Burton v. Zwicker & Associates, PSC
978 F. Supp. 2d 759
E.D. Ky.2013Background
- Burton sued Zwicker & Associates for race discrimination, hostile work environment, retaliation under KCRA and several common-law claims; trial began April 22, 2013.
- Zwicker moved for directed verdict; the court granted on several claims but denied on KCRA claims and public-policy tort claim.
- Jury returned a unanimous verdict for Burton on all counts, awarding $300,000 back pay, $50,000 emotional distress, $50,000 emotional distress for hostile environment, and $600,000 punitive damages, with judgment of $1,000,000.
- Post-trial motions were filed: Burton sought reinstatement and interim front pay; Zwicker sought JMOL, remittitur/new trial, and relief from judgment under Rule 60(b)(3).
- Court found no evidence supporting a front-pay instruction; Burton’s reinstatement request denied and front pay denied; remittitur/new trial granted in part and denied in part; Rule 60(b)(3) relief denied; amended judgment later entered.
- Judgment amended to Burton for $750,000 against Zwicker, with post-judgment interest 0.12%, and Zwicker’s prior judgment was set aside.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reinstatement vs. front pay eligibility | Burton requested reinstatement if front pay not awarded; front pay was speculative. | Remedies are alternative; front pay not supported by evidence; reinstatement not required. | Denied reinstatement and interim front pay. |
| Sufficiency of evidence for KCRA and public policy claims | Sufficient evidence supported discrimination, hostile environment, and retaliation; public-policy claim supported by perjury refusal. | Insufficient evidence for JMOL on KCRA and public policy; no perjury basis. | Denied Zwicker’s JMOL on KCRA and public policy. |
| Remittitur and new trial on damages and conduct arguments | Damages were properly supported; no basis for new trial; punitive award justified. | Damages excessive; new trial warranted due to prejudice and evidentiary issues; punitive ratio is suspect. | Remittitur denied for back pay and emotional distress; punitive damages reduced to 350,000 (1:1 ratio). |
| Rule 60(b)(3) relief for alleged fraud on court | Burton’s testimony cannot be deemed fraud; no new information; decision should stand. | Trial testimony alleged to be false via affidavits; relief appropriate. | Rule 60(b)(3) relief denied. |
Key Cases Cited
- Arban v. Western Pub. Corp., 345 F.3d 390 (6th Cir. 2003) (front pay data required to compute an award; mitigation considerations)
- Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir. 2001) (front pay award premised on calculable data)
- Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000) (standard for per se review of directed verdict-like claims)
- Henry v. Delta Air Lines, Inc., No. 2:10-CV-00009-WOB, 2011 WL 3444089 (E.D. Ky. 2011) (public-policy termination claims require illegal or policy-contrary reasons)
- Cotton, Ne. Health Mgmt., Inc. v. Cotton, 56 S.W.3d 440 (Ky. Ct. App. 2001) (jury verdict upheld for termination for refusal to commit perjury)
- State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (three guideposts for punitive damages: reprehensibility, ratio, comparability)
- Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470 (6th Cir. 2007) (reductive considerations for punitive damages when only one factor is present)
- Bach v. First Union Nat. Bank, 486 F.3d 150 (6th Cir. 2007) (1:1 ratio may be outer constitutional limit when damages substantial)
- Gore v. BMW of N. Am., Inc., 517 U.S. 559 (1996) (guideposts for punitive damages; no strict ratio rule)
- Hance v. Norfolk S. Ry. Co., 571 F.3d 511 (6th Cir. 2009) (burden on employer to show mitigation after damages established)