O'Neal v. Ferguson Construction Co.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 24 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

HENRY B. O’NEAL,

Plaintiff-Appellee,
No. 99-2037
v.

FERGUSON CONSTRUCTION
COMPANY,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-97-1269-MV/LFG)

W. T. Martin, Jr., of Martin & Shanor, L.L.P., (Stephen S. Shanor, with him on
the briefs), Carlsbad, New Mexico, for Appellant.

Holly Rene Harvey, of Toulouse & Associates, P.A. (John G. Travers, with her on
the brief), Albuquerque, New Mexico, for Appellee.

Before TACHA, Chief Judge, McWILLIAMS, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
I. INTRODUCTION

Plaintiff Henry B. O’Neal was terminated from his job one day after his

attorney sent a letter to his employer, Ferguson Construction Company

(“Ferguson”), accusing the company of reassigning O’Neal in retaliation for his

filing race discrimination and retaliation claims with the Equal Employment

Opportunity Commission (“EEOC”). O’Neal filed suit against Ferguson under 42

U.S.C. § 2000e-3(a) (“Title VII”) and 42 U.S.C. § 1981, alleging hostile work

environment and retaliation. The jury found for O’Neal on his retaliation claim

but not on his hostile work environment claim; the jury awarded O’Neal

$302,721.25 in compensatory damages and $3,500 in punitive damages. Ferguson

filed motions for judgment as a matter of law and remittitur, which the district

court denied. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and

affirms.

II. BACKGROUND

O’Neal worked for Ferguson for approximately thirty-two years. Until a

few days before his termination, O’Neal spent twenty-nine of those years as the

sole person responsible for maintaining and servicing Ferguson’s vehicle fleet.

For most of the twenty-nine years, O’Neal worked a split shift from 5:00 a.m.

until 10:00 a.m. and from 4:00 p.m. until 9:00 p.m.

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 In the early 1990s, Mark Weiser became president of Ferguson. A former

Ferguson employee testified at trial that sometime in 1994 Weiser told him that

when he “got rid of Henry,” he would never have another “black son of a bitch”

working at Ferguson. O’Neal testified that around the same time, Weiser stopped

interacting with him. O’Neal further testified that Nat Rendon, a Ferguson vice

president who was responsible for hiring and firing employees, regularly told

racial jokes which included derogatory, offensive terms to African-Americans.

On October 22, 1996, O’Neal filed a charge with the EEOC in which he

alleged racial discrimination in the workplace. On October 28, the EEOC notified

Ferguson of the charge. On January 13, 1997, O’Neal’s hours were reduced from

fifty-six to thirty-three hours per week.

On January 29, 1997, O’Neal filed a second charge with the EEOC in

which he claimed Ferguson retaliated against him for filling the previous EEOC

charge by reassigning his work duties and reducing his work hours. On June 30,

1997, Ferguson received a copy of O’Neal’s Right to Sue Notice from the EEOC

on the racial-discrimination claim. O’Neal’s work continued to be reassigned to

other employees.

On September 10, 1997, Ferguson received a Right to Sue Notice from the

EEOC on the retaliation claim. On September 15, O’Neal was transferred to

Ferguson’s supply warehouse. O’Neal reported to his new assignment the next

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day. On September 18, O’Neal’s attorney wrote a letter to Ferguson, demanding

that O’Neal be reinstated in his old position and accusing the company of

reassigning O’Neal in an attempt to retaliate against him for filing EEOC claims.

O’Neal was fired the next day.

On September 25, O’Neal filed a lawsuit against Ferguson, alleging hostile

work environment and retaliation, both in violation of Title VII and 42 U.S.C. §

1981. The case eventually went to trial. At the close of O’Neal’s case-in-chief,

Ferguson moved for judgment as a matter of law (“JMOL”); the district court

denied the motion. Ferguson again moved for JMOL before submission of the

case to the jury; the district court denied the renewed motion for JMOL.

After finding for O’Neal on his retaliation claim, the jury awarded him

$302,721.25 in compensatory damages and $3,500 in punitive damages. The jury

did not find for O’Neal on the hostile work environment claim. Ferguson

renewed its motion for JMOL and filed a motion for remittitur. The district court

denied these motions.

