UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1804
ARNOLD WHITE; DELBERT GASKINS,
Plaintiffs - Appellees,
versus
BFI WASTE SERVICES, LLC,
Defendant - Appellant.
-----------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellees.
No. 05-1837
ARNOLD WHITE; DELBERT GASKINS,
Plaintiffs - Appellants,
versus
BFI WASTE SERVICES, LLC,
Defendant - Appellee.
-----------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellants.
Appeals from the United States District Court for the Eastern
District of Virginia at Alexandria. Gerald Bruce Lee, District
Judge. (CA-02-1833-1; CA-02-1832-1)
Argued: March 17, 2006 Decided: May 23, 2006
Before NIEMEYER, LUTTIG,* and KING, Circuit Judges.
Affirmed in part, reversed in part, and remanded with instructions
by unpublished per curiam opinion.
ARGUED: Ronald Alan Lindsay, SEYFARTH SHAW, L.L.P., Washington,
D.C., for Appellant/Cross-Appellee. Christopher Edwin Brown,
Alexandria, Virginia, for Appellees/Cross-Appellants. Barbara L.
Sloan, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C.,
for Amicus Supporting Appellees/Cross-Appellants. ON BRIEF:
Christina S. Pignatelli, SEYFARTH SHAW, L.L.P., Washington, D.C.,
for Appellant/Cross-Appellee. James L. Lee, Deputy General
Counsel, Carolyn L. Wheeler, Acting Associate General Counsel,
Vincent J. Blackwood, Assistant General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Supporting
Appellees/Cross-Appellants.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
*
Judge Luttig heard oral argument in this case but resigned
from the court prior to the time the decision was filed. The
decision is filed by a quorum of the panel pursuant to 28 U.S.C.
§ 46(d).
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PER CURIAM:
Arnold White and Delbert Gaskins commenced this action
against BFI Waste Services, LLC (“BFI”), their employer, alleging
discrimination because of race, in violation of Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. § 1981. In a prior appeal,
we reversed a portion of the district court’s decision granting
summary judgment to BFI, remanding the case for trial on the
plaintiffs’ claim of a hostile work environment. See White v. BFI
Waste Services, LLC, 375 F.3d 288 (4th Cir. 2004). On the
plaintiffs’ hostile work environment claim, a jury has now
returned a verdict in favor of the plaintiffs, awarding each
plaintiff $600,000 in compensatory damages and $2 million in
punitive damages. The district court reduced the compensatory
damages awards by one half because they represented double damages
and remitted the $2 million punitive damages awards to $600,000 on
the ground that they were excessive.
On appeal, BFI has assigned a broad array of errors with
respect to all phases of the trial proceedings. In general, BFI
contends that the jury selection process was flawed; that the
evidence was insufficient to support the jury’s verdict both as to
liability and as to punitive damages; that the district court
improperly instructed the jury; that the jury’s awards of
compensatory and punitive damages were excessive; and that the
district court improperly disposed of post-trial motions.
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We agree that the evidence was insufficient to award punitive
damages and reverse that part of the judgment. Otherwise, we
affirm.
I
White and Gaskins, who are black, were employed by BFI as
garbage truck drivers, working at BFI’s facility in Merrifield,
Virginia. White had worked at that facility since 1989 and
Gaskins since 1996. In 2002 the two employees commenced this
action, complaining that BFI’s managers discriminated against them
by creating a racially hostile work environment over the years
that they worked at the Merrifield facility. The plaintiffs
alleged that BFI’s managers constantly slurred and insulted them
racially by calling them -- as well as other black drivers --
“nigger,” “boy,” “Zulu warrior,” and “porch monkey,” among others.
At trial, White and Gaskins described how the managers
meticulously avoided speaking their racial epithets in the open or
over the company’s radio, but rather verbally accosted the black
drivers in face-to-face encounters or by muttering under their
breath. White described one incident, however, where a manager
openly spoke a racial slur at a company picnic. When White and
his family exited from an expensive car, the manager said to him,
“Boy, you make too much money.”
