Opinion
No. C96-1049
May 18, 1999.
ORDER
Order on Defendant's Motion for Judgment as a Matter of Law or Remittitur
This matter is before the Court on post-trial motion by the Defendant, FDL Foods, Inc., for judgment as a matter of law or, in the alternative, for remittitur. FDL has moved under Fed.R.Civ.P. 50. (Doc.'s 54, 55.)
On April 2, 1999, after a three-day employment discrimination trial, the Court entered judgment on a jury verdict in favor of the Plaintiff, Brian Young, in the amount of $61,022.36. (Doc. 51.) After consideration of the briefs and the record in this case, the Court denies FDL's motion for judgment as a matter of law and denies FDL's motion for remittitur.
FDL is entitled to judgement as a matter of law only if there was insufficient evidence to support the jury verdict. Arthaud v. Mutual of Omaha Ins. Co., 170 F.3d 860, 862 (8th Cir. 1999). In making this determination, the Court must view all facts and resolve any conflicts in favor of Young, giving him the benefit of all reasonable inferences. Id.
FDL asserts that it is entitled to judgment as a matter of law because (1) Young failed to establish a racially hostile work environment; (2) the Court failed to properly instruct the jury on the affirmative defense laid out in Faragher v. Boca Raton, 118 S.Ct. 2275, 2292-93 (1998) and Burlington Indus., Inc. v. Ellereth, 118 S.Ct. 2257, 2270-71 (1998); (3) the Court improperly awarded back pay for Young's period of suspension, May 18, 1995 to July 5, 1995; (4) the Plaintiff's remedies arise solely under only under Iowa's Workers' Compensation Act; (5) the Court erred in allowing John Meserole to testify as to race-based comments by Young's co-employees; and (6) the Court erred by allowing the Young's wife, Karen Young, to testify. (Doc. 55.) In the alternative, FDL moves the Court to remit the $61,022.36 compensatory damage award handed down by the jury.
The Court would first note that there is a serious procedural problem with defendant's motion. The defendant moves pursuant to Fed.R.Civ.P. 50 for judgment as a matter of law, or, in the alternative, remittitur. However, the defendant does not request the alternative relief provided for under Fed.R.Civ.P. 50(b), that is, a motion for new trial. Virtually, all of the issues raised by the defendant are more properly brought in the context of a motion for new trial, either under Rule 50(b) or Rule 59. These include the issues of jury instructions, back pay, exclusivity of the Iowa Workers' Compensation Act, and the admissibility of evidence as it relates to the testimony of John Meserole and Karen Young. To the extent that the motion for remittitur goes to the award of any excessive damages, it is arguable that the issues related to damages can be considered as part of the remittitur motion. Accordingly, all of the motion for judgment as a matter of law and remittitur can be denied on procedural grounds, except for that portion which relates to the failure to establish a racially hostile work environment. However, since the Court believes that the motion also lacks merit on substantive grounds, the Court will address each of the issues raised by FDL in its motion.
Racially Hostile Work Environment
As previously stated, the standard on a motion for judgment as a matter of law requires the Court to consider all the evidence in the light most favorable to the prevailing party, in this case, Young. Taking the evidence in the light most favorable to Young, the evidence and testimony looked at in that light can be summarized as follows: Brian Young is an African-American who worked at FDL for approximately four months prior to May 18, 1995. For most of that time he was assigned to the gambrel table. The gambrel table is an area in the hog kill operation of FDL in which four employees generally participate. The process involves cutting slits in the hogs' legs and then inserting hooks through the slits so that the hogs can be hoisted onto an overhead conveyor for further processing.
Almost from the first day Mr. Young was employed at FDL, he was subjected to almost daily harassment. The main harassers were Rich Schuster and Gary Hintgen. Schuster worked with Young on the gambrel table. Hintgen worked at a nearby workstation on the kill floor. Mr. Hintgen's job was such that he was able to be away from his assigned workstation for significant periods of time during the workday.
The testimony of Mr. Young, as corroborated by John Meserole and others, reveals that on an almost daily basis, Hintgen would come to the gambrel table from his workstation, converse with Schuster, go over and scream and yell at Young for several minutes, and then return to Schuster's location where the two would be seen laughing and talking. The harassment escalated to the point that on one occasion, Rick Schuster dropped several hogs onto the floor (each weighing several hundred pounds) so that Young would have to pick up the hogs. Young testified that he believed Schuster had done this deliberately and told Schuster that he refused to pick up the hogs. Schuster then chased Young around the gambrel table. This incident was reported to the supervisor, Chuck Piper. While no allegation was made that the incident was racially motivated, Piper did talk to Schuster that evening, but took no further action.
