Summary
assessing a $1,000 penalty where plaintiff prevailed on sexual harassment, constructive discharge, and retaliation claims
Summary of this case from Kennedy v. Heritage of Edina, Inc.Opinion
Civ. No. 03-6549 (RHK/AJB).
April 8, 2005
Steven A. Smith and Michele R. Fisher, Nichols, Kaster, Anderson, Minneapolis, Minnesota, for Plaintiff.
Robert M. McClay, McClay Alton, PLLP, St. Paul, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
Introduction
The above-entitled matter came on for trial before the undersigned and a jury on February 8-11, 2005. Plaintiff Mary Briel alleged claims of sexual harassment, constructive discharge, and retaliation against her former employer Defendant Chang O'Hara's Bistro, Inc. under the Minnesota Human Rights Act ("MHRA") and Title VII of the Civil Rights Act of 1964.
On February 11, 2005, the jury returned its verdict. It found for Ms. Briel on each of her claims and found that Chang O'Hara's did not establish an affirmative defense. The jury awarded Ms. Briel $3,500 for her emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life through the date of the verdict. The jury also awarded her $43,000 in punitive damages, after finding that Chang O'Hara's acted with malice or reckless indifference to her right to be free of sexual harassment. (Doc. No. 90.)
On February 25, 2005, the Court adopted the jury's findings as its own and directed that judgment be entered accordingly. (Doc. No. 94.) That same day, the Clerk entered judgment. (Doc. No. 95.) Now before the Court are (1) Plaintiff's Motion for Entry of Judgment and (2) Defendant's Post Judgment Motion Pursuant to Rule 59. (Doc. Nos. 91, 96.)
Plaintiff's Motion for Attorneys' Fees and Costs (Doc. No. 105) will be continued under advisement.
Discussion
Chang O'Hara's submitted an email to the Court on February 18, 2005. Arguments raised in that email will not be considered because the email was an unsolicited memorandum of law and did not accompany a motion. See D. Minn. L.R. 7.1(f); Fed.R.Civ.P. 7(b).
A. Multiplication of Emotional Distress Damages Award
The first issue raised in these post-trial motions is whether to apply a multiplier to the emotional distress damages award under the MHRA. Ms. Briel seeks a trebling of her award, while Chang O'Hara's argues the award should not be increased or, if increased, it should be doubled. When a defendant has engaged in an unfair discriminatory practice, the MHRA authorizes "compensatory damages in an amount up to three times the actual damages sustained." Minn. Stat. § 363A.29, subd. 4. Application of the MHRA multiplier is vested in the trial court's discretion and there are "no guidelines as to when or under what circumstances a trial court may multiply damages." Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995); see Mathieu v. Gopher News Co., 273 F.3d 769, 780 (8th Cir. 2001). Courts have applied the multiplier to emotional distress damages awards.See Mathieu, 273 F.3d at 780-81. In this case, the Court will double Ms. Briel's emotional distress damages award to $7,000. Application of the multiplier is appropriate and will encourage private enforcement of the MHRA. See Phelps, 537 N.W.2d at 277 (noting that one objective of the multiplier is "the enticement of the private bar into bringing claims based on violations of the MHRA"); Mathieu, 273 F.3d at 780-81 (same).
Chang O'Hara's contends that only 1/6 of the $3,500 should be subject to multiplication because that represents Ms. Briel's MHRA sexual harassment claim. However, it offers no support for its contention. The entire $3,500 can be allocated to any one of her claims. See, e.g, Walsh v. Nat'l Computer Sys., Inc., 332 F.3d 1150, 1156-57, 1161-62 (8th Cir. 2003) (allocating compensatory damages award to MHRA claim, and multiplying it, while allocating punitive damages award to Title VII claim).
B. Prejudgment Interest
The second issue is prejudgment interest. Ms. Briel seeks prejudgment interest on her emotional distress damages award, pursuant to Minn. Stat. § 549.09. Section 549.09, subd. 1(b) provides that "[e]xcept as otherwise provided by contract or allowed by law, preverdict . . . interest on pecuniary damages" may be recovered on judgments. Prejudgment interest is not available, however, "where the amount of the claim is dependent in whole or in part upon the discretion of the jury." Noble v. C.E.D.O., Inc., 374 N.W.2d 734, 743 (Minn.Ct.App. 1985) (citation and internal quotations omitted); see Baufield v. Safelite Glass Corp., 831 F. Supp. 713, 719 (D. Minn. 1993). In this case, prejudgment interest is not available on Ms. Briel's emotional distress claim because damages awarded for that claim were wholly dependent upon the jury's discretion. See Noble, 374 N.W.2d at 743;Baufield, 831 F. Supp. at 719.
