Opinion
CIVIL ACTION NO. 96-RRA-3257-M.
September 30, 2008
ORDER (Ruling on Tyson's Rule 50(b) renewed motion for judgment, ct. doc. 401)
After the first jury trial, this court granted the defendant's Rule 50(b) renewed motion for judgment on Hithon's discrimination claim, and, pursuant to Rule 50(c), conditionally ordered a re-trial of his case on the ground that the damages awarded by the jury for mental anguish and the damages awarded as punitive damages were against the great weight of the evidence and excessive as a matter of law. The Eleventh Circuit reversed the granting of the motion for judgment, but affirmed the order for a new trial. A new trial was held, where the jury again found discrimination and awarded damages for back pay in the amount of $35,000.00, damages for mental anguish in the amount of $300,000.00, and punitive damages in the amount of $1,000,000.00. Interest on the back pay is to be determined by the court in a separate order.
In the first trial, the jury awarded Hithon $250,000.00 damages for mental anguish and $1,500,000.00 in punitive damages.
The defendant, Tyson Foods, Inc., filed a Rule 50(b) renewed motion for judgment, concerning several issues. Tyson contests the sufficiency of the evidence to support a finding of discrimination, the sufficiency of the evidence to support an award of compensatory damages, the sufficiency of the evidence to support a finding that Hatley engaged in conduct justifying an award of punitive damages, and the sufficiency of the evidence to attribute Hatley's conduct justifying punitive damages, if any, to his employer, Tyson. The defendant further contends that the amount of punitive damages awarded was excessive as a matter of law.
The parties have briefed these issues, setting out the relevant evidence. The court finds that the evidence was sufficient to send all of these issues to the jury, except one. The court will discuss the punitive damages question in some detail.
Unless it is clear to the court that the evidence is insufficient to sustain a claim, such as one for punitive damages, the preferred practice is to submit the issue to the jury. See Therrell v. Ga. Marble Holdings Co., 960 F.2d 1555, 1568-69 (11th Cir. 1992). If the jury does not return an award of punitive damages, the issue is thus resolved. If the jury awards punitive damages, as it in fact did in this case, the defendant may file a renewed motion for judgement as a matter of law, which the defendant has done in this case, and the error can be corrected. Conversely, if an appeal determines that the court incorrectly grants the defendant's motion, the jury's award is on record and can be corrected. The court, in an exercise of caution, allowed the jury, which had heard all of the punitive damages evidence, to pass on the question of whether an award of punitive damages was proper under the facts and the court's instructions on punitive damages law. Now, with the benefit of a trial transcript and argument of the parties, the court can take a careful look at the evidence and determine whether the evidence was in fact legally sufficient to support a punitive damages award.
In order properly to submit to a jury the question of punitive damages in a discrimination case, the plaintiff must show that the employer acted with actual malice or reckless indifference to the employee's federally protected rights.
"The Supreme Court has directed that, for the issue of punitive damages to reach the jury in a section 1981 case, the plaintiff must come forward with substantial evidence that the employer acted with actual malice or reckless indifference to his federally protected rights." Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1280 (11th Cir. 2002) ( citing Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536-37, 119 S. Ct. 2118, 2125-26, 144 L. Ed. 2d 494 (1999)). "Malice means an 'intent to harm' and recklessness means 'serious disregard for the consequences of [one's] actions.'" Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999) ( quoting Splunge v. Shoney's, Inc., 97 F.3d 488, 491 (11th Cir. 1996)) (alteration in original). "Malice or reckless indifference is established by a showing that the employer discriminated in the face of the knowledge that its actions would violate federal law." Miller, 277 F.3d at 1280 ( citing Kolstad, 527 U.S. at 536, 119 S. Ct. at 2125). To be liable for punitive damages, "an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law." Kolstad, 527 U.S. at 536, 119 S. Ct. at 2125. We have cited as examples of conduct that could support a punitive damages award: "(1) a pattern of discrimination, (2) spite or malevolence, or (3) a blatant disregard for civil obligations." Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322-23 (11th Cir. 1999).Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1280 (11th Cir. 2008).
The discriminatory acts of an employee may be attributed to the employer only under certain circumstances.
