Statement of
Jurisdiction
The
EEOC brought this action against A.C. Widenhouse, Inc. (“ACW”) to enforce Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.,
and the district court accordingly had subject matter jurisdiction under 28
U.S.C. §§ 1331 (federal question), 1343(a)(4) (civil rights), and 1345 (U.S. as
plaintiff).
The
case was tried to a jury from January 22-28, 2013, which returned a verdict for
the EEOC and awarded compensatory and punitive damages. Joint Appendix
(“JA”)-2402. In an order dated February 22, 2013, the district court granted
the EEOC’s motion for injunctive relief and adjusted the damages award for the
Commission’s claim to conform to Title VII’s monetary cap contained in 42
U.S.C. § 1981a(b)(3)(A). JA-2402-2420. The court entered judgment on the
verdict and an injunction the same day. JA-2414-2416. These orders disposed
of all the parties’ claims. ACW filed a timely notice of appeal on March 21,
2013. JA-2470. The district court granted Intervenor Contonius Gill’s motion
for attorney’s fees on May 7, 2013. ACW filed a timely notice appeal on May
23, 2013. JA-2542. This Court consolidated the appeals on May 30, 2013. App.R.16.
This Court has jurisdiction under 28 U.S.C. § 1291.
Statement of
the Issues
1.
At trial, ACW sought to present testimony of Gill’s former supervisor at a
prior employer, which Gill had alleged in an EEOC charge had discriminated. ACW
purported to show that Gill lied during his deposition about his separation
from that company and thereby impeach Gill’s credibility. ACW did not make an
offer of proof regarding what the witness would say; the witness would have testified
from his recollection of what the EEOC charge said; and ACW was not in
possession of the charge itself, which is the best evidence of what Gill
alleged in the charge.
Did
the district court act within its discretion in excluding the testimony because
its probative value was substantially outweighed by its prejudice to Gill and
it would create a “sideshow” about a collateral matter that would waste time
and confuse the jury?
2.
At ACW’s urging, the district court agreed to bifurcate the trial into two
phases, liability and damages. During the liability phase, the court instructed
the jury to decide whether ACW was liable for punitive damages as to Gill and Robert
Floyd, the other victim of discrimination in this case. Did the court act
within its discretion when it instructed the jury on the liability standard for
punitive damages and allowed the question of liability for punitive damages to
be asked on the verdict sheet for liability?
3.
During closing argument, the EEOC summarized the evidence of racial slurs, nooses
displayed, and threats of visits by the KKK and “hanging from the family tree.”
The EEOC asked the jury to recall the struggles of the civil rights movement
and invited the jury to help move ACW out of the 1950s and 1960s. ACW did not
object at any point. Did the district court commit plain error in
allowing the EEOC’s closing argument?
Statement of
the Case
A.
Course of Proceedings
ACW
appeals from the final judgment entered by the United States District Court for
the Middle District of North Carolina in this Commission action enforcing Title
VII. JA-2414. The EEOC filed its complaint on June 22, 2011, alleging tht ACW
violated Title VII by subjecting Contonius Gill and other similarly situated black
employees to a racially hostile work environment. JA-21-27. Gill filed a Complaint
in Intervention asserting claims under Title VII, § 1981, and state law for
hostile work environment and discriminatory discharge based on race, and for retaliatory
discharge based on his protected activity of complaining about the hostile work
environment. JA-29-45. ACW filed Answers to both complaints denying the
allegations. JA-46-51, 67-74. The state law wrongful discharge claim was dismissed
on summary judgment; the other claims were tried to a jury. JA-1074-75.
After
a five-day trial bifurcated into liability and damages phases, the jury found in
favor of the plaintiffs on all claims. JA-2377-78 (verdict sheet). The jury
also found that ACW was liable for punitive damages as to both Gill and Robert Floyd.
JA-2378. After the damages phase of the trial, the jury awarded Floyd $20,000
in compensatory damages and $75,000 in punitive damages. JA-2384-85. The jury
awarded Gill $30,000 in compensatory damages and $75,000 in punitive damages.
JA-2384. ACW filed a motion for remittitur, or in the alternative, for a new
trial on damages on the EEOC’s hostile work environment verdict.
JA-2399-2401. The Commission moved for injunctive relief. JA-2389.
The
court granted remittitur to comply with Title VII’s statutory caps on damages, reducing
the award to $50,000, and awarded Gill $71,662.82 in back pay and interest of
$16,846.97. JA-2402-2413. The court entered final judgment, ordering that the
damages be awarded to the plaintiffs and granting the Commission’s motion for
injunctive relief. JA-2414-2421. ACW filed a timely appeal. JA-2470. ACW also appealed the court’s
order granting Gill’s motion for attorney’s fees and awarding fees and costs.
JA-2452.
B.
Statement of the Facts
ACW is a trucking
business that transports petroleum, sand, and liquid asphalt out of two
facilities in Concord and Wilmington, North Carolina. JA-1758-59. The Concord
facility employs 15-17 drivers and two mechanics. JA-1761.
Contonius
Gill, who is black, worked as a tractor-trailer driver at ACW’s Concord facility
hauling liquid asphalt to customers. JA-1464-1465, 1781, 1908. Gill worked there
from May 7, 2007, until June 9, 2008. JA-2227-2228 (Trial Exh. 19-20). Dispatcher
Kim Griffith, who is white, gave Gill his delivery assignments. JA-1781. General
manager Buddy Waller, also white, was Gill’s supervisor. Id. Gill
testified that soon after Gill started to work at ACW, lead mechanic Brian
Christy, who is white, “walked up to me and he had a noose in his hand, and he
asked me if I would like to hang from their family tree.” JA-1510. Gill, who
was visibly upset while testifying, stated that he was “hurt,” “shocked,” and “angry,”
and felt threatened by Christy’s comment. JA-1510-11.
Gill testified
that he complained to Waller and Griffin on that occasion, and more than 25
times regarding other racial taunts. JA-1511, 1561. According to Gill, Griffin
was “kind of indifferent” to his report of the incident. JA-1512. Waller had
no reaction, and said he would look into it. JA-1512. However, “nothing ever
came of it.” JA-1512. Gill subsequently saw a noose “in the rafters” of the
mechanic shop “a couple” of times. JA-1513.
Gill
testified that Christy said “a lot of things” that were racially offensive.
JA-1513. On one occasion, Christy told Gill “we don’t have a colored bathroom,
and we are out of black paint and can we borrow some of you.” Id. Christy
“used the word ‘nigger’ quite frequently. He used the word ‘Tyrone’ a lot.” Id.
Christy’s brother Richie explained to Gill that “Tyrone was a way of saying a
black man. Instead of saying the word ‘nigger,’ he would say Tyrone, and a lot
of truck drivers say Tyrone on the CB radio.” JA-1515. Gill testified that
the Concord facility was located in a predominantly black neighborhood. Id.
