Retaliatory discharge
By WORLDLawDirect  [July 9th, 2008]

What is a Retaliatory Discharge?

A Retaliatory Discharge is a form of wrongful termination. Under federal and state laws, it is illegal for an employer to discharge an employee in response to that employee exercising his or her rights. For example, a worker may not be fired for filing a workers’ compensation claim, filing a discrimination claim, or for whistleblowing.


How Can I Prove that My Termination was a Retaliatory Discharge?

Although the laws vary from state to state, a discharge is generally retaliatory if the employee:

• Engaged in a protected activity, such as filing a claim
  
• Was terminated
  
• The termination was directly linked, or in response to, the worker’s participation in the protected activity
  

What Damages Can I Seek for a Retaliatory Discharge?

If a worker succeeds in proving his retaliatory discharge claim, he may recover some or all of the following damages from his employer:

• Back pay
  
• Future wages
  
• Mental anguish or emotional distress damages
  
• Punitive damages
  
• Attorney’s fees
  

Do I Need an Attorney for my Retaliatory Discharge Claim?

The legal process can be very complex and time consuming. If you believe you have been discharged in retaliation for exercising your rights as an employee, an experienced employment lawyer can advise you of whether you have a claim for wrongful termination. An employment attorney also can file any necessary paperwork and represent you in court.

See also...

Q & A: Hiring, Firing, Wrongful Termination



Federal District Court Opinions



BROWN v. HILLCREST FOODS, INC., (W.D.N.C. 11-17-2006) JOE
STANLEY BROWN, Plaintiff, v. HILLCREST FOODS, INC.,
Defendant. Civil Docket No. 3:02CV449-V. United States
District Court, W.D. North Carolina, Charlotte Division.
November 17, 2006

Memorandum and Order

RICHARD VOORHEES, District Judge

THIS MATTER is before the Court on post-trial motions
submitted by the parties. Defendant Hillcrest Foods, Inc.
("Hillcrest") moves pursuant to Rule 50 of the Federal Rules
of Civil Procedure for judgment as a matter of law with
respect to Plaintiff's retaliation claim. (Document #87)
Plaintiff Joe Stanley Brown ("Brown") submits a Motion To
Preserve Right To Seek Reinstatement Or Frontpay. (Document
#88)

I. Nature Of Case & Procedural History[fn1]

This action arises out of Plaintiff Brown's allegations of
illegal discrimination by Defendant Hillcrest, namely,
failure to promote and retaliatory discharge, in violation
of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e-2(e)(1) ("Title VII"), and 42
U.S.C. � 1981 ("Section 1981").

Accepting the recommendations of the Magistrate Judge,
this Court denied summary judgment, finding that genuine
issues of material fact precluded judgment as a matter.
(Documents #48, #55) As the Court's Memorandum & Order
relates to the instant motion and retaliation claim, Page
2 the undersigned expressly found that triable jury issues
existed, including: 1) whether Michael Carey knew about
Plaintiff's EEOC charge before he fired Plaintiff
(causation); 2) the actual timing of/temporal proximity of
the EEOC charge in relation to Plaintiff's dismissal; and
3) whether Michael Carey had thoroughly investigated the
sexual harassment claims lodged against Plaintiff.
(Document #55 at 18-20.)

The case proceeded to jury trial on January 25, 2005, and
concluded on January 31, 2005. At the close of the
evidence, Hillcrest moved for judgment as a matter of law
pursuant to Rule 50(a) on all causes of action as well as
Plaintiff's claim for punitive damages. The Court issued an
oral ruling denying Hillcrest's motions.

At the conclusion of the trial, the jury returned a verdict
in favor of Defendant Hillcrest on the two alleged denial
of promotion claims, and in favor of Plaintiff Brown on
the retaliation claim. Specifically, the jury indicated
that Hillcrest's decisions to not promote Brown to the
position of Unit Manager in April and June 2002 were not
"motivated at least in part by Plaintiff's race." (Document
#85, Issue I, � 4; Issue II, � 4) On the
retaliation claim, the jury indicated that Brown engaged in
protected activity, was subject to an adverse employment
action, that Brown's protected activity was a motivating
factor in Hillcrest's employment decision. (Document #85,
Issue III, �� 1-3) The jury then went on to
consider whether Hillcrest would have made the same
employment decision in the absence of the protected
activity based entirely on one or more legitimate,
non-discriminatory factors and answered "No." (Document
#85, Issue III, � 4)

The jury awarded Brown compensatory damages for a net loss
of wages and benefits through the date of trial in the
amount of $100,000, and damages for emotional pain and
mental anguish in the amount of $70,000. (Document #85,
Issue IV, �� 1, 2) Page 3

The jury also awarded Brown $250,000 in punitive damages.
The punitive damages award was based upon the jury's
affirmative answers to the following special
interrogatories:

1) Did a higher management official of Defendant
Hillcrest Foods act with malice or reckless indifference
to Plaintiff's federally protected rights?

