MEMORANDUM ORDER AND OPINION REGARDING DEFENDANT’S AMENDED RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW, AND, ALTERNATIVELY FOR NEW TRIAL AND FOR RE-MITTITUR OF ALL AMOUNTS AWARDED
TABLE OF CONTENTS
I.FACTUAL AND PROCEDURAL BACKGROUND.............................924
A. Procedural Background................................................924
B. Factual Background...................................................925
1. Overview of Aramark ..............................................925
2. Employment of Anita Lopez ........................................926
3. Employment of Maricela Villalpando................................929
II.LEGAL ANALYSIS........................................................930
A. Arguments Of The Parties ................................ 930
1. The defendant’s arguments............................ 930
2. The plaintiffs’ arguments in resistance..............................933
3. The defendant’s reply..............................................936
B. Motion For Judgment As A Matter Of Law ..............................937
1. Standards for judgment as a matter of law...........................937
2. Federal and Iowa law claims.......................................938
3. The retaliation claims .............................................939
a. Failure to engage in protected activity ..........................940
b. Failure to prove adverse employment action ........... 940
c. Failure to prove causal connection................... 943
d. Proffer of legitimate, nondiscriminatory reason and pretext.......943
4. The hostile work environment sexual harassment claims..............944
a. Actionable harassment.........................................945
b. Applicability of the Ellerth/Faragher affirmative defense .........947
c. Iowa law.......... 948
5. The emotional distress damages ....................................950
6. Villalpando’s entitlement to back pay damages.......................952
7. The punitive damages..............................................954
a. Standards......................................................954
b. Malice or reckless indifference by managerial employee...........957
c. Aramark’s good-faith defense................!..................963
C. The Amount Of The Punitive Damages Award...........................966
1. Excessive verdict..................................................966
2. Statutory damages cap provision....................... 968
3. Constitutionality................ 968
a. Standards .■....................................................968
b. Analysis under the Gore guideposts.............................969
i. Reprehensibility..........................................969
ii. Proportionality...................... 971
iii. Comparable civil or criminal penalties.......■...............971
iv. Resolution ...............................................972
4. Remittitur........................................................972
D. New Trial............................................................973
1. Standards under Rule 59(e).........................................973
2. The merits........................................................974
III.CONCLUSION 976
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
Plaintiffs Anita Lopez (Case No. C03-4015-MWB) and Maricela Villalpando (Case No. C03-4030-MWB) filed separate law suits against their former employer, defendant Aramark Uniform & Career Apparel, Inc., (hereinafter “Aramark” or “defendant”) each asserting claims of hostile work environment sexual harassment, quid pro quo sexual harassment, and retaliation for complaining about sexual harassment. In addition, Villalpando contended she was constructively discharged by Aramark as the result of sexual harassment and retaliation. By order dated March 18, 2004 (Doc. No. 19), the court consolidated the plaintiffs’ separate lawsuits for trial. A five-day jury trial commenced on October 31, 2005. The jury returned a verdict in favor of both plaintiffs on their claims of hostile environment sexual harassment and retaliation (Doc. No. 60). 1 More specifically, with respect to Anita Lopez, the jury found Lopez proved her hostile environment sexual harassment claim and awarded her $30,000.00 in past emotional distress damages and $250,000.00 in punitive damages. In addition, the jury found in Lopez’s favor on her claim of retaliation and awarded her $5,000.00 in past emotional distress damages and $10,000.00 in punitive damages. With respect to Maricela Villalpando, the jury awarded $30,000.00 in past emotional distress damages, $10,000.00 in backpay and $250,000.00 in punitive damages on her hostile environment sexual harassment claim. In addition, Villalpando received an award of $5,000.00 for past emotional distress and $10,000.00 for punitive damages with respect to her claim of retaliation.
