[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-13213 JUNE 6, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-02071-CV-BBM-1
JANET BOGLE,
SHERRI BOWERS, et al.,
Plaintiffs-Appellees,
versus
WILLIAM MCCLURE, in his individual
capacity and in his official capacity as
Chairman of the Atlanta-Fulton County
Public Library Board of Trustees,
MARY JAMERSON WARD, et al.,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 6, 2003)
Before DUBINA and BLACK, Circuit Judges, and RYSKAMP*, District Judge.
*
Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District
of Florida, sitting by designation.
BLACK, Circuit Judge:
This case involves claims of race discrimination at the Atlanta-Fulton
Public Library System (AFPLS) brought by Appellees, seven Caucasian female
librarians, against Appellants, members of the AFPLS Board of Trustees and the
Director of the AFPLS. Appellees (the Librarians) claim Appellants transferred
them from their jobs at Central Library to dead-end jobs at branch libraries
because of their race. Appellants, however, claimed the transfers were part of a
legitimate, nondiscriminatory reorganization plan. The jury found for the
Librarians. After post-trial motions, judgment was entered in favor of the
Librarians for a total of approximately $17 million in compensatory and punitive
damages. On appeal, Appellants argue the district court erred by (1) not granting
their motion for judgment as a matter of law on the grounds of qualified immunity;
(2) not giving their requested jury instruction and interrogatory on a mixed-motive
defense; (3) admitting documents into evidence that were protected by the
attorney-client privilege; (4) sustaining approximately $3.5 million in
compensatory damages for emotional distress; and (5) sustaining approximately
$13.3 million in punitive damages.
I.
2
The AFPLS consists of Central Library (Central), the main public library in
downtown Atlanta, and more than 30 branch libraries. The AFPLS is governed by
a 17-member Board of Trustees (the Board). The Board sets library policy, but is
not responsible for the day-to-day management of the library system. Instead, the
Board hires a Director who serves as the administrative head of the library system.
At the time of the transfers at issue in this case, Appellant William McClure
was Chairman of the Board. Appellant Benjamin Jenkins was a member of the
Board and Chairman of the Board’s Personnel Committee. Appellant Mary
Jamerson Ward was a member of the Board and a member of the Personnel
Committee. Appellant Mary Hooker was Director of AFPLS.
When Hooker was hired as Director in 1999, she began planning a system-
wide reorganization. Hooker testified that, after she was hired, she visited branch
libraries, talked to library personnel, reviewed workload reports, analyzed the
staffing needs at the libraries, and concluded that the branch libraries needed
additional professional librarians. Hooker testified that new technologies would
create staffing redundancies at Central while increasing the need for services at the
branch libraries. Hooker planned to reorganize the local branch libraries into
geographic “clusters” to serve local needs more effectively. Although Hooker
never developed a written, comprehensive reorganization plan, she testified she
3
had a plan or vision for how the library was going to be reorganized, she
occasionally discussed her ideas with the Board, and the Board generally approved
reorganizing to provide more services through the branch libraries.
Another reoccurring issue for Appellant Board members was the low
number of African-American managers at Central. For example, Ward stated the
“white dominated administration” at Central was a problem and told fellow Board
member Nancy Puckett there were “too many white faces” working at Central and
it “was not welcoming to black folks to see so many white faces” in Central
management. Former Assistant Director of Public Services Paulette Smith-Epps
testified McClure asked her what she planned to do about the fact that there was
only one African-American manager at Central and McClure’s “idea was to move
people from Central out to the branches and maybe do a swap and bring some
black managers into Central.”
On more than one occasion, Appellant Board members asked for data on the
race of managers at Central. In a January 2000 Board meeting, Hooker presented
to the Board, in response to their request, a document entitled Branch & Unit
Management by Race which contained the names, race, gender, location, and
classification of all AFPLS managers. After the Board members discussed this
document, McClure concluded that the number of African-American managers at
4
Central was an issue the Board was going to have to address and directed the
Personnel Committee to place the issue high on their agenda.
In an April 11, 2000, meeting of the Personnel Committee, Hooker
recommended transferring employees from their jobs at Central to jobs at the
branch libraries. Hooker noted that, based on her analysis of the library system,
many branch libraries were understaffed while Central library was overstaffed.
Some of the Board members expressed concern over reassigning employees before
a more complete reorganization plan was developed. Hooker responded that more
analysis was needed, but given the need for service in the branches she
recommended moving forward with the reassignments. McClure also encouraged
the Committee to move forward with the reassignments. In the course of this
discussion, Board member Blake stated, “As people are moved or promoted, it
gives us a marvelous opportunity for us to look at fairness and representation of
ethnic groups wherever they are needed. We have mentioned, from time to time,
how many people are at Central in top level positions that are African-
Americans.”1 After more discussion on the proposed transfers, the Personnel
1
At trial, Blake testified that by making this statement she was not advocating
discrimination against Caucasian employees or more favorable treatment for African-American
employees.