The evidence at trial showed that the plaintiffs received
BFI’s employee handbook, which contained procedures to follow in
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response to such discrimination. The handbook directed that
employees contact managers in case of discrimination, and it
provided a telephone number that employees could call anonymously
to lodge complaints. The evidence showed that the plaintiffs did
not complain often through that process; indeed, they testified
that they never complained about the vast majority of the epithets
they suffered. Moreover, BFI offered testimony that when it did
receive such a complaint, it reprimanded the manager involved and
had him apologize to the employee. But there was also evidence
that both plaintiffs complained regularly to a shop steward who
collected employee complaints and relayed them to BFI managers.
The shop steward testified that BFI never responded to these
complaints and that hostile conditions continued in the workplace.
Both White and Gaskins testified that they suffered over the
many years that they were harassed by BFI’s managers and that
their personalities changed during the period. They related how
their families in turn suffered. White testified that he had gone
to see a doctor but provided no further details.
The jury returned a general verdict for both White and
Gaskins, awarding each $600,000 in compensatory damages and $2
million in punitive damages. The district court reduced each
compensatory damages award, cutting it in half, on the ground that
it was a double recovery for the same injury -- one under Title
VII and the other under § 1981. As to the punitive damages, the
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court remitted the award to $600,000 per plaintiff, which the
plaintiffs accepted in lieu of a new trial on damages.
From the judgment entered, BFI filed this appeal, alleging
multiple errors, and the plaintiffs cross-appealed, challenging
the district court’s reduction in damages.
We have examined the briefs of the parties, considered their
oral arguments, and reviewed the record, and reject all appeals
except that relating to the award of punitive damages.
Accordingly, we reverse the award of punitive damages and in all
other respects affirm. While we do not address further all of the
points raised by the parties, we believe that a few merit further
discussion.
II
With respect to the sufficiency of the evidence on liability,
BFI alleges that it had a complete defense because it had in place
an effective antiharassment policy, and when it was made aware of
complaints, it responded to its employees in accordance with that
policy. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
765 (1998). While the existence of a policy is necessary to
provide defendants with an affirmative defense, it is not
sufficient, and that defense is lost if the policy was
ineffective. See Matvia v. Bald Head Island Management, Inc., 259
F.3d 261, 268 (4th Cir. 2001); Barrett v. Applied Radiant Energy
Corp., 240 F.3d 262, 266 (4th Cir. 2001).
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In this case there was sufficient evidence on which the jury
could have relied to find that BFI’s policy was ineffective.
Although BFI directed our attention to some testimony, including
that of White, which affirmed BFI’s responsiveness to complaints,
the Merrifield shop steward testified, without contradiction, that
BFI never addressed the numerous complaints about racial
harassment that he presented to management. The jury reasonably
could have believed the shop steward’s testimony and consequently
could have determined that BFI’s antiharassment policy was
ineffective. Moreover, there was also evidence that, despite
BFI’s responsiveness, the hostile environment continued to exist
at the Merrifield facility during the entire time that the
plaintiffs worked there, which, for White, was over 10 years, and
for Gaskins, about 6 years.
III
With respect to BFI’s contention that the evidence was
insufficient to support an award of punitive damages, we agree.
To justify an award of punitive damages, a plaintiff alleging
discrimination must demonstrate that his employer acted “with
malice or with reckless indifference to [his] federally protected
rights.” Kolstad v. American Dental Association, 527 U.S. 526,
535 (1999) (quoting 42 U.S.C. § 1981a(b)(1) (emphases omitted)).
Moreover, “an employer may not be vicariously liable for the
discriminatory employment decisions of managerial agents where
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these decisions are contrary to the employer’s good-faith efforts
to comply with Title VII.” Id. at 545 (internal quotation marks
and citation omitted). We have held that distributing an
antiharassment policy and conducting training seminars “preclude
the award of punitive damages.” Bryant v. Aiken Regional Medical
Centers, Inc., 333 F.3d 536, 549 (4th Cir. 2003).
In this case, BFI demonstrated that it had distributed an
antiharassment policy and that it had conducted training seminars.