Christy would say “let me lock up the shop because . . . those Tyrones, they
steal.” Id.
Christy
also used the term “coon.” Gill testified that Christy “asked me once about
going coon hunting, and I’m rather new there, so I asked him, ‘Where do you
find them?’ And he said—he started smiling, and Buddy Waller was standing
right there while we were having this conversation, and he kind of smiled and
he looks at me, and then later on, Buddy Waller says, ‘You’re the coon.’”
JA-1513-14. Waller did not reprimand Christy for using the word “coon.”
JA-1514. Gill testified that he was offended and hurt each time he heard the
terms “nigger” and “Tyrone.” JA-1514-1515.
Gill
testified that Waller, his supervisor, used the term “nigger” at work “very
frequently,” “hundreds of times a week.” JA-1516. When Gill asked him not to
use the slur, Waller’s reaction was either a smile or “he was indifferent.” Id.
“There were times Waller would say okay, okay, but he never stopped.” Id.
In addition to “nigger,” Waller used the term “Tyrone” “even more so” and
“would say things like ‘coons,’ ‘lawn jockeys.’ He used a variety of terms” to
refer to black individuals. Id. “It was almost like it was a contest
with him to figure out how many names he could use.” JA-1520.
Gill
testified that approximately twice a week, Waller would say to him, “I know you
are not going to vote for that Obammy, are you?” referencing President Obama.
JA-1517. Gill stated that, “I had gotten so tired of hearing it, I just told
him, it’s none of your damn business.” Id. Waller laughed. JA-1518.
Waller
would show Gill a red, white, and blue “Soldier of the South” card on his desk
with a Confederate flag on it, JA-2198-99, and would talk about “that group and
he would say he would like to take me out there to meet his friends, and he
would always say, they will love you.” JA-1518. Gill interpreted those
friends of Waller’s to be “the Klan.” JA-1518, 1519. Waller told Gill “that
if his daughter ever brought a black man home that he would kill them both.”
JA-1520.
Waller
also “talked about stump-breaking” to Gill more than five times. JA-1520,
1521. Gill learned that “stump-breaking is when you stand on a stump and you
attempt to have sex with an animal.” JA-1521. Gill testified that “I felt
unsafe because they would say a lot of things and may smile at the end of it,
but you never got the impression that they were really joking at any time.” Id.
Waller
testified that he used the term “nigger” as a teenager, but no longer says the
word “at home or at work or in front of a black person.” JA-1695. Waller
denied using the term at ACW. JA-1696, 1913. Waller denied using racial slurs
such as “coon” or telling racial jokes at ACW, or referencing or seeing a noose
at ACW. JA-1697, 1914-1915.
Gill
testified that dispatcher Griffin used the slurs “nigger” “frequently,” and
“Tyrone” “a lot more.” JA-1517. Griffin testified that ACW had no
anti-discrimination policies and that she had no training on what to do if an
employee complained of discrimination. JA-1606-1608. She did not recall
writing a note stating that Gill complained he had overheard “drivers saying
the ‘N’ word not directly to him,” see note at JA-2200, nor did she have
any memory of reporting it to Waller. JA-1611-1612. ACW had no
discrimination reporting policies. JA-1616. Griffin had no knowledge of Title
VII. JA-1607. She testified she racial harassment was against the law. Id.
Griffin denied that anyone at ACW ever made a racial remark. JA-1611. She admitted
she used the term “nigger” “back in my younger years” “in my teens, school,
high school, elementary school, ” but denied using the term at ACW. JA-1613-1614.
She stated she used the term “coon” to refer to a black person “in her younger
days.” JA-1616. She testified that she used the term “boy” to refer to a
black employee, but “[n]ever in a derogatory manner.” JA-1615.
White
drivers Bud Cruse, “WT,” and Carl Hewitt, and Native American driver Rhett
Grady also made racial comments, referring to black individuals as “nigger” and
“monkey.” JA-1522-1523. Waller did not discipline any of them after Gill
complained to him. JA-1524. Gill testified that he “internalized” the insults
and “would be depressed” by them. JA-1525-1526.
On
May 5, 2008, Gill complained to Waller and Griffin that he was “tired of
hearing the things I was hearing” after overhearing two drivers “talking about
nigger.” JA-1527, 1586. Griffin’s reaction was, “it’s no big deal,” and “you
guys call each other that,” meaning “how some black men call each other
nigger.” JA-1528-29. She was “really short, really dismissive.” JA-1529.
Waller said he would look into it, but Gill “never heard anything else about
it.” Id. Following that complaint, Gill continued to hear racial terms
at work. Id. A little over a month later, Gill was terminated after he
became ill and was unable to complete a delivery. JA-1529-1534. Gill filed a
charge of discrimination with the EEOC on August 19, 2008. JA-1541, 2195
(charge).
Robert
Floyd worked as a truck driver at ACW’s Concord facility delivering gasoline
and asphalt from March 5, 2005, until February 10, 2010. JA-1648, 1650, 1680, 1781.
When Floyd first started with the company, he was the only black employee.
JA-1653. Waller, Floyd’s supervisor, told Floyd that he was the “token black”
employee. JA-1654. Griffin, Floyd’s dispatcher, overheard the comment and
laughed. JA-1655. On another occasion, during an argument between Waller and Floyd,
Waller told him, “don’t be found with a noose with your name on it” and “don’t
let some friends visit you in the middle of the night.” JA-1656. Floyd
interpreted the “friends visiting” as “the Klan.” JA-1656-57. He testified,
“being a black man, that’s pretty much what you think when someone tells you
friends in the middle of the night. You automatically assume that.” JA-1657.
Floyd testified that “[a]s a youngster, I saw the Klan coming down the road
down by the farm where I was at, and they beat a farmer down there pretty
badly.” Id. Floyd testified that Waller’s comment about friends
visiting him in the night made him “concerned for my family. I have small
children with me. My daughter was 13 and my son was 11. Working the schedule
that I worked [at night], I was afraid that something may happen in the middle
of the night.” JA-1657-1658. Floyd stated that he asked Griffin why she
allowed “this to go on.” JA-1659. When asked how often he heard racial
comments at ACW, Floyd testified that “you can’t help but hear them every
day.” Id. He added that the racial comments did not stop at any point
during his employment. Id. Other drivers joked that “we got our quota
one black” and “[i]f we get another black, we got to take the first one to the
tree.” JA-1659. According to Floyd, “There was a running joke about a family
tree that’s supposed to have been on company property where they took people to
hang. . . . It was just people saying things like, you know, you are going to
be hung like a black man, you know, go to the tree.” JA-1660. When Floyd
asked mechanic Brian Christy about it, Christy confirmed that “it was supposed
to be where people were hung at.” Id. Floyd testified that “[a]lmost
everybody made those comments” about “hanging Tyrone.” JA-1665-66. Floyd
testified that he saw a noose “in the back of Mr. Waller’s truck one time.”
