*1 III. CONCLUSION court agree with the district
We grounds limitations on statute of
dismissal Louisiana the district
entered final, prejudice, and constituted with judicata res adjudication the merits for on law.
purposes under Louisiana judgment the district
Accordingly, the
court is affirmed. KIM, Appellant/Cross-appellee,
Jin Ku COMPANY, FINCH
NASH
Appellee/Cross-
appellant. 95-2012, 95-2074.
Nos. Appeals, Court of States
United
Eighth Circuit. Dec. 1995.
Submitted Aug.
Decided
Rehearing Nov. Denied *6 BEAM, and McMILLIAN Circuit
Before PERRY,* Judge. District Judges, and * souri, sitting by designation. Perry, D. United States Catherine The Honorable Judge of Mis- Eastern District for the District
McMILLIAN, “superior” “outstanding” annual Judge. ceived or Circuit performance evaluations. judgment final appeals from a Ku Kim Jin North- position in District Court1 shipping entered foreman became Iowa, jury verdict, upon a April ern District of in vacant in November 1990 and and finding vacancies, in his favor in applied Kim but each both employment discrimination case Co. in his promoted instance Nash Finch someone else. reducing amount of award- but promoted The individual in November 1990 reversal, by jury. For Kim ed white, Kim, younger had was than less than denying his motion the district court erred leadman, experience year’s as a had been pleadings to conform to to amend the Kim, by trained and had no formal education 15(b) and in evidence under Fed.R.Civ.P. high beyond promot- The individual school. cap, 42 applying the Title U.S.C. VII white, April younger than ed 1992 was 1981a(b)(3), compensatory pu- to limit Kim, had not in the warehouse for 10 worked damages. cross-appeal, On Nash nitive Kim, years, had and had no been trained the district court erred hold- beyond high formal education school. In (1) unlawfully he ing Kim’s claim that college graduate comparison, Kim leadman to foreman denied a shipping depart- leadman in the senior was actionable under November 1990 ment. Nash Finch Kim that he had not told (2) there was sufficient evi- inability promoted his been because of discrimination, (3) dence of intentional there manhours, aggres- lack of control costs (4) retaliation, was sufficient siveness, crews, difficulty controlling large of malice or there sufficient evidence objected poor temperament. Kim When support punitive reckless indifference being passed promotion, the over for Nash (5) awarding damages, and verdict compliance officer advised Kim Finch EEO wages compensatory lost lawyer. complaint to file a consult supported sufficient evi- damages was May filed an discrimi- alternative, or, in exces- was not dence charge against nation with the below, For the reasons discussed we sive. Rights Iowa Human Commission and the court. judgment of the district affirm Equal Employment Opportunity Commis- BACKGROUND FACTS sion, unlawfully alleging Nash Finch failed to Finch is a wholesale retail food promote April him in November 1990 and in *7 Kim, an citi- In 1978 American distributor. race, origin 1992 on the national basis and began ancestry, working as a of Korean zen age. Rapids picker in Nash Finch’s Cedar grocery Kim, According immediately after he superintendent runs A warehouse. charge employment discrimination in filed his During period of time at warehouse. May systematical- began to Nash Finch superin- was the warehouse issue Bill Mund ly against example, retaliate him. For departments— The four warehouse tendent. assigned supervisors longer Kim no maintenance, trans- receiving, shipping, and foreman, shipping gave fill him in by a supervised salaried portation each —are evaluations, performance orally lower much By Kim was one “foreman.” October (toward poor him “attitude” warned about his hourly “leadmen” who assisted the of six unwilling him management), characterized as foreman; Kim shipping also acted warehouse job responsibility when he to assume more Saturdays and filled shipping foreman on as Sunday shipping assignment, crew declined was absent. shipping in foreman when placed him under constant surveillance employ- department has 80-90 shipping The work, meetings him and excluded ees; upof shipping crew can consist the full Sep- however, work. Nash Finch miseharacterized Saturdays, employees; on to 70 smaller, involving Kim and an- tember incident about 25-40 em- shipping crew race-based, employee gave as Kim a years, Kim re- other ployees. For more than Judge, Meiloy, District Iowa. J. Chief 1. The Honorable Michael the Northern District Court for United States 2000e-3(a). incident, sought pay, pro- Kim and back reprimand about the written per- relief, placed reprimand in Kim’s equitable the written and com- motion and other alleged file. Kim Nash Finch fabri- sonnel pensatory punitive damages, as well as and in order cated the race basis incident costs, attorney’s including expert fees and rights him the local civil to discredit when witness fees. (Kim’s) em- investigating his commission summary Nash Finch filed a motion for charge. In ployment discrimination Novem- asserting Kim judgment, had been involving a after incident ber another transportation no promoted because he had manage- meeting co-worker and another with relatively of his weak experience and because ment, rep- Kim a written issued management skills. The district de- During rimand the incident. the sum- about summary judgment and nied the motion its mer and fall of Nash Finch reviewed September ease tried to a in 1994 the operations of a with the assistance warehouse jury. At that he never trial Mund testified regarded and it consultant discovered what seriously promotion be- considered Kim productivity problems, particularly with as personal loyalty Kim lacked him cause crew, Saturday respect shipping to the which (Mund). Kim, his and his son testified wife required Kim to supervised, Kim and attend improve physically how Kim had suffered and special retraining pro- in order to about Saturdays. regarded emotionally Kim this ductivity on from his adverse treatment special retraining humiliating and developed as high Kim blood Nash Finch. leadman, seniority light in as a of his status pressure headaches from and and stress be- experience. and anxious, depressed; came withdrawn and he difficulty sleeping and had felt humiliated