5
Committee tabled the issue and decided to meet again on April 19 to continue their
discussion.
In the meantime, Hooker sought advice from the Fulton County Personnel
Department. Personnel Manager Paris Brown testified she told Hooker some of
the proposed transfers did not appear to conform to Fulton County policy
regarding job responsibilities for employment classification. Personnel Director
Robert Brandes, however, testified he was not aware of any problems and he
simply told Hooker “to be cognizant of the fact when you move people or transfer
people, you have to be sure that their duties and responsibilities will not have a
potential negative effect on the [job] classification.”
On April 13, 2000, Hooker wrote a memo to McClure regarding the
proposed transfers. She stated, “Because the potential for significant problems
was identified by [the Fulton County] Personnel [Department], I recommend that
the Personnel Committee of the Board of Trustees refrain from advancing the re-
organization until each transfer and re-assignment is reviewed and evaluated.
Significant legal ramifications could be present . . . .” Hooker specifically
mentioned certain staff members “must maintain the same level of responsibility in
their new assignments as at their previous assignments.” Hooker also stated, “The
objectivity of the selection process for the staff to be re-assigned has not been
6
determined. According to Fulton County, transfers are customarily done laterally.
This would not be the case in this re-organization because levels of responsibility
would not remain the same.”
On the same day, Hooker sent to the Board members newspaper articles
about several recent discrimination cases brought by Caucasian employees against
Fulton County. One article described an Eleventh Circuit decision upholding a
jury’s finding that the Fulton County Sheriff and her department engaged in racial
discrimination, but reducing the damages the jury awarded the 16 Caucasian
deputies. Another article described the settlement of a lawsuit against Fulton
County involving allegations that an employee was passed over for a salary
increase because he was Caucasian while another worker, who was African-
American, received a pay hike. A third article described Fulton County’s
settlement of an employment discrimination lawsuit filed by a Caucasian
firefighter. According to Hooker, she sent these articles to the Board in response
to an anonymous email asking her to share the information with the Board, and it
was not connected to the proposed transfers.
On April 14, 2000, Hooker talked to June Green of the Fulton County
Attorney’s Office about whether the proposed transfers would violate Fulton
7
County personnel policies. On April 17, 2000, Green wrote a memorandum to
Hooker, with copies to McClure, stating:
In [our] conversation you advised me that you had spoken to Bob
Brandes of the Fulton County Personnel Department, and he advised
you that the reorganization that has been proposed by the Library
Board of Trustees will likely violate Fulton County Personnel
Policies and Procedures. You specifically mentioned race, age and
gender discrimination and unfair demotion. Although you asked for
some legal guidance, I advised you that it would be hard to give legal
advice in a vacuum and that you should put your concerns in writing
and attach a copy of the proposed reorganization.
. . . Of course, I would expect to be able to review the proposal
before its implementation so that any legal advice that I have may be
useful.
On the same day, McClure sent a letter to Hooker, with copies to the Board,
Brandes, Green, and the Board Secretary, stating:
After reviewing your memorandum of April 13, 2000, which
recommended not advancing the plans for reorganization, I am
requesting that you proceed with the development of the
comprehensive reorganization plan, in accordance with the timeline
you established of April 2000. Your memo clearly establishes that
we are not currently able to determine if a “potential for significant
problems” exist, since you have not defined the new duties and
responsibilities for any potential position to be reassigned. However,
no clear determination can be made until you have developed a
comprehensive plan and defined the position responsibilities.
Therefore, the prudent course of action would be to develop a
comprehensive reorganization plan, complete the requisite position
description work, review it with the County Personnel Department to
remedy any potential policy conflicts, and submit the plan to the
8
Personnel Committee of the Board of Trustees for review and
approval
....
Ms. Hooker, it is important to recognize that improved service
and equity2 strongly dictate that reorganization is necessary, as you
have also agreed. I hope that we can move ahead with this process in
an expeditious manner.
On April 19, 2000, the Personnel Committee met again to discuss the
proposed reassignments. Hooker presented the Committee with a document
entitled Strategic Service Equity Proposal-Phase I (Team Concept). This
document recognized the need to restructure the library system and “flatten”3 the
organization by deploying high level librarians into the branch teams. At the
meeting, Hooker proposed reassigning 23 positions. First, however, she
recommended that the proposals be reviewed by the County’s Legal Department
and Fulton County Personnel Department as a precautionary measure. The
Personnel Committee agreed and directed Hooker to proceed and work with the
County’s Personnel Director to resolve any conflict with County policies and
classifications.
2
The Librarians suggested Appellants’ use of the word “equity” referred to racial issues.
Appellants, however, denied this.
3
Like the word “equity,” the Librarians suggested “flattening” the organization was a
code word for race-based transfers. Again, Appellants denied this.