On November 16, 2005, Aramark filed a Motion To Contact Jurors (Doc. No. 64) in order to ascertain the jurors’ opinions and impressions of the trial. The court granted this motion with respect to counsel for both parties on November 28, 2005 (Doc. No. 69). Aramark further filed a Renewed Motion For Judgment As A Matter Of Law And, Alternatively For New Trial And Remittitur Of All Amounts Awarded (Doc. No. 65) on November 18, 2005. Pursuant to the order of this court, although the defendant’s motion was to be timely filed, the defendant was allotted additional time in which to file its brief, in order to account for the time that would be required to obtain a trial transcript from the court reporter. An Amended Motion was
On January 10, 2006, the defendant filed a Supplemental Motion For An Evidentia-ry Hearing To Determine Juror Misconduct And For New Trial (Doc. No. 82). On February 2, 2006, the plaintiffs filed them resistance to the defendant’s motion (Doc. No. 87). On this same date, the defendant filed its Memorandum For Judgment As A Matter Of Law, And, Alternatively For New Trial, And For Re-mittitur Of All Amounts Awarded (Doc. No. 86). On February 8, 2006, the defendant filed its reply to the plaintiffs’ resistance to its Supplemental Motion For An Evidentiary Hearing (Doc. No. 89). On February 22, 2006, this court denied the defendant’s Supplemental Motion For An Evidentiary Hearing To Determine Juror Misconduct And For New Trial,
Lopez v. Aramark Uniform & Career Apparel, Inc.,
B. Factual Background 2
1. Overview of Aramark
Aramark is a leading provider of food and facilities management services, as well as uniform and career apparel. The Sioux City, Iowa, facility is operated by Aramark Uniform Services, which is headquartered in Burbank, California and is part of Ara-mark Uniform & Career Apparel. The Sioux City facility is responsible for laundering, pressing and organizing linens, table cloths, napkins, aprons and bar towels from myriad customers. Once the items are processed, the facility then redistributes the product to its customers. At all times relevant to this lawsuit, Steve Donly served as president of Aramark Uniform Services. Four regional vice presidents led operations. Sioux City was encompassed in the “Northern Group,” of which Tom Janssens served as the group vice president. With respect to the Sioux City facility, Victor Herzberger served as the general manager throughout the plaintiffs’ employment. Herzberger, as general manager, was responsible for approximately eighty personnel employed at the Sioux City location, as well as another sixteen employees located in Sioux Falls, South Dakota. The Sioux City location was divided into three main components: service, production and the office. In addition, certain route representatives who were responsible for meeting with customers were associated with the Sioux City location. Plaintiffs Lopez and Villalpando both worked at Aramark’s Sioux City, Iowa, facility in the production department. The
With respect to Equal Employment Opportunity (EEO) compliance, Aramark posted its EEO policy, which specifically addressed sexual harassment and set forth an internal complaint procedure. Similarly, the company also posted a “5 in 1” poster, which referenced various legal obligations, including EEO. 3 Further, Ara-mark Uniform Services’ Employee Handbook for Non-Union Employees also set forth a detailed harassment policy and complaint procedure. 4 During the plaintiffs’ tenure, a training session on the Ara-mark 1-800 Employee Hotline was also conducted. During this session, which both plaintiffs attended, a videotape was shown to all employees that described the features of the employee hotline. Essentially, the hotline was implemented in order to provide employees an avenue to report their concerns confidentially to an individual outside of their place of employment. The video was only shown in the English language, despite the fact that some workers spoke little to no English. In addition, the video was shown on a small, 13-inch television set. Many of the employees were talking loudly during the video and not paying attention, making the video virtually inaudible and unobservable. Following the video, no additional discussion ensued and the employees returned immediately to work. Before the training was concluded, the employees were distributed a 1-800 hotline reference card, which also summarized the facets of the hotline and listed the number.
2. Employment of Anita Lopez
With respect to plaintiff Lopez, Tomoson conducted her interview and hired her as an iron pressing machine operator on November 19, 2001. Her employment was terminated on March 19, 2002. During her four-month tenure at Aramark, Lopez missed 21 days of work. Nine of these days occurred between January 1, 2002, and February 11, 2002. Immediately after she was hired, Lopez began observing what she considered to be inappropriate sexual conduct occurring at Aramark. On her first day of work, she witnessed Tomo-son simulate a sexual act behind another coworker, Rocio Orozco. Tomoson came up behind Orozco and rubbed his groin on
Other incidents attributing to Lopez’s dissatisfaction continued to occur throughout her employment. For instance, at some point, Lopez became aware that Vil-lalpando had utilized the 1-800 hotline, and that others at Aramark, including Tomo-son, were also aware of this fact, despite Aramark’s representation to its employees that the hotline was confidential in nature. Lopez overheard Tomoson tell Espinoza and Jessica Coronado, another one of his pets, that Villalpando would be returning to work. When Espinoza and Coronado expressed concern about working with Vil-lalpando, Tomoson reassured them, “Don’t worry about it. We have plans for Maricela.”
Due to the environment at Aramark, Lopez became extremely depressed. Although Lopez had problems with both post-traumatic stress disorder and major depressive disorder prior to her job at Aramark, her Aramark experience greatly magnified and aggravated these conditions. Lopez became extremely depressed every Sunday before she had to go to work and cried daily. She felt belittled and had low self-esteem as a result of Tomoson’s conduct, which often brought back memories of her childhood. Lopez was put on anxiety medication and continued to seek mental health counseling.