JA-1675-76. Another time, Floyd saw a noose hanging from the rafters of the
mechanic shop. JA-1676. Floyd testified that seeing the noose, “shocked me,
startled me, made me apprehensive. . . . I just yelled, Get it down.” JA-1677.
Floyd
testified that in addition, “there was a bunch of Tyrone jokes,” and “Tyrone
jokes were the new nigger jokes.” JA-1661. Floyd gave as an example: “You
are going down the road and you see Tyrone on a bicycle. You swerve to miss
the bike. Why. Because it might be your bike.” Id. Another was
“Tyrone has on a suit and tie. What is he called? The accused.” JA-1661.
Floyd heard “Tyrone jokes” “[i]n the office, on the yard, just wherever guys
were at.” Id. “There was a competition to see which one could do the
best one, who could outdo the other one, who could retell the one. It was just
competition amongst the drivers.” JA-1662. He testified he did not like the
jokes or find any of them funny. JA-1662, 1667. He testified that hearing the
jokes made him angry and “I would tell them not to do that,” but “there is
really nothing you can do.” JA-1662.
Waller
would tell the same type of jokes with the drivers, including David Griggs and
Bud Cruse. JA-1663. Both Griggs and Cruse, who are white, used the term
“nigger.” JA-1663. Floyd told them to stop. Id. They would laugh and
say they “didn’t mean nothing by it.” JA-1664.
Floyd
testified that he saw a Confederate flag on a business card on Waller’s desk.
JA-1671-1672. Floyd said the card bothered him and he asked Waller to take it
off his desk; Waller refused. JA-1672.
Floyd
complained to ACW owner Robert Barbour about the racial comments and jokes. JA-1667.
Barbour told him “well, you know how Buddy is.” JA-1668. Another time, he
called Barbour after his truck broke down and “Buddy’s name came up,” and Floyd
“kept venting.” Barbour responded, “Just let it go.” JA-1671. Floyd stated
he did not complain again to Barbour because “I done all I could do. There is
no use.” JA-1671. Barbour testified that Floyd told him “Buddy was a little
hard on him,” but denied that Floyd complained Waller used racially derogatory
terms. JA-1783-1784.
On
another occasion, when Floyd was making a delivery at night to Norwood, North
Carolina, a police officer pulled up to Floyd’s truck and informed him that a
Klan meeting was in progress. JA-1672-1673. When Floyd called Barbour,
Barbour offered to come assist him, and agreed he should not return to Norwood
at night. JA-1686, 1690. The officer waited with Floyd and escorted him
safely out of the area. JA-1673. However, when Floyd told Griffin she could
not dispatch him there again at night, she told him “you will go where you are
sent.” JA-1674.
Barbour,
Waller’s supervisor, testified that he never heard Waller use the term “nigger”
nor did anyone report that he had used it. JA-1800. He also stated he had not
heard any employee use the term “coon,” had not heard anyone tell racial jokes,
nor had he ever seen a noose “other than possibly on TV.” JA-1800-1801.
Barbour testified that he knew ACW was subject to Title VII and that the
company had a duty to provide a work environment free of racial harassment.
JA-1643.
After
Gill filed an EEOC charge against the company, Barbour learned from Griffin
that Gill had reported two drivers telling jokes that contained the word
“nigger,” but because Gill would not tell her the names of the driver, she
decided not to report it. JA-1802.
Carl
Hewitt, who is white, testified that when he worked as a driver for ACW in the Concord
facility from 2007 till 2009, he heard the term “nigger” used “a few times” by
Waller, driver Bud [Cruse], and possibly Griffin. JA-1700-1701, 1711. Hewitt
recalled that Bud was “racist.” JA-1713, 1731. Hewitt testified that Bud had
a noose in his truck “hanging from the sun visor” “for as long as I can
remember.” JA-1724, 1725. Bud “would use the word nigger, porch monkey, coon
a lot . . . It was a normal thing to him.” JA-1714. Hewitt testified that Bud
would say “nigger” every day, as well as other slurs both at the ACW facility
and on the CB radio. JA-1714. Hewitt stated that Bud would tell racial jokes
“pretty much all day long” and “didn’t care for” “Black people, Mexican[s].”
JA-1721. Griffin and Waller overheard these comments and jokes when Bud made
them in the office. JA-1716-1718. According to Hewitt, Waller tolerated Bud’s
racist comments. JA-1729, 1731. Hewitt recalled Waller making a joke about “a
pigeon, a nigger, and a chicken wing.” JA-1717. He saw the card with the Confederate
flag on Waller’s desk. JA-1728-1729.
Hewitt
also recalled overhearing a conversation about a black driver who had made a
mistake; another driver said “if it wasn’t a law, he wouldn’t have been there,”
meaning if it was not illegal, ACW would not hire black individuals. JA-1718-1720.
ACW
has no written or formalized anti-harassment or anti-discrimination policies.
No reporting mechanism was distributed to employees. JA-1605-1606; JA-1453.
The
jury deliberated less than an hour before announcing that it had reached a
verdict on liability. JA-2125-2126. The jury found for the EEOC and Gill on
all claims, and that ACW was liable for punitive damages. JA-2126-2127.
During
the second phase of the trial on damages, Gill testified that he felt angry and
depressed by the harassment, and that he questioned his religious faith because
he “wondered how God could let this keep going on.” JA-2140. He suffered from
insomnia and anxiety attacks that he treated with prescription medication.
JA-2141. He testified that feeling “dehumanized and belittled” at ACW kept him
up at night. JA-2141-2142. Gill testified that his self-esteem was low as a
result of the racist comments he endured. JA-2142. When someone was kind to
him, it surprised him because he “expected most people to react to me the way
my coworkers at A.C. Widenhouse were reacting to me.” JA-2143. He stated, “I
just didn’t trust people. I still don’t.” Id. Gill testified that he
would seek professional counseling but could not afford it. JA-2142, 2143.
Floyd
did not testify in the damages phase. The Commission told the jury in its
closing argument that Floyd, a former soldier who is stoic by nature, grew up
on a farm in Concord in the 1960s and saw his neighbor, a black farmer, beaten
by the Klan. JA-2160. The Commission emphasized that when Floyd’s supervisor
suggested friends would visit in the night, it made Floyd fear for his family.
JA-2160. The Commission told the jury that Barbour’s ignoring Floyd’s
complaints, Waller’s telling him not to find a noose with his name on it, and ACW
officials accepting and laughing at racial slurs deeply affected him. JA-2160-2162.
Barbour
testified regarding the company’s financial difficulties, with losses over
$85,000 since 2006, aging equipment, and high cost of diesel fuel cutting into
profits. JA-2145-2148. The company was projecting a loss between $185,000 and
$230,000 for 2012, with a similarly grim prognosis for 2013. JA-2150. On
cross, Barbour testified that the company’s assets in 2011 were $1,105,551,
cash on hand was $556,301 at the beginning of 2011 and $704,018 at the end of
2011. JA-2152-2153.
The
jury awarded Gill $30,000 in compensatory damages and Floyd $20,000 in
compensatory damages. JA-2190. The jury awarded $75,000 in punitive damages
to Gill and $75,000 in punitive damages to Floyd. Id.