On appeal, Ferguson makes three arguments. First, it claims the trial court

committed reversible error in submitting O’Neal’s retaliation claims to the jury

because the evidence was legally insufficient to support it. Second, Ferguson

claims the trial court improperly instructed and submitted damage claims to the

jury for lost employment benefits and future emotional distress. Third, it claims

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the trial court committed reversible error by failing to apply the statutory cap

under 42 U.S.C. § 1981a to O’Neal’s compensatory damage award. Ferguson

does not appeal the jury verdict on the hostile work environment claim.

III. DISCUSSION

A. Retaliation Claims

At trial, O’Neal prevailed on two retaliation claims. The jury found that

Ferguson retaliated against O’Neal by reducing his work hours. Additionally, the

jury found that Ferguson retaliated against O’Neal by terminating his

employment. Ferguson claims the district court erred in denying its motion for

JMOL because O’Neal’s evidence was legally insufficient to establish a prima

facie case of retaliation or to establish pretext in the face of evidence of a

business justification.

This court reviews a district court’s denial of a motion for JMOL de novo,

applying the same standard as the district court and construing the evidence in the

light most favorable to the nonmoving party. See Greene v. Safeway Stores, Inc.,

98 F.3d 554, 557 (10th Cir. 1996). Unless the evidence so overwhelmingly favors

“the movant as to permit no other rational conclusion, judgment as a matter of law

is improper.” Id. (citation omitted). In challenging the sufficiency of the

evidence in this context, Ferguson must establish that no reasonable person could

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find retaliatory motive in Ferguson’s decisions to reduce O’Neal’s hours and later

terminate him.

To establish a prima facie case of retaliation, O’Neal must establish that:

(1) he engaged in protected opposition to discrimination; (2) he suffered an

adverse employment action; and (3) there is a causal connection between the

protected activity and the adverse employment action. See Kendrick v. Penske

Transp. Srvs., Inc., 220 F.3d 1220, 1234 (10th Cir. 2000); Roberts v. Roadway

Express, Inc., 149 F.3d 1098, 1103 & n.1 (10th Cir. 1998). Once O’Neal makes a

prima facie showing, Ferguson must articulate a legitimate, nondiscriminatory

reason for the adverse employment action. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). O’Neal must respond by demonstrating

Ferguson’s asserted reasons for the adverse action are pretextual. See Perry v.

Woodward 199 F.3d 1126, 1135 (10th Cir. 1999).

1. O’Neal’s Reduction in Hours

Ferguson concedes that O’Neal’s filing of an EEOC claim on October 22,

1996, constitutes a protected activity. Furthermore, it does not take issue with

whether O’Neal’s reduction in work hours on January 13, 1997, was an adverse

employment action. Ferguson argues that the absence of a causal connection

between the filing and reduction in hours, however, prevents O’Neal from

establishing a prima facie case of retaliation.

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 A causal connection may be shown by “evidence of circumstances that

justify an inference of retaliatory motive, such as protected conduct closely

followed by adverse action.” Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d

339, 343 (10th Cir. 1982). Unless there is very close temporal proximity between

the protected activity and the retaliatory conduct, the plaintiff must offer

additional evidence to establish causation. See Conner v. Schnuck Mkts., Inc.,

121 F.3d 1390, 1395 (10th Cir. 1997). “[W]e have held that a one and one-half

month period between protected activity and adverse action may, by itself,

establish causation. By contrast, we have held that a three-month period, standing

alone, is insufficient to establish causation.” Anderson v. Coors Brewing Co.,

181 F.3d 1171, 1179 (10th Cir. 1999) (citation omitted). Because O’Neal

presented additional evidence from which a reasonable jury could find causation,

this court need not address whether two months and three weeks, by itself, is

sufficient to support a prima facie case of retaliation.

At trial, O’Neal testified that after he filed his October EEOC claim

Ferguson took “[his] work away from [him].” Specifically, he discovered that the

field service mechanic began performing a significant number of O’Neal’s regular

duties. O’Neal indicated that from the time he filed his first complaint until the

time Ferguson reduced his hours, trucks began to be left in the field, where the

mechanic was changing the oil, oil filter, and air filter, jobs previously assigned

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to O’Neal. O’Neal further testified that the field mechanic explained to him

several times, “They ought to give you your work because I can’t handle it.”

O’Neal’s testimony suggests that the work was not reallocated to the mechanic

because it was more efficient for the mechanic to perform the work in the field.