On the Friday before she was terminated, Lopez wore a shirt with “Tweety Bird” on the front. Tomoson asked what the name of the bird was on her shirt. Orozco informed him the bird’s name was Tweety Bird, to which Tomoson replied, “Not the way that she is wearing it, it’s not. It’s Big Bird.” As Tomoson made this comment, he was looking at Lopez’s breasts. Lopez turned around and walked away. Later on that same Friday, Lopez, Orozco, and Espinoza were running an iron. Or-ozco told Lopez to shake her chest, which Lopez indicated she refused to do. As she turned away, she saw Tomoson grinding his hips behind her. Upon seeing Tomo-son, Lopez screamed and Tomoson and the other coworkers laughed. That evening, she informed her husband that she wanted breast reduction surgery because she was tired of being teased.
The following Monday, March 18, 2002, Lopez called in sick to work. The next day, Tuesday, she had a friend who was not associated with Aramark, call in to report Lopez had a doctor’s appointment and was unable to come into work. Approximately ten minutes later, Lopez spoke with Tomoson, who informed her she was fired. On March 20, 2002, Lopez went to Ted Colt, the business agent for the. union who handled grievances and related union business with respect to Ara-mark. Lopez told Colt she was discharged for absenteeism and that she wanted her job back. Colt inquired as to the reason for Lopez’s numerous absences. Lopez indicated she had been harassed, and a grievance was subsequently prepared. As soon as Herzberger received the grievance from the union, he notified the group vice president of the northern group, Janssens. In addition, Herzberger telephoned Mike Grabowski, regional director of human resources. Herzberger then contacted Colt to coordinate a meeting to investigate the allegations. As part of the investigation procedure, Lopez was interviewed within a week of her termination. Freeman, Colt, and Scott Utech
5
were present at Lopez’s interview, along with Wisecup and Herz-berger. Wisecup and Herzberger con
3. Employment of Maricela Villal-pando
Villalpando’s Aramark experience was similar to Lopez’s. She began working for Aramark in May 2001 and remained employed by the company until April 17, 2002. Throughout her employment, Villal-pando was also supervised by Tomoson and assigned to work on the irons. Lopez was one of her coworkers during the four months Lopez was employed by Aramark. Shortly after Villalpando began working at Aramark, she likewise began to notice To-moson’s inappropriate conduct. She observed Tomoson associating with the female employees by the irons and saw him frequently dirty dance behind the female employees and heard him tell dirty jokes and refer to breasts. Tomoson often joked specifically about Villalpando’s breasts to other coworkers. He would also frequently tell her that she had “big breasts,” and describe how she would look in a bikini with her “big boobs.” Villal-pando told him not to say things like that to her. Tomoson also attempted to dirty dance with Villalpando. On one occasion, he placed his hand on her shoulder and tried to dirty dance behind her. Villalpan-do turned around and told Tomoson to quit. Tomoson told her not to get upset, laughed, and told two other coworkers about Villalpando’s reaction. Tomoson also compared Villalpando to his wife. He told Villalpando that because his wife had small boobs, he would tell her she should get big ones because he liked big breasts and liked to see them move. Other coworkers who overhead this interaction laughed along with Tomoson. Villalpando also witnessed the occasion where Tomo-son wore a bikini at work. She further witnessed Tomoson pick coworkers up and shake them so he could see their breasts move. At one point, Tomoson attempted to pick Villalpando up and grabbed her underneath her breasts from behind. Vil-lalpando became angry so Tomoson instead picked Espinoza up and said, “Look, Yesenia doesn’t get mad.” Another incident occurred when Villalpando was wearing a yellow Tweety Bird shirt. Similar to what happened to Lopez, Tomoson asked Villalpando what was on her shirt and she replied, “Tweety,” to which Tomoson countered in Spanish, “No, it’s big boobs.” Villalpando repeatedly complained to Wi-secup and Freeman about Tomoson’s behavior, and although they assured her they would take care of things, nothing changed at Aramark. Apparently, after Villalpando objected to Tomoson’s behavior, he began treating her differently by giving her more difficult job assignments.