9
On May 11, 2000, the Personnel Committee met again to discuss the
proposed transfers. Hooker informed the Personnel Committee that, for the most
part, the transfer issues had been resolved. A document distributed at that meeting
stated:
On Monday, May 1st, 2000, the library system director met with the
Fulton County Personnel Department Classification [and Pay Chief]
to discuss and review the library’s positions, classifications, titles and
essential duties. As a result of this meeting, there were no findings
that would prohibit the Library System from reassigning its staff
based on the need to restructure and re-engineer its services (in
accordance with the Fulton County Personnel Regulations).
After discussing the proposed transfers, the Personnel Committee voted to approve
28 reassignments as well as several new hires and one promotion.
The next day, May 12, 2000, Hooker wrote a letter to Fulton County
Attorney June Green stating, “the Personnel and Staffing Reassignments meet all
the requirements and are appropriate as they relate to the essential duties, service
delivery and reorganization plan within the library system.” Hooker asked Green
for a written response. On May 22, Green responded:
Although you ask me to provide a written response, you provide me
nothing to which a response is required or to which a response could
be made . . . . If you have any questions about these [personnel]
transactions, your memorandum does not ask them. The New Hires
and one Promotion are probably not problematic. You should look
closely at the reassignments, however. Your memorandum does not
compare old job duties to new job duties in the reassignments. Are
10
salaries, position titles or classifications changing? If so, you should
review those changes closely with the Personnel Director to make
sure that no Personnel Rules and Regulations are being violated. Can
I safely assume that none of the reassignments amount to demotions?
If not, then you should also review those with the Personnel Director.
If the Personnel Director has reviewed and cleared all of these
personnel transactions then you are probably on safe legal ground.
As stated above, however, you have not asked me any questions nor
have you provided me with enough information to answer any.
On May 24, 2000, Jenkins presented to the Board the proposed new hires,
promotion, and transfers. Jenkins twice referred to the vote as one on new hires
only. The Board unanimously voted to approve the personnel actions. Board
member Puckett entered the Board meeting just after the vote. She asked Jenkins
what had happened on the vote, and he told her the Board had only voted on the
new hires and not the proposed reassignments, although apparently the Board had
approved all of the 28 reassignments as well as the new hires and promotion.
The following morning, May 25, 2000, Hooker held a staff meeting at
which she passed out the reassignment list. This was the first the employees or
their supervisors knew of the reassignments. Hooker offered no job descriptions
for the transferees, did not explain how they would fit into their new positions or
what their job duties would include, and responded to their questions with vague,
noncommittal answers. At trial, Hooker testified she made the reassignment
11
decisions without input from the staff because she had lost confidence in their
advice.
Of the 28 employees who were transferred, 15 were African-Americans and
13 were Caucasians, including the seven Librarians in this action. None of the
seven Librarians experienced a decrease in pay, classification, or benefits;
however, they all claim to have suffered significant demotion in their job duties
and responsibilities. The Librarians presented evidence that all but two of the
African-Americans on the transfer list received lateral transfers or promotions, and
that the two African-Americans who did not receive lateral transfers or promotions
had been critical of the Board in the past.
The Librarians testified to the emotional and mental pain they suffered as a
result of their transfers. The Librarians testified about their meaningful and
exciting managerial positions at Central, their decades of experience as
professional librarians, and the years of training and education invested in their
careers. For example, Nancy Powers had 30 years of experience with AFPLS, and
Janet Bogle, who wanted to be a librarian since the fourth grade, had a Masters
Degree in Library Science and 32 years of professional library experience. The
Librarians claimed Appellants destroyed their careers by transferring them to
dead-end jobs at the branch libraries where they did menial, nonmanagerial tasks
12
such as shelve books, clean refrigerators and computers, dust furniture, and
photocopy documents.4 The Librarians testified the transfers caused them
significant emotional harm and made them feel embarrassed, humiliated, stunned,
confused, angry, frightened, discouraged, and betrayed. For example, Jo Lynn
Burge testified: “I can’t begin to tell you what a toll it has taken on me. To be an
active and producing person and then to suddenly be just put on the shelf and
made to sit there through no purpose of my own or no doing of my own, I could
not help that I was hurt.”
Appellants testified that their concern over the low number of African-
American managers at Central had nothing to do with the Librarians’ transfers,
and that the transfers, instead, were the first part of a reorganization plan designed
to provide more services in the branch libraries. The Librarians, on the other
hand, argued the transfers were based on race and the reorganization plan was a
sham or cover-up.
Evidently rejecting Appellants’ defense that the Librarians were transferred
as part of a race-neutral reorganization, the jury found for the Librarians and
4
Unlike the other Librarians, Mary Stark was not transferred to a branch library, but was
transferred to a different position within Central. Nevertheless, she testified that her transfer was
in effect a demotion because she was transferred from a system-wide management position to a
nonmanagerial position in which her primary duties were housekeeping duties.