In addition, Young testified that other things were done to make Young's job more difficult. For instance, Schuster cut holes in the hog's legs too small so that when Young was assigned to putting hooks into the hog's legs, Young could not properly do his job. The harassment was so obvious to John Meserole and other employees in and around the gambrel table, that the employees made an arrangement among themselves to try to avoid as much contact between Schuster and Young as possible. Meserole also testified that the harassment had gotten to the point where he was very afraid to be away from the gambrel table when Hintgen and Young were both together. He was not surprised that an incident occurred when he was taken to the Personnel Office for disciplinary action.
Young testified that prior to May 18, 1995, the harassment was not overtly racial. Neither Schuster nor Hintgen used racially derogatory terminology directly to Young when they were yelling at him, nor did they make any other overtly racial comments. However, Meserole testified that a number of comments were made outside the presence of Young about the fact that Schuster and Hintgen did not like working with a "nigger".
The harassment culminated on the evening of May 18, 1995. Meserole had been taken off the kill floor and sent to the Personnel Office because he was caught using a radio while on duty. While Meserole was gone, Hintgen attacked and severely beat Young. Hintgen denied being the aggressor. However, the only eye witness to the incident other than Hintgen and Young testified that Hintgen was clearly the aggressor and Hintgen had little or no provocation for the attack. It is undisputed that Hintgen severely beat and kicked Young and used racially derogatory comments throughout the beating. Young received a number of injuries, including a smashed nose which had to be surgically repaired. Young incurred over $6,000 in medical bills and was advised by his physician not to return to work until after August 1, 1995. Young and Hintgen were both suspended on the evening of the fight and were both ultimately fired by FDL. Hintgen was subsequently prosecuted by Dubuque, Iowa, authorities and plead guilty to aggravated assault. One of the key issues raised by the defendant in this case was whether FDL was on notice of the racial harassment. It is undisputed that FDL has a policy which provides that any incidents of harassment can be reported to either the Personnel Office or any of the supervisors on the kill floor. It is also undisputed that Young did not report any harassment to either the Personnel Department or his supervisors at any time. Young testified that the reason he did not report the harassment was because he was a new employee, he needed his job very much, and he was very concerned that if his complaints became a credibility conflict between Mr. Young, a new employee, and Schuster and Hintgen, veteran employees, that FDL management would believe Schuster and Hintgen. Consequently, Young testified that he decided to just put up with the harassment and go about his business and try to do the job as best he could.
Young was actually fired on July 5, 1995. This date was prior to the date that Young was released by his doctor to return to work. It should be noted, however, that Young is not making a claim for wrongful termination. His lawsuit only claims racial harassment and seeks damages for lost wages only through the date of his termination. Arguably, Young could have sought damages for lost wages through the date when he was released by his doctor to return to work, sometime after August 1, 1995. However, he limited his claim to the time period from May 18, 1995, to July 5, 1995. FDL's only explanation as to why it fired both employees when Hintgen plead guilty to aggravated assault, is that FDL policy provides that anyone who is involved in a fight, regardless of who started the fight, must be fired.
Meserole did testify that he complained to supervisory personnel about Hintgen's and Schuster's harassment of Young. Meserole spoke to Chuck Piper, Meserole's and Young's immediate supervisor on the kill floor. Meserole testified that he told Piper that Young was being harassed, that the harassment was based on race, and that it was escalating to the point where violence could result. Piper, who is no longer employed at FDL, could not be located and was unavailable at trial to confirm or deny the testimony of Meserole. It is undisputed that Piper took no action as a result of Meserole's complaints.
Jim Liebold also corroborated Meserole's testimony about receiving notice of racial harassment. Liebold was Piper's supervisor and foreman for the hog kill. Liebold was also told by Meserole that Young was being harassed and that Schuster and Hintgen were using the "N word" in connection with Young. Liebold testified that he took no action on the complaints because it was "just hearsay." FDL attempted to try to show that the notice to Liebold may have occurred on or after May 18, 1995. To some extent Liebold equivocated on that issue. However, based upon all the evidence, it is more probable that the notice occurred prior to May 18, 1995, and the jury was certainly free to reach that conclusion based upon all of the evidence and testimony, including Liebold's testimony.