C. Future Emotional Distress Damages
The third issue is future emotional distress damages. While Ms. Briel seeks such damages, she presented no evidence regarding her future damages at trial. Accordingly, her request will be denied.
D. Punitive Damages
The fourth issue is punitive damages. As noted above, the jury awarded Ms. Briel $43,000 in punitive damages after finding that Chang O'Hara's acted with malice or reckless indifference to Ms. Briel's right to be free from sexual harassment. Punitive damages are available under Title VII if an employer has engaged in intentional discrimination "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). The terms "malice" or "reckless indifference" mean that the employer had "knowledge that it may be acting in violation of federal law." Kolstad v. American Dental Ass'n, 527 U.S. 526, 535 (1999). Punitive damages awards have been upheld in cases "where the employer has deliberately turned a deaf ear to discriminatory conduct." Walsh v. National Computer Sys., Inc., 332 F.3d 1150, 1161 (8th Cir. 2003) (citing cases). Chang O'Hara's attacks the jury's punitive damages award on several grounds and the Court will examine, and reject, each argument in turn.
1. Propriety of Punitive Damages Instruction
First, Chang O'Hara's argues that a punitive damages instruction should not have been given. It asserts that there was insufficient evidence of reckless indifference and that there was sufficient evidence that it made a good faith effort to comply with the law. Chang O'Hara's arguments fail for at least two reasons.
To begin, Chang O'Hara's did not object to the jury instruction after being timely informed that the instruction would be given.See Fed.R.Civ.P. 51(b). Having had the opportunity to object on the record outside of the jury's presence, see id., Chang O'Hara's was required to make its objection "before the jury [was] instructed and before final jury arguments," Fed.R.Civ.P. 51(c)(2)(A); see Dupre v. Fru-Con Eng'g Inc., 112 F.3d 329, 333 (8th Cir. 1997) ("Rule 51 requests a litigant to state distinctly the specific objections to a jury instruction before the jury retires. . . .").
In addition, rather than objecting to the jury instruction, Chang O'Hara's filed its post-verdict Motion under Rule 59. A Rule 59(a) motion for a new trial "should be granted only if the jury's verdict was against the great weight of the evidence so as to constitute a miscarriage of justice." Mathieu, 273 F.3d at 784-85 (citation and internal quotations omitted). The movant has the burden to show that a new trial is necessary. See Howard v. Burns Bros., Inc., 149 F.3d 835, 844 (8th Cir. 1998). In this case, Chang O'Hara's has not met its burden — it does not challenge the jury's findings of liability and there was evidence that it had knowledge that it may have been acting in violation of federal law, or that it acted with reckless indifference of the law. A Rule 59(e) motion to alter or amend the judgment "serve[s] a limited function of correcting manifest errors of law or fact or to present newly discovered evidence." Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs., 141 F.3d 1284, 1286 (8th Cir. 1998) (citation and internal quotations omitted). "Such motions cannot be used to introduce new evidence, tender new theories, or raise arguments which could have been offered or raised prior to entry of judgment." Id. (citation omitted). In this case, the Court finds no manifest errors of law or fact, and is presented with no newly discovered evidence. Rather, Chang O'Hara's attempts to raise arguments which could have been offered or raised prior to the entry of judgment.
To the extent that Chang O'Hara's is moving for a judgment as a matter of law under Rule 50, its Motion is untimely because it did not make such a motion at trial, despite the Court's invitation to do so. See Fed.R.Civ.P. 50(a). With exceptions not applicable here, "[a] motion for judgment as a matter of law under Fed.R.Civ.Pro. 50 requires that the moving party make the motion prior to the time the case goes to the jury." Douglas County Bank Trust Co. v. United Fin. Inc., 207 F.3d 473, 477 (8th Cir. 2000) (emphasis in original); see Pulla v. Amoco Oil Co., 72 F.3d 648, 655 (8th Cir. 1995).
2. Propriety of Closing Argument
Second, Chang O'Hara's argues that the punitive damages award must be vacated or reduced because of a statement made during Ms. Briel's counsel's closing argument. Specifically, it points to counsel's statement that another business owned by Chang O'Hara's owner had made T-shirts saying "Admit Nothing" after it had been accused of sexual harassment. (See Closing Argument Tr. 16-17.) Chang O'Hara's also contends that counsel's statement violated this Court's pre-trial Order.