C. District
Court Rulings/Trial Management Decisions
1. The district court’s granting the
motion in limine excluding evidence of Gill’s separation from his prior employer
and his filing of an EEOC charge against that employer.
During
Gill’s deposition, he denied that he had accused anyone at former employer Consolidated
Pipe of discrimination, JA-1277, denied he had “ever accuse[d] anyone at that
company of harassment,” id., and denied he had ever told anyone that he
felt he had been discriminated against because of his race.” JA-1278. After
a break, Gill testified that he had filed a charge with the EEOC after he left
Consolidated Pipe. JA-1266. He stated he did not remember the allegations and
that they were “[j]ust mainly about the position change and to find out if that
was fair, lawful.” JA-1267. When asked if the position change was due to some
form of discrimination, Gill replied that he did not know. JA-1268. When
asked if he alleged that anyone at Consolidated Pipe had made any type of
racial slurs, he said, “I don’t think I did.” Id. He also testified
that he did not recall alleging that someone had used racial slurs toward him.
Id. Gill denied that he “walked off the job.” JA-1269. He testified
that he was upset that his job was going to be changed to a non-driver position
and was advised to “part company.” JA-1276.
During
the pretrial conference on the EEOC’s and Gill’s motions in limine to exclude testimony
about Gill’s prior charge alleging race discrimination against Consolidated
Pipe, ACW argued it should be able to offer the testimony of Jeff Wortman,
Gill’s former supervisor, to show that Gill lied during his deposition about
the circumstances of his discharge from Consolidated Pipe (in saying that he
walked off the job and was not fired), and lied about the content of his EEOC
charge against the company (in saying he did not know whether he alleged racial
harassment or some other kind of discrimination). JA-1151, 1158-1160. ACW
argued that Wortman’s testimony should be allowed as impeachment evidence to
show Gill’s lack of credibility in general. JA-1151-1152, 1158-1159, 1164-1165.
The
court ruled that allowing Wortman to testify about the circumstances of Gill’s
separation from Consolidated Pipe and whether he was fired or walked off the
job was “getting far afield of the issue here,” and that ACW would not be able
to establish that Gill lied—“You can only show that there is a dispute between
what he claimed and what the employer said.” JA-1157. The court concluded
that allowing such testimony would invite “separate minitrials as to every
prior employment situation.” Id.
The
court stated, “the prior EEOC charge stays out under 404(b) and under 403”
because if testimony about it were allowed, “I would have to relitigate that”
and “it’s offered to show that he’s litigious and makes up claims.” JA-1167. The
court asserted that “[o]ne prior claim does not a litigious litigant make.” Id.
The court left open the possibility that ACW could make an offer of proof
before trial about whether Gill lied during his deposition about whether or not
he filed a charge, but the court asked that it have “notice of what you intend
to do. . . . I am not allowing it in until I see what you have.” JA-1167-68.
The court elaborated that “you want to go after him because he lied needs to
square up for me what the lie was, and I don’t have that, . . . apart from the
fact that the lie was the underlying merits of his EEOC charge with his prior
employer; in which case, that’s really just relitigating the prior EEOC charge
in the context of this case, and I am not going to do that. I think that’s
inappropriate under 404(b).” JA-1168.
The court
heard argument early in the trial that Wortman’s testimony should be admitted
under Rule 606, JA-1287-1288, but repeated its concern about having a “subtrial”
on Gill’s prior employment circumstances. JA-1289. The court questioned the
reliability of Wortman’s testimony, and reiterated its concern about having a “sideshow
on this trial.” JA-1485.
The
court granted the motion in limine and excluded any testimony about
Consolidated Pipe, reasoning that “the Court should exclude extrinsic evidence
when the fact that the evidence that supports or undermines is collateral or
irrelevant to the material issues in the case.” JA-1567-1568.
The
court concluded that testimony by Wortman regarding a prior discharge “may very
well confuse the jury as to the issues in the case” and “we are going to end up
getting into a sideshow as to the nature of the reasons Mr. Gill left his prior
employer, and that’s subject to potential questions of proof.” JA-1568-1569.
“The only witness being offered at this point is Mr. Wortman and only for
impeachment, and so I am concerned it would draw the jury’s attention unfairly
to a previous employment situation, the facts of which will never be fully
before the Court; and under Rule 403, I conclude that its probative value will
be substantially outweighed by the danger of confusing the jury.” JA-1569.
If
the testimony were used to show that Gill walked off one job so he might walk off
another, it “would be inappropriate propensity evidence before the jury.”
JA-1569. Additionally, as to Gill’s EEOC charge against Consolidated Pipe, “my
primary concern with that is . . . I believe that is collateral to the
questions in this case,” and “the best evidence of that would be the charge
itself; and there’s been no effort to obtain a copy of the charge.” Id.
Given that Wortman would have to “testify as to what was in the charge as [he]
remember[s] it—it’s getting us far afield of what the best evidence of that
would be.” JA-1570. The court agreed to reconsider the issue if Gill “opens
the door through any testimony.” Id.
2. The court’s inclusion of Gill’s
and Floyd’s eligibility for punitive damages in the instructions and verdict
form for the liability phase of the trial.
The
district court granted ACW’s motion to bifurcate the trial into liability and
damages phases, despite the plaintiffs’ opposition. JA-1254. In that order,
the court stated, “The trial will be conducted in two phases: phase one will
be liability; phase two will be compensatory and punitive damages. However,
Plaintiffs should be prepared to submit all evidence relating to the
determination of whether there is an entitlement to punitive damages during the
first phase, so the court can determine whether the issue of punitive damages
should be submitted to the jury in the second phase.” Id.
In
a conference on the jury instructions and verdict form, the district court noted
that the evidence the Commission put on in support of a punitive damages award,
showing ACW’s lack of training or efforts to prevent discrimination, was
“interrelated” with the same evidence demonstrating that ACW could not
establish the Faragher/Ellerth affirmative defense to liability for
supervisor harassment. JA-2003. Over ACW’s objection, JA-2005, the court
approved language instructing the jury that if it found ACW liable for “one or
more of the claims in this case, you must consider whether Mr. Gill and/or
Robert Floyd, Jr., is entitled to an award of punitive damages. By instructing
you on damages, the court does not mean to suggest for which party your verdict
should be rendered.” JA-2373. The Verdict Sheet for Liability included the question
of whether ACW is liable for punitive damages as to Gill and Floyd. JA-2378. ACW
stated it had no objection to the verdict sheet. JA-2005.