2) Did Defendant Hillcrest Foods fail to make a good
faith attempt to comply with the law by adopting policies
and procedures designed to prohibit such discrimination in
the workplace?

(Document #85, Issue IV, �� 3-5)

Judgment was entered consistent with the jury's verdict.
(Document #86) Plaintiff's First and Second Causes of Action
were dismissed with prejudice and monetary damages were
awarded to Plaintiff on the Third Cause of Action.
Prejudgment interest was awarded on Plaintiff's
compensatory damages award at a rate of 2.5 %.

II. FED. R. CIV. P. 50 & Standard Of Review

Rule 50(a) of the Federal Rules of Civil Procedure governs
Hillcrest's motion and provides as follows:

If during a trial by jury a party has been fully heard on
an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that
issue, the court may determine the issue against that
party and may grant a motion for judgment as a matter of
law against that party with respect to a claim or defense
that cannot under the controlling law be maintained or
defeated without a favorable finding on that issue.

A Rule 50 motion for judgment as a matter of law is subject
to the same standard as a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639,
644-45 (4th Cir. 2002). Thus, in considering Defendant's
motion, the Court must "view the evidence in the light most
favorable to the [Plaintiff], the nonmovant, and draw all
reasonable inferences in [his] favor, without weighing the
evidence or Page 4 assessing the witnesses' credibility."
Dennis, 290 F.3d at 644-45 (citing Baynard v. Malone, 268
F.3d 228, 234 (4th Cir. 2001)). The jury's verdict may only
be set aside "if a reasonable jury could only rule in favor
of [Hillcrest]. Id. (citing Sales v. Grant, 158 F.3d 768,
775 (4th Cir. 1998)); Anderson, 477 U.S. at 250. If
reasonable minds could differ, the jury's verdict must
stand. Id.

III. Defendant's Motion For Judgment As A Matter Of
Law[fn2]

A. Retaliatory Discharge

In order to succeed on a retaliatory discharge theory,
Plaintiff had to present evidence demonstrating: 1) that
Plaintiff engaged in protected activity (i.e., EEOC Charge);
2) that the employer took an adverse employment action
against Plaintiff (i.e., he was fired); and 3) that a
causal connection existed between the protected activity
and the adverse action. Carter v. Ball, 33 F.3d 450, 460
(4th Cir. 1994); 42 U.S.C. � 2000e-3(a).[fn3] Page
5

In this case, the only substantive issue for jury
deliberation on Plaintiff's retaliation claim was whether
or not causation was established. The jury unanimously
concluded that Hillcrest's decision to fire Plaintiff two
days after learning of his EEOC Charge was motivated in
part by the filing of the EEOC Charge complaining that
Carey was discriminating against him based upon his race.
Defendant now asks the Court to set aside the jury's
verdict as a matter of law, alleging that there is no
evidence to support the jury's finding. Defendant attempts
to circumvent the applicable standard as Defendant asks the
Court to weigh evidence and assess witness credibility
� functions reserved for the jury.

Defendant's motion likewise fails on the merits. Defendant
argues that "[t]he jury's only decision should have been
whether Mr. Brown was terminated solely because he filed an
EEOC charge." (Def.'s Mem. In Supp. at 13.) Thus, according
to Defendant, Plaintiff can only prevail if the EEOC charge
was the sole basis for his termination. The Court rejected
this argument during the charge conference and elected to
give a "motivating factor" instruction in connection with
the retaliation claim. (Tr. Vol. IV at 515, 594-95, 601)
See Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 553 n.
8 (4th Cir. 1999) ("mixed-motive proof scheme is available
to a Title VII plaintiff in order to prove a retaliation
claim under � 704 if the plaintiff can establish the
necessary evidentiary threshold.") Rishel, 297 F.Supp 2d
854 (M.D.N.C. 2003).