Considerable discretion is given to the trial court to control closing arguments. Vanskike v. Union Pacific R.R. Co., 725 F.2d 1146, 1149 (8th Cir. 1984). To constitute reversible error, statements made during oral argument "must be plainly unwarranted and clearly injurious." Id. (citation omitted); see Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir. 1995). Upon review of counsel's closing argument, the Court cannot say that counsel's statement was "plainly unwarranted and clearly injurious." The objected-to comments comprised only a small portion of counsel's overall presentation, no prejudice has been shown, and Chang O'Hara's raised no objection at the time the argument was made. Furthermore, the Court concludes that, given its subsequent rulings on the matter during trial, there was no violation of the Court's pre-trial Order.
3. Amount of Punitive Damages
Third, Chang O'Hara's asserts that the punitive damages award is excessive because it is out of proportion with the emotional distress damages award. "In determining whether an award of punitive damages is excessive, [courts] consider the degree of reprehensibility of the defendant's conduct and the ratio between the actual harm inflicted on the plaintiff and the punitive damages award."Walsh, 332 F.3d at 1162 (citation and internal quotations omitted).
Under this standard, the jury's punitive damages award is not excessive. The jury found that Ms. Briel was sexually harassed by her supervisor, constructively discharged, and retaliated against; in addition, the evidence showed that Chang O'Hara's knew that it may have violated federal law, or that it acted with reckless indifference of the law. Moreover, as a result of doubling the emotional distress damages award under the MHRA, the ratio of punitive damages ($43,000) to modified emotional distress damages ($7,000) is approximately 6 to 1. Such a ratio is not excessive. See Walsh, 332 F.3d at 1162 (multiplying compensatory damages under the MHRA and rejecting argument that a 3 to 1 ratio of punitive damages to modified compensatory damages was excessive); Ogden v. Wax Works, Inc., 214 F.3d 999, 1011 (8th Cir. 2000) (rejecting argument that a 6.5 to 1 ratio of punitive damages to compensatory damages was excessive).
The punitive damages award is below the $50,000 limit for businesses of Chang O'Hara's size. See 42 U.S.C. § 1981a(b)(3)(A).
4. Ability to Pay
Fourth, in its final attack on the punitive damages award, Chang O'Hara's asserts that there was insufficient evidence of its ability to pay. This argument is meritless. It was Chang O'Hara's burden to produce evidence of its ability to pay and its failure to do so constitutes a waiver of this argument. See Grabinski v. Blue Springs Ford Sales, Inc., 136 F.3d 565, 570-71 (8th Cir. 1998); see also Kemezy v. Peters, 79 F.3d 33, 33-37 (7th Cir. 1996) (following four other circuits in holding that plaintiff does not bear burden of demonstrating defendant's financial condition).
E. Civil Penalty
The final issue raised in these post-trial motions is the imposition of a civil penalty under the MHRA. The Court is required to assess a civil penalty payable to the general fund of the State of Minnesota against any defendant found to have violated the MHRA. See Minn. Stat. § 363A.29, subd. 4. The amount of the penalty is determined by "taking into account the seriousness and extent of the violation, the public harm occasioned by the violation, whether the violation was intentional, and the financial resources of the [defendant]."Id. Based on these factors, the Court will assess a civil penalty against Chang O'Hara's in the amount of $1,000.
Conclusion
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED:
A. Plaintiff's Motion for Entry of Judgment (Doc. No. 91) is GRANTED IN PART:
1. The jury's emotional distress damages award shall be doubled pursuant to Minn. Stat. § 363A.29, subd.4, and Plaintiff Mary Briel shall recover of Defendant Chang O'Hara's Bistro, Inc. the sum of $7,000 (seven thousand dollars) as and for compensatory damages;
2. Plaintiff Mary Briel shall not recover prejudgment interest;
3. Plaintiff Mary Briel shall not recover future emotional distress damages;
4. Plaintiff Mary Briel shall recover of Defendant Chang O'Hara's Bistro, Inc. the sum of $43,000 (forty-three thousand dollars) as and for punitive damages;
5. Defendant Chang O'Hara's Bistro, Inc. shall pay the sum of $1,000 (one thousand dollars) to the general fund of the State of Minnesota for its violation of the MHRA pursuant to Minn. Stat. § 363A.29, subd.4;
B. Defendant's Post Judgment Motion Pursuant to Rule 59 (Doc. No. 96) is DENIED; and
C. Plaintiff's Motion for Attorneys' Fees and Costs (Doc. No. 105) is CONTINUED UNDER ADVISEMENT.LET JUDGMENT BE ENTERED ACCORDINGLY.
This judgment will supersede the judgment entered on February 25, 2005. (See Doc. No. 95.)