T]he term ‘aggrieved’ in Title VII incorporates [the zone
of interests] test, enabling suit by any plaintiff with an interest
‘arguably
[sought]
to
be
protected
by
the
statutes,’
while
excluding plaintiffs who might technically be injured in an Article
III sense but whose interests are unrelated to the statutory
prohibitions in Title VII.” (internal quotations omitted)).
Radio One relies on Bellows v. Amoco Oil Co., 118 F.3d 268,
276 (5th Cir. 1997) and Searcy v. Houston Lighting & Power Co., 907
F.2d 562 (5th Cir. 1990), cert. denied, 111 S. Ct. 438 (1990), to
argue that Allen’s injury was to her company and not to her, and
therefore she has no standing to sue.
However, in those actions,
the companies’ principals had no individual claim against the
defendants.
In contrast, here it was Allen individually, not her
company, who filed the EEOC charge alleging unlawful discrimination
by Radio One when it fired her, and the evidence was quite
sufficient for the jury to find that Radio One’s retaliation was
4
directed at Allen personally.3
See Thompson, 131 S. Ct. at 870
(holding that “hurting [plaintiff] was the unlawful act by which
the employer punished [plaintiff’s fiancee]” and thus plaintiff was
in
the
“zone
retaliation).
of
interests”
of
those
affected
by
defendant’s
Besides, the retaliation began before Allen ever
formed her wholly owned S corporation.
There is no merit in Radio
One’s contention that Allen lacked standing under Title VII.
3.
finding
There
that
is
Allen
sufficient
sustained
evidence
to
emotional
support
pain
and
the
Jury’s
suffering,
inconvenience, mental anguish, and loss of enjoyment of life, for
which the Jury awarded damages in the amount of $10,000.
Allen
testified that Radio One’s retaliation against her lengthened her
work days and caused her continuing anxiety,
of appetite, and weight loss.4
sleeplessness, loss
Allen further testified that the
retaliation caused a disruption in her social life, interference
with friendships, and ongoing depression.5
Unlike Patterson v.
P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996), where the
plaintiff
testified
only
that
he
felt
“frustrated,”
“hurt,”
“angry,” and “paranoid,” without any physical injury being claimed,
Allen testified to physical harm sustained as a result of the
3
See Document No. 146 at 142:4-16.
4
See Document No. 146 at 52:23-53:2, 53:4-17, 70:17-71:12.
5
See id. at 71:18-72:11.
5
emotional distress caused by Radio One’s retaliation.
See Forsyth
v. City of Dallas, Texas, 91 F.3d 769, 774 (5th Cir. 1996);
E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 402 (5th Cir.
2007) (quoting Vadie v. Miss. State Univ., 218 F.3d 365, 376 (5th
Cir. 2000)).
4.
damages.
There is ample evidence to support the Jury’s findings of
“[T]he size of the award [for pain and suffering] is
within the province of the jury, so long as the award is not
impermissibly affected by ‘passion or prejudice.’”
Schexnayder v.
Bonfiglio, 167 F. App’x 364, 366 (5th Cir. 2006) (unpublished op.)
(citing Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 660-61
(5th Cir. 2002)).
In light of the quantum of proof offered by
Allen and described above, an award of only $10,000 for her
emotional pain and suffering was within the province of the Jury,
not a product of passion or prejudice.
The Jury’s finding of $6,617.45 for Plaintiff’s loss of income
is also supported in the evidence.
Radio One challenges only
$2,363.50 of that total award, contending Allen did not prove lost
opportunity damages in that amount.
The dispute centers on Radio
One’s refusal to do business with Allen on a “club remote” package.
The Court finds there was sufficient evidence for a jury to
conclude that because Radio One refused to communicate directly
with Allen, she lost $2,363.50 on the club remote package.6
6
See Document No. 146 at 66:1-69:3.
6
There is also legally sufficient evidence to support an award
of punitive damages against Radio One.
Indeed, there was evidence
that it acted “with malice or with reckless indifference to the
federally protected rights of an aggrieved individual.”
§ 1981a(b)(1).
42 U.S.C.
Allen presented direct evidence that Radio One
“discriminate[d] in the face of a perceived risk that its actions
will violate federal law.”
336 (5th Cir. 2010).
See Smith v. Xerox Corp., 602 F.3d 320,
That proof included the fact that Radio One
was well aware of its obligation not to retaliate; the company’s
Vice President for Human Resources, Jacqueline Kindall, testified
to such.
Manager
Abernethy, the company’s Vice President and General
in
Houston,
testified
that
he
too
was
aware
of
the
prohibition on retaliating against an employee who makes a Title
VII claim.
Nonetheless, Abernethy told Allen in the tape-recorded
telephone call that he had sought advice from Radio One’s associate
general counsel, Sundria Ridgley, who instructed Abernethy not to
do business with Allen due to Allen’s litigation against Radio One.
It was Ridgley who had signed the response Radio One had filed in
the E.E.O.C. to Allen’s Title VII discrimination claim.
The Jury
could well infer from this tape-recorded phone call, in which
Abernethy implicated Radio One’s associate general counsel, that
the retaliation was known and directed from the highest levels of
the company and that Radio One retaliated “in the face of a
perceived risk that its actions will violate federal law.”
7
Xerox,
602 F.3d at 335.
Moreover, when asked by the Court during voir
dire
of
examination
the
jury
panel
to
introduce
those
at
Defendant’s counsel table, Radio One’s lead counsel introduced
Ridgley as “an in-house counsel with Radio One.”