13
awarded approximately $23 million in compensatory and punitive damages. The
district court denied Appellants’ renewed motion for judgment as a matter of law
and motion for a new trial. The district court, however, granted in part
Appellants’ motion with regard to damages and remitted the total award to
approximately $17 million. This appeal followed.
II.
A. Qualified Immunity
Qualified immunity offers complete protection for government officials
sued in their individual capacity if their conduct “does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738
(1982). The Supreme Court has set forth a two-part test for qualified immunity.
First, the court must ask whether the plaintiff’s allegations, if true, establish the
violation of a constitutional or statutory right. Hope v. Pelzer, 536 U.S. 730, 736,
122 S. Ct. 2508, 2513 (2002); Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
2156 (2001). If a constitutional or statutory right would have been violated under
the plaintiff’s version of the facts, the next step is to ask whether the right was
clearly established. Hope, 536 U.S. at 739, 122 S. Ct. at 2515.
14
Viewing the facts in the light most favorable to the Librarians, see FDIC v.
Stahl, 89 F.3d 1510, 1514 (11th Cir. 1996), Appellants violated the Librarians’
constitutional rights by transferring them on the basis of their race. Moreover,
there is no doubt that in May 2000, when the Librarians were transferred, it was
clearly established that intentional discrimination in the workplace on account of
race violated federal law. See Alexander v. Fulton County, Ga., 207 F.3d 1303,
1321 (11th Cir. 2000).
Appellants, however, argue they are entitled to qualified immunity under
Foy v. Holston, 94 F.3d 1528 (11th Cir. 1996).5 In Foy we noted that, in a case
involving mixed motives, the presence of a jury issue about a defendant’s
improper intent does not necessarily preclude qualified immunity. Id. at 1533.
(“Where the facts assumed for summary judgment purposes in a case involving
qualified immunity show mixed motives (lawful and unlawful motivations) and
5
Appellants also argue they are entitled to qualified immunity because a reasonable
public official in their position would not have known the transfers were adverse employment
actions. Appellants, however, have waived this argument. Qualified immunity is an affirmative
defense that may be waived. See Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002);
Caban-Wheeler v. Elsea, 71 F.3d 837, 842 (11th Cir. 1996); Ansley v. Heinrich, 925 F.2d 1339,
1348 (11th Cir. 1991); Moore v. Morgan, 922 F.2d 1553, 1557 (11th Cir. 1991). At trial,
Appellants stipulated “that transferring people because of their race was contrary to the law of the
United States.” Appellants told the district court, “We have never argued that the Defendants
didn’t know that transferring people based on their race is against the law. That’s fundamental. I
mean, and every defendant knows that.” A few moments later, the district judge stated that
Appellants “knew it was a violation of federal law to transfer people on the basis of their race,”
and Appellants responded, “Absolutely.” Under these circumstances, Appellants are precluded
from raising this argument.
15
pre-existing law does not dictate that the merits of the case must be decided in
plaintiff’s favor, the defendant is entitled to immunity.”). In Stanley v. City of
Dalton, Ga., 219 F.3d 1280 (11th Cir. 2000), we explained that a “defendant is
entitled to qualified immunity under the Foy rationale only where, among other
things, the record indisputably establishes that the defendant in fact was
motivated, at least in part, by lawful considerations.” Id. at 1296 (first emphasis
added); see also Johnson v. City of Ft. Lauderdale, Fla., 126 F.3d 1372, 1379
(11th Cir. 1997).
Appellants argue the transfers were part of a race-neutral, system-wide
reorganization in which resources and personnel were being moved from
overstaffed Central library to understaffed branch or cluster libraries. However,
given the Librarians’ evidence suggesting the reorganization plan was a sham
designed to cover up the race-based transfers, a reasonable jury had reason to
doubt Appellants’ asserted nondiscriminatory reason for the transfers. Viewing
the facts in the light most favorable to the Librarians, the record evidence does not
undisputably indicate that Appellants were in fact motivated, at least in part, by
16
objectively valid reasons. Therefore, Appellants were not entitled to qualified
immunity under Foy.6
B. Jury Instruction and Interrogatory
Appellants argue it was error for the district court to refuse to give their
requested jury instruction and interrogatory on their mixed-motive defense. The
proposed instruction stated:
Even if you find that the Plaintiffs’ race and sex played a role in the
Defendants’ decision to include them in the May 25, 2000
reorganization, Defendants cannot be held liable if they show that the
same decision would have been made even in the absence of the
impermissible criterion. Thus, if you find that the Defendants would
have included Plaintiffs in the May 25, 2000 reorganization, without
any consideration of their race or sex, then the Defendants cannot be
held liable.
Appellants’ proposed interrogatory asked the jury whether “the Plaintiffs would
have been included in the May 25, 2000 reorganization even in the absence of the
[Defendant’s] consideration of the Plaintiffs’ race?”