In fact, the mechanic indicated to O’Neal that he did not have time to perform all

of the work O’Neal usually performed on the trucks, including greasing them and

checking the carrier bands and universal joints. The jury could have inferred

from this evidence that the reallocation of responsibilities soon after the filing of

the EEOC claim was a precursor to the ultimate reduction in O’Neal’s hours, thus

providing the causal connection between the EEOC filing and the adverse

employment action.

O’Neal adduced other evidence during his case-in chief which supports an

inference that Ferguson retaliated against him. Harvey Marquez, a former

Ferguson employee who worked in the mechanic shop, testified that he knew of

no other employee whose hours were reduced at the time of O’Neal’s hour

reduction. Pete Rasmussen, a former Ferguson truck driver, testified on cross-

examination during O’Neal’s case-in-chief that he did not see any field workers

being sent home during this period of time.

Construing the evidence in the light most favorable to O’Neal, this court

concludes O’Neal presented sufficient evidence to establish an inference of

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retaliatory motive and thus a causal connection between his EEOC filing and

reduction in hours. Ferguson argues that even if O’Neal made a prima facie

showing, however, he did not establish pretext.

During its case-in-chief, Ferguson presented two legitimate business

reasons for reducing O’Neal’s hours. It claimed the company changed the manner

in which vehicles were being handled, thereby leaving O’Neal with little or no

work during his evening shift. It also claimed the overall economic conditions at

Ferguson resulted in layoffs and reductions in hours for other employees.

Ferguson claims O’Neal presented “scant and insufficient” evidence to rebut the

evidence it introduced in support of its facially nondiscriminatory business

reasons.

In support of Ferguson’s first justification, Mark Weiser testified that the

management team decided that the key people in the company, including the

operators, lead hands, and foremen, should take their trucks home at night,

thereby eliminating some of O’Neal’s duties during his evening shift.

Nevertheless, the testimony of a veteran Ferguson employee, Fred Hemingson,

who also testified during Ferguson’s case-in-chief, contradicted Weiser’s

testimony. He indicated that the foremen and operators had been taking their

trucks home for the previous ten to fifteen years. Further, Hemingson testified

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that the lead hands began taking their trucks home in 1993 or 1994—more than

three years before O’Neal’s hours were reduced.

In support of Ferguson’s second justification, Rita Staton, Ferguson’s

office manager, testified that everyone at the company had their hours reduced

around the time of O’Neal’s hour reduction. Hemingson’s testimony, however,

was to the contrary. He indicated that although there were field workers who

were not being sent out on jobs, he was not aware of other employees in the yard

whose hours were cut.

Although Ferguson was under no obligation to support its justification, the

testimony Ferguson presented did not fully support its purported business reasons;

in some respects the evidence contradicted the purported reasons. This court has

held that a rational fact-finder can infer pretext from such weaknesses,

inconsistencies, or contradictions. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323

(10th Cir. 1997).

Further, testimony offered during O’Neal’s case-in-chief directly

challenged Ferguson’s claims that there was less work for O’Neal to perform and

that the economic slowdown resulted in layoffs and reductions in hours for other

employees. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097,

2106 (2000) (“[T]he trier of fact may still consider the evidence establishing the

plaintiff’s prima facie case and inferences properly drawn therefrom . . . on the

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issue of whether the defendant’s explanation is pretextual.” (quotation omitted)).

O’Neal testified that work was being taken away from him and assigned to a

Ferguson employee who did not have the time to perform the work. Two former

Ferguson employees testified that other employees were not being sent home

without work or having their hours reduced. The jury obviously afforded the

testimony of O’Neal’s witnesses more credibility than the testimony of Ferguson’s

witnesses. See Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 551 (10th Cir.

1999) (“[T]he jury . . . has the exclusive function of appraising credibility,

determining the weight to be given to the testimony, drawing inferences from the

facts established, resolving conflicts in the evidence, and reaching ultimate

conclusions of fact.” (quotation omitted)).

The evidence adduced during O’Neal’s case-in-chief and even some of the

evidence proffered by Ferguson itself, along with the reasonable inferences drawn

therefrom, provided sufficient evidence to rebut Ferguson’s asserted

nondiscriminatory business reasons and thus to support a finding of retaliation.

The evidence is susceptible to at least some reasonable inferences supporting

O’Neal’s claim. See James v. Sears, Roebuck & Co., 21 F.3d 989, 992 (10th Cir.

1994). Accordingly, O’Neal’s first retaliation claim was properly submitted to

the jury for consideration.