Once a trial has proceeded to completion, the McDonnell
Douglas[fn4] burden shifting framework no longer governs.
Dennis, 290 F.3d at 645 (citing Gibson v. Old Town Trolley
Tours of Washington D.C., 160 F.3d 177, 180 (4th Cir.
1998)). Instead, Plaintiff "face[s] the ultimate burden of
proving [his] case." Id. A summary of the relevant trial
evidence bearing on the factual issues Page 6 identified
by the Court previously is discussed herein.

The following evidence supports the jury's finding that
Michael Carey knew about Plaintiff's EEOC Charge before
Carey fired Plaintiff:

� Michael Carey (former Regional Manager for
Hillcrest) denied having any knowledge of Plaintiff's EEOC
charge and testified that he was only asked to explain to
Michael Wheeler (Hillcrest's Senior Area Manager) why
Plaintiff was not promoted to the unit manager position;
(Tr., at 277-78.)

� Robert O'Rear (Hillcrest's Secretary/Treasurer)
entrusted Michael Wheeler (or Wheeler's designee) with
investigating EEOC complaints for Hillcrest (Tr., at 200.)

� Wheeler testified, via deposition, that he
received the EEOC charge from O'Rear and forwarded it to
Carey for investigation. (Tr. Trans., at 218-19; Wheeler
Dep., at 58:1, 60:9 and Tr., at 242.)

The following evidence relates to the temporal
relationship between Plaintiff's EEOC Charge, Defendant's
written response to the EEOC, and Carey's decision to
terminate Plaintiff:

� In his three and one-half (3?) years of
employment with Hillcrest, and up until the date of his
actual termination, Plaintiff had not ever been formally
disciplined;

� At the same time he was given his separation
notice terminating his employment, Plaintiff was handed
an "Associate's Warning" indicating that he was being
disciplined for bad behavior and sexual harassment; (Tr.,
at 94-95; Pl.'s Exhs. 12, 13)

� Plaintiff was fired two (2) days after Carey
drafted Hillcrest's memo in response to the EEOC charge.

The following evidence supports the jury's apparent
finding that Carey's investigation of the sexual harassment
allegations against Plaintiff was deficient:

� O'Rear testified, via deposition, that an EEOC
investigation should include written statements from both
the accuser and the accused; (Tr., at 197.) Page 7

� O'Rear testified that it was Hillcrest's policy
that an employee who is complained about 1) be put on
notice of the complaint; 2) may be suspended during an
investigation depending upon the gravity of the situation;
and 3) be given an opportunity to respond to the charges
prior to termination. (Tr., at 198.)

� Wheeler testified that Hillcrest's investigation
of sexual harassment charges against one of its
employees should include a visit to the restaurant,
interviews of the people that were working at the time, an
interview of the accused if available, a talk with the
manager, and anybody that might have information about the
incident. (Tr., at 220-21.)

� Wheeler testified that, where possible, written
statements documenting the investigative interviews (of
the employees making the allegations as well as from the
accused) should be obtained; (Tr., at 221.)

� Carey testified that he made several attempts to
contact Plaintiff by phone during Plaintiff's scheduled
shift and had requested, via the store manager, an
opportunity to talk to Plaintiff; (Tr., at 276, 317-18.)

� Carey testified that he was advised that
Plaintiff or Plaintiff's lawyer did not want Plaintiff
talking to him; (Tr., at 276, 318.)

� Plaintiff testified that when he learned he was
being fired for engaging in sexual harassment, he
expressed a desire to talk with Carey but Carey refused to
talk to him; (Tr., at 93.)

� Plaintiff testified that the day before he was
fired, Carey was present in the store meeting with Joni
Bradshaw when Plaintiff was getting off work at the end of
the third shift; (Tr., at 92-93.)

� Plaintiff was not asked to provide a written
statement in response to the allegations of sexual
harassment made against him; (Tr., at 95.)

� Carey did not interview Jenny Gibson, the unit
manager on duty at the time of the alleged "cucumber
incident" nor did he ask her for a written statement;
(Tr., at 374-75, 310-11.)

� Carey did not interview any of the other
employees on duty during the night of the Page 8
alleged "Vienna Tope incident" nor did he ask for written
statements from those employees. (Tr., at 312-13, 375.)