"[P]unitive damages will ordinarily not be assessed against employers with only constructive knowledge" of harassment; rather, punitive damages may only be considered in cases where the "discriminating employee was high up the corporate hierarchy" or where "higher management countenanced or approved [his] behavior." Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1323 (11th Cir. 1999) (internal citations omitted). Finally, the Supreme Court has held that employers may assert a good faith defense to vicarious liability for punitive damages where the "employment decisions of managerial agents . . . are contrary to the employer's 'good-faith efforts to comply with Title VII.'" Kolstad, 527 U.S. at 545, 119 S. Ct. at 2129.Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1280 (11th Cir. 2002).
The defendant contends that Hatley did not act with actual malice or reckless indifference, and that, even if he did, (1) higher management did not approve Hatley's behavior and (2) Hatley was not high enough up the corporate hierarchy to subject Tyson to liability for Hatley's actions. Finally, the defendant argues that it is shielded from punitive damages because the evidence clearly shows that Hatley's actions were contrary to the defendant's good faith efforts to comply with Title VII.
Actual Malice/Reckless Indifference
The definitions of malice and reckless indifference are set out in Kolstad v. American Dental Ass'n, 527 U.S. 526, 535-539 (1999).
The terms "malice" and "reckless" ultimately focus on the actor's state of mind. See, e.g., Black's Law Dictionary 956-957, 1270 (6th ed. 1990); see also W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton, Law of Torts 212-214 (5th ed. 1984) (defining "willful," "wanton," and "reckless"). While egregious misconduct is evidence of the requisite mental state, see infra, at 2126; Keeton, supra, at 213-214, § 1981a does not limit plaintiffs to this form of evidence, and the section does not require a showing of egregious or outrageous discrimination independent of the employer's state of mind. Nor does the statute's structure imply an independent role for "egregiousness" in the face of congressional silence. On the contrary, the view that § 1981a provides for punitive awards based solely on an employer's state of mind is consistent with the 1991 Act's distinction between equitable and compensatory relief. Intent determines which remedies are open to a plaintiff here as well; compensatory awards are available only where the employer has engaged in "intentional discrimination." § 1981a(a)(1) (emphasis added).
Moreover, § 1981a's focus on the employer's state of mind gives some effect to Congress' apparent intent to narrow the class of cases for which punitive awards are available to a subset of those involving intentional discrimination. The employer must act with "malice or with reckless indifference to the [plaintiff's] federally protected rights." § 1981a(b)(1) (emphasis added). The terms "malice" or "reckless indifference" pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.
We gain an understanding of the meaning of the terms "malice" and "reckless indifference," as used in § 1981a, from this Court's decision in Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). The parties, as well as both the en banc majority and dissent, recognize that Congress looked to the Court's decision in Smith in adopting this language in § 1981a. See Tr. of Oral Arg. 28-29; Brief for Petitioner 24; 139 F.3d, at 964-965; id., at 971 (Tatel, J., dissenting). Employing language similar to what later appeared in § 1981a, the Court concluded in Smith that "a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." 461 U.S., at 56, 103 S.Ct. 1625. While the Smith Court determined that it was unnecessary to show actual malice to qualify for a punitive award, id., at 45-48, 103 S.Ct. 1625, its intent standard, at a minimum, required recklessness in its subjective form. The Court referred to a "subjective consciousness" of a risk of injury or illegality and a "'criminal indifference to civil obligations.'" Id., at 37, n. 6, 41, 103 S.Ct. 1625 ( quoting Philadelphia, W. B.R. Co. v. Quigley, 21 How. 202, 214, 16 L.Ed. 73 (1858)); see also Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (explaining that criminal law employs a subjective form of recklessness, requiring a finding that the defendant "disregards a risk of harm of which he is aware"); see generally 1 T. Sedgwick, Measure of Damages §§ 366, 368, pp. 528, 529 (8th ed. 1891) (describing "wantonness" in punitive damages context in terms of "criminal indifference" and "gross negligence" in terms of a "conscious indifference to consequences"). The Court thus compared the recklessness standard to the requirement that defendants act with "'knowledge of falsity or reckless disregard for the truth'" before punitive awards are available in defamation actions, Smith, supra, at 50, 103 S.Ct. 1625 ( quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)), a subjective standard, Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Applying this standard in the context of § 1981a, an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages.