2. O’Neal’s Termination

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 In regard to his second retaliation claim, O’Neal asserts he engaged in

protected activity by filing two EEOC complaints and by sending a letter to

Ferguson from his attorney. Although Ferguson concedes that both EEOC

complaints constitute protected activity, it claims the long period of time between

these filings and O’Neal’s termination fails to support a causal connection.

Further, it disputes the protected status of the letter. This court need not address

the alleged causal connection between the EEOC filings and the adverse action

because we agree with O’Neal’s characterization of the sending of the letter as a

protected activity.

Informal complaints to superiors constitute protected activity. See Pastran

v. K-Mart, Corp., 210 F.3d 1201, 1205 (10th Cir. 2000); Robbins v. Jefferson

County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir. 1999). O’Neal relies on a

similar rule from other circuits to support his claim that the attorney letter is

entitled to protected status. Ferguson distinguishes this case from such authority

by fixating on the fact that O’Neal’s attorney wrote and sent the letter rather than

O’Neal himself. Whether O’Neal or his attorney wrote the letter is wholly

irrelevant. The letter was an informal complaint which disclosed O’Neal’s

dissatisfaction with his new position. It specifically characterized the

reassignment as retaliatory conduct. Cf. Barber v. CSX Distribution Servs., 68

F.3d 694, 701-02 (3d Cir. 1995) (“[Plaintiff’s] letter to Human Resources

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complains about unfair treatment in general and expresses his dissatisfaction with

the fact that someone else was awarded the position, but it does not specifically

complain about age discrimination. Accordingly, the letter does not constitute the

requisite ‘protected conduct’ for a prima facie case of retaliation.”). Thus, this

court concludes the sending of the letter on September 18, 1997, constitutes a

protected activity.

The last two elements of O’Neal’s prima facie case are easily established.

O’Neal suffered an adverse employment action when he was fired by Ferguson.

See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); Roberts, 149

F.3d at 1104. Because this adverse action followed the protected conduct by one

day, a causal connection is established. See Burrus, 683 F.2d at 343.

On appeal, Ferguson argues that even if O’Neal established a prima facie

case of retaliation, he failed to rebut Ferguson’s legitimate business reasons for

terminating him. O’Neal’s prima facie case and testimony rejecting Ferguson’s

asserted justification, however, provide sufficient evidence to enable the jury to

conclude that Ferguson fired O’Neal in retaliation for the letter. See Reeves, 120

S. Ct. at 2106, 2109.

Ferguson claims O’Neal was fired because he refused to stay at the

warehouse, failed to perform assigned tasks, and interfered with other employees’

work. Warehouse supervisors Fred Hemingson and Bill Rea testified that during

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the three days O’Neal worked in the warehouse before his termination, his time

was split between clearing his belongings from his old workstation, seeing a

doctor, running an errand for Hemingson, and talking to other Ferguson

employees.

O’Neal testified, however, that he stayed in the warehouse and performed

his job as required, indicating that he had no time to visit other employees.

O’Neal testified as to the duties he actually performed while working in the

warehouse, such as assisting other Ferguson employees in leaving for the field,

loading and stacking cement, and retrieving items from the inventory.

The jury obviously afforded O’Neal’s testimony more credibility than the

testimony presented by Ferguson in response to O’Neal’s prima facie showing,

thereby enabling it to infer pretext. See Medlock, 164 F.3d at 551. Further, the

close temporal proximity between O’Neal’s September 18 letter and his

termination the next day support the jury’s finding of pretext. See Pastran, 210

F.3d at 1206. This court concludes O’Neal’s testimony and the close temporal

proximity are sufficient to support O’Neal’s retaliation claim. Accordingly, it

was not error for the district court to submit the issue to the jury.

B. Lost Employment Benefits and Future Emotional Distress

Ferguson appeals the district court’s instruction to the jury on the issues of

lost employment benefits and future emotional distress. On appeal, it claims the

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court improperly instructed the jury to consider these issues in the event it found

for O’Neal even though there was insufficient evidence to send the issues to the

jury.

This court reviews a “district court’s decision to give a particular jury

instruction for abuse of discretion; ultimately, however, we apply a de novo

standard of review to determine the propriety of an individual jury instruction to

which objection was made at time of trial.” Osteguin v. S. Pac. Transp. Co., 144

F.3d 1293, 1295 (10th Cir. 1998) (citation omitted). We must determine whether

the instructions in their entirety “properly stated the applicable law and directed

the jury to consider matters within its province.” Gardetto v. Mason, 100 F.3d

803, 816 (10th Cir. 1996).