Kenneth Kimbro, previously the personnel manager for FDL, testified about FDL's non-discriminatory policies, reporting requirements, and his investigation of the altercation between Brian Young and Gary Hintgen. As previously indicated, Mr. Kimbro testified that FDL had a policy of non-discrimination, and that any incidents of harassment could be reported to either the Personnel Office or any of the supervisors. Kimbro went on to testify that had harassment been reported to either Piper or Liebold, the harassment should have been investigated. Kimbro also testified that it made no difference as to who reported the harassment, that is, whether it was reported by the victim of the harassment or a co-employee.
In summary, the jury could reasonably have concluded, based upon all the evidence in this case, that Brian Young was the victim of severe and pervasive harassment which was based on his race, that the harassment was reported to at least two supervisors, Chuck Piper and Jim Liebold, and that those supervisors failed to take any action or make any investigation into the harassment. The jury could also conclude that the harassment culminated in Young being severely beaten and injured by Gary Hintgen, and that there were resulting damages for medical expenses, lost wages, pain and suffering, and emotional distress. Based on all the evidence, again, viewed in the light most favorable to the plaintiff, there is more than sufficient evidence to submit the case to the jury, and the motion for judgment as a matter of law was properly denied.
Faragher and Burlington Industries Instruction
FDL tendered a proposed jury instruction based on the Faragher and Burlington Industries decisions from the United States Supreme Court, supra . Essentially, that instruction would have directed the jury to find for the defendant if Young unreasonably failed to take advantage of any preventive or corrective opportunities provided to him by FDL. The Court understands the thrust of this instruction to be that the verdict must be returned for the defendant if Young did not personally report the harassment to either the Personnel Department or one of the supervisors under FDL anti-discrimination policy. It is the Court's understanding that FDL believes Young's failure to personally complain about the harassment bars his recovery in this case.
Again, the Court is concerned about the procedural framework in which this issue was raised. The failure to properly instruct is raised in the context of a motion for judgment as a matter of law, or, in the alternative, remittitur, instead of a motion for a new trial. Beyond that issue, however, the Court continues to believe that the position as advocated by FDL is wrong for several substantive reasons.
First, it should be noted that this is a co-employee harassment case. The Eighth Circuit Court of Appeals has recently held in a co-employee harassment case that the burden remains upon the plaintiff to show that the employer knew or should have known of the harassment. Bailey v. Runyon , 167 F.3d 466, 468 (8th Cir. 1999). Consequently, this case is not governed by Faragher or Burlington Industries . The jury instructions that the Court gave at trial put the burden on Young to prove by a preponderance of the evidence that FDL knew of the harassment. Unlike Faragher and Burlington Industries where the Supreme Court imposed liability on employers for supervisory harassment even in those cases where the employer may not have know of the harassment, the plaintiff still carries the burden to inform the employer in co-employee harassment cases. The quid pro quo for the Supreme Court's absolute supervisory liability is the availability of the affirmative defense the employer can assert to show that it had a policy in place of which the employee failed to take advantage.
In this case, FDL seems to be arguing that even if two supervisors, Chuck Piper and Jim Liebold, had actual knowledge of the harassment and failed to take corrective action, that FDL could still escape liability because Brian Young did not personally comply with the letter of the FDL policy. The Court continues to believe FDL misstates the law. In those cases of co-employee harassment, the burden remains with the plaintiff to show the employer knew or should have known of the harassment and failed to take corrective action. Therefore, the Faragher and Burlington Industries affirmative defense does not apply.
Secondly, the evidence of this case does not support the giving of the Faragher and Burlington Industries instruction. The plaintiff's case was premised upon the defendant having actual knowledge of the harassment through the complaints made by John Meserole to Chuck Piper and Jim Liebold. The defendant's own Personnel Director testified that one of the proper methods to lodge a complaint under the anti-discrimination policy of FDL was to inform a supervisor. Mr. Kimbro also testified that it made no difference as to whether the complaint was made by the victim of the harassment or a co-employee. Consequently, if the jury concluded that Meserole testified truthfully and the complaints were actually made, which it had to conclude to find liability on the part of FDL, then there would be no basis to give the instruction on the affirmative defense since Mr. Kimbro's testimony shows that the policy was followed.
Finally, FDL received substantially all of what it requested in Instruction Number 15. In that instruction, the Court instructed the jury as follows:
In determining whether FDL knew or should have know of the alleged harassment and failed to take appropriate remedial action, you may consider FDL's policies and available means of registering complaints of harassment, and whether the Plaintiff took advantage of these means to make FDL aware of the alleged harassment.In light of Kimbro's testimony, one can make the case that FDL received more than the bare minimum required by law by this instruction. This instruction advised the jury that it could consider whether the plaintiff personally took advantage of FDL's policies in determining whether FDL was aware or should have been aware of the harassment. Consequently, FDL probably received a more favorable instruction than it was entitled to under the circumstances in this case.