There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard. In some instances, the employer may simply be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability. See, e.g., 42 U.S.C. § 2000e-2(e)(1) (setting out Title VII defense "where religion, sex, or national origin is a bona fide occupational qualification"); see also § 12113 (setting out defenses under ADA). In Hazen Paper Co. v. Biggins, 507 U.S. 604, 616, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), we thus observed that, in light of statutory defenses and other exceptions permitting age-based decisionmaking, an employer may knowingly rely on age to make employment decisions without recklessly violating the Age Discrimination in Employment Act of 1967 (ADEA). Accordingly, we determined that limiting liquidated damages under the ADEA to cases where the employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute," without an additional showing of outrageous conduct, was sufficient to give effect to the ADEA's two-tiered liability scheme. Id., at 616, 617, 113 S.Ct. 1701.
At oral argument, respondent urged that the common law tradition surrounding punitive awards includes an "egregious misconduct" requirement. See, e.g., Tr. of Oral Arg. 26-28; see also Brief for Chamber of Commerce of the United States as Amicus Curiae 8-22 (advancing this argument). We assume that Congress, in legislating on punitive awards, imported common law principles governing this form of relief. See, e.g., Molzof v. United States, 502 U.S. 301, 307, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). Moreover, some courts and commentators have described punitive awards as requiring both a specified state of mind and egregious or aggravated misconduct. See, e.g., 1 D. Dobbs, Law of Remedies 468 (2d ed. 1993) ("Punitive damages are awarded when the defendant is guilty of both a bad state of mind and highly serious misconduct").
Most often, however, eligibility for punitive awards is characterized in terms of a defendant's motive or intent. See, e.g., 1 Sedgwick, supra, at 526, 528; C. McCormick, Law of Damages 280 (1935). Indeed, "[t]he justification of exemplary damages lies in the evil intent of the defendant." 1 Sedgwick, supra, at 526; see also 2 J. Sutherland, Law of Damages § 390, p. 1079 (3d ed. 1903) (discussing punitive damages under rubric of "[c]ompensation for wrongs done with bad motive"). Accordingly, "a positive element of conscious wrongdoing is always required." McCormick, supra, at 280.
Egregious misconduct is often associated with the award of punitive damages, but the reprehensible character of the conduct is not generally considered apart from the requisite state of mind. Conduct warranting punitive awards has been characterized as "egregious," for example, because of the defendant's mental state. See Restatement (Second) of Torts § 908(2) (1979) ("Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others"). Respondent, in fact, appears to endorse this characterization. See, e.g., Brief for Respondent 19 ("Malicious and reckless conduct [is] by definition egregious"); see also id., at 28-29. That conduct committed with the specified mental state may be characterized as egregious, however, is not to say that employers must engage in conduct with some independent, "egregious" quality before being subject to a punitive award.
To be sure, egregious or outrageous acts may serve as evidence supporting an inference of the requisite "evil motive." "The allowance of exemplary damages depends upon the bad motive of the wrong-doer as exhibited by his acts." 1 Sedgwick, supra, at 529 (emphasis added); see also 2 Sutherland, supra, § 394, at 1101 ("The spirit which actuated the wrong-doer may doubtless be inferred from the circumstances surrounding the parties and the transaction"); see, e.g., Chizmar v. Mackie, 896 P.2d 196, 210 (Alaska 1995) "[W]here there is no evidence that gives rise to an inference of actual malice or conduct sufficiently outrageous to be deemed equivalent to actual malice, the trial court need not, and indeed should not, submit the issue of punitive damages to the jury" (internal quotation marks omitted)); Horton v. Union Light, Heat Power Co., 690 S.W.2d 382, 389 (Ky. 1985) (observing that "malice . . . may be implied from outrageous conduct"). Likewise, under § 1981a(b)(1), pointing to evidence of an employer's egregious behavior would provide one means of satisfying the plaintiff's burden to "demonstrat[e]" that the employer acted with the requisite "malice or . . . reckless indifference." See 42 U.S.C. § 1981a(b)(1); see, e.g., 3 BNA E.E.O.C. Compliance Manual N:6085-N6084 (1992) (Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991) (listing "[t]he degree of egregiousness and nature of the respondent's conduct" among evidence tending to show malice or reckless disregard). Again, however, respondent has not shown that the terms "reckless indifference" and "malice," in the punitive damages context, have taken on a consistent definition including an independent, "egregiousness" requirement. Cf. Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ("[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed").Kolstad v. American Dental Ass'n, 527 U.S. 526, 535-539 (1999).