To overcome this evidence of good-faith efforts to comply with
Title VII and § 1981, the plaintiffs pointed only to the
ineffectiveness of BFI’s antiharassment policy. While the
ineffectiveness of an antiharassment policy defeats an employer’s
affirmative defense, as we have already noted, a policy’s
ineffectiveness alone cannot demonstrate the lack of good faith
required for justifying an award of punitive damages. If it
could, employers with antiharassment policies who failed on their
affirmative defenses would automatically be exposed to punitive
damages, and there would have been no need for the Kolstad Court
to formulate the additional “good-faith efforts” inquiry.
Having examined the record, we can find no evidence
demonstrating BFI’s malice or reckless indifference -- its lack of
good faith -- except for the simple assertion by the plaintiffs
that its policy proved ineffective with respect to them. Because
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evidence of ineffectiveness, without more, fails to support an
award of punitive damages, we reverse that aspect of the judgment.
IV
BFI argues that it should be granted a new trial because the
district court committed error during jury selection. It contends
that the district court erred in refusing, because of a
discriminatory purpose, to let it exercise a peremptory strike
against juror 18, a black female, and that its objection to the
plaintiffs’ peremptory strike of juror 24, a white man, was
improperly overruled.
The applicable principles are well established. A party can
object to an opposing party’s peremptory strike if the objecting
party believes that the peremptory challenge was exercised for a
racially discriminatory reason. The court can sustain the
objection if the objecting party has made out a prima facie case
of discrimination and if the party exercising the peremptory
challenge fails to provide a genuine and race-neutral reason for
exercising the strike. See Miller-El v. Cockrell, 537 U.S. 322
(2003); Purkett v. Elem, 514 U.S. 765 (1995). A district court’s
rulings relating to peremptory challenges are given deference as
its factual findings are reviewed for clear error. See Jones v.
Plaster, 57 F.3d 417, 421 (4th Cir. 1995).
In this case when the court asked BFI for its reason for
striking juror 18, BFI’s counsel provided the explanation that the
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juror was a member of a union and worked for U.S. Airways, which
BFI’s counsel claimed “has had a history of employee problems.”
The court found this to be pretextual because U.S. Airways was
completely unrelated to the case and because juror 18’s testimony
about her union membership permits no justifiable inference about
her union sympathies. BFI’s explanations also revealed some
inconsistency when they were repeated. While the district court’s
findings may have been too sensitive, the court was in the best
position to assess BFI’s genuineness, and we are not in a position
to second-guess its judgment when there is a basis, albeit weak,
for the judgment.
With respect to juror 24, the district court determined that
the plaintiffs’ race-neutral explanation for the strike, i.e.,
that the juror was an older person, was not pretextual. As to
that, we also defer.
V
In ruling on BFI’s motion for a new trial, the district court
appeared to apply a standard that the evidence must be taken “in
the light most favorable to the Plaintiffs because they are the
nonmoving party.” Of course, that is the standard for ruling on
a motion for judgment as a matter of law, not a motion for a new
trial. The district court was required to evaluate BFI’s motion
for a new trial by determining whether the jury verdict was
against the clear weight of the evidence and resulted in a
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miscarriage of justice. See Wyatt v. Interstate & Ocean Transport
Co., 623 F.2d 888, 891-92 (4th Cir. 1980).
While the district court did recite the incorrect standard,
it also acknowledged its obligation to “weigh[] the evidence and
assess[] witness credibility” in order to determine whether the
jury verdict contradicts the clear weight of evidence or results
in a miscarriage of justice. In addition, there is no other
indication in the record that the district court actually applied
the wrong standard and evaluated the evidence in the plaintiffs’
favor. To the contrary, the district court properly analyzed the
weight of the evidence and found the jury verdict was supported by
substantial evidence. Accordingly, we conclude that the court’s
mere invocation of the improper standard did not materialize to
cause the defendants prejudice.
VI
In sum, we reverse the judgment of the district court insofar
as it awards the plaintiffs punitive damages, and in all other
respects we affirm. We remand the case to the district court with
instructions to enter a judgment consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
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