Kim work for Nash Finch and continues to at work. demoted, and ostracized discharged, has reduced not been however, reassigned; compensation, in as verdicts, special jury In found Nash above, he oral and written noted has received against Kim on the Finch had discriminated reprimands required and to attend has been promote in age failing of race but not basis retraining. Appellee/ Brief special in shipping him to foreman November Cross-Appellant at 1. against April in had retaliated DISTRICT COURT PROCEEDINGS filing employment him for right-to- $15,000 Kim received charges. November in awarded this federal sue letter and filed lawsuit $100,000 wages and benefits and non- lost alleged In count I Kim district court. (for economic emotional distress unlawfully discriminated life) enjoyment loss for the 1990 race, color, ori- national him on the basis of claim, $21,000 wages promotion lost him to gin, age promote when it failed to $150,000 in non-economic dam- benefits and April position shipping foreman claim, ages for the 1992 $1.5 Title Civil VII violation re- million in for the non-economic (Title VII), amended, Rights Act of 1964 *8 Finally, jury the claim. awarded taliation 2000e, Age § the Discrimina- 42 U.S.C. damages. The punitive million in Kim $7 (ADEA), as amend- Employment in Act tion permitted jury the to award special verdict seq. 621 et ed, § In count II Kim 29 U.S.C. pro- either the 1992 punitive for unlawfully Finch discrimi- alleged that Nash parties claim. Both motion or the retaliation color, race, of against him on the basis nated post-trial filed motions. age it failed to origin, and when national Finch’s mo- The district court denied Nash shipping fore- position him to of promote the or, law in judgment a matter of for as tion 42 1990 in violation of man in November trial, alternative, reduced the for new the alleged Kim § In count III 1981.2 U.S.C. award, part in Kim’s mo- granted unlawfully against retaliated that Nash Finch (for promotion to relief equitable tion for filing employment an discrimination him for and front VII, when available shipping 42 foreman U.S.C. charge in violation of Title 18, 1990, and two-year to-promote November occurred on the This not barred 2. claim was Ann. complaint under Iowa Code 1992. statute of limitations § on November the filed (West 614.1(2) Supp.1997) because the failure- 1054 per month), ages Id. 1056 denied award for excessiveness.
pay at
rate
the
$447
interest,
$300,000
not
prejudgment
(noting
nonetheless that
Kim’s motion
attorney’s
granted
fees and
in
discrimina-
Kim’s motion
excessive
view duration of
judgment accordingly.
tion,
expenses, and entered
of retaliation and financial well-
level
C92-
appeal
No.
being
employer).3
Jin Ku Kim v. Nash
This
cross-
1995)
(N.D.Iowa
(opinion
Apr.
0204
appeal followed.
order).
court held the evidence
The district
§ 1981 CLAIM —1990 PRO-
ACTIONABLE
jury’s
support
finding
to
the
was sufficient
MOTION
intentionally
Nash Finch had
discrimi-
that
district court erred
Nash Finch
race,
color
against Kim on
basis
nated
denying
judgment
motion for
its
promote
it
to
origin when
failed
or national
promotion
claim.
matter of law on
1990
April
1992.
him in
1990 and
November
promotion
Nash Finch
the 1990
claim
The
Slip op. at 1052-53.
district
also
§
42
1981
is not actionable under
U.S.C.
support
was sufficient to
held the evidence
promotion
from leadman
fore-
because
finding
retali-
jury’s
that Nash Finch had
significant change
man did not involve a
filing
employment
Kim for
ated
duties, compensation
responsibility. We
or
Id.
charge.
at 1053-55. The
disagree.
also
that the evidence was
district court
held
support
jury’s finding
sufficient
Union,
In
v. McLean Credit
491
Patterson
had acted with malice or reckless
164, 176-77,
2372-
federally protected
Kim’s
indifference
(1989) (Patter
2375-76,
105 L.Ed.2d
filing
against for
right not to
retaliated
be
son),
Supreme
held
Court
U.S.C.
complaint. Id.
rights
at 1055-56.
civil
§
in the
prohibited racial discrimination
below,
employment
of an
contract but did
parties disputed
As discussed
formation
“problems
may
arise later
apply
and retaliation
the 1992
whether
continuing employ
under both Title VII
the conditions of
were submitted
claims
ment,”
is,
only
in the
§
Title VII. The
relation
and U.S.C.
Patterson,
any
ship. After
held that
that Kim had waived
courts
court found
district
brought
discriminatory discharge
alleging
had been
claims
these claims
argument that
brought
E.g.,
§
could
under
did not
not be
both statutes
County
special Taggart
Support
jury instructions
Child
object to the
Jefferson
Unit,
pro-
the 1992
forms which submitted
verdict
Enforcement
Cir.1991) (banc). Congress
under Title VII
later enacted the
claims
and retaliation
motion
Rights
part
§
Id.
Civil
Act of 1991
correct
referring
without
to U.S.C.
object
regarded as
what it
the Court’s erroneous
(noting plaintiff failed to
instructions).
scope
construction of the
court also held
district
101(2)(b)
Act,
cap
statutory damages
in Patterson.
VII
the Title
1981(b),
Congress
limiting the
for non- U.S.C.
redefined
award
applied, thus
specifical
punitive damages
term “make and enforce contracts”
damages and
economic
$300,000.
making, performance, mod
ly
Id.
“the
include
claims to maximum
those
contracts,
ification,
$150,000
termination
(jury
at 1057
awarded
benefits,
enjoyment
privileges,
re-
of all
million for the
promotion claim and $1.5
terms, and conditions
the contractual rela
dam-
and million
taliation claim
$7
tionship.”
Act became effective on
The 1991
disputed that Nash
ages;
it
*9
However,
21,
v.
Rivers
employees; see 42
November
500
more than
has
Inc.,
298,
Express,
114
1981a(b)(4)
Roadway
com-
511 U.S.
($300,000
for
maximum
(1994),
1510,
274
the Su
dis- S.Ct.