The defendant argues that "even if a finding of intentional discrimination might be supportable, the evidence still fell far short of supporting a finding of maliciousness or reckless indifference on the part of Hatley or Tyson." Memorandum of Law in Support of Renewed Motion for Judgment as a Matter of Law, Court Document 418, at 63.
Here, Hatley made at worst, under the evidence, a mistaken or uninformed selection, but there is no evidence that he did so in a reckless or malicious fashion. See Allen v. Tobacco Superstore, Inc., 475 F.3d 931, 943 (8th Cir. 2007) (vacating punitive damages award of $75,000 in promotion case where the Court noted: "although TSI's rapid growth and promotion practices fail to justify the racial disparity within TSI's management personal, those practices demonstrate justifiable business reasons or ineptness and not racial malice or reckless indifference directed toward Allen."). Hatley's own extensive written records indicate that he evaluated the candidates in an objective and thoughtful manner and acted based on his best business judgment. There was no testimony or evidence indicating malice. He testified he knew race discrimination was unlawful, due to, Tyson's training and policies, considered this in his decisions, and believed his actions to be unbiased. (Tr. 604-08; DX 8).
There was certainly no evidence that this act was part of a "pattern of discrimination." The jury found that Hatley's other promotion decision, made only a month earlier, was not tainted by discriminatory animus. Further, none of Ash's claims was found to have any merit and, in addition, all of Hithon's other claims have failed as a matter of law, as well as the many claims of their former co-plaintiffs. Despite the fact that this case began with six plaintiffs challenging dozens of employment decisions, there has only been a finding of discrimination as to this single, isolated promotion decision in the Summer of 1995.
. . .
It is undisputed here that Hithon never brought a complaint of racial mistreatment to Hatley or Higgins. Even though he complained about unfairness, he never mentioned race as a factor or basis of the unfairness. Hatley testified that he was aware of Tyson's posted non-discrimination policy when he made the promotion decision and that he did not violate the policy in his selection of Dade. Clearly, he did not act in a racially calculated or intentionally discriminatory manner.Memorandum of Law in Support of Renewed Motion for Judgment as a Matter of Law, Court Document 418, at 63-65.
In the plaintiff's opposition memorandum (ct. doc. 422), Hithon contends that Tyson engaged in a pattern of discriminatory misconduct:
Two other employees testified about Hatley ostracizing African American employees and the use of racial slurs which only refer or depict to African American men in a racially derogatory context which depicts an intentional disregard of Tyson's policies and the law prohibiting discrimination.
Ash, Hithon and Blake all testified that Hatley lied to them about the Dade promotion, stating he was going to wait for six months and watch the superintendents but then snuck Dade into the position within a week without any explanation but letting Dade announce he was their new boss. (Tr. 500-501). There was also substantial evidence, as discussed above, that Tyson engaged in a pattern of reckless indifference to its employees' federal rights which is indicated by the jury's finding of discrimination in this bifurcated trial. Further, Hatley attempted to cover up not offering Hithon an interview. Hithon complained to Higgins about the decision and Higgins went to Hatley and told him that Hithon was upset about being passed over. (Tr. 257). Hatley stated the reasons he picked Dade was for his organizational skills and military experience and none of the reasons Tyson articulated at trial. A reasonable jury could conclude Tyson was involved in deceit and trickery which supports the jury's punitive damage award. This is supported by record evidence before this Court when Higgins complained to Trotter about Hatley not following policy in hiring decisions, Trotter, Complex HR manager remarked, "you can change a job description to fit whoever you want to get." (Tr. 271). This is what Tyson did. It is reprehensible. Ever Higgins agreed, "Trotter, that's not right and you know it's not right." (Tr. 271).Plaintiff's Memorandum of Law in Opposition to Defendant's Renewed Motion for Judgment as Matter of Law, Court Document 422, at 62-63. The plaintiff further states that "[t]wo other employees testified about Hatley ostracizing black employees and the use of racial slurs which only refer or depict to African American men in a racially derogatory context which depicts an intentional disregard of Tyson's policies and the law prohibiting discrimination." The racial slurs reference is to Hatley's use of the term "boy," which the jury could have found indicated racial animus.