A refusal to give a requested jury instruction is erroneous only if “(1) the
requested instruction correctly stated the law, (2) the instruction dealt with an
issue properly before the jury, and (3) the failure to give the instruction resulted in
6
Additionally, the jury squarely found that Appellants intentionally discriminated against
the Librarians on account of race, and, in so doing, unambiguously rejected their proffered
nondiscriminatory reasons. See Alexander v. Fulton County, Ga., 207 F.3d 1303, 1321 (11th Cir.
2000).
17
prejudicial harm to the requesting party.” Roberts & Schaefer Co. v. Hardaway
Co., 152 F.3d 1283, 1295 (11th Cir. 1998); see also Wood v. President and
Trustees of Spring Hill Coll., 978 F.2d 1214, 1222 (11th Cir. 1992) (“In
considering the failure of the district court to give a requested instruction, the
omission is error only if the requested instruction is correct, not adequately
covered by the charge given, and involves a point so important that failure to give
the instruction seriously impaired the party’s ability to present an effective case.”).
We have recently explained:
This Court applies a deferential standard of review to a trial court’s
jury instructions. If the trial judge’s instructions accurately reflect the
law, he or she is given wide discretion as to the style and wording
employed in its instruction. Further, under this standard, we examine
whether the jury charges, considered as a whole, sufficiently
instructed the jury so that the jurors understood the issues and were
not misled.
McCormick v. Aderholt, 293 F.3d 1254, 1260 (11th Cir. 2002) (quotation marks
and citations omitted).
We employ the same deferential standard of review to the district court’s
special interrogatory verdict form. See Johnson v. Breeden, 280 F.3d 1308, 1314
(11th Cir. 2002). With regard to omitted jury interrogatories, we have stated:
[F]ailure to give requested jury interrogatories may not be error, or if
error may be harmless, where the jury verdict itself, viewed in the
light of the jury instructions, and any interrogatories that were
18
answered by the jury, indicate without doubt what the answers to the
refused interrogatories would have been, or make the answers to the
refused interrogatories irrelevant . . . .
Id. at 1318.
The Librarians offer several reasons why the district court properly rejected
Appellants’ proposed jury instruction and interrogatory. 7 The Librarians also
argue the district court’s proximate cause instruction and interrogatory cured any
potential error in not giving the requested mixed-motive instruction and
interrogatory.
The district court’s proximate cause instruction stated the Librarians must
prove, by a preponderance of the evidence, that Appellants’ acts of discrimination
“were the proximate or legal cause of damages sustained by the [Librarians].” The
instructions explained, “For damages to be the proximate or legal result of
wrongful conduct, it must be shown that, except for such conduct, the damages
7
First, the Librarians argue the proposed instruction was improper because it contained
references to gender discrimination, which was no longer at issue in the case. Second, they claim
that by referring to a “reorganization” the instruction and interrogatory improperly presupposes
the existence of a reorganization plan and implicitly adopts Appellants’ theory of the case (that
the transfers were part of a race-neutral reorganization) and rejects the Librarians’ theory of the
case (that the reorganization was a post-hoc fabrication designed to cover up Appellants’ race-
based decision to transfer the Librarians). Third, they argue Appellants were not entitled to a
mixed-motive instruction or interrogatory because they presented no credible evidence that the
transfers were made for any reason other than the Librarians’ race. Additionally, they argue
Appellants waived their objection to the omission of their proposed jury instruction and
interrogatory because they failed to state the grounds for their objection.
19
would not have occurred.” The district court’s special interrogatory asked the
jurors whether each Appellant’s acts were the proximate or legal cause of damages
sustained by each Librarian. The jury answered “yes” to this question as to each
Appellant and each Librarian.
The jury’s answer to the proximate cause interrogatory in effect means that,
except for discrimination, the Librarians would not have been transferred. This
finding precludes Appellants’ mixed-motive defense, which rests on the jury
finding, irrespective of discrimination, the Librarians would have been transferred
for race-neutral reasons. The proximate cause instruction adequately instructed
the jury not to find for the Librarians if they believed the Librarians would have
been transferred irrespective of race. If the jury had believed this, they would
have answered the proximate cause interrogatory in the negative. However, the
jury’s affirmative answer to the proximate cause interrogatory indicates, without
doubt, what the answer to the mixed-motive interrogatory would have been. Thus,
there was no error in refusing to give Appellants' instruction and interrogatory, or
if there were error, it would be harmless. See Johnson, 280 F.3d at 1318.8
8
Appellants also argue the district court did not “submit an interrogatory directed to the
pivotal issue under Foy and Stanley–whether Defendants acted, at least in part, out of lawful
motives.” Appellants, however, did not request such an instruction, and the district court did not
plainly err in not giving such an instruction.