In addition to the evidence already mentioned, the
following evidence provides a basis for the jury's finding
that Defendant's purported reason for firing Plaintiff may
have been pretext, or that Plaintiff's protected activity
may have been a motivating factor in the decision:

� All of the evidence regarding the nature and
scope of Carey's investigation of the alleged sexual
harassment of co-workers by Plaintiff;

� Unit Manager Jenny Gibson agreed during
cross-examination that "staff in the store joked fairly
regularly about sexual matters"; that "women would joke
with women about sexual issues"; that "the males and the
females would banter back and forth"; and that with
respect to the cucumber incident, "we joked about �
you know, they all was joking about it . . ." (Tr., at
372.)

� Plaintiff testified that he had known Jenny
Gibson a long time and that they had the sort of
relationship where they could banter with each other;
(Tr., at 88.)

� Other alleged incidents of sexual harassment
involving other Hillcrest employees either 1) did not
result in termination of the charged employee; 2) involved
some sort of unwelcome physical contact; or 3) involved
multiple or continued incidents despite warnings (Tr., at
215-16, 270, 301-08, 327-28.)

� Plaintiff testified that after he was fired,
Danny Barnhardt (former Hillcrest District Manager) told
him that he could probably get Plaintiff his job back if
Plaintiff would drop his lawsuit; (Tr., at 97.)

� Plaintiff testified that prior to events giving
rise to this lawsuit, Carey asked him to fabricate a story
about former employee Michelle Cooper in order to justify
Hillcrest's termination of Cooper but Plaintiff refused;
(Tr., at 75-76, 93-94.)

� Hillcrest initially indicated to the Employment
Security Commission that Plaintiff voluntarily resigned
his position and then challenged the decision to award
unemployment benefits to Plaintiff. (Tr., at 99; Pl.'s
Exh. 28) Page 9

As Plaintiff suggests, it appears that the jury did not
find Defendant's witnesses, including Michael Carey,
credible. Given the nature of Plaintiff's claims,
credibility was key. If the jury found Carey not credible,
the jury could then conclude that Carey was fully aware of
the EEOC charge filed by Plaintiff against Hillcrest; that
Carey did not possess a good faith belief that Plaintiff's
coworkers (Ms. Bradshaw and Ms. Tope) were truthful about
the alleged sexual harassment by Plaintiff; and that
Carey's decision to terminate Plaintiff's employment was
motivated at least in part by a retaliatory motive. The
jury's credibility determinations, and the weighing or
evaluation of each witnesses' testimony was entirely
proper. In short, reasonable minds could differ as to
inferences reasonably supported by the evidence.[fn5] Thus,
Defendant's motion must be denied.

B. Back Pay Award

Back pay is not available under � 1981a(b)(2) but is
expressly provided for within 42 U.S.C. �
2000e-5(g)(1). Section 2000e-5(g)(1) provides:

If the court finds that the respondent has intentionally
engaged in . . . an unlawful employment practice charged
in the complaint, the court may enjoin the respondent from
engaging in such unlawful employment practice, and order
such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring
of employee, with or without back pay (payable by the
employer responsible for the unlawful employment
practice), or any other equitable relief as the court
deems appropriate. * * *

Interim earnings or amounts earnable with reasonable
diligence by the person . . . discriminated against shall
operate to reduce the back pay otherwise allowable.

42 U.S.C. � 2000e-5(g)(1) (emphasis added). Page 10

A successful Title VII plaintiff is "presumptively entitled
to back pay." Szedlock v. Tenet, 139 F.Supp.2d 725, 732
(E.D.Va. 2001) (citing Albemarle Paper Co. v. Moody, 422
U.S. 405, 421 (1975). The Supreme Court explained in
Albemarle Paper that "given a finding of unlawful
discrimination, back pay should be denied only for reasons
which, if applied generally, would not frustrate the
central statutory purposes of eradicating discrimination
throughout the economy and making persons whole for
injuries suffered through past discrimination." Albemarle
Paper Co., 422 U.S. at 421. The Supreme Court also
explained that the back pay provisions within Title VII are
intended to give the courts "wide discretion" to exercise
their equitable powers and "fashion the most complete
relief possible." Albemarle Paper Co., 422 U.S. at 421.

Hillcrest argues that Plaintiff should only be entitled to
net lost wages of $85,937.50 given his rate of pay at the
time of termination.[fn6] Hillcrest also contends that
Plaintiff's back pay award should be reduced due to
Plaintiff's purported failure to mitigate damages.