In its reply brief, the defendant reiterates that there is no evidence to suggest that Tyson acted with malice or reckless indifference to Hithon's rights under federal law:
There was no evidence of egregious or outrageous conduct. Nor was there any evidence presented at trial to show that Tyson or the decisionmaker, Hatley, knew or even suspected that they could be violating federal law when they did not promote Hithon to this position. To the contrary, as shown at length in Tyson's Renewed Motion and above, Hatley "reasonably believed" that Hithon was not as qualified as Dade. Id. Moreover, the jury determined that Hatley did not discriminate with regard to the King promotion that had occurred only weeks earlier.Reply Brief in Support of Renewed Motion for Judgment as a Matter of Law, Court Document 425, at 26.
The court believes that the whole of the evidence sustains a finding of race discrimination on the part of Hatley. Although there was not a plethora of discrimination evidence presented at the previous trial, the Eleventh Circuit held it was sufficient to go to the jury. It appears that the plaintiff presented the same evidence in the second trial as in the first trial, as well as additional evidence in the second. Further, it is clear from the evidence that Tyson provided federal anti-discrimination law training to its employees, including Hatley. Therefore, the evidence was sufficient for the jury to conclude that Hatley's actions were malicious or recklessly indifferent to the plaintiff's known federally protected rights.
Corporate Hierarchy/Approval by Higher Management
An employer is liable in punitive damages for the acts of its employee only under certain circumstances:
[B]ecause of the egregious-conduct requirement, punitive damages will ordinarily not be assessed against employers with only constructive knowledge of the violations. See Splunge v. Shoney's, Inc., 97 F.3d 488, 491 (11th Cir. 1996). Although an employer may be liable in compensatory damages for the discriminating act of its agent, the employer might not be liable for punitive damages for the same act. Punitive damages are not necessary to compensate the plaintiff. Punitive damages are to punish: to punish those who have actually done wrong and not those who have liability by implication of law only. To get punitive damages, a Title VII plaintiff must show either that the discriminating employee was "high up the corporate hierarchy," id. at 491, or that "'higher management' countenanced or approved [his] behavior," Reynolds v. CSX Transp., Inc., 115 F.3d 860, 869 (11th Cir. 1997), vacated on other grounds, 524 U.S. 947, 118 S.Ct. 2364, 141 L.Ed.2d 732 (1998).Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir. 1999) (footnote omitted); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1280 (11th Cir. 2002).
Tyson contends that Hatley, a plant manager with Tyson, was not high enough up the corporate ladder to impute his malicious, recklessly indifferent, or otherwise egregious acts to it. Memorandum of Law in Support of Renewed Motion for Judgment as a Matter of Law, Court Document 418, at 72; Reply Brief in Support of Renewed Motion for Judgment as a Matter of Law, Court Document 425, at 28.
The Dudley court found that even though the plaintiff suffered race discrimination, neither discriminating employee was high enough up the corporate hierarchy to impute punitive damages liability to the employer. The discriminating employees in Dudley were the store's co-manager and the store's manager. The court held:
But Wal-Mart is a giant business; the record shows that Wal-Mart has more than 2000 stores. Neither of these men is high enough up Wal-Mart's corporate hierarchy — if they can be said to be in the corporate management hierarchy at all — to allow their discriminatory acts to be the basis for punitive damages against the corporation.Dudley, 166 F.3d at 1323.
Hithon sought promotion to a shift manager's position in one of Tyson's Alabama plants. The next highest position in a Tyson plant is plant manager. Hatley was plant manager where Hithon worked. The supervisors over him, outside the plant, were, progressively, the Complex Manager, the Regional Manager, the Division Vice President, the Senior Vice President of Operations, and the Executive Vice President of Operations. Trial Transcript at 576. Presumably, there is also a president who is over the Executive Vice President of Operations. Tyson, whose headquarters is in Springdale, Arkansas, is a very large organization with many plants and many plant managers. The plaintiff's counsel stated to the jury that Tyson is in "80 countries — plants all over the world." Court Document 416, at 260. In closing argument, plaintiff's counsel, referencing plaintiff's exhibit 41, commented on Tyson's vast assets: "If you go to the front of the book, you'll see where it says total assets, and this is in billions. Okay? So you've got assets. I think that's 11 billion 121. I can't write that many zeros." Court Document 416, at 228. The plaintiff, however, has not attempted to refute the argument that Hatley was not far enough up the corporate hierarchy to impute his actions to his employer. It is, therefore, concluded that Hatley's acts may not be a basis for imposing punitive damages on Tyson.