20
C. Attorney-Client Privilege
Appellants argue the district court improperly admitted two memoranda (the
Green memoranda) written by Fulton County Attorney June Green to Hooker
because the memoranda were protected by the attorney-client privilege.
“The party invoking the attorney-client privilege has the burden of proving
that an attorney-client relationship existed and that the particular communications
were confidential.” United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th
Cir. 1991). To determine if a particular communication is confidential and
protected by the attorney-client privlege, the privilege holder must prove the
communication was “(1) intended to remain confidential and (2) under the
circumstances was reasonably expected and understood to be confidential.”
United States v. Bell, 776 F.2d 965, 971 (11th Cir. 1985). We review the district
court’s evidentiary rulings for abuse of discretion. Judd v. Rodman, 105 F.3d
1339, 1341 (11th Cir. 1997).
The Green memoranda were authored by June Green, counsel for Fulton
County, and were addressed to Hooker, with copies sent to McClure. The memos
provided legal advice regarding the proposed personnel reorganization, but were
not designated either “privileged” or “confidential.” Appellants did not present
evidence regarding who, if anyone, received the memoranda other than Hooker
21
and McClure, what Hooker or McClure did with the memoranda once received, or
whether Hooker, McClure, or Green understood the memoranda to be
confidential.9 Additionally, it was not reasonable under the circumstances to
expect the memoranda to be confidential because the memoranda might have been
public records under the Georgia Open Records Act. See O.C.G.A. §§ 50-18-70,
50-18-72(e)(1).10 Therefore, the district court did not abuse its discretion in
admitting the Green memoranda.
D. Compensatory Damages for Emotional Harm
At trial, the Librarians testified to the emotional and mental pain they
suffered as a result of being transferred from meaningful, supervisory positions to
dead-end, nonmanagerial jobs. The Librarians testified the race-based transfers
effectively destroyed their careers, and some testified the transfers caused them to
9
Appellants argue they did not present evidence on these issues because the district
court’s interpretation of the Georgia Open Records Act rendered these issues irrelevant. The
district court’s order denying Appellants’ motion in limine, however, was based on both the
Georgia Open Records Act and the lack of evidence establishing confidentiality. Furthermore,
the district court’s interpretation of the Georgia Open Records Act does not excuse Appellants
from meeting their burden of proving the communication confidential and within the attorney-
client privilege.
10
The Green memoranda may or may not fall within the attorney-client-privilege
exemption to the Georgia Open Records Act, see O.C.G.A. § 50-18-72(e)(1), depending on
whether we adopt Appellants’ or the Librarians’ interpretation of this exemption. Regardless of
who is correct on this issue of statutory interpretation, the fact that the Green memoranda are
arguably public records under the Georgia Open Records Act buttressed the district court’s
ruling.
22
resign or go on worker’s compensation. When describing their emotional harm,
the Librarians testified the transfers “upset,” “embarrassed,” “humiliated,” and
“ashamed” them. Some Librarians testified the transfers caused them to become
depressed and one even became suicidal. Other than their own testimony, the
Librarians presented no independent medical evidence of mental or physical harm.
The jury awarded each Librarian $1 million for emotional harm to be
divided among Appellants as follows: $350,000 against McClure; $300,000
against both Hooker and Ward; and $50,000 against Jenkins. The district court
granted in part Appellants’ motion for remittitur, reducing the compensatory
damages for emotional distress to $500,000 per Librarian to be divided among
Appellants as follows: $150,000 against McClure, Hooker, and Ward; and
$50,000 against Jenkins. Appellants argue the evidence does not support an award
of $500,000 per Librarian for emotional distress.
Although compensatory damages must be proven, general compensatory
damages, as opposed to special damages, need not be proved with a high degree of
specificity and may be inferred from the circumstances. Ferrill v. Parker Group,
Inc., 168 F.3d 468, 476 (11th Cir. 1999). “A plaintiff may be compensated for
intangible, psychological injuries as well as financial, property, or physical
harms.” Id. “Humiliation and insult are recognized, recoverable harms,” and a
23
plaintiff’s own testimony of embarrassment and humiliation can be sufficient to
support an award for compensatory damages. Id. (citing Marable v. Walker, 704
F.2d 1219, 1220 (11th Cir. 1983)).
We review the district court’s decision to sustain compensatory damages for
clear abuse of discretion. Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241,
1249 (11th Cir. 2001). After a trial court has reviewed and remitted a jury award
to a specific amount, the district court’s decision is accorded “a presumption of
validity.” Ferrill, 168 F.3d at 476. The standard of review for awards of
compensatory damages for intangible, emotional harm is “deferential to the fact
finder because the harm is subjective and evaluating it depends considerably on
the demeanor of the witnesses.” Patterson v. P.H.P. Healthcare Corp. 90 F.3d
927, 938 (5th Cir. 1996) (quotation marks omitted).