128 L.Ed.2d
damages)). The
pensatory
and
§ 101
be
preme
held that
should not
punitive dam-
Court
not
the
court
review
trict
did
claims).
district court also or-
jury
The
to a
retaliation
verdict
The district court reduced
($447
month),
$100,-
promotion
$421,000 ($21,000
pay
per
to
wages,
front
dered
for lost
of
total
position (plus seniori-
pro-
available foreman
the next
for
compensatory
fees,
1990), attorney’s
motion,
$300,000
costs
pu-
ty from November
compensatory and
and
post-judgment
expenses, and
interest.
and
promotion and the
for the 1992
nitive
pre-
involving
or
not
a
increase in
retroactively
pending
to
cases
substantial
status
applied
reason,
promotion
conduct. For this
Patter
in-
responsibility.”
enactment
Id. The
applies
Act
to the 1990
and not the 1991
change
son
supervisory
volved a
from limited
it occurred before November
claim because
authority
employees
duties and limited
over
21, 1991,
of
the effective date
the 1991 Act.
supervisory
greater
to
duties and
additional
compensa-
authority,
hourly
from
to salaried
pro
a
held that the denial of
Patterson
tion,
non-management manage-
and from
to
motion is not actionable
unless
status,
an
oppor ment
as
as
increase
promotion
pay
an
well
“the
rises to
level of
tunity
change
position
for a new and distinct relation between
and
of
in the
a
chain of
employee
employer.” 491
and the
U.S.
authority.
many
posi-
There were
leadman
185,
2377, citing Hishon v.
109 S.Ct. at
(six
alone)
shipping department
tions
in the
King
Spalding,
&
only
positions,
but
four foreman
each
(1984)
(challenging
support the
Burdine,
256,
against Kim.
intentionally
at
at 1095.
discriminated
U.S.
S.Ct.
has
plaintiff can establish that he or she
The
analysis applicable to Title VII
The
the victim of intentional discrimination
been
§ 1981
and 42
disparate treatment
directly by persuading
[trier
“either
the
familiar
cases is the
claims
likely
discriminatory
that a
reason more
fact]
initially
three-part
set out
framework
indirectly by
employer or
motivated the
Green,
Corp.
Douglas
U.S.
McDonnell
v.
proffered expla-
showing
employer’s
that the
1823-26,
1817,
792, 800-06,
93 S.Ct.
(McDonnell
unworthy
nation is
of credence.” Id
(1973)
Douglas),
L.Ed.2d 668
cases,
Supreme
further
Court
refined
of the reasons
The factfinder’s disbelief
Mary’s
v.
recently
Honor Center
most
St.
by
(particularly
put forward
the defendant’
2742,
Hicks,
502, 113
S.Ct.
509 U.S.
by suspicion of
accompanied
if
a
disbelief is
(1993) (Hicks).
re
This court
L.Ed.2d 407
mendacity)
together
ele-
may,
with the
analysis
Ryther
cently
the
clarified
case,
facie
prima
ments of the
suffice
(8th Cir.) (banc)
11,
KARE
Thus, re-
show intentional discrimination.
—
—,
denied,
(Ryther),
U.S.
cert.
jection
rea-
proffered
of the defendant’s
(1997).
The
at 836. Our
evidentiary
argued
is an
for the
were
basis
but
the successful candidates
whether there
jury’s
“[W]hen
Id. at 844-45.
that
that
qualified.
verdict.
There was evidence
better
apparent,
it
becomes
evidentiary
[is]
basis
relatively
qualified
pro-
Kim
better
for
was
might
a con
the court
draw
immaterial that
education, seniority and
motion in terms of
trary
that another conclu
feel
inference
supervisory experience than the successful
Kurn,
reasonable.” Lavender
sion is more
There
also evidence
candidates.
was
740,
653,
744,
645,
90 L.Ed.
S.Ct.
U.S.
jury
Nash
which the
could conclude that
(1946).
properly
issue
an
was
“Whether
managers
particularly cred-
Finch’s
were not
however,
question
a
jury,
legal
before the
initially
Kim that the 1990
ible. Mund
told
Kimzey
de novo.”
v. Wal-
which is reviewed
a
level
higher
had been made at
Inc.,
(8th
568,
Stores,
107 F.3d
Mart
though
even
Mund had made the decision
omitted).
Cir.1997) (citation
Kim
he had
himself. Mund then told
that
light
in the
reviewed the evidence
quali-
We have
he
not
promoted
not been
because was
prevailing par
to Klimas
most favorable
However,
testified at trial
fied.
Mund
all
ty,
conflicts
the evidence
assumed
seriously
pro-
Kim for
he never
considered
favor,
were
his
assumed as
resolved
personal loyalty
Kim lacked
motion because
proved
that his evidence tended to
all facts
(Mund).
himto
all rea
prove,
given him the benefit of
challenged
The
evidence
may reasonably
sonable inferences that
be
nondiscriminatory rea
Finch’s articulated
proved.
We hold the
drawn from
facts
promoting
supported
for
Kim and
sons
not
specifically, the combina
record as a whole—
unlawful
reasonable inference that
discrimi
undisputed evidence as to the
tion of the
motivating reason
nation was a
for
prima facie
and the
case
elements
promote
Finch’s
Kim. This evi
failure
strong
proffered
Finch’s
that Nash
evidence
permit
jury to
dence was sufficient to
false, which, when considered
reason was
infer the ultimate
of intentional discrimi
fact
strong
evidence
retaliation—
with the
Hicks,
at
nation.
U.S.
clearly
as a mat
sufficient evidence
provided
2749;
This is
Ryther, 108 F.3d
836-37.
find Nash
ter of
to allow the
law
legitimate
all
for re
because “when
reasons
intentionally
discriminated
jecting
applicant
eliminated as
have been
failing
promote
Kim on
of race in
the basis
actions, it
possible
employer’s
for
reasons
logical
him.
reasonable inference is
This
likely
employer,
we
is more
than not the
who
application to the evidence of
result
generally
only with
rea
assume acts
some
analytical frame
Douglas
the McDonnell
sons,
impermissible
decision on an
[its]
based
of the burden
work for the allocation
race.”