Plaintiff Brown testified that after being terminated, he
went "pretty much every day or every other day looking for
work, mainly at restaurants, but most of them wasn't [sic]
hiring. And after it got so frustrating, probably after a
year or so, I started doing work on small engines . . ."
(Tr., at 97-98.) Plaintiff introduced records from the
Employment Security Commission documenting his efforts to
secure employment during the period of time he received
unemployment benefits. These records include entries from
September 3, 2002 through March 20, 2003, and reveal that
Plaintiff applied for various cook/food-prep positions as
well as driver positions. (Pl.'s Exh. 28) Beyond March
2003, Page 11 Plaintiff provided no evidence that he was
diligently seeking employment. Plaintiff also did not offer
into evidence records of any income earned due to
self-employment (small engine repair).

Section 2000e-5(g)(1) places the burden of proving failure
to mitigate damages on a Title VII defendant. Brady v.
Thurston Motor Lines, Inc., 753 F.2d 1269, 1273 (4th Cir.
2001). The jury was instructed accordingly � that
Plaintiff's damages award, if any, must be reduced if the
jury determined that Plaintiff did not make reasonable
efforts to obtain employment of a "like nature" or did not
act reasonably in refusing to seek or accept any particular
job. (Tr., at 604-05.) Hillcrest did not present any
evidence on this issue, yet the jury apparently deemed
Plaintiff's actions reasonable. Given the equitable nature
of the relief, the Court has an obligation to ensure that
the back pay award is, in fact, equitable.

Notwithstanding Defendant's burden to establish its
affirmative defense, Plaintiff has the burden of producing
evidence in support of his damages claim. EEOC v. Pizza Hut
Of Roanoke Rapids, Inc., 989 F.2d 492 (E.D.N.C. 1993).
Plaintiff's own evidence is deficient in that it does not
support the amount of the back pay award indicated by the
jury's verdict. Plaintiff's back pay award must be reduced
consistent with the actual record evidence. Specifically,
Plaintiff is entitled to back pay only through March 20,
2003. Because there is no evidence that Plaintiff received
any benefits in addition to his hourly wage, Plaintiff's
back pay award should be calculated based upon his actual
rate of pay.[fn7] In light of the jury's verdict with
respect to the promotion claims, calculation of back pay
must be based upon Plaintiff's pay rate as a Grill Operator
and not reflect any award based upon speculation that
Plaintiff may have been promoted to Unit Manager at some
future time. Page 12

According to Plaintiff, the loss of his home and car, his
prior criminal record, health concerns, and the need to
care for his disabled son, significantly limited his
employment options. However, Title VII's objective of
making a plaintiff "whole" does not entitle Plaintiff to
back pay during a period of time when unrelated
(non-discriminatory/non-retaliatory) factors existed that
interfered with his ability to work. See generally,
Szedlock, 139 F.Supp.2d at 734-35 (factoring plaintiff's
pronounced hearing loss into mitigation of damages analysis
and finding that her disability did not render job search
futile).

C. Punitive Damages Award

Defendant challenges the punitive damages award on three
grounds, each of which are discussed in turn.

1. The Jury's Punitive Damages Award Is Supported By The
Evidence

Title 42, United States Code, Section 1981a, reads in
pertinent part:

A complaining party may recover punitive damages under
this section against a respondent . . . if the complaining
party demonstrates that the respondent engaged in a
discriminatory practice . . . with malice or with reckless
indifference to the federally protected rights of an
aggrieved individual.

42 U.S.C. � 1981a(b)(1). The terms "malice" and
"reckless indifference" refer to "the employer's knowledge
that it may be acting in violation of federal law, not its
awareness that it is engaging in discrimination." Kolstad
v. Am. Dental Ass'n, 527 U.S. 526, 535 (1999). In other
words, "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." Lowery v. Circuit
City Stores, Inc., 206 F.3d 431, 442 (4th Cir. 2000)
(quoting Kolstad, 119 S.Ct. at 2124.)) Page 13

During cross-examination, Michael Carey acknowledged his
understanding, as early as June 2002, that it would be
illegal to fire an employee for filing an EEOC Charge.
(Tr., at 290.) There was also evidence presented from which
a reasonable jury could infer that Carey was, in fact,
aware of the pendency of Plaintiff's EEOC Charge despite
Carey's claimed ignorance. Thus, viewed in the light most
favorable to Plaintiff, there is sufficient evidence from
which a jury could find that Carey's decision on behalf of
Hillcrest was made in the face of a perceived risk that
firing Plaintiff may violate federal law.