Following her back injury, Villalpando was restricted by her doctor to light duty. She would provide Tomoson with notes from her doctor. Tomoson would angrily “snatch” the notes out of her hand and send her to work without providing her an opportunity to explain or discuss the situation. Often,, Tomoson would refuse her requests for light duty. Similar to Lopez, she became extremely depressed and experienced daily crying spells. She degenerated from a generally happy person to a person who was sad all the time. She became anxious, was frequently sick and hospitalized. The environment at Ara-mark eventually caused Villalpando f-o quit her job on April 17, 2002. Her troubles worsened after she lost her job at Ara-mark because she began to fall behind on bills. Due to her lack of financial stability, Villalpando began fighting with her husband, further compounding her depressive state. One week after Villalpando terminated her employment, she went to speak with Wisecup in order to ask for her job back because she needed the money. Wi-secup told her to leave, and Villalpando viewed herself as being fired. Subsequently, on May 31, 2002, Villalpando filed charge of discrimination with the ICRC. Villalpando was unable to secure new employment, although she applied at numerous places, until November of 2003 when she was hired by Curly’s Food, Inc. 6
II. LEGAL ANALYSIS
A. Arguments Of The Parties
1. The defendant’s arguments
The defendant raises myriad arguments in support of its motion for judgment as a matter of law and challenges numerous aspects of the plaintiffs’ claims. First, the defendant argues that both plaintiffs failed to establish a prima facie case of retaliation because neither Villalpando nor Lopez (1) engaged in a protected activity, or (2) suffered an adverse employment action. To this end, the defendant contends the plaintiffs failed to complain about or challenge any perceived illegal action. Therefore, the defendant contends the plaintiffs logically could not have been the target of retaliation since there was nothing to retaliate against. Furthermore, the defen
The defendant next claims the plaintiffs failed to establish they were subjected to a hostile work environment in violation of Title VII. Specifically, the defendant claims neither plaintiff established the fourth element of a hostile work environment claim — that the harassment affected a term, condition or privilege of employment. According to the defendant, neither plaintiff established they were subjected to an environment that was objectively hostile because they failed to demonstrate the harassment was severe or pervasive, as is required to support a sexually hostile work environment claim. 7 While the defendant concedes the plaintiffs’ allegations may be indicative of boorish, unprofessional and immature behavior, the defendant contests the fact that such allegations rise to the level of actionable harassment. In addition, the defendant argues neither Lopez nor Villalpando proved a tangible employment action was taken against her. Thus, the defendant claims the Ellerth/Faragher affirmative defense prevented liability from attaching to Aramark because the company had an established anti-harassment policy and the plaintiffs unreasonably failed to take advantage of the preventive opportunities established therein.
The defendant raises these very same arguments with respect to the plaintiffs’ claims under the Iowa Civil Rights Act (“ICRA”). The defendant points out that, generally, retaliation claims under the ICRA are evaluated under the same standards as federal retaliation claims. Similarly, the defendant argues a hostile work environment sexual harassment claim under the ICRA is analyzed the same way as under Title VII, with only one exception— the Iowa courts have never adopted the Ellerth/Faragher model for vicarious liability. Instead, at least according to the defendant, under Iowa law, the employer’s liability for sexual harassment perpetrated by supervisors or coworkers is dependent upon whether the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action. This element, avers the defendant, has not been established by the plaintiffs because the defendant was not made aware of the harassment until after the plaintiffs’ employment was terminated.
In the alternative, the defendant attacks the damage awards provided to both plaintiffs. Specifically, with respect to the damages awarded for emotional distress, the defendant contends Lopez and Villal-
The defendant next attacks Villalpando’s award for back pay damages. The defendant points out that Villalpando testified she obtained new employment in November of 2003, and that the benefits she receives at her new place of employment are better than the benefits she received during her tenure at Aramark. The defendant contends the jury’s award of $18,000 in back pay damages fails to take into account Villalpando mitigated her damages and was able to obtain a job with higher pay and better benefits.
Finally, the defendant requests this court enter judgment as a matter of law with respect to the jury’s award of punitive damages to both plaintiffs. The defendant contends the evidence presented at trial by the plaintiffs fails to establish that Ara-mark acted with malice or reckless indifference to the plaintiffs’ rights. With respect to Lopez, the defendant avers the evidence presented during trial establishes that once Aramark received Lopez’s grievance subsequent to her termination, the company conducted a thorough investigation of the claim, but Lopez’s allegations could not be substantiated. With respect to Villalpando, the defendant argues the evidence presented at' trial compels the conclusion that Villalpando never complained to the management regarding To-moson’s conduct. The defendant points out that Villalpando’s testimony at trial that she complained to Wisecup is at odds with her deposition testimony in which she represented she couldn’t remember if she complained to anyone. Additionally, although Villalpando testified she called the 1-800 hotline to report Tomoson’s conduct, the defendant highlights the fact that Vil-lalpando’s testimony contradicts Lopez’s testimony that Villalpando simply called to report that certain coworkers were working illegally. Further, the defendant relies on Herzberger’s testimony that no one called the 1-800 number to complain about sexual harassment, but did call to complain to report that Tomoson was sleeping in his truck during work. Thus, the defendant contends the only logical conclusion that can be arrived at from these facts is that Villalpando never actually made a complaint. Accordingly, the defendant contends there is not sufficient evidence of malice on behalf of Aramark because it promptly investigated the only complaint it received.