Con
consideration such as
Furnco
the presentation
production and
order
Waters,
567, 577,
Corp. struction
proof.
(1978).
other had no job-related tasks, reasonably with may be drawn from tance denial enees that benefits). hold proved. disability the record as the facts We pri- the elements of the specifically, whole— post-May Nash defended its showing ma facie case legitimate, continuing as a 1992 actions “dia proffered Finch’s reason false— logue” employee manage an between rea- provided a sufficient basis from which company ment about adherence work jurors could find that Nash Finch sonable respect company equal employ rules filing employ- Kim for an retaliated However, opportunity policies. ment charge. permissi- This ment discrimination produced negative evidence that refuted logical appli- is ble inference result personnel file, reports including in his evi cation to the evidence the McDonnell “papered” that Nash Finch had his dence Douglas analytical framework for alloca- negative reports. with personnel file Some production tion of the burden of and the negative reports petty involved presentation proof. order for the incidents; however, insignificant some of the Filing negative reports supported Nash Finch’s VII, activity charge protected Title ability management claim that Kim lacked 2000e-3(a). 704(a), *15 opportunities and had refused for additional May in 1992 that Kim filed Finch knew had responsibility. seriously, supervisory More employment charge. In an above, as noted there was evidence that the fact, justified Finch Nash disclosure of Kim’s reports September initial about the 1992inci file, report a a personnel which contained any dent did not include reference to racial on disciplinary action based a race-related However, in discrimination. November incident, response part of its to local as the letter, requested right-to-sue Kim had a after rights investigation. Kim civil commission management high repri senior issued a written performance evaluations had received disciplinary September to problems. and had had no How mand Kim about the 1992 inci ever, Kim filed the dis reprimand specifically after dent. This written de charge, Saturday crimination his and fill-in racial scribed the context the incident immediately shipping were foreman duties company stated that the would not tolerate eliminated, markedly to began he receive discrimination which would be in violation of evaluations, orally performance he lower proba that had Title VII and Kim’s actions a man poor attitude toward cautioned about bly rights. his violated co-worker’s civil placed agement, he was under surveillance jury reasonably that could have found Nash work, meetings at he was and excluded reprimand in placed the Kim’s written September disciplined following a inci personnel file in to discredit Kim when order in Kim had found dent which rights the local civil commission investi co-worker, a in made racial slurs charge. gating employment discrimination his required participate in late he was to did There was also evidence Nash Finch training. This special circumstan remedial way dispute in the same a similar not handle employer was the aware tial evidence—that assignments involving the work same about activity protected and that adverse and another foreman a com co-worker protected the employment action “followed by another plaint about sexual harassment activity closely justify in time to an as so involving employee. the incident Unlike retaliatory suffi motive” —was inference Kim, did not result written these incidents requisite the causal connec cient establish reprimands. activity protected and the tion between sum, we hold the evidence as whole— Rath v. employment action. Selec adverse employer’s proffered rea- evidence that Research, Inc., 1087, 1090 978 F.2d tion false, es- as well as the evidence sons were Kobrin, 704; Cir.1992); see 34 F.3d cf. tablishing prima facie the elements Anheuser-Busch, Barge v. jury to permit case—was sufficient (holding plaintiff prima failed make 259-60 retaliation. Consis- the ultimate fact of find produced retaliation because she facie case of Hicks, additional evidence tent with no connecting prior her EEOC no evidence required. The evidence harassment, retaliation was alleged denial of assis- claim to VII, ages specifically available under Title presented inconsistent inferences case this conflicting- this jury, resolution of provides “[n]othing and the shall this section jury to matter for the resolve. of, was a evidence scope be to limit the construed denying did not err court The district under, section 1981 of this relief available judgment as mat- Nash Finch’s motion 1981a(b)(4); § title.” 42 U.S.C. see Johnson retaliation claim. law on the ter of District, F.Supp. Metropolitan Sewer PLEADINGS OF (E.D.Mo.1996), AMENDMENT citing West v. Boe ing nn. F.Supp. 399-401 & principal ap- contention This is Kim’s on (D.Kan.1994) (reviewing legislative & 7 histo district abused peal. Kim 1981a(a)(1) ry expanding remedies denying his motion to amend its discretion pleadings to conform to available under Title VII intentional dis bis 15(b) by adding crimination); Reynolds under Fed.R.Civ.P. Commu Octel cf. theory recovery 1981 as Corp., F.Supp. nications and retaliation claims. the 1992 (N.D.Tex.1995) (holding recovery liq of both however, Finch, characterizes this is- punitive uidated under ADEA and issue and sue as instruction damages under Title be double VII would special verdict forms instructions conduct); recovery for same Bradshaw v. promotion and retaliation the 1992 submitted University System, F.Supp. Maine only. under Title VII claims (D.Me.1994) (holding plaintiff 407-08 argues the district court correct- race plead who could have did dis but object Kim’s ly failure concluded crimination claim under special verdict forms the instructions or bringing barred from Title VII race discrimi any argument 51 waived Fed.R.Civ.P. for compensatory nation claim those should have been submitted claims 1981a). *16 by § damages jury § the under 1981 as well Title VII. to matter, and 1992 retalia As a do the threshold we not Whether (or actually have been agree argument by tion claims should this that Kim waived were) § jury to the under 1981 as submitted object failing to to the instructions the compen is critical because well as Title VII special The focus of verdict forms. Kim’s damages “capped” are satory punitive and jury argument not on the instructions or Thus, § not under 1981. Title but under VII (indeed, the special verdict forms themselves VII, compensatory and Kim’s under Title object grounds he had no to to $300,- limited punitive damages would be to jury special the or the instructions verdict 000, damages of could be the amount but correctly they ap the forms because stated (The jury § under 1981. greater much law), plicable but on the denial of his motion $8,650,000 of Kim a total for com awarded pleadings the to to to amend conform the damages for 1992 pensatory punitive and the Praprot City v. evidence. St. Louis Cf. claims.) retaliation This is promotion and nik, 119-20, 108 915, 112, U.S. 921- 485 S.Ct. 1981a(b)(3) § 42 statu U.S.C. —the (1988) 22, (holding L.Ed.2d failure 99 107 any cap the award of tory amount —limits object timely instructions no punitive damages Title and compensatory appellate legal obstacle to review of same intentional discrimination. VII claims for Cf. summary judg issue raised motions Inc., Stores, Kimzey 107 F.3d v. Wal-Mart verdict). and directed Motions to ment cap statutory to Title VII (applying at 575-76 pleadings conform the evi amend the anti-discriminatory but not to state claims 15(b) any under can be made at dence Rule claims); Corp., v. 912 Luciano Olsten time, judgment. after even If the issue of (E.D.N.Y.1996) (same), 663, F.Supp. 675 consent, liability § implied tried 1981 (2d Cir.1997).4 However, 210 aff’d, 110 F.3d the district court should have considered it statutory cap apply does not Title VII the pleadings have Act, raised should al claims; Rights 1991 § Civil 1981 upon request. Kim’s punitive dam lowed amendment compensatory and which made Com'n, rights Rights does allow for Union No. 238 v. Iowa Civil The Iowa civil statute Local 375, (Iowa 1986). punitive compensatory dam- but 394 N.W.2d 382-84 ages. E.g., Chauffeurs, Helpers, Teamsters
1063
par-
under Title VII
intentional
Amendments are allowed when
unpleaded
an
on
under
have had actual notice of
the basis
race
ties
given
adequate
Hicks,
§
and have been
509
at 506
issue
1981 are identical.