After reviewing the record, we discern no reason to substitute our judgment
for that of the jury or the district court as to the amount of damages necessary to
compensate the Librarians for their emotional pain and suffering. See Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999). Therefore, we
conclude the district court did not abuse its discretion in sustaining awards of
$500,000 per Librarian for emotional harm.
E. Punitive Damages
24
The jury awarded each Librarian $2 million in punitive damages, divided
among Appellants as follows: $700,000 against McClure; $600,000 against
Hooker; $600,000 against Ward; and $100,000 against Jenkins. This resulted in a
total punitive damage award of $4.9 million against McClure; $4.2 million against
Hooker; $4.2 million against Ward; and $700,000 against Jenkins. The district
court upheld the punitive awards against McClure, Hooker, and Ward, but
remitted the punitive award against Jenkins from $100,000 per plaintiff to no
award at all. Appellants argue the district court erred in sustaining these punitive
damages.
First, Appellants argue against imposing any punitive damages at all
because they did not “discriminate in the face of a perceived risk that [their]
actions will violate federal law” as required by Kolstad v. American Dental Ass'n,
527 U.S. 526, 536, 119 S. Ct. 2118, 2125 (1999). At trial, however, Appellants’
counsel admitted that Appellants “knew it was a violation of federal law to
transfer people on the basis of race.” This admission is not surprising considering
that, at the time of the transfers, it was clearly established intentional
discrimination in the workplace on account of race violated federal law. See
Alexander, 207 F.3d at 1321. Furthermore, there was evidence at trial that
Appellants were warned by Fulton County Attorney Green, the Personnel
25
Department, and even Hooker herself about significant legal problems with the
transfers. Thus, there was sufficient evidence for a reasonable jury to award
punitive damages. See Lambert v. Fulton County, Ga., 253 F.3d 588, 597-98
(11th Cir. 2001) (holding that defendant’s knowledge that it is illegal to treat
employees differently on account of race, coupled with credible evidence that
defendant intentionally did so, is sufficient for a reasonable jury to conclude that
the Kolstad standard for punitive damages has been satisfied); Alexander, 207
F.3d at 1337-38 (same).
Second, Appellants argue, even if punitive damages in some amount could
be justified, the awards in this case were excessive. The Supreme Court has
recognized constitutional principles of due process prohibit the imposition of
grossly excessive or arbitrary punishments on a tortfeasor. BMW of N. Am., Inc. v.
Gore, 517 U.S. 559, 562, 116 S. Ct. 1589, 1592 (1996). In Gore, the Supreme
Court instructed courts reviewing punitive damages to consider three guideposts:
(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity
between the actual or potential harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the punitive damages awarded by
the jury and the civil penalties authorized or imposed in comparable cases. Gore,
26
517 U.S. at 575, 116 S. Ct. at 1598-99. We conduct a de novo review of the trial
court's application of the Gore guideposts to the jury's punitive damage award.
Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S. Ct.
1678, 1685-86 (2001).
Recently, in State Farm Mut. Auto. Ins. Co. v. Campbell, __ U.S. __, 123 S.
Ct. 1513 (2003), the Supreme Court reiterated the importance of the Gore
guideposts and mandated exacting appellant review of a trial court's application of
them to the jury's award to ensure "that an award of punitive damages is based on
an application of the law, rather than a decisionmaker's caprice." Id. at __, 123 S.
Ct. at 1520-21. Addressing each guidepost from Gore in some detail, the
Campbell Court concluded the jury's punitive award of $145 million "was neither
reasonable nor proportionate to the wrong committed, and it was an irrational and
arbitrary deprivation of the property of the defendant."11 Id. at __, 123 S. Ct. at
1526. Unlike Campbell, an application of the Gore guideposts to the facts of this
case demonstrates that the punitive damages award was not a violation of due
process.
11
The Supreme Court reversed the punitive damages award in Campbell, in large part,
because the award was based, in part, on out-of-state conduct that was lawful where it occurred
and conduct that bore no relation to the plaintiff's harm. See id. at __, 123 S. Ct. at 1521-25.
27
The Supreme Court has described the first Gore guidepost—the degree of
reprehensibility of the defendant's conduct—to be the "'most important indicium
of the reasonableness of a punitive damages award.’” Id. at __, 123 S. Ct. at 1521.
(quoting Gore, 517 U.S. at 575, 116 S. Ct. at 1599). In Campbell, the Supreme
Court explained:
We have instructed courts to determine the reprehensibility of a
defendant by considering whether: the harm caused was physical as
opposed to economic; the tortious conduct evinced an indifference to
or a reckless disregard of the health or safety of others; the target of
the conduct had financial vulnerability; the conduct involved repeated
actions or was an isolated incident; and the harm was the result of
intentional malice, trickery, or deceit, or mere accident. The
existence of any one of these factors weighing in favor of a plaintiff
may not be sufficient to sustain a punitive damages award; and the
absence of all of them renders any award suspect. It should be
presumed a plaintiff has been made whole for his injuries by
compensatory damages, so punitive damages should only be awarded
if the defendant’s culpability, after having paid compensatory
damages, is so reprehensible as to warrant the imposition of further
sanctions to achieve punishment or deterrence.