In addition to demonstrating malice and reckless
indifference, plaintiff must prove that punitive damages
should be imputed to the employer. "[A]n employer may be
held vicariously liable for a punitive damage award in a
Title VII case for the intentionally discriminatory conduct
of its employee where the employee served the employer in a
managerial capacity, committed the intentional
discrimination at issue while acting in the scope of
employment, and the employer did not engage in good faith
efforts to comply with Title VII." Lowery, 206 F.3d at 442
(citing Kolstad, 119 S.Ct. at 2129)).

The first two criteria do not warrant discussion in that
Hillcrest concedes the level of authority that the relevant
employees possessed, and that the conduct at issue was
within the scope of the employees' respective employment.
The jury's verdict expressly rejected the good faith
defense. The Court does not find, as a matter of law, that
the jury's finding as to absence of "good faith" must be
set aside. See Golson v. Green Tree Fin. Serv. Corp., 26
Fed. Appx. 209, 214 (4th Cir. 2002) (unpublished)
("Evidence that an employer is not sincerely committed to
enforcing [its anti-discrimination] policy may undermine
the existence of a company-wide policy.") Page 14

The following evidence supports the jury's punitive
damages award:

� Hillcrest did not have any individual employee
responsible for human resources; (Tr., at 196.)

� O'Rear was in charge of EEOC compliance for
Hillcrest; (Tr., at 196.)

� O'Rear testified that when Hillcrest had "legal
issues like [this case]," one of his responsibilities was
to "help work with the staff to try to get documents
together we need to respond to those complaints." (Tr., at
195.)

� O'Rear never had any formal training regarding
how to respond to EEOC complaints and Hillcrest had no
standard form for documenting an EEOC investigation; (Tr.,
at 196-97.)

� Michael Carey (Regional Manager) was identified
in Plaintiff's EEOC charge as the perpetrator of the
alleged discriminatory conduct;

� Wheeler assigned sole responsibility for
investigating Plaintiff's EEOC charge to Carey; (Tr., at
199-200, 219.)

� O'Rear relied entirely on the information
provided by Michael Carey in responding to the EEOC
charge; (Tr., at 200-01, 204-05.)

� O'Rear did not discuss Plaintiff's termination
� within a week of Hillcrest's response to
Plaintiff's EEOC charge � with Wheeler or Carey;
(Tr., at 206-07.)

� The inadequacy of Carey's investigation as a
whole;

� Hillcrest did not introduce into evidence any
written anti-retaliation policy; and

� Hillcrest failed to present any evidence that it
trained its employees about the anti-retaliation
provisions of Title VII.

2. The Punitive Damages Award Is Not Capped By Statute

Defendant contends that the punitive damages award in this
case is prohibited by Title VII's statutory limit under 42
U.S.C. � 1981a. Section 1981a, entitled "Damages in
cases of intentional Page 15 discrimination in
employment," governs issues concerning damages with respect
to claims under Section 1981 and Title VII. Pollard v. E.I.
du Pont de Nemours & Co., 532 U.S. 843, 851 (2001)
(explaining the purpose of � 1981a as making the same
remedies available in all cases where intentional
discrimination is shown).

If Plaintiff Brown were proceeding solely under Section
1981a, his damages award, including punitive damages, would
be subject to a limitation or cap based upon the number of
respondent's employees. However, Section 1981a contemplates
that available remedies under Section 1981 and Title VII
may complement each other such that a successful plaintiff
obtains the maximum award possible. See 42 U.S.C. �
1981a(1) (where complaining party cannot recover under
section 1981, plaintiff may receive compensatory and
punitive damages as allowed in section (b) in addition to
relief authorized by section 706(g) of the Civil Rights Act
of 1964); Lowery, 206 F.3d at 441 (where plaintiffs
prevailed under both Section 1981 and Title VII, the Civil
Rights Act of 1991 only allows recovery of punitive damages
under Section 1981).