U.S.
any surprise resulting
opportunity to cure
1,
at 2747 n. 1. The
n.
113 S.Ct.
standard
And,
change
pleadings.
in the
damages is
Title
punitive
the same under
relating to issues outside
when evidence
1981a(b)(1) (malice
VII,
§
42
or reck
U.S.C.
tried with-
pleadings is introduced and
federally protected
less
indifference
objection,
parties
be deemed to
out
will
§
rights),
E.g.,
Kolstad v. Ameri
acquiesced.
402,
have
Ass’n,
U.S.App.D.C.
323
can Dental
108
Co.,
Armstrong
(1997)
570 F.2d
1431,
v.
Rubber
(holding
Nielson
F.3d
1437
standard
(8th Cir.1978) (citations omitted).
272, 275
damages under 42
proof
punitive
“merely
complaint
ampli-
previously
An amended
1981a is the same as that
estab
have
allegations
been
fies some
punitive damages
lished for
under 42 U.S.C.
proven”
Wade,
should be allowed. On
other
1983),citing
§§
v.
461
1981 and
Smith
hand, however,
is not re-
a district court
30,
1640,
U.S.
75 L.Ed.2d
grant motion
amend on
quired to
(§
(1983)
1983),
and Williamson
be rele-
basis of some evidence
would
Handy Button
Machine
if
to the
claim the same evidence
vant
new
(§
(7th Cir.1987)
1981). The
elements
pled.
originally
a claim
was also relevant to
claim
Title
retaliation
The introduction of such evidence does
Barge
same
See
VII are the
as well.
any
provide
“not
the defendant
notice” Anheuser-Busch,
F.3d at 259
being
claim
implied
tried.
Kobrin,
(§
claim);
F.3d at
retaliation
Plastics, Inc. v. American Presi
(Title
claim). However,
Gamma-10
VII retaliation
Lines, Ltd.,
dent
the two
there are still differences between
denied,
Cir.1994) (citations omitted), cert.
They are
in cover
statutes.
not co-extensive
L.Ed.2d
(for
age
example,
not cover all
Title VII does
(1995).
employers).
requires
Title VII
exhaustion of
remedies, and the statutes of
administrative
ease,
present
the same
importantly,
limitations are different. Most
theory
to the
of recov
evidence relevant
new
compensatory
theory
amount
ery—
relevant to the
1981—was
is limited under Title VII but
recovery originally pled
VII. This is
*17
—Title
§
because,
above, Title VII and
under
1981.
as discussed
substantially
parallel,
identi
§ 1981 set forth
of
have held that the admission
“We
cal,
recovery
alleg
in cases
legal theories of
bearing
pleaded
on
cannot
evidence
issue
in
ing intentional discrimination
Rule
for an amendment under
form the basis
particularly
This
so
basis of race.
on the
15(b)
plain
of
the
knew the
unless
defendant
Rights
the
enactment of
1991 Civil
after the
inject
unpleaded
tiffs intent to
the
issues.”
punitive
compensatory and
Act. Before
(8th
Prater,
30 F.3d
McLaurin
§ 1981 but not
damages were available under
Cir.1994).
present
In the
case there is no
things,
Among other
the
Title VII.
under
the
Kim intended
doubt
Rights
expanded the definition
Act
1991 Civil
support §
in
to Title VII be
addition
§in
1981 to
and
contracts”
of “make
enforce
alleged
complaint
that Nash
cause the
itself
employ
of
the terms and conditions
include
had
both Title VII
Finch’s conduct
violated
ment,
right
discharge,
the
including
added
(as
§
the ADEA and state
and
1981 well as
and,
VII,
importantly,
to Title
most
trial
law).
II,
failure-to-promote
I and
the
Counts
Title
VII
expanded the remedies available
counts,
stated,
broadly
parties
but the
are
compensatory
to include
plaintiffs
I as
court treated count
and the district
(for
mental
pain, suffering,
an
emotional
failure-to-promote vi
alleging
April 1992
the
etc.)
Compen
punitive damages.
and
guish,
(as
and
as the ADEA
olated Title VII
well
only
punitive
are
avail
satory and
law)
No
alleging
count II as
the
state
plaintiff
if
cannot
under Title VII
able
failure-to-promote violated
vember
§ 1981.