Tyson additionally argues that higher management did not countenance or approve Hatley's behavior. Neither did Hithon complain about the discriminatory promotions, or present any evidence that Tyson had an opportunity to redress the situation:
Given Tyson's evidence of its good faith efforts to comply with Title VII, Tyson cannot be held liable for punitive damages for Hatley's actions unless there is some evidence that Tyson's higher management ratified or adopted his alleged discriminatory conduct, which they did not do. . . .
There is no evidence that Hithon ever approached Hatley, Ever Higgins, or anyone at Tyson to complain that any selection decision was discriminatory based on race. (Tr. 605-06). Although Hithon angrily expressed his disapproval of Dade's selection as shift manager to Human Resources Manager Higgins, Hithon never told Higgins they believed Hatley's selection of Dade or King had anything to do with race. (Tr. 529, 549, 605-06). There is no evidence that Hithon ever lodged a complaint of racial discrimination with Tyson over this promotion.
Ms. Hithon, who was a shift personnel manager in the Gadsden plant at pertinent times, was familiar with Tyson's Human Resources policies and procedures during 1995. (Tr. 292-95). She did not testify that she advised her husband that he should report Hatley for racial bias in selecting Dade as shift manager, or that she reported it herself.
Clearly then, if Hithon (and his wife) did not complain of racially motivated actions or comments by Hatley when they occurred, it is fair to infer that they did not perceive the actions or comments as racially derogatory at the time. In fact, there is no evidence that any complaints of racial discrimination made to the Company during the summer of 1995 from the Gadsden plant. (Tr. 306). In the absence of any such complaints, Hithon did not satisfy his duty to prove that Tyson acted with reckless indifference to his federally protected rights or that Tyson maliciously trampled on his rights. Had Tyson cavalierly ignored specific complaints of racial bias in decision making, perhaps Hithon would have some plausible basis for his punitive damages claims, but given the absence of complaints, Tyson had every reason to believe that all managers were faithfully adhering to well-established, promulgated, disseminated, and widely-known anti-discrimination policies.Memorandum of Law in Support of Renewed Motion for Judgment as a Matter of Law, Court Document 418, at 68-71. The defendant further states:
It is also undisputed that Hithon never attempted to make Tyson higher management aware of the situation by making a complaint of discrimination, despite the fact that his own wife worked in Human Resources and was charged with enforcing Tyson's anti-discrimination policies. Hithon's failure to make a complaint provides additional grounds for dismissal of the punitive damages award. See, e.g., Cooke v. Stefani Mgmt. Servs., 250 F.3d 564, 569-70 (7th Cir. 2001) (striking punitive damage portion of award because it was undisputed that plaintiff never notified employer of alleged discrimination and therefore malice could not be attributed to the employer); Bernstein v. Sephora, 182 F. Supp. 2d 1214, 1226 (S.D. Fla. 2002) (granting employer's Rule 50 motion as to punitive damages because employer instituted non-discrimination policy and immediately investigated complaint by plaintiff).Reply Brief in Support of Renewed Motion for Judgment as a Matter of Law, Court Document 425, at 28.
It is undisputed that Tyson's higher management was never informed of Hatley's discriminatory acts or that they approved of his behavior in any way. Therefore, Hatley's actions, whether or not amounting to actual malice or reckless indifference, cannot be imputed to Tyson for this reason as well.
Good Faith Defense
The defendant finally argues that punitive damages are inappropriate because any discriminatory conduct on Hatley's part was contrary to Tyson's policy of non-discrimination.