Exclusivity of Iowa Workers' Compensation Act
FDL raised as a late issue in this case, the exclusivity of the Iowa Workers' Compensation Act. Specifically, FDL argues that the plaintiff is barred from recovering damages because he failed to make and pursue a workers' compensation claim in this case. This Court continues to believe that the Iowa Workers' Compensation Act does not provide an exclusive remedy to employees who are the victim of racial harassment. The facts of Ottumwa Housing Auth. V. State Farm Fire Cas. Co . , 495 N.W.2d 723, 729 (Iowa 1993) are substantially similar to this case. In Ottumwa Housing , the Iowa Supreme Court approved of a plaintiff who had passed up workers' compensation in favor of a Title VII claim in federal court. This Court concludes that the Iowa Supreme Court holds that the Workers' Compensation Act is not the exclusive remedy in connection with a case in which the employee was also seeking Title VII relief in federal court.
If the Court were to pursue this issue further, there would have to be a number of factual disputes resolved. During argument on this issue at trial, the Court was advised that the plaintiff did make inquiry to FDL as to whether he was covered by any insurance or workers' compensation. He specifically asked if there was any way FDL could pay his medical bills. The plaintiff claims that he was told that this was a non-covered injury, and FDL would not pay any workers' compensation because the plaintiff was involved in a fight. Apparently, the plaintiff did not pursue the matter further. Those statements were not taken under oath, were not subject to cross examination, and were not subject to any rebuttal by FDL. Consequently, the Court cannot conclude as a factual matter that a claim for workers' compensation was made to FDL and denied. However, if, a claim was in fact made to FDL and denied, it would be somewhat disingenuous for FDL to now come in and claim that the plaintiff was also barred from recovery because he failed to pursue that claim more aggressively. At trial, FDL also indicated that it now takes the position that Young's injury is a covered injury, but the plaintiff could no longer recover any benefits under workers' compensation because the statute of limitations had run. A subsequent hearing would also have to address the issue of FDL's duties under the workers' compensation statute to affirmatively pay medical bills of an injured employee even without a claim, if it is now as clear as FDL indicates that Young suffered a covered injury.
Evidentiary Issues
The defendant objects to certain portions of John Meserole's testimony and the Court's decision to allow Karen Young to testify. For all the reasons previously stated on the record, including the statements made at the Final Pretrial Conference, this Court continues to believe that those evidentiary rulings were correct and denies the motion for judgment as a matter of law.
E. Damages and Remittitur
The defendant argues that the plaintiff should not be allowed to receive damages for lost wages from the date of the fight until his termination on July 5, 1995. FDL argues that no wages should be awarded because the plaintiff was "engaged" in the fight. However, the issue of who was the aggressor in the fight and whether the fight was the result of the racial harassment is clearly a jury issue. The testimony is uncontradicted that Young's doctor did not authorize him to return to any employment until after July 5, 1995. Consequently, Mr. Young was off work from May 18, 1995, to July 5, 1995, both because of his suspension and the injuries he suffered in the fight. Under the circumstances, the jury was clearly entitled to award damages for lost wages during the period of the plaintiff's employment with FDL when he was unable to work because of his injuries.
Finally, FDL requests remittitur. It is the Court's understanding that the remittitur is based upon two theories. First, FDL argues that certain items of damage, specifically, lost wages, medical expenses, and pain and suffering were compensable under workers' compensation and, therefore, should be remitted. The second basis is that the award of $30,000 for emotional distress damages is excessive. The workers' compensation issue has already been discussed. The Iowa Workers' Compensation Act does not bar recovery and does not require remittitur.
As to the second issue, the Court has carefully considered all of the evidence in this case and finds that the award in this case was not the result of undue passion or prejudice, and was certainly reasonable under all the circumstances. The plaintiff incurred more than $6,000 in medical expenses and was off work for several months. The $20,000 for pain and suffering is clearly a reasonable award in a case in which the total out-of-pocket expenses are over $11,000. In addition, $30,000 of emotion distress damages is not excessive given the severity of the harassment and the emotional distress suffered by the plaintiff after the severe beating he sustained in this case. Consequently, the Court does not believe that there is any reason to disturb the verdict in this case, and will not, therefore, order a remittitur.
ORDER
For the foregoing reasons, FDL's motion for judgment as a matter of law is DENIED.
FDL's motion for remittitur is also DENIED.