The
court stated that its “goal all along has been to try to keep the net worth
information out because I really do think that has a highly prejudicial effect,
because once a jury sees how much money is available, that may encourage them,
well, let’s just go ahead and award some as opposed to make the hard call first
of what are the liability issues.” JA-1963-1964. However, the court
acknowledged that evidence that would go to punitive damages “had to be put on
to some extent because you had to show that the individuals had a subjective
reaction to find the information offensive. . . . I think that’s most of your
evidence anyway as to what you are going to argue on punitive damages.”
JA-1964. The EEOC urged the court to allow the jury to decide the entitlement
to punitive damages at the liability phase “since they have all the evidence
that they need to make the decision about entitlement, they should go ahead and
make that decision when it’s freshest on their minds.” JA-1967.
The
court instructed the jury that “the trial has been divided into phases. At
this time you will be asked to decide only questions relating to liability.
You are not to concern yourself with any question of damages at this time, nor
should you concern yourself with or speculate about why the trial is proceeding
in this fashion.” JA-2108.
After
explaining what was required for punitive damages to be awarded, the court
stated, “[i]f you determine that a Plaintiff has met his or its burden as to
punitive damages, you are not to concern yourself with what amount of punitive
damages to award in this phase of the trial. Instead, you are being asked to
determine only whether the basis for imposing such damages exists.” JA-2119.
3.
The EEOC’s Closing Argument
Prior
to the closing arguments, the court instructed the jury that closing arguments
“are not evidence but [are] what the lawyers believe the evidence would show to
you.” JA-2038.
The
EEOC began its closing by stating, “Over the last week, you heard how a racist
general manager for A.C. Widenhouse and racist white employees turned A.C.
Widenhouse’s truck yard into something that sounds like it came out of the
1950s or 1960s.” JA-2039. The EEOC summarized the extensive evidence
presented of racial slurs, jokes, and comments and asked the jury to believe
Gill’s and Floyd’s testimony and reject Waller’s and Griffin’s testimony that
none of it happened. JA-2040-41. The EEOC told the jury, “You’ve heard about
the display of nooses” and “there’s perhaps no more violent symbol of the civil
rights era and the oppression generally of blacks in this country than the
noose, than hanging. It immediately invokes the images of black Americans
being dragged out of their home or dragged out of their car by a lynch mob, or
men in white robes, being strung up in a tree and their black lifeless bodies
being left there.” JA-2051. The Commission concluded, “The EEOC is here today
asking you to help the EEOC make the Defendant recognize that they can’t treat
black employees like this, to help the EEOC make the defendant realize that
this isn’t the 50s or 60s anymore.” JA-2056. ACW did not object at any point
during the EEOC’s closing argument.
In its rebuttal
closing, the EEOC pointed out that “it’s really appropriate that we started
trying this case the day after the Martin Luther King, Jr. holiday. Martin
Luther King fought and ultimately died . . . in the fight for equal rights for
African Americans in this country.” JA-2096. The EEOC asked the jury to
remember what the South was like in the 50s and 60s, when segregation—separate
eating facilities, separate bathrooms, separate schools, and water fountains
with signs saying “white” and “colored” over them—was the norm. JA-2096-2097.
The EEOC mentioned “violent images of the Freedom Riders in 1961, white college
students and black college students protesting segregation of buses, bus
stations, and eating facilities in the South. You’ve probably seen the
pictures of their bus being fire-bombed in Anniston, Alabama, of them being
beaten by a mob in Birmingham while they yelled ‘nigger’ and ‘nigger lover.’”
JA-2097.
The
Commission asked the jury to think about what Gill and Floyd went through went
they heard the slur “nigger” or talk about hanging from the family tree and
friends visiting in the night, and noted that Gill was asked if he wanted to be
the coon in a coworker’s coon hunt. JA-2097. The EEOC stated that “they seem
to want to tell you that white employees could go in the shop, but black
employees should stay out,” but “segregation is not the law.” JA-2098.
The EEOC
asked the jury to tell ACW with its verdict that Title VII “is the law of the
land, that the battle for equal rights of African Americans in the country has
been won, that A.C. Widenhouse had the obligation to clean up the racial slurs
and the racial comments where they exist.” JA-2099. The court again admonished
the jury “anything the lawyers say is not evidence in the case,” JA-2102, and
“[a]rguments by the lawyers are not evidence because the lawyers are not
witnesses.” JA-2103.
Standard
of Review
The
district court’s exclusion of evidence and whether and in what form to give a
particular jury instruction are reviewed by this Court for abuse of
discretion. United States v. Woods, 710 F.3d 195, 200 (4th Cir. 2013); Buckley
v. Mukasey, 538 F.3d 306, 322 (4th Cir. 2008). “District courts generally
enjoy broad discretion in ruling on the admissibility of evidence, as well as
in the realm of trial management, which is ‘quintessentially the province of
the district courts.’” Woods, 710 F.3d at 200 (quoting United States
v. Smith, 452 F.3d 323, 332 (4th Cir. 2006)) (internal citation omitted).
A district
court’s allowing a closing argument where there is no contemporaneous objection
is “confined to plain error review,” in which the party challenging the ruling
“must show not only that the district court committed an ‘error’ that was
‘plain,’ but also that the error affected [the defendant’s] substantial rights
thereby impacting the outcome of [the] trial.” Id. at 202.
Summary of Argument
After
less than an hour of deliberation, the jury found ACW liable for violating
Title VII by subjecting Contonius Gill and Robert Floyd to a race-based hostile
work environment. The jury credited testimony that ACW tolerated racial slurs
such as “nigger,” “coon,” “boy,” and “porch monkey.” The jury heard that
nooses were displayed in the workplace and that both men were threatened with
visits from the KKK and hanging from the family tree. ACW did not file a Rule
50(b) motion after trial, so cannot challenge the sufficiency of the evidence.
Instead, the company has attacked evidentiary rulings and other trial
management decisions that were firmly within the discretion of the trial court,
some of which the company never objected to at trial. This Court reviews a court’s
evidentiary rulings and jury instructions deferentially and can reverse the
jury’s verdict only where the district court abused its discretion.
First,
ACW argues that it is reversible error that the district court excluded under
Fed. R. Evid. 403 the testimony of Gill’s former supervisor at Consolidated
Pipe, a prior employer against whom Gill had filed a charge of discrimination.
The district court was well within its discretion to decide that this testimony
would have created a “sideshow” on a collateral issue that had nothing to do
with the Commission’s hostile work environment case. ACW wanted to put on
this witness to contradict Gill’s testimony in his deposition about the
circumstances of his separation from Consolidated Pipe, and about filing a
charge against that employer as a means to impeach Gill’s credibility. But
ACW lacked the only piece of evidence that would have conclusively established
whether or not Gill had lied about the contents of the charge against Consolidated
Pipe – the charge itself. The district court voiced concern repeatedly that
what happened at the former employer would become a “sideshow” or “mini trial”
and confuse the jury when it was called on to determine which recollection of
Gill’s departure from Consolidated Pipe was more credible. Given the evidence
of the working environment at ACW—which included testimony about a continuous
barrage of racial slurs and jokes, displayed nooses, threats of hanging and
late night visits from the Klan offered by Gill, Floyd, and white driver Carl
Hewitt—testimony about Gill’s departure from Consolidated Pipe and the charge
he filed was not relevant to the claims being tried in this case. The district
court correctly ruled that the probative value of this testimony would be
outweighed by unfair prejudice and was likely to confuse the jury and waste
time.