Id. (citations omitted).
Appellants’ wrongdoing was more than mere accident. There was evidence
that, in the face of repeated warnings, Appellants intentionally discriminated
against the Librarians on the basis of race and used trickery and deceit to cover it
up under the guise of a “reorganization.” Furthermore, Appellants intentionally
discriminated against the Librarians with full knowledge of recent cases of
28
employment discrimination brought by Caucasian employees against other Fulton
County officials which resulted in jury verdicts for the plaintiffs or settlements. A
reasonable jury could have concluded from the evidence that Appellants knew that
transferring the Librarians on the basis of race was illegal, were warned not to
make the transfers, and knew that other Fulton County officials had been caught
and punished for making employment decisions on the basis of race; yet
Appellants intentionally discriminated against the Librarians and concocted the
"reorganization" plan to hide their discriminatory motives. Repeatedly, courts
have found intentional discrimination to be reprehensible conduct under Gore’s
first guidepost. See Swinton v. Potomac Corp., 270 F.3d 794, 818 (9th Cir. 2001);
Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1116 (10th Cir. 2001);
United States EEOC v. W & O, Inc., 213 F.3d 600, 615 (11th Cir. 2000). This case
is no exception.
Turning to Gore’s second guidepost, the Supreme Court has been reluctant
to “identify concrete constitutional limits on the ratio between harm, or potential
harm, to the plaintiff and the punitive damages award.” Campbell, __ U.S. at __,
123 S. Ct. at 1524. Although declining to impose a bright-line ratio which a
punitive damages award cannot exceed, the Court has recognized that, “in
practice, few awards exceeding a single-digit ratio between punitive and
29
compensatory damages, to a significant degree, will satisfy due process.” Id.
Citing a long history of providing sanctions of double, treble, or quadruple
damages to deter and punish, the Court recently stated in Campbell:
While these ratios are not binding, they are instructive. They
demonstrate what should be obvious: Single-digit multipliers are
more likely to comport with due process, while still achieving the
State’s goals of deterrence and retribution, than awards with ratios of
500 to 1 [as in Gore], or in this case, of 145 to 1.
Nonetheless, because there are no rigid benchmarks that a
punitive damages award may not surpass, ratios greater than those we
have previously upheld may comport with due process where a
particularly egregious act has resulted in only a small amount of
economic damages. The converse is also true, however. Where
compensatory damages are substantial, then a lesser ratio, perhaps
only equal to compensatory damages, can reach the outermost limit of
the due process guarantee. The precise award in any case, of course,
must be based upon the facts and circumstances of the defendant’s
conduct and the harm to the plaintiff.
In sum, courts must ensure that the measure of punishment is
both reasonable and proportionate to the amount of harm to the
plaintiff and to the general damages recovered.
Id. (quotation marks and citations omitted).
The district court pointed out that the ratio between punitive and
compensatory damages in this case is in the neighborhood of 4:1, a range which
the Supreme Court has found to be “instructive.” Although the Librarians
received substantial compensatory damages, given the facts of this case, the ratio
30
of punitive damages to compensatory damages does not indicate that the punitive
damages award violates due process. In short, the punitive damages award was
both reasonable and proportionate to the amount of harm to the Librarians and to
the general damages recovered. See id.
Under the third Gore guidepost, Appellants ask us to compare the punitive
damages award to the statutory cap of $300,000 per plaintiff for compensatory and
punitive damages under Title VII. See 42 U.S.C. § 1981a(b)(3). Appellants argue
the court should remit the punitive damages so the punitive and compensatory
damages total no more than $300,000 per plaintiff. Although a comparison to the
Title VII cap may be instructive, to some degree, when analyzing the third Gore
guidepost, we will not apply the Title VII cap by analogy to employment
discrimination cases under § 1983. See Swinton, 270 F.3d at 820 (observing that,
in contrast to Title VII, "Congress has not seen fit to impose any recovery caps in
cases under § 1981 (or § 1983), although it has had ample opportunity to do so
since the 1991 amendments to Title VII"). Furthermore, although the punitive
damages awarded here are more than the damages available under Title VII for
analogous conduct, the difference is not enough, by itself, to suggest that the
punitive damages award violates due process. Cf. Campbell, __ U.S. at __, 123 S.
31
Ct. at 1526 (finding the most relevant civil sanction to be $10,000, “an amount
dwarfed by the $145 million punitive damage award.”).
Applying the Gore guideposts to the facts in this case, we conclude the
punitive damages against McClure, Hooker, and Ward are not so excessive as to
violate due process.
AFFIRMED.
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