42 U.S.C.
under
recover
reta
alleged
§
III
1981. Count
1981a(a)(l).
alleg
claims
The elements of
§
filing against Kim for
administra-
of race
liated
on the basis
ing disparate treatment
opportunity
a fair
caption
I
amendment because it had
charge. The
and text Count
tive
VII;
caption
theory
recovery.
§
and text of
to Title
to defend
1981 as a
referred
expressly
§to
and to
that,
II referred
given
Count
the substantial
We are satisfied
(the
para-
by incorporation
first
Title VII
§
identity
Title
1981 as theories
VII
“repleaded”
para-
II
graph of count
recovery,
jury’s finding
of intentional
I; recovery
Title
under
VII
graphs of count
under Title VII also constitut
failure-to-promote
for the November
finding
un
ed a
of intentional discrimination
not file his
did
precluded
though
§
der
even
instructions
charge
days;
within 300
administrative
April
and retaliation
(within
years)
timely filed
complaint was
(as
damages in
claims
well as the
1981).
caption
§
purposes of
struction)
Thus,
§
we
did not refer to
alleged
III
retaliation
viola-
text of count
hold the district court abused its discretion
but,
expressly,
only
like
Title VII
tion of
denying
pleadings
the motion to amend
II,
previous para-
incorporated the
count
also
See, e.g.,
to conform to the evidence.
Gam
including the reference therein to
graphs,
Plastics,
ma-10
Inc. v. American President
complaint
allegations
§
in the
1981. The
Lines, Ltd.,
(holding
which,
the standard of
among other
recovery,
§
Because
1981 was a basis for
damages under Title VII
proof
punitive
cap
compensatory
puni-
the Title VII
on
and
discussed) that the district
§
was
and
apply.
tive
does not
We turn next
the mo-
and then denied
court reconsidered
damages arguments.
to Nash Finch’s
pleadings.
It would seem
tion to amend
COMPENSATORY DAMAGES
surprised by this turn
any party
that if
was
events,
argues
Kim.
there was no
of
it was
$21,000
support
in
evidence to
the award of
that, even
think the record shows
We
(lost wages).
argues
pay
Nash Finch
back
theory
recovery was
though §
of
1981 as
pay
in
between
Kim
that the difference
what
by
parties.
fairly tried
pleaded,
not
it was
would
paid as a leadman and what he
was
Moreover,
identity
because of
substantial
promoted
paid had he been
to
have been
§
theories of recov
of Title
1981 as
VII
discrimination,
was at most
Nash Finch
foreman
$1932.81.
ery
intentional
for claims of
paid
the salaries
to
by the
bases this calculation on
prejudiced
not
Nash Finch was
Airlines, Inc.,
to
Trans
660 F.2d
employees
promoted
were
World
who
the two
(8th Cir.1981)
position
shipping
(testimony
foreman in 1990 and
plaintiff
of
1272-73
of
to sup-
there was evidence
distress);
1992. We hold
about humiliation or mental
cf.
$21,
pay. Kim
port the award of
000 in back
Harleysville
Mardell v.
Insurance
Life
showing
the salaries
presented evidence
Cir.1994)
(3d
(violation
1221, 1232-33
31 F.3d
comparable employees
evidence that
employee rights frequently
sig
results
position,
pay
no
scale for the
there was
set
demoralizing
injury
dignity
nificant
to
number of
that Nash Finch considered a
self-esteem)
cases),
(citing
impairment of
va
salaries,
setting
that he had
facts
grounds,
cated
514 U.S.
on other
seniority
experience
and more
more
(1995);
traordinarily egregious”
The court
Nash Finch also
there
conduct.
support
puni
“[n]othing
insufficient evidence to
...
text
[of
held that
damages
Finch
tive
award. Nash
1981a(b)(1)]
heightened
§
that a
indicates
willfulness,
was no evidence of
malice
there
apply
meant
to Title VII
to
standard
federally pro
reckless indifference to the
or
220, citing
v. Anheu
at
Rowlett
cases.” Id.
others,
“exception
rights of
much less
tected
(1st
Inc.,
ser-Busch,
194,
832
205
Cir.
F.2d
of
bad motive that
al circumstances
unusual
1987)
damages under 42 U.S.C.
(punitive
ordinary
transcends
intentional misconduct.”
§
where defendant’s conduct
1981 available
most,
that,
there
at
by evil motive
involves reck
is motivated
or
only
of discrimination
circumstantial evidence
federally protected
less
indifference
consisting
explanations
of
“inconsistent
Mercy-Prov
v.
rights),
Sisters
Beauford
employment opportu
allocation of scarce
Detroit, Inc.,
1104, 1108-09
ince
816 F.2d
nity.” We hold that
there was sufficient
(6th Cir.) (same),
denied,
913,
cert.
484 U.S.
support
punitive damages
evidence to
259,
(1987),
98
217
108 S.Ct.
L.Ed.2d
award.
Wade,
55-56,
v.
461
at
Smith
U.S.
42
(punitive damages
at
under
1639-40
Based on the record as discussed
above,
§
1983 available under common law
could have found
reasonable
Finch
or
that Nash
acted with reckless indiffer
when conduct motivated
evil motive
federally protected rights.
Kim’s
ence to
or
intent or reckless
callous indifference
There was evidence that Nash
knew
others);
rights
federally protected
accord
employment prac
constituted
what
unlawful
Ass’n,
v. American Dental
108 F.3d
Kolstad
tices. There was also evidence that Nash
legisla
at
court
1437-39. The
also noted
systematically
retaliated
history
Congress intended
indicated that
tive
filing an employment
discrimination
punitive damages
under
make
available
charge
attempted
him
to discredit
§
same
under the
“to the
extent and
1981a
personnel
“papering” his
file. The intention
they
same standards
are available
promote
al discrimination at issue—failure
plaintiffs
§
42
110 F.3d
under U.S.C.