Second, with respect to the conduct engaged in by Tomoson, the defendant argues punitive damages
for his
conduct cannot be imputed to the company because Tomoson was not serving in a “managerial capacity,” as is required by the Supreme Court’s decision in
Kolstad v. American Dental Ass’n,
Finally, the defendant argues an additional and independent basis exists for setting aside the punitive damages — namely, that Aramark made good faith efforts to
In the event judgment as a matter of law is not granted, the defendant alternatively requests a remittitur of all amounts awarded. With respect to the punitive damages, the defendant claims it has been subjected, to a miscarriage of justice because the award was grossly excessive in light of the evidence presented at trial. Specifically, the defendant implies that Vil-lalpando testified falsely due to inconsistencies between her trial testimony and her responses on her ICRC questionnaire and her deposition testimony. The defendant further asserts the punitive damages are inconsistent with the guideposts established by the United States Supreme Court in
BMW of North America, Inc. v. Gore,
With respect to the compensatory damages awarded to the plaintiffs, the defendant avers the awards should be remitted because the evidence supporting the awards is insufficient, primarily because the evidence supporting the awards was based on the plaintiffs’ testimony. The defendant contends the plaintiffs’ testimony was vague and largely uncorroborated. Therefore, the defendant argues a reduction in the emotional distress damages awarded the plaintiffs is warranted. The defendant further contends Villalpando’s award of back pay should be remitted because the evidence at trial demonstrated she secured a more lucrative position following her discharge from Aramark.
The defendant’s final argument is that a new trial should be granted due to Villal-pando’s false testimony. The defendant contends the inconsistencies between her trial testimony and her deposition testimony and responses on the ICRC questionnaire indicate she was untruthful to the jury and that her testimony impacted the punitive damages awarded in the case. The defendant points out that, during trial, Villalpando’s testimony was that she complained to Wisecup and Freeman but her complaints were never addressed. 8 However, previously, during her deposition, Villalpando indicated she did not remember if she complained to anyone and her response on her ICRC questionnaire indicates she did not complain to anyone because she was afraid of Tomoson’s response. Such improprieties, contends the defendant, warrant a new trial in this case on both the issue of liability and damages.
2. The plaintiffs’ arguments in resistance
Predictably, the plaintiffs resist all aspects of the defendant’s motion for judg
With respect to their claims under the ICRA, the plaintiffs first argue that since their respective damages awards are be
The plaintiffs further contend the damages awarded by the jury are supported by the evidence. Specifically, with respect to the emotional distress damages awarded by the jury, the plaintiffs assert that expert testimony is not a prerequisite to an award of emotional distress damages. Both plaintiffs argue they testified with specificity with respect to the symptoms that resulted from the hostile environment and retaliation. Both plaintiffs experienced depression and crying spells. Villal-pando’s father testified she became anxious, kept ending up in the hospital and was sick a lot. Likewise, Lopez’s counsel- or, Kreimheld Oudheusden, testified at length regarding how the environment at Aramark aggravated her depressive disorder and post-traumatic stress disorder. This evidence is sufficient, aver the plaintiffs, to support their respective awards of emotional distress damages.
With respect to Villalpando’s back pay award, Villalpando argues that Aramark’s assertions fail to recognize that she is entitled to lost wages and benefits for the time frame between the date she was constructively discharged and the date she commenced her new employment. In light of the fact Villalpando did not secure such employment until almost one year after she was discharged from Aramark, Villal-pando contends the award of back pay should be affirmed.
Finally, the plaintiffs assert their respective punitive damages awards should be sustained. The plaintiffs first argue the evidence unequivocally establishes To-moson’s managerial capacity. Tomoson had the ability to hire, and although he “technically” lacked the ability to fire, there is no evidence in the record Wisecup did anything more than rubber-stamp To-moson’s recommendations as to termination of employees. Second, the plaintiffs argue Tomoson acted with sufficient malice or reckless indifference. They assert To-moson was aware his actions were unwelcome, and that he continued to subject them to harassing conduct and punished them for not being willing participants. Additionally, the evidence indicates that Wisecup knew of the harassment based upon Villalpando’s complaints and that he failed to act. Further, Villalpando’s complaints to the 1-800 hotline were also never investigated. Additionally, the plaintiffs contend Aramark’s good faith defense fails. They point out that Tomoson had never been given any specific' training on sexual harassment and was unsure if there was a policy and that Wisecup had likewise received very little training on sexual harassment. Further, although the 1-800 hotline video was shown, the plaintiffs contend the words “sexual harassment” were never mentioned and that it was shown on a small television set and that employees were talking throughout the video. Further, the video was shown only in English, even though many employees were only able to understand and speak Spanish. Finally, the plaintiffs contend that even if Aramark’s policies and procedures were sufficient, there was a lack of good faith on the part of Aramark in following and im
The plaintiffs further argue Aramark is not entitled to a new trial or remittitur of any of the amounts awarded. With respect to the punitive damages, the plaintiffs assert the award was reasonable in light of the evidence. Additionally, in light of the reprehensible nature of Aramark’s conduct and the fact the award was within the statutory cap for damages in a Title VII case, the plaintiffs argue the award does not violate due process. With respect to the compensatory damages, the plaintiffs simply reassert their arguments outlined above, namely, that sufficient evidence was proffered to support the awards. Finally, with respect to the defendant’s motion for a new trial, the plaintiffs contend that after a review of all the evidence, a new trial is not appropriate. The plaintiffs point out that Villalpando was cross-examined at length regarding the inconsistency between her trial testimony and her deposition testimony and she did not recant her trial testimony and explained the reasons for her differing responses. Thus, this fact alone, argue the plaintiffs, should not cause the court to be left with a definite and firm conviction that the jury erred.