Second,
ACW argues that the district court’s instruction on, and inclusion on the
verdict sheet of a question about, ACW’s liability for punitive damages during
the liability phase of the trial, instead of the damages phase, was an abuse of
discretion because it prejudiced the jury by telegraphing to the jury that it
should award punitive damages. This argument has no basis in law or logic. If
this were a valid objection, all trials would have to be bifurcated and all
instructions on remedies would be subject to the same challenge. In the first
phase of the trial, the jury heard Gill’s and Floyd’s testimony about how the
harassment they endured affected them, and that the company lacked any policies
or procedures to prevent or address discrimination in the workplace. The jury
heard that the owner of the company knew that Title VII prohibited racial
harassment and discrimination in the workplace. The jury heard that the
company did nothing in response to both men’s frequent complaints about racial
slurs, jokes, and threats. Additionally, although ACW objected to the
instruction containing the standard for punitive damages, it did not object to
the verdict sheet. This Court has instructed that liability for punitive
damages should be included in the first phase of a bifurcated trial. The court
was well within its discretion to follow this guideline and include an
instruction on liability for punitive damages in the liability phase of the
trial.
Third,
despite ACW’s failure to object at the time, the company contends that the
district court’s failure to rein in what it describes as the EEOC’s “inflammatory”
closing argument, rises to the level of plain error. In a case where the
evidence consisted of threats about Klan visits, nooses displayed in the
workplace, and a continuous onslaught of ugly racial slurs, the EEOC’s plea to
the jury to bring ACW out of the 1950s and 1960s and beyond that sad history of
segregation, racial threats, and violence was proper. It could not be
characterized as “error” under any legal standard, much less plain error. In
the face of overwhelming evidence of racial harassment, the jury’s verdict is unassailable
and ACW has pointed to no rulings by the district court that meet the exacting
abuse of discretion or plain error standards.
Argument
I. The district court acted
well within its discretion and consistent with this Court’s precedent when it
excluded testimony about Gill’s filing of an EEOC charge against a prior
employer where the issue was collateral and ACW failed to offer the charge
itself.
The
district court properly exercised its discretion under Fed. R. Evid. 403 when
it excluded Jeff Wortman’s testimony about Gill’s separation from Consolidated
Pipe and his EEOC charge against the same. JA-1569. “Rule 403 judgments are
preeminently the province of the trial courts . . . We will not upset such a
decision except under the most extraordinary of circumstances, where a trial
court’s discretion has been plainly abused.” United States v. Love, 134
F.3d 595, 603 (4th Cir. 1998); see also United States v. Kelly,
510 F.3d 433, 437 n.3 (4th Cir. 2007) (district court’s wide discretion in
admitting or excluding evidence under Rule 403 “reflects the fact that a
district court is much closer than a court of appeals to the pulse of a trial”
(internal citations omitted)); United States v. Ham, 998 F.2d 1247, 1255
(4th Cir. 1993) (“In the context of Rule 403 rulings, appellate courts have
been particularly deferential to the lower courts.”); Pitt Ohio Exp., LLC v.
Pat Salmon & Sons, Inc., No. 12-2070, 2013 WL 3614438, at *3 (4th Cir.
2013) (“Weighing the probative against the prejudicial under Rule 403 is a
classic call for a district judge.”).
Rule 403
provides that the court may exclude relevant evidence if “its probative value is
substantially outweighed by the danger of . . . unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. This Court has
characterized this unfair prejudice as “tend[ing] to subordinate reason to
emotion in the factfinding process.” United States v. Queen, 132 F.3d
991, 997 (4th Cir. 1997). The district court’s “broad discretion” “will be
disturbed only after it has been clearly abused, or if the district court has
acted arbitrarily and capriciously.” United States v. House, No.
92-5349, 1993 WL 307135, at *3 (4th Cir. Aug. 5, 1993). “The erroneous
exclusion of evidence is not cause for reversal unless a refusal to reverse the
verdict below would be ‘inconsistent with substantial justice.’” Mullen v.
Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1135 (4th Cir. 1988).
The
court was well within its discretion in excluding Wortman’s testimony as a “sideshow”
that would prejudice the plaintiffs’ case, confuse and mislead the jury, and
waste time. If Wortman had been permitted to testify, the plaintiffs would
have been obligated to offer additional witnesses to counter his recollection,
creating a minitrial as the district court stated it feared. JA-1155. See
Sims v. Mulcahy, 902 F.2d 524, 531 (7th Cir. 1990) (in race
discrimination action brought by a black parking monitor alleging the defendant
had discriminatorily enforced its tardiness policy, district court’s exclusion of
testimony regarding the defendant’s termination of another black parking
monitor was proper under Rule 403 because it “is important to avoid significant
litigation on issues that are collateral to those required to be tried”). See
also Blakey v. Continental Airlines, No. 92-2194, 1997 WL 1524797,
at *15 (D.N.J. Sept. 9, 1997) (presentation of evidence relating to two prior
EEOC charges ten years prior was “collateral to the case” and would necessitate
a “trial within a trial”).
The
circumstances of Gill’s termination from Consolidated Pipe and the EEOC charge
against that company were collateral to the hostile work environment and
discharge claims being tried against ACW. In an analogous criminal case
involving the prosecution of a federal drug offense, this Court held it was
reversible error for the district court to allow a police officer to testify
about the defendant’s prior arrest for discharging a weapon for the purpose of impeaching
his statement that he had never fired a weapon in public. See United States
v. Ling, 581 F.2d 1118, 1120 (4th Cir. 1978). This Court held that such
evidence was unnecessary to establish the prosecution’s case and injected an
inflammatory collateral issue into the trial and reversed the conviction. “The
prejudicial character of the evidence in question far outweighs any possible
probative value to the prosecution and we view the admission of the evidence
concerning proof of Ling’s prior arrest as reversible error.” Id. at
1122. Similarly, allowing testimony about Gill’s termination from Consolidated
Pipe and charge-filing in an attempt to show he lied during his deposition and
was not a credible witness would be similarly prejudicial.
Although
the court did not cite to Fed. R. Evid. 608 when it excluded the evidence, ACW
argued that Wortman’s testimony should come in under Rule 608(b) to establish
that Gill’s version of events at Consolidated Pipe “is absolutely incorrect”
and “to discredit him by impeaching him about statements he’s made,” which
would go to Gill’s credibility. JA-1288. Later, ACW said it “was not
proceeding under Rule 608.” JA-1294. Rule 608(b) provides that “extrinsic
evidence is not admissible to prove specific instances of a witness’s conduct
in order to attack or support the witness’s character for truthfulness. But
the court may, on cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness of the witness.”