1981.”
disparate
and retaliation —involved
treat
(1991)
220, citing
Cong.
H9527
137
Rec.
ment,
disparate impact,
and was under
(statement
Edwards),
Rep.
H.R.Rep.
by supervisors management.
or
taken
“The
(1991),
40(II),
Cong.,
No.
102d
1st Sess.
outrageous
requisite level of recklessness or
reprinted
in 1991 U.S.C.C.A.N.
[required
support punitive
damages]
ness
reason,
we hold the district
For this
management’s partic
can be inferred from
correctly rejected
argument
Nash Finch’s
discriminatory
ipation
conduct.” Kim
something
Inc.,
must
plaintiff
Stores,
that a
demonstrate
zey v. Wal-Mart
107 F.3d at
required by
575,
statute to
citing
than that
Kientzy
Douglas
more
v. McDonnell
(8th
is,
Cir.1993).
damages,
punitive
Corp.,
F.2d
recover
“with
reckless
defendant acted
malice with
Direct evidence
intentional discrimination
rights
federally
required;
may
protected
to the
circumstantial evidence
indifference
States Postal Service
aggrieved
of an
individual.”
U.S.C. be sufficient. United
Aikens,
1981a(b)(l).5
Board
Governors v.
U.S.
puni
ing
really
disputed that
recovery
that it cannot
be
inten
decide
We need not
whether
"height
requires
“worthy
damages
Title
tive
under
VII
discrimination on basis of race is
tional
showing beyond
outrage”).
ened"
(that
intentional
v.
But see Varner National
of some
is,
based on dis
Mkts., Inc.,
(8th
intentional discrimination
Super
F.3d
Cir.
parate
opposed
disparate im
treatment
1996) (citing
approval
Virgi
v.
with
Pandazides
suggest
pact), although
that it
would
author
Educ.,
(4th
n. 9
Bd.
nia
1981a(d)(2) (defining
42 U.S.C.
does not. See
Cir.1994))
"heightened” showing
(construing
practice”
disparate
"discriminatory
to mean
necessary
punitive
to recover
under
disparate impact);
Rowlett
and not
treatment
cf.
—
denied,
—,
a(b)(1)),
cert.
Anheuser-Busch,
F.2d
205-06
(1997);
1067
Finally,
statutory cap
n.
the Because the Title
does not
n.
103
at 1481
VII
714
merely
more
apply
recovery
record contained
than
to limit the
under 42 U.S.C.
explanations for Nash Finch’s
of inconsistent
the district
should not have
is,
lied;
conduct,
had
that Nash Finch
damages
amount of
awarded
reduced the
(at
length), there
above
some
discussed
statutory
pursuant
cap.
VII
See
to the Title
Nash Finch had intention-
also evidence that
1981a(b)(4);
Johnson v. Metro
U.S.C.
ally
Kim on the bases
discriminated
District,
politan
F.Supp.
at 876.
Sewer
origin.
of
national
race or
Nonetheless,
the
we think
district court was
damages
of
the amount
correct
to reduce
EXCESSIVE VERDICT
by
jury
the amount was
awarded
the
Finally,
the verdict was
effect,
grossly excessive.
what the dis
grossly
it was
exces-
unreasonable because
remittitur, which
trict court did amounted to
grossly disproportionate
sive
kind
See,
we review for clear abuse of discretion.
wrong
damages.
of
the actual
Douglas Corp.,
Kientzy v.
e.g.,
McDonnell
$36,000
awarded
ascer
possible
F.2d
1062. It is not
at
pay
though the
in
for back
even
difference
$300,000
attribut
portion
tain what
of
is
$2,000,
wages
less
more than
actual
than
punitive damages,
compensatory or
so
able to
million for emotional distress even
$1.5
purposes
analysis
we will assume
though
Kim
to work and lead
continued
punitive damages.
the entire amount was
life,
punitive
normal
and million
dam-
$7
3,500
ages, an amount which is
times
carefully reviewing the evi
After
$2,000
half of Nash
actual loss
and almost
dence,
that, although
conclude
an award
we
earnings.
Appellee/
annual
Brief for
Finch’s
million for emotional distress is
$1.75
48;
Cross-appellant
Reply
Appel-
at
Brief for
excessive,
$100,000
grossly
an award of
is
Cross-appellant
(citing
Plaintiffs
at
lee/
Stores, Inc.,
Kimzey
not. See
v. Wal-Mart
2).
Ex.
at26
($35,000);
F.3d
Turic v.
at 570
Holland
Inc.,
applied
the district court
Title
Because
Hospitality,
(listing
F.3d at 1215-16
statutory cap, the district court limited
VII
damages
cases
which
for emotional dis
$150,000 compensatory
jury’s
award of
$40,000
$150,000);
ranged
tress
for the 1992
damages for emotional distress
Kientzy
Douglas Corp., 990
v. McDonnell
claim,
failure-to-promote
$1.5 million
($150,000);
Spe
Rush v.
Scott
compensatory damages for emotional dis-
Gases,
($100,
cialty
F.Supp. at
claim, and the
tress for the retaliation
$7 000).
punitive damages
a total of
million in
that,
Similarly, we
al
conclude
300,000, slip op. at
and did not “en-
$
though
punitive
an award of million for
$7
analysis
in an
as to the excessiveness
gage
excessive, an
damages
grossly
award of
is
damages
say in the
except
the award
$300,000
not. Factors to consider
deter
certainly
being
not ex-
awarded are
amount
mining
punitive
dam
reasonableness of
length
of time the discrimi-
cessive due
degree
reprehensi
ages
include the
award
continued, the level of retaliation
nation
conduct,
ratio
bility of
the defendant’s
well-being of
Nash Finch and the financial
harm inflict
relationship between the actual
Thus,
at 1057.
as reduced
Nash Finch.” Id
court,
judgment
plaintiff and the
awarded
ed on the
district
$21,000
award,
im
penalties
authorized or
in the amount
and civil
$100,000
distress
for emotional
wages,
comparable
lost
BMW
posed for
misconduct.