In this case, Plaintiff prevailed under both 1981 and
Title VII. Plaintiff contends that, as a result, consistent
with the plain language of 1981a(1), Plaintiff's damages
need only comport with Section 1981 � not 1981a.
Defendant, on the other hand, contends that the cap within
� 1981a limits its damages exposure.[fn8] In
support, Defendant cites Conner v. Schrader-Bridgeport
Int'l, Inc., 227 F.3d 179 (4th Cir. 2000). In Conner, the
Fourth Circuit applied the cap on damages within �
1981a.[fn9] Page 16 Conner, 227 F.3d at 202. However,
Conner was not a Section 1981 case in that the plaintiff
only brought a Title VII action alleging a hostile work
environment towards women. There were no claims alleging
discrimination based upon race. For this reason, Conner
does not support Hillcrest's interpretation of 1981a(b). In
addition, Section 1981a expressly notes an intent to not
limit the scope of relief already provided for under 1981.
42 U.S.C. � 1981a(b)(4) ("Nothing in this section
shall be construed to limit the scope of, or the relief
available under, section 1981 of this title."); Pollard,
532 U.S. at 851 (compensatory and punitive damages under
� 1981 are not limited by statute). Because
Plaintiff recovered under Section 1981 and Title VII,
Plaintiff's punitive damages award is not subject to the
statutory limitations within Section 1981a(b).

2. The Punitive Damages Award Does Not Violate Due Process

Due Process is offended by a jury award of punitive
damages "[o]nly when [the] award can fairly be categorized
as "grossly excessive". . ." BMW of North Am., Inc. v.
Gore, 517 U.S. 559, 568 (1996). In determining whether a
punitive damages award is so excessive that it may be
deemed arbitrary and, therefore, contrary to due process
principles, the degree of reprehensibility of the
defendant's conduct, its ratio to the actual harm or
potential harm suffered by the plaintiff, and the degree of
civil or criminal penalty that could be imposed for
comparable misconduct may be considered. Gore, 517 U.S. at
575, 580 and 583. In evaluating whether due process is
offended by a particular punitive damages award, the trial
court's role is to "compare its own `independent judgment
on the appropriate amount with the jury's award to
determine whether the jury's award is so excessive as to
work an injustice.'" Bryant v. Aiken Reg'l Med. Ctrs.,
Inc., 333 F.3d 536, 548 (4th Page 17 Cir. 2003) (quoting
Atlas Food Sys. And Svcs. v. Crane Nat'l Vendors, 99 F.3d
587, 595 (4th Cir. 1996)).

Hillcrest argues that the $250,000 punitive damages award
is unjust because 1) Hillcrest's purported illegal conduct
was confined to a single, isolated incident; and 2) the
jury found that Hillcrest's decision regarding Plaintiff's
promotion was not motivated by race. Defendant's due
process challenge to the punitive damages award focuses on
"relatively low reprehensibility." See State Farm Mut. Auto
Ins. Co. v. Campbell, 538 U.S. 408, 418-429 (2003) (the
degree of reprehensibility of the defendant's conduct is
the "most important indicium of the reasonableness of a
punitive damages award.") (quoting Gore, 517 U.S. at 575.)
The degree of reprehensibility takes into account whether:

the harm caused was physical as opposed to economic; the
tortious conduct evidenced 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.

Campbell, at 1521 (quoting Gore, 517 U.S. at 576-77. Here,
the financial vulnerability of the Plaintiff serves as one
basis for the jury's punitive damages award. The implicit
finding by the jury that Michael Carey was less than
forthcoming about his knowledge of Plaintiff's EEOC Charge,
serves as yet another basis for the award. Most
significantly, however, the facts as found by the
jury[fn10] regarding Hillcrest's overall "indifference"
regarding its compliance with federal
anti-retaliation/anti-discrimination laws, justify the
amount of the punitive damages award. Page 18

D. Impeachment Of Vienna Tope

Defendant contends that Plaintiff's impeachment of Vienna
Tope was improper under Rule 403 of the Federal Rules of
Evidence. FED. R. EVID. 403. To the contrary, Plaintiff,
through counsel, was allowed to cross-examine Tope about
her prior criminal history and about possible alternative
motives for asserting a sexual harassment claim against
Plaintiff. Specifically, Tope was asked about the
truthfulness of an answer she had given on her application
of employment for the Hillcrest Foods job. (Tr., at
417-18.) Because the relevant application question inquired
whether or not Tope had any prior convictions, to which
Tope responded "no," counsel was allowed to ask the witness
about her prior convictions to establish that the witness
had submitted false information in her job application. The
gist of Plaintiff's cross-examination was not the prior
conviction. Rather, counsel sought to question the witness
regarding her capacity for truthfulness.