Fed. R. Evid. 608(b). The district court’s exclusion of the testimony would
have been proper under Rule 608. See, e.g., United States v. Bynum,
3 F.3d 769, 772 (4th Cir. 1993) (“The purpose of [Rule 608(b)] is to prohibit
things from getting too far afield—to prevent the proverbial trial within a
trial.”).
During his
deposition, Gill initially denied that he had accused anyone at Consolidated
Pipe of discrimination. JA-1277. But after a break he corrected the record
and said he had filed a charge with the EEOC after he left Consolidated Pipe.
JA-1266. He did not recall exactly what he had alleged beyond that he thought
changing his position was unfair and that he wanted to find out if it was
“fair, lawful.” JA-1267. He said, “I don’t think I did” in response to the
question of whether he alleged someone directed racial comments at him.
JA-1268. He denied that he walked off the job and said he was told he should
leave the company if he was unhappy that his position had been changed.
JA-1276. Although ACW said it would make an offer of proof of what Wortman
would say later in the trial, it never did.
Even if
Wortman testified that Gill “walked off the job” and testified that he
remembered Gill’s charge accused the company of subjecting Gill to racial
slurs, that testimony would not prove that Gill lied during his deposition.
Gill was noncommittal in his deposition and did not recall exactly what was in
his charge. The jury would have been free to credit Gill’s version of events
over Wortman’s, as both were testifying about their recollection of something
that had occurred several years earlier and neither was a disinterested,
neutral witness. The court stated, “I bring in Mr. Wortman, and then
Plaintiffs may or may not want to have a witness, and then there is a questions
of whether the charge comes in from the previous time; and all of a sudden, we
are now trying his previous departure from his previous employer as a subtrial
of this trial.” JA-1289.
The only
evidence that could have conclusively shown whether Gill misrepresented the
contents of the charge he filed against Consolidated Pipe was the charge
itself. ACW did not obtain the charge during discovery. As the court pointed
out, without the charge itself, there was no way to conclusively establish
whether Gill had alleged a hostile work environment and there was “a question
of reliability” of Wortman’s testimony where the charge itself was
unavailable. JA-1484. See Fed. R. Evid. 1002 (an original writing,
recording, or photograph is required in order to prove its content).
In any
event, even if the district court allowed Wortman’s testimony, and even if
Gill’s credibility had been diminished by the conflicting version of events, he
was not the only witness to the hostile work environment at ACW. Both Floyd
and Hewitt testified regarding the extensive barrage of racial slurs and jokes,
presence of nooses, threats of Klan attacks, and other demeaning and
threatening behavior targeting black employees. Their testimony would have
supported the jury’s conclusion that ACW subjected its black employees to a
racially hostile work environment. Accordingly, given the circumstances, the
district court’s exclusion of Wortman’s testimony was proper.
II.
The district court was well within its discretion to include an instruction
on whether ACW was liable for punitive damages in the jury
instructions on liability and the verdict form at the liability phase of the
trial.
With the
exception of large class action cases challenging a policy or practice of
discrimination, Title VII trials involving only one or two victims are not
typically bifurcated into liability and damages phases. Cf. Cole-Hoover
v. State of N.Y. Dept. of Corrs., No. 02-cv-0826, 2011 WL 3360002, at *5
(W.D.N.Y. Aug. 3, 2011) (“Bifurcation remains the exception and not the rule.”).
The district court was not required to bifurcate the trial, and had the
discretion to order the jury instructions however it saw fit. A district
court’s decision whether to give a particular jury instruction is reviewed for
abuse of discretion. Deadwyler v. Volkswagen of Am., 884 F.2d 779, 782
(4th Cir. 1989) (decision to use a special verdict and formulation of issues
submitted are matters resting in the sound discretion of the trial judge and
review of the form of the trial court’s special interrogatories is confined to
whether their use is that form was an abuse of discretion).
The
district court granted ACW’s motion to bifurcate primarily because it did not
want the evidence of ACW’s net worth to influence the jury. JA-1963-1964. This
evidence was not introduced until the damages phase, so such prejudice was
entirely avoided. There was also no issue of lack of notice or surprise. In
the court’s order granting the motion to bifurcate, it instructed the
plaintiffs to be prepared to put on evidence regarding ACW’s liability for
punitive damages during the liability phase. This Court has said that courts
are required to include liability for punitive damages in the first phase of a
bifurcated trial. See Mattison v. Dallas Carrier Corp., 947 F.2d
95, 110 (4th Cir. 1991) (“Whenever the district court
orders a bifurcated trial, the jury should be required, in the first phase, to
determine whether punitive damages are to be awarded, and only if its verdict
so determines, should it be presented in the second phase with the evidence
relevant to the factors for finding the appropriate amount.”); see also,
In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 11-0195,
2013 WL 3282926, at *9 (S.D. W.Va. June 27, 2013) (district
court stated that its “order bifurcating the trial provides that the amount
of punitive damages, if any, will be determined in phase two, but liability
(for both compensatory and punitive damages) and amount of compensatory damages
will be determined at phase one).
The
court’s decision to include the instruction on punitive damages and eligibility
for punitive damages on the verdict form in the liability phase made sense.
The same testimony of how the racial slurs and other harassment made the
victims feel offered in support of the harassment being severe or pervasive was
relevant to the punitive damages finding. And ACW’s lack of an
anti-discrimination policy or procedure for remedying harassment and Barbour’s
knowledge that Title VII prohibited racial harassment at ACW went both to the
availability of the affirmative defense under Faragher/Ellerth
and to the appropriateness of punitive damages.
To
the extent the district court may have changed its mind about allowing the
question of punitive damages to be determined at the liability phase after
hearing the evidence, that was its prerogative in managing the trial. Given
the overlap in evidence, it was well within the court’s discretion to manage
the trial by including the instruction in the liability phase. “Questions of
trial management are quintessentially the province of the district courts.” United
States v. Smith, 452 U.S. 323, 332 (4th Cir. 2006); see also Stuart
v. Huff, 706 F.3d 345, 350 (4th Cir. 2013) (many details of trial
management are necessarily committed to broad trial court discretion”); cf.
Woods, 710 F.3d at 206 (“An error in jury instructions will mandate
reversal only if the error is determined to have been prejudicial, based on a
review of the record as a whole.”).