—
claim and
failure-to-promote
America,
Gore,
for the
Inc. v.
North
$300,000,
damages, for the
including punitive
1589, 1598-99,
—, —,
retaliation
failure-to-promote
(1996);
see Pulla Amoco Oil
L.Ed.2d 809
claims. Id
Cir.1995)
(White,
J.).
reprehensible
Nash Finch’s conduct was
above, because the dis
discussed
As
and at least reckless
involved retaliation
denying
its
abused
discretion
trict court
rights.
It did
disregard
protected
of federal
15(b)
amend, 42
motion to
the Rule
violence,
the threat of
violence or
not involve
recovery for the 1992
1981 was
basis
trickery or deceit.
it
involve
claims. but
did
failure-to-promote
retaliation
*21
BEAM,
Judge, concurring
part
relationship between the reduced
Circuit
or
ratio
part.
and the actual harm
punitive damages
dissenting
award
and
by the reduced amount
measured
inflicted as
the court
I concur
the result reached
damages
compensatory
is a
pay
and
back
except that I
opinion
and in the
of the court
relatively
3:1. See BMW
unremarkable
agree that the evidence was sufficient
do not
Gore,
America,
at —,
Inc. v.
North
damages to
punitive
the issue of
to submit
(noting
punitive
4:1 ratio of
S.Ct.
Thus, any
punitive
jury.
award for
dam-
damages
de
compensatory
court,
Since,
by the
ages was error.
as noted
line” in
Mu
to the
scribed as “close
Pacific
portion
possible to ascertain what
“[i]t is not
Haslip,
v.
499 U.S.
tual
Insurance Co.
Life
$300,000
is attributable to
[award]
1032, 1046,
23-24,
Title which authorizes misconduct, caps compen ty comparable (for $300,000 satory damages at punitive STARK, Neely, Marcia Matthew employers). largest U.S.C. Plaintiffs/Appellees, 1981a(b)(3)(D); see, e.g., Spe Rush Scott (reduc Gases, F.Supp. at 202 cialty damages award from million ing punitive $3 DISTRICT, INDEPENDENT SCHOOL $300,000 $300,000). punitive think a We NO. and the members of its Board adequate sanction and damages award is Directors, Defendant/Appellant, conduct, to deter future similar sufficient considering size and assets of Nash Plaetz, Trost, Freder Leon Curtis Scott Finch. ickson, Franta, Beranek, Tom Barb Guetter, Alois Defendants. CONCLUSION Paskewitz, Paskewitz, Mavis sum, Jeff Stuart the district court should we hold Paskewitz, Paskewitz, plead- motion to amend the Ben Ron granted the Paskew have Paskewitz, ings itz, Paskewitz, to the evidence and thus to conform Naomi Carrie cap, 42 applied the Title VII Paskewitz, Barber, Twyla should not have Gordon Joe 1981a(b)(3), compensatory to limit U.S.C. Barber, Cindy Barber, Logan, Peter damages. also hold the punitive We Logan, Clayton Logan, Joanna Sheldon holding No- not err district court did Paskewitz, Paskewitz, Linda Trisha failure-to-promote claim was vember 1990 Paskewitz, Minnesota Federation 1981 under actionable Teachers, Amicus Curiae. Patterson, was sufficient evidence there No. 96-3250. retaliation, intentional of malice sufficient evidence and there was Appeals, United States Court of support punitive indifference to or reckless Eighth Circuit. Finally, we hold the awards damages. compensatory pay back Submitted Nov. court, by the district damages, as reduced Aug. Decided evidence and supported sufficient
were were not excessive. judgment of the
Accordingly, affirm the we
district court.
notes
Hicks
clear
given
Nash Finch to
to hide
intent
plaintiff must
‘both that
the
that the
show
race,
on the
of his
color or
discriminate
basis
false,
that
[proffered] reason was
dis
origin.”
part of instruction No.
national
This
”
real
Id. at
crimination was the
reason.’
correctly
jury,
required
instructed the
Hicks,
5, citing
n.
U.S.
S.Ct.
Hicks,
the
that it had to find both that
enough,
not
at 2751-52.
“It
other
that
stated reason was false and
intentional
words,
the
employer;
to
the
fact-
disbelieve
the
of race
the
discrimination on
basis
plaintiffs explanation
must
the
finder
believe
a
real
in order to return
verdict
reason
Hicks,
intentional discrimination.”
Kim,
only
favor of
not
that the stated reason
519, 113
at 2754.
U.S.
Ryther,
F.3d at
& n. 5
was false.
(noting
plaintiff
that
Hicks makes it clear
the
Jury Instructions
reason
false
must show both that
the
instruction issue
We address the
intentional
was the
and that
jury
the
court’s
review
district
“[W]e
first.
reason).
real
The instructions
the 1990
of discretion and on
instructions for abuse
(No. 9)
the ADEA claim
promotion claim
simply
determine
‘whether the
review must
(No. 14)
provided
jury
similarly
that
instructions,
as a
and viewed in
taken
whole
determining
age
race or
a
could find
law,
light
applicable
fair
evidence
factor if
Nash Finch’s stated reason
it found
adequately
the issues in the
ly and
submitted
”
reason,
true
but
for its decision was “not the
jury.’
Karcher v. Emerson
case
discriminatory
moti-
‘pretext’
hide
[was]
Cir.1996)
Co.,
(8th
94 F.3d
Electric
correctly prem-
instructions
vation.” These
Corp.,
(citing
v. Alcan Aluminum
Sherbert
denied,
liability
finding
on a
of discrimination
ised
(8th Cir.1995)),
cert.
merely
finding
—
on
that
—,
—,
was false.
proffered
Finch’s
reason
(1997).
will not
“[W]e