The evidence supporting O’Neal’s damage awards for lost employment

benefits and future emotional distress is not overwhelming. When viewed in light

of the district court’s instructions as a whole, the care with which the jury was

instructed to determine damages, and the testimony at trial, however, this court

concludes the district court properly submitted the issues to the jury.

After properly instructing the jury on the elements necessary to prove

hostile work environment and retaliation, the district court instructed the jury that

it must determine the amount of money appropriate to compensate O’Neal if it

found Ferguson liable. Two of the damage elements described by the court were

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(1) the lost employment benefits of retirement, vacation, sick leave, and medical

leave and (2) the monetary value of mental anguish and suffering O’Neal would

experience in the future as a result of the wrongful conduct.

O’Neal bore the burden of providing evidence at trial to support his

damages claim. See Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d

1482, 1493-94 (10th Cir. 1994). In support of his lost employment benefits claim,

O’Neal offered the testimony of David Hamilton, an economist who testified that

a loss in benefits amounted to between fifteen and thirty-nine percent of gross

income depending on the industry. Hamilton further disclosed his calculation of

O’Neal’s loss in gross income that resulted from his termination.

On cross-examination, O’Neal questioned Rita Staton about the quality of

benefits received by Ferguson employees. Staton testified that she did not know

the monetary value of Ferguson’s fringe benefit plan. She indicated, however,

that Ferguson was exceedingly generous to its employees, especially in terms of

the portion of family dependant health care coverage paid by Ferguson. O’Neal

received such coverage through the company. Staton further testified that

Ferguson had a pension plan for its employees in which O’Neal participated.

Although the evidence produced by O’Neal did not provide the jury with an

exact dollar amount as to the actual loss in employment benefits, any uncertainty

in determining the amount O’Neal would have earned but for his unlawful

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termination is resolved against Ferguson. See id. at 1494. Hamilton’s testimony

sufficiently informed the jury on the value range for lost benefits based on

O’Neal’s lost gross income. The jury was entitled to credit Hamilton’s testimony

with the same weight it would give any other testimony. See Moe v. Avions

Marcel Dassault-Breguet Aviation, 727 F.2d 917, 929-30 (10th Cir. 1984).

Staton’s statements provided the connection between Hamilton’s testimony

concerning the typical benefits and the benefits in this case.

Further, the district court explicitly cautioned the jury against basing its

determination of damages on speculation, guess, or conjecture. The district court

instructed the jury to base its damage award on evidence alone. The connection

Staton’s testimony provided enabled the jury to base its lost benefits

determination on the evidence adduced at trial rather than on mere speculation.

Accordingly, the district court properly instructed the jury to consider lost

employment benefits.

As for the future emotional distress damage award, the district court

properly submitted the issue to the jury. O’Neal testified at trial that he began

seeing a psychiatrist before being terminated but could not afford further

treatment after his termination. He further testified about his inability to sleep

and loss of appetite which continued through trial. Mrs. O’Neal corroborated Mr.

O’Neal’s statements, testifying that his condition had gotten worse since his

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termination from Ferguson. She testified that her husband was more worried and

very unhappy as compared to when she first met him.

This court concludes the testimony of Mr. and Mrs. O’Neal enabled the jury

to reasonably determine that Mr. O’Neal would suffer future emotional distress. 1

Thus, the district court’s jury instruction on future emotional distress was proper.

C. Compensatory Damages Cap

Ferguson argues the district court committed reversible error when it

allowed O’Neal to recover under 42 U.S.C. § 1981. It claims O’Neal’s remedy

lies in Title VII, subjecting the compensatory damage award to the statutory cap

contained in 42 U.S.C. § 1981a(b)(3). Compensatory damages awarded under §

1981 are not subject to such a cap. See 42 U.S.C. § 1981a(b)(4); see also Pavon

1
Ferguson points to the absence of an expert witness, such as a psychologist
or psychiatrist, to support its claim that no evidence was presented as to future
emotional distress. In Roberts, this court indicated that medical or other expert
evidence was not required to prove emotional distress. See Roberts v. Roadway
Express, Inc., 149 F.3d 1098, 1105 n.4 (10th Cir. 1998). The case, however, did
not distinguish between present and future emotional distress. Ferguson offers no
reason for this court to do so, nor does it cite authority in support of its
suggestion that a medical expert is necessary to establish future emotional
distress. We will not make arguments for Ferguson that it did not make in its
briefs. See Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir.1992); Fed. R.
App. P. 28(a)(9)(A) (“[T]he argument . . . must contain appellant’s contentions
and the reasons for them, with citations to the authorities . . . on which the
appellant relies.”). Accordingly, we decline to decide whether a distinction can
be drawn between proving present and future emotional distress in regard to
medical or other expert evidence.