ACW
contends that the court’s instruction to the jury on the standard for awarding punitive
damages at the liability phase was prejudicial because it telegraphed to the
jury that the court thought it should award punitive damages. See ACW
Br. at 31. That argument is specious. If such an instruction were capable of
“poison[ing] the jury’s deliberations,” every Title VII trial would have to be
bifurcated and any instruction on remedies would be subject to the same
challenge. That the jury was instructed on the standard for eligibility for
punitive damages in no way conveys that the judge thought the jury should award
punitive damages. The court gave the standard instruction that “by
instructing you on damages, the court does not mean to suggest for which party
your verdict should be rendered.” JA-2373. This Court should presume that the
jury followed the instructions. “A crucial assumption underlying [our system of
trial by jury] is that juries will follow the instructions given them by the
trial judge. Were this not so, it would be pointless for a trial court to
instruct a jury. . . .” Parker v. Randolph, 442 U.S. 62, 73 (1979); see
also Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) (“[W]e adhere
to the crucial assumption underlying our constitutional system of trial by jury
that jurors carefully follow instructions.”).
III. The EEOC’s closing
argument was appropriate given the hostile work environment evidence presented at trial and
because ACW did not object, ACW’s challenge was waived and is not reviewable by
this Court.
Allowing
the EEOC’s closing argument did not constitute error of any sort. During the
trial, the jury heard evidence that Gill and Floyd saw nooses hanging from the
rafters of the mechanic shop; heard ugly racial slurs such as “nigger,” “coon,”
“monkey,” “Tyrone,” and “boy”; overheard racist and demeaning jokes; and were
threatened by references to “hanging from the family tree” or “friends visiting
in the middle of the night.” This country’s unfortunate history of lynchings
and Klan attacks are what makes a noose a terrorist symbol, not a piece of
rope, when viewed by an African American individual. See Porter v.
Erie Foods Int'l Inc., 576 F.3d 629, 636 (7th Cir. 2009) (“The noose is a
visceral symbol of the deaths of thousands of African-Americans at the hand of
lynch mobs.”); Dickerson v. State of N. J. Dep't of Human Servs., 767 F.
Supp. 605, 616 (D.N.J. 1991) (“The mere mention of the KKK invokes a long and
violent history sufficient to detrimentally affect any reasonable person of the
same race as the plaintiff.”).
And the
term “nigger” “is pure anathema to African-Americans. ‘Perhaps
no single act can more quickly alter the conditions of employment and create an
abusive working environment than the use of an unambiguously racial epithet
such as “nigger” by a supervisor in the presence of his subordinates.’” Spriggs
v. Diamond Auto. Glass, 242 F.3d 179, 185 (4th Cir. 2001); see also Bailey
v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984) (“The use of the word
‘nigger’ automatically separates the person addressed from every non-black
person; this is discrimination per se.”). The use of the word “monkey” to
describe black individuals is “similarly odious. To suggest that a human
being's physical appearance is essentially a caricature of a jungle beast goes
far beyond the merely unflattering; it is degrading and humiliating in the
extreme.” Spriggs, 242 F.3d at 185. The EEOC’s efforts to help the
jury understand the impact of the racist slurs and conduct on Gill and Floyd
was entirely appropriate.
The
evidence that the jury credited in this case is disturbing. It is difficult to
believe that such egregiously overt and racist behavior was tolerated in a
workplace just a few short years ago. The EEOC’s plea for the jury to bring
ACW out of the era of segregation and overt racism of the 1950s and 1960s and its
evoking the hard-fought struggle for civil rights in this country was not incendiary:
it was appropriate given the evidence. “It is impossible to appreciate
the impact of the display of a noose without understanding this nation’s
opprobrious legacy of violence against African Americans.” Williams v. New
York City Hous. Auth., 86 FEP 885, 888 (S.D.N.Y. 2001).
Even
if allowing the EEOC’s argument could be characterized as error, ACW’s raising
of the issue for the first time on appeal means the company has waived it. Issues
raised for the first time on appeal are generally not considered absent
exceptional circumstances. See Williams v. Prof’l Transp., Inc.,
294 F.3d 607, 614 (4th Cir. 2002). Consequently, this Court reviews a district
court’s failure to limit an attorney’s closing argument where no
contemporaneous objection was made under the limited doctrine of plain error.
Under United States v. Olano, there must be an error, that error must be
plain, and the error must affect the appellant’s substantive rights. 507 U.S.
725, 732 (1993); see also United States v. Carthorne, 726 F.3d
503, 510 (4th Cir. 2013). An error is “plain” when it
“is so clear-cut, so obvious, a competent district judge should be able to
avoid it without benefit of objection.” Henderson v. United States,
133 S. Ct. 1121, 1129 (2013).
Plain
error is rarely assigned, particularly in the civil context. See, e.g.,
Fashauer v. N.J. Transit Rail Operations, 57 F.3d 1269, 1289 (3d Cir.
1995) (“[P]lain error power in the civil context—which is judicially rather
than statutorily created—should be used even more sparingly.”); United
States v. Carson, 52 F.3d 1173, 1188 (2d Cir. 1995) (plain error doctrine
should only be invoked with extreme caution in the civil context).
ACW
argues that the district court’s failure to jump in and stop or correct the
EEOC’s attorney rises to the level of plain error. There was no error, plain
or otherwise, and ACW’s substantial rights were not affected by the EEOC’s
closing argument. There was nothing in the argument that a reasonable district
court judge would have considered such “clear-cut” error, in light of the
evidence in the case, that the judge should halt the attorney’s description of
the evidence or efforts to give it historical and emotional context. The judge
in this case obviously saw nothing out of bounds during the EEOC’s closing argument
or rebuttal, but if the court thought the argument was skirting the line of
proper argument, it assumed ACW was planning to counter the argument in its own
closing. It was reasonable for the court to let the parties try their own
cases. “Jury trials are not antiseptic events, and in a case involving racial
discrimination, upsetting facts may well emerge.” Mullen, 853 F.2d at
1135.
Even
if the court’s allowing the Commission’s closing argument could be characterized
as plain error, the closing did not substantially prejudice the rights of ACW. “Improper
argument by the prosecutor is not grounds for reversal unless there is
substantial prejudice as well as error.” United States v. Whitehead,
618 F.2d 523, 528 (4th Cir. 1980) (internal citation omitted). Given the
extensive, powerful evidence of ACW’s culpability for a racially hostile work
environment, the company’s rights were unaffected by anything the Commission
said during the closing argument. There was nothing new or inconsistent in the
closing that the jury had not already heard from the witnesses who testified. See
Woods, 710 F.3d at 206 (given the volume of evidence of the defendant’s
guilt, even in the absence of the improper statement, other evidence
established the same point as the statement and his substantial rights were
unaffected and reversal of his conviction was unwarranted).
Conclusion
For
the foregoing reasons, the Commission respectfully urges this Court to affirm
the district court’s rulings and affirm the jury verdicts.
Respectfully
submitted,
P. David
Lopez
General Counsel
Lorraine C.
Davis
Acting Associate General Counsel
Carolyn L.
Wheeler
Acting Assistant General Counsel
/s/ Julie L. Gantz
_______________________________
Julie L.
Gantz
Attorney
Equal
Employment
Opportunity Commission
Office of General Counsel
131 M St., NE, 5th Floor
Washington, DC 20507
(202)
663-4718