Allen during her
testimony also identified Ridgley in the courtroom at Radio One’s
counsel table. Radio One, however, never called Ridgley to testify
to deny that she had given to Abernethy the instructions that
Abernethy related to Allen in their tape-recorded phone call.
Without even considering the nuances of the uncalled witness rule
and whether it might have applied, one must expect that the Jury
observed what was patently obvious, namely, that Radio One rested
its defense with Radio One’s accused ultimate decision-maker--to
whom the retaliation was specifically attributed--still sitting in
the courtroom at Defendant’s table without providing a word of
testimony in her own or her company’s defense.7
There was ample
evidence from which a rational jury could find that Radio One’s
7
Radio One evidently chose to rely on Abernethy’s trial
testimony that he was not truthful to Allen in the phone call when
he attributed to Ridgley those retaliation instructions. Once a
witness sets about impeaching himself, of course, his entire
credibility is seriously undermined. All the more so here, given
that Allen--who had worked with Abernethy not only at Radio One but
also previously at Cox Radio--testified that she tape recorded her
phone call to Abernethy because she “thought he would lie about the
conversation later.” Given the tangled web that Abernethy had spun
and the Jury’s duty to judge the credibility of witnesses and the
weight to be given their testimony, the Jury may have thought it
all the more damning that Ridgley herself sat mute.
8
managers and supervisors possessed the requisite subjective intent
to retaliate and willfully did so, knowing that such actions were
unlawful.
The Court also finds no merit in Defendant’s contention that
the punitive damage award should be reduced below the statutory cap
to prevent a due process violation.
In a Title VII case, the Fifth
Circuit has affirmed punitive damage awards up to the statutory
cap, even when no other damages were awarded by a jury.
See Abner
v. Kansas City S. Ry. Co., 513 F.3d 154, 163 (5th Cir. 2008)
(affirming punitive damages award of $125,000 per plaintiff where
there were no compensatory damages in Title VII case and holding
that “preventing juries from awarding punitive damages when an
employer engaged in reprehensible discrimination without inflicting
easily
the
quantifiable
deterrence
that
physical
and
monetary
Congress
intended
in
harm
the
would
most
quell
egregious
discrimination cases under Title VII”); see also Cush-Crawford v.
Adchem Corp., 271 F.3d 352, 359 (2d Cir. 2001) (“In Title VII
cases, however, the statutory maxima capping punitive damage awards
strongly undermine the concerns that underlie the reluctance to
award punitive damages without proof of actual harm.”).
In assessing whether the amount of the award is reasonable
“the most important indicium of the reasonableness of a punitive
damages award is the degree of reprehensibility of the defendant’s
9
conduct.”
(1996).
BMW of N. Am., Inc. v. Gore, 116 S. Ct. 1589, 1599
Factors which a court considers in determining the degree
of reprehensibility in a defendant’s conduct are “whether: the harm
caused was physical as opposed to economic; the tortious conduct
evinced an indifference to or a reckless disregard of the health
or safety of others; the target of the conduct had financial
vulnerability; the conduct involved repeated actions or was an
isolated incident; and the harm was the result of intentional
malice, trickery, or deceit, or mere accident.”
State Farm Mut.
Auto Ins. Co. v. Campbell, 123 S. Ct. 1513, 1521 (2003).
retaliation
was
especially
brazen,
with
Abernethy
Here, the
directly
informing Allen that Radio One would not do business with her
because of her pending litigation, and that he was acting on the
instructions
of
the
company’s
associate
general
counsel.
Additionally, there was evidence that Radio One’s retaliation
against Allen not only was deliberate but also was prolonged,
lasting over two years, and that it continued even as the trial was
ongoing.
In sum, there is ample evidence from which the Jury could
find that Radio One’s conduct was reprehensible.
The evidence
fully supported an award of punitive damages.
The Court reduced the Jury’s award of $750,000 in punitive
damages to $290,000, to conform to the statutory cap.
The Court
finds that a punitive damages award of $290,000 is not excessive
10
under the facts of this case viewed in the light most favorable to
the verdict, and a further remittitur is not required.
5.
The Court has carefully considered all of Radio One’s
additional arguments in support of its alternative motion for a new
trial and finds that they are without merit.
The Jury Verdict is
not against the great weight of the evidence.
Moreover, in a
previous Order the Court both ruled that Radio One waived any right
to recover attorney’s fees on its contract claim and also carefully
crafted the scope of equitable relief awarded to Plaintiff.
The
Court finds no need to revisit those issues here.
Allen’s Motion for New Trial
Allen
moves
for
a
new
trial
regarding
her
gender
discrimination claims, reurging many of the arguments that the
Court considered, and rejected.
After further careful review, the
Court finds its prior ruling should not be set aside.
Order
Based on the foregoing, it is hereby
ORDERED that Defendant Radio One of Texas II, LLC’s Renewed
Motion for Judgment as a Matter of Law, and, in the alternative,
11
Motion for New Trial and/or Remittitur (Document No. 153) and
Plaintiff Corina T. Allen’s Motion for New Trial Regarding Gender
Discrimination Claims (Document No. 154) are in all things DENIED.
The Clerk will enter this Order and send copies to all counsel
of record.
SIGNED at Houston, Texas, on this 28th day of October, 2011.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
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