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v. Swift Transp. Co., 192 F.3d 902, 910 n.2 (9th Cir. 1999); Kim v. Nash Finch

Co., 123 F.3d 1046, 1062 (8th Cir. 1997).

The district court denied Ferguson’s Motion for Remittitur, allowing the

$305,721.25 compensatory damage award to stand. Generally, a district court’s

denial of a motion for remittitur is reviewed for abuse of discretion. See Smith v.

Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1416 (10th Cir. 1997). When

statutory interpretation or legal analysis underlies the award, however, the matter

is a question of law subject to de novo review. See Woolard v. JLG Indus., Inc.,

210 F.3d 1158, 1176 (10th Cir. 2000).

Before turning to its argument about the statutory cap, Ferguson questions

whether at-will employees such as O’Neal can recover under 42 U.S.C. § 1981.

This court’s pronouncement in Perry explicitly indicates that “the employment-at-

will relationship encompasses sufficient contractual rights to support section 1981

claims for wrongful termination.” 199 F.3d at 1133. Thus, the mere nature of

O’Neal’s at-will relationship with Ferguson does not bar his recovery under §

1981.

Relying on case law superseded by federal statute, Ferguson encourages

this court to reject the district court’s determination that O’Neal can recover

under § 1981 because the jury found no hostile work environment and, therefore,

no racial animus. Both Title VII and § 1981 support a cause of action for

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retaliation and require a plaintiff to establish the same prima facie elements to

recover. See Roberts, 149 F.3d at 1103 n.1, 1110. Ferguson is correct in

suggesting that § 1981 requires a showing of racial animus. See Patrick v. Miller,

953 F.2d 1240, 1250 (10th Cir. 1992). The evidence presented to the jury,

however, reveals that racial animus motivated Ferguson’s retaliation against

O’Neal.

O’Neal presented the same evidence for both his hostile work environment

and retaliation claims. Although O’Neal failed to prevail on his hostile work

environment claim, the evidence of racial animus is relevant to his retaliation

claim. In an earlier case in which a jury found for the plaintiff on his retaliation

claim but not on his hostile work environment claim, this court viewed evidence

of racial animus as relevant to the credibility of the employer’s claimed

nondiscriminatory reasons for retaliating against plaintiff. See Roberts, 149 F.3d

at 1108. The evidence included the testimony of defendant’s employee who

claimed plaintiff’s supervisor referred to plaintiff as a “nigger driver” and said, “I

wish that jigaboo would move back to Kansas City.” Id. at 1107 (quotation

omitted). This court concluded plaintiff’s “efforts to attribute racial animus to

[the retaliatory incidents] in furtherance of his hostile work environment claim

necessarily relate to the establishment of pretext in the retaliation claims.” Id. at

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1111. Even though the jury rejected the hostile work environment claim, it was

free to rely upon overlapping evidence of racial animus in finding retaliation.

This case cannot be distinguished from the scenario in Roberts. At trial, a

former Ferguson employee testified that Weiser told him that when he got rid of

O’Neal there would never be another “black son of a bitch” who worked there as

long as he owned the company. O’Neal testified that shortly after making this

comment Weiser stopped interacting with him and later decreased his work

responsibilities. Such evidence of racial animus cuts against Ferguson’s alleged

reason for firing O’Neal and supports the jury’s finding of retaliation under §

1981.

Accordingly, this court affirms the district court’s determination that

O’Neal’s retaliation claim is not subject to the statutory cap contained in §

1981a(b)(3).

IV. CONCLUSION

This court AFFIRMS the district court’s denial of Ferguson’s motions for

JMOL and remittitur. The district court properly submitted O’Neal’s retaliation

claims and his damage claims for lost employment benefits and future emotional

distress to the jury. Further, O’Neal’s compensatory damage award is not subject

to the statutory cap provided in 42 U.S.C. § 1981a(b)(3).

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