3. The defendant’s reply
The defendant limits its reply solely to the discussion of the award of punitive damages to the plaintiffs. The defendant reiterates its arguments that the plaintiffs cannot prove Tomoson served in a managerial capacity and that, therefore, punitive damages cannot be imputed to Ara-mark as a result. The defendant contends that although Tomoson was a supervisor, it does not necessarily follow that he served within a managerial capacity or had enough authority to impute liability to Ara-mark. The defendant relies heavily on an Eleventh Circuit case,
Dudley v. Wal-Mart Stores, Inc.,
Second, the defendant reasserts its arguments that the plaintiffs failed to establish Aramark acted with malice and/or reckless indifference. The defendant asserts the first complaint it received about Tomoson’s conduct was after Lopez had been terminated and she filed a complaint with the grievance. To bolster its argument, the defendant emphasized the fact that Tomoson had never before been the subject of a sexual harassment complaint. Thus, the defendant contends there was nothing inappropriate about Aramark’s conduct. Further, the defendant appears to assert that Tomoson’s conduct did not rise to the requisite level of malice or reckless indifference.
Finally, in the event the punitive damages are not set aside as a matter of law, the defendant argues a new trial should be ordered by the court to avoid a miscarriage of justice. The defendant reasserts its contentions that plaintiffs’ counsel allowed Villalpando to testify she complained about the harassment during her employment at Aramark, despite her response on her ICRC questionnaire that she did not complain to anyone. The defendant contends in determining whether to order a new trial to avoid a miscarriage of justice, the trial court can rely on its own reading of the evidence. Taking into account all of the information, the defendant asserts the only reasonable conclusion that can be ar
B. Motion For Judgment As A Matter Of Law
1. Standards for judgment as a matter of law
Rule 50(a) of the Federal Rules of Civil Procedure provides for entry of judgment as a matter of law during trial if “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Fed.R.Civ.P. 50(a). Rule 50(b) provides for renewal of such a motion after trial, as follows:
If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may:
(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law; or
(2) if no verdict was returned;
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
Fed.R.Civ.P. 50(b). Aramark made motions for judgment as a matter of law in the course of trial, then filed its renewed motion for judgment as a matter of law on November 21, 2005 (Doc. No. 68). Therefore, Aramark’s motion for judgment as a matter of law is controlled by Rule 50(b). Moreover, because a verdict was returned on each of the issues on which Aramark has moved for judgment as a matter of law, the options before the court are those stated in Rule 50(b)(1).
The Eighth Circuit Court of Appeals recently stated the following standards for a Rule 50(b) post-verdict motion for judgment as a matter of law:
We review de novo the district court’s denial of [a] post-verdict motion for judgment as a matter of law. Racicky v. Farmland Indus., Inc.,328 F.3d 389 , 393 (8th Cir.2003). We are required to decide whether or not the record contains evidence sufficient to support the jury’s verdict. Id. In doing so, “we must examine the sufficiency of the evidence in the light most favorable to [the prevailing party] and view all inferences in [its] favor.” Id. (citation omitted). “Judgment as a matter of law is appropriate only when all of the evidence points one way and is susceptible of no reasonable inference sustaining [the prevailing party’s] position.” Id. (citation omitted).
Children’s Broad. Corp.
v.
Walt Disney Co.,
“[C]onsider the evidence in the light most favorable to the prevailing party, assume that, the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party’s evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence.”
Minneapolis Cmty. Dev. Agency,
With these concepts in mind, the court turns to each of the four grounds in which the defendant contends it is entitled to judgment as a matter of law: (1) the plaintiffs’ harassment and retaliation claims; (2) the plaintiffs’ claims for emotional distress damages; (3) Villalpando’s claim for backpay damages; and (4) the plaintiffs’ claims for punitive damages.