Aside from evaluating Tope's credibility, the undersigned
agrees with Defendant that the jury's inquiry with respect
to Tope's testimony should have been limited to "whether
Hillcrest believed that Mr. Brown sexually harassed two
employees." (Def.'s Mem. In Supp., at 9.) The Court's
instructions to the jury with respect to impeachment
generally and the effect, if any, a witnesses' prior
conviction may have in weighing credibility were consistent
with this limited purpose. This evidentiary ruling was
within the Court's discretion. Page 19

V. Order

For the reasons stated herein, the Court will grant in
part and deny in part Defendant's Motion For Judgment As A
Matter Of Law. FED.R.CIV.P.50(b)(1)(A). Plaintiff's Motion
To Preserve Right To Reinstatement And Frontpay will be
granted.[fn11]

IT IS HEREBY ORDERED THAT:

1) Defendant's Rule 50 motion is GRANTED in part and DENIED
in part;

2) The parties shall submit a proposed Final Judgment
consistent with the terms of this Memorandum and Order no
later than November 17, 2006. The Judgment shall reflect
all aspects of the jury's verdict, except with respect to
the back pay award. Back pay shall be calculated based upon
the actual record evidence of Plaintiff's rate of pay as a
Grill Operator through March 20, 2003; and

3) Plaintiff has preserved the right to seek reinstatement
and front pay and his motion to that effect is GRANTED.

[fn1] A thorough recitation of the record evidence prior to
trial can be found within the Court's Memorandum & Order
dated October 1, 2004. (Document #55).

[fn2] Under Rule 50(b), "the movant may renew its request
for judgment as a matter of law by filing a motion no later
than 10 days after entry of judgment . . ." Hillcrest's
motion was filed within 10 days of entry of judgment and
is, therefore, timely.

[fn3] Title VII explicitly prohibits discrimination (or
retaliation) for an employee's participation in protected
activity:

(a) Discrimination for making charges, testifying,
assisting, or participating in enforcement proceedings

It shall be an unlawful employment practice for an
employer to discriminate against any of his employees . .
. because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under
this subchapter.

42 U.S.C. � 2000e-3(a). Although Section 1981 does
not expressly provide for a cause of action based upon
retaliation, the Supreme Court has recognized its
application in this context. See Lytle v. Household Manuf.,
Inc., 494 U.S. 545 (1990) (plaintiff's Title VII and
Section 1981 retaliation remedies are "separate,
independent and distinct" but require proof of the same
elements).

[fn4] McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

[fn5] Defendant's characterization of the "facts" and
"evidence" is sanctionable. If the undersigned had not
presided over the trial, and did not have access to the
official trial transcript, the Court could easily be misled
about the record evidence.

[fn6] According to Plaintiff, Defendant's back pay
calculation for the relevant time period is based upon 50
work weeks rather than 52 work weeks per year. Plaintiff
suggests that even if the back pay award were calculated
solely based upon the $687.50/week pre-termination rate of
pay, Plaintiff would be entitled to $89,375.00 in back pay.

[fn7] The fact that Hillcrest Grill Operators were not
eligible for benefits was one of the reasons Plaintiff
considered the Unit Manager position so desirable.

[fn8] Under Section 1981a, the largest monetary award (for
a respondent with more than 500 employees) is not to
exceed $300,000. 42 U.S.C. � 1981a(b)(3)(D). Relying
on this provision, Defendant asserts that, at minimum, the
Court is required to reduce the award by $20,000.

[fn9] The actual opinion reference is to Section 1981a(c)
as opposed to Section 1981a(b), which sets forth the
various caps based upon the number of employees. However,
the text of the parenthetical explains the court's intent
to limit Plaintiff's total Title VII award to a maximum of
$300,000.00, dependent upon the district court's factual
findings upon remand. Conner, 227 F.3d at 202 and n. 23
("Title VII plaintiff's total compensatory and punitive
damages award may not exceed $300,000.")

[fn10] Had the undersigned been tasked with evaluating the
evidence independently, it would have likewise found that
the evidence presented at trial supported the jury's
finding that Hillcrest had little genuine concern with its
compliance with federal
anti-discriminatory/anti-retaliatory laws.

[fn11] Plaintiff does not seek reinstatement (or frontpay in
lieu of reinstatement) at this time but, instead, only
seeks to preserve the right to pursue these equitable
remedies in the event that the punitive damages award is
adjusted on appeal. (Pl.'s Mot., �� 4, 5)
Defendant opposes Plaintiff's motion and asserts that
Plaintiff is not entitled to reinstatement or frontpay
under any set of circumstances. However, since Plaintiff
only seeks to preserve the issue, there is no need to
consider the merits of Plaintiff's request at this stage of
the proceedings. Page 1



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