At trial, Tyson presented evidence of its EEO training and policies designed to make its managers and employees sensitive to the anti-discrimination laws. (Tr. 604-608, 249, 260-61, 321-22, DX 8, PX 20). The uncontroverted evidence showed that Tyson had a non-discrimination policy in effect at the Gadsden plant in 1995. (Tr. 604-08, 321-22, DX 8). This policy strictly forbade taking race into account with respect to any employment decision. ( Id.). Tyson provided evidence that Tyson employees were trained on this policy. (Tr. 249, 260-61, 528-29, PX 20). The policy also included a procedure whereby employees could raise complaints of perceived discrimination. Hithon admitted that he never made a complaint of race discrimination under the policy. (Tr. 529, 549).
. . . It is undisputed that Tyson had comprehensive policies and training procedures on its antidiscrimination policies. The mere fact that Hatley may have unintentionally failed to follow Tyson's policies on one isolated decision does not give rise to a punitive damages claim as a matter of law.Memorandum of Law in Support of Renewed Motion for Judgment as a Matter of Law, Court Document 418, at 67-68.
Hatley testified to the following. Tyson has an E.E.O.C. policy manual. Hatley was trained on the manual. Hatley knew racial discrimination was illegal. Tyson has an open door policy allowing any employee to complain. Neither Hithon nor Blake ever complained of discrimination.
Higgins testified that he trained on Tyson policies and procedures regularly during his twenty years in the HR position at Tyson.
This cite is to Higgins' testimony. He testified that he trained plant managers as part of corporate training.
Lola Hithon testified that the EEO policy appeared in Tyson's policy manual.
Defendant's Exhibit 8 is Tyson's E.E.O.C. policy manual.
This cite is to Hatley's testimony. He testified that Tyson has an E.E.O.C. policy manual and that he was trained on the manual.
Lola Hithon testified that the EEO policy appeared in Tyson's policy manual.
Defendant's Exhibit 8 is Tyson's E.E.O.C. policy manual.
Higgins testified that he trained on Tyson's policies and procedures.
Higgins testified that he trained plant managers as part of corporate training.
Hithon testified that the policy manual states that "the site personnel managers reinforce this policy by conducting yearly training sessions with all management personnel regarding this policy."
Hithon testified that Higgins would have been the person to complain to.
Hithon admitted that he never made a complaint to Higgins.
In response to the Tyson's good faith defense, the plaintiff states that "[t]he record establishes that, although Tyson had several policies in place to prevent discrimination in promotion and hiring decisions, Hatley disregarded those policies to hire white managers over the plaintiff who did not meet the minimal qualifications for the position." Plaintiff's Memorandum of Law in Opposition to Defendant's Renewed Motion for Judgment as Matter of Law, Court Document 422, at 67.
The defendant responds:
This is the exact type of contention for which the Kolstad defense was created to insulate employers from liability for punitive damages. See Allen v. Tobacco Superstore, Inc., 475 F.3d 931, 943 (8th Cir. 2007) (vacating punitive damages award of $75,000 in promotion case where the Court noted: "although TSI's rapid growth and promotion practices fail to justify the racial disparity within TSI's management personal, those practices demonstrate justifiable business reasons or ineptness and not racial malice or reckless indifference directed toward Allen."); Harsco Corp. v. Renner, 475 F.3d 1179, 1189-90 (7th Cir. 2007) (vacating punitive damage award and holding that "If failure of supervisors to comply with company policy were sufficient to prove the lack of a good-faith effort to train, the Kolstad defense would be effectively eliminated"). The mere fact that a supervisor may have ignored a company policy does not, itself, impute liability to the employer.Reply Brief in Support of Renewed Motion for Judgment as a Matter of Law, Court Document 425, at 27-28.
Finally, the defendant argues the "good faith defense" as a ground for its motion for judgment at the close of the evidence. The question before the court, then, is whether Tyson is entitled to judgment as a matter of law upon this basis. It is undisputed that Tyson had implemented several policies to prevent discrimination in promotion and hiring decisions, as previously set out. Therefore, for this third reason, Hatley's actions in violation of Tyson's discrimination policies cannot be imputed to the employer in order to impose punitive damages.
Conclusion
Wherefore, the defendant's Rule 50(b) renewed motion for judgment as a matter of law, on the question of the sufficiency of the evidence to support a finding that Hatley's actions warranting punitive damages could be imputed to Tyson, is hereby GRANTED. The jury's award of one million dollars ($1,000,000.00) in punitive damages against Tyson is hereby SET ASIDE. All other Rule 50(b) relief requested by the defendant is DENIED.