2. Federal and Iowa law claims
Before addressing the merits of the parties’ respective arguments, it is im
3. The retaliation claims
The Eighth Circuit Court of Appeals recently reiterated that, post
-Desert Palace, Inc. v. Costa,
a. Failure to engage in protected activity
First, the defendant contends neither plaintiff engaged in a requisite “protected activity.” The plaintiffs maintain they both “engaged in the ‘most basic form of protected activity’ when [they] told [Tomoson] to stop his offensive conduct.”
Ogden v. Wax Works, Inc.,
With respect to Lopez, she testified she would give Tomoson dirty looks and walk away when he started telling dirty jokes or talking about breasts or the bikinis. She further stated, “Hey, hey, hey,” when To-moson hit her buttocks with a paper bag while she was bending over. On another occasion, she indicated to Tomoson that she was there “to work, not to play,” and told him “Don’t,” after he pinched her on the hip. Finally, on the Friday before she was terminated, Lopez refused to dance with Tomoson, and voiced objections to her coworkers’ comments. Upon seeing To-moson dancing behind her, she screamed. She told her coworkers she wasn’t like them and that she didn’t like “that.” These comments, although based off Lopez’s testimony, are sufficient to demonstrate she engaged in a protected activity by opposing Tomoson’s discriminatory conduct by indicating her objections to Tomo-son’s conduct.
With respect to Villalpando, she testified that after Tomoson attempted to “dirty dance” with her, she turned around angrily and told him not to be doing that. Villal-pando also indicated that she repeatedly told Tomoson to not talk about her breasts. Additionally, after Tomoson touched her breasts, Villalpando got mad at Tomoson. Furthermore, Villalpando testified she called the 1-800 hotline to report Tomoson’s conduct and that she repeatedly voiced her complaints to Wisec-up and Freeman. Although Aramark contends this testimony contradicts the testimony of Villalpando’s deposition where she testified she didn’t remember if she complained, and her ICRC questionnaire, on which she indicated she did not complain to anyone because she was afraid of Tomo-son’s response, it is not within the province of this court on a post-trial motion for judgment as a matter of law to weigh the evidence. Rather, the court must view the evidence in a light most favorable to the verdict, and on these facts, it is clear that Villalpando engaged in protected activity by voicing her objections not only to To-moson, but also to Wisecup, Freeman and the corporate hotline. Thus, judgment as a matter of law is not warranted upon this ground with respect to either plaintiff. To accept the defendant’s argument and conclude otherwise would necessarily require this court to weigh the conflicting testimony in the case, an analysis that would be wholly inappropriate on renewed motion for judgment as a matter of law.
b. Failure to prove adverse employment action
The defendant also asserts both plaintiffs failed to prove an adverse employment action was taken against her. Specifically, Aramark contends the allegations by the plaintiffs that they were assigned more difficult job duties are insufficient to carry the day with respect to this aspect of the plaintiffs’ retaliation claims. Unfortunately, the defendant’s argument
Villalpando’s theory of the case at trial was that she was constructively discharged. As the United States Court of Appeals for the Eighth Circuit has explained, “Constructive discharge, like any other discharge, is an adverse employment action that will support an action for unlawful retaliation.”
West,
While Lopez’s discharge and Villalpando’s constructive discharge are sufficient proof, in and of themselves, of an adverse employment action, the court feels compelled to comment further on the defendant’s constrained view of the case and the law. Although the defendant recognizes that actions short of termination may constitute an adverse employment action within the meaning of [42 U.S.C. § 2000e-3(a) ],
Kim,
c. Failure to prove causal connection
Although the defendant does not specifically challenge causation, to the extent the defendant’s brief may imply such an argument, this court notes both plaintiffs presented sufficient evidence of a causal connection between the protected activity and the adverse employment action. Both plaintiffs presented evidence that their coworkers who did not oppose Tomoson’s conduct were treated differently than the plaintiffs. The coworkers who did not object to Tomoson’s conduct received highly favorable treatment from him — they were assigned to easier job duties and allowed to take extended breaks. Additionally, these employees were allowed to come in late, leave early and were not disciplined. Further, Tomoson said to Lopez, “See, look how easy you could have it,” when she was assigned to an easy job duty. Upon Lopez’s refusal to acquiesce, he promptly reassigned her to a harder job. In addition, Tomoson indicated to Espinoza and Coronado that “he had plans for Maricela” following her call to the 1-800 hotline. These facts are sufficient proof of a causal connection between the adverse employment actions taken by the defendant and the engagement by the plaintiffs in a protected activity.
d. Proffer of legitimate, nondiscriminatory reason and pretext
The defendant next argues, that even if Lopez established a prima facie case of retaliation, it proffered a legitimate, nondiscriminatory reason for its actions and that Lopez utterly failed to prove Aramark’s proffered reason was a pretext for illegal retaliation. This court disagrees. Although Lopez missed 21 days of work in her four-month tenure at Ara-mark, in light of Tomoson’s conduct and comments, a jury could have easily concluded that had Lopez acquiesced to To-
4. The hostile work environment sexual harassment claims
As the Eighth Circuit Court of Appeals has repeatedly explained, to establish a prima facie ease of sexual harassment, a plaintiff must show the following: (1) he or she was a member of a protected group, that is, male or female; (2) he or she was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) there is a basis for imposing liability on the employer for harassment.
Kratzer,
[T]he Court announced its holding [in Ellerth and Faragher ]: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, which comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. [Ellerth], [524 U.S.] at 764-65,118 S.Ct. 2257 ,141 L.Ed.2d 633 ; Faragher,524 U.S. at 807 ,118 S.Ct. 2275 ,141 L.Ed.2d 662 . The Court accentuated that “[n]o affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Ellerth,524 U.S. at 765 ,118 S.Ct. 2257 ,141 L.Ed.2d 633 ; Faragher,524 U.S. at 808 ,118 S.Ct. 2275 ,141 L.Ed.2d 662 ; see also Pa. State Police v. Suders,542 U.S. 129 ,124 S.Ct. 2342 , 2352,159 L.Ed.2d 204 (2004) (recognizing Ellerth and Faragher, which govern employer liability for supervisor sexual harassment, “delineate[d] two categoriesof hostile work environment claims: (1) harassment that ‘culminates in a tangible employment action,’ for which employers are strictly liable, and (2) harassment that takes place in the absence of a tangible employment action, to which employers may assert an affirmative defense”) (citation omitted).
McCurdy,
a. Actionable harassment
The element of the prima facie case that is principally in dispute here is the fourth one, whether the harassment affected a term, condition, or privilege of employment, i.e., whether the harassment is “actionable.” The United States Court of Appeals for the Eighth Circuit has explained that this element requires “a twofold inquiry.” First, the harassment must be “sufficiently severe or pervasive to create an ‘objectively hostile’ work environment.”
Kratzer,
As to the first prong of the inquiry, whether or not the environment was “objectively hostile,”
[the environment] must be more than merely offensive, immature or unprofessional; it must be extreme. Id. at 1027 (citing Alagna v. Smithville R-II Sch. Dist.,324 F.3d 975 , 980 (8th Cir.2003)). Conduct that does not exceed the threshold of severity is insufficient to create a prima facie ease of sexual harassment. “Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace.” Scusa v. Nestle U.S.A. Co., Inc.,181 F.3d 958 , 967 (8th Cir.1999).
Id. To put it another way,
“Sexual harassment ‘standards are demanding — to be actionable, conduct must be extreme and not merely rude or unpleasant.’ ” Tuggle [v. Mangan ], 348 F.3d [714,] 720 [ (8th Cir.2003) ] (quoting Alagna v. Smithville R-II Sch. Dist.,324 F.3d 975 , 980 (8th Cir.2003)). “ ‘More than a few isolated incidents are required,’ and the alleged harassment must be ‘so intimidating, offensive, or hostile that it poisoned the work environment.’ ” Id. (quoting Scusa v. Nestle U.S.A. Co.,181 F.3d 958 , 967 (8th Cir.1999)). [The plaintiff] must prove [her] workplace was “permeated with discriminatory intimidation, ridicule, and insult.” Harris v. Forklift Sys., Inc.,510 U.S. 17 , 21,114 S.Ct. 367 ,126 L.Ed.2d 295 (1993).
LeGrand v. Area Res. for Cmty. and Human Servs.,
As to the second prong of the inquiry, whether or not the environment was “subjectively hostile,” “ ‘if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.’ ”
Woodland v. Joseph T. Ryerson & Son, Inc.,
Essentially, the defendant only contests the sufficiency of the plaintiffs’ proof with respect to the first prong of the inquiry — that is, whether the environment complained of by the plaintiffs was objectively hostile. Presumably, this is so because the plaintiffs’ own testimony at trial unquestionably establishes that both Lopez and Villalpando perceived their environment as subjectively hostile. Accordingly, the court will hone its discussion in on this first prong of the inquiry. The defendant asserts that the plaintiffs’ recitation of the allegations are “at worse, evidence of boorish but not actionable behavior by Mr. Tomoson.” Defendant’s Brief, at 59. As such because Title VII does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex,” the defendant contends judgment as a matter of law must be entered on its behalf.
On-cale v. Sundowner Offshore Servs., Inc.,
b. Applicability of the Ellerth/Far-agher affirmative defense
Aramark contends that it is entitled to raise this affirmative defense because neither plaintiff suffered a tangible employment action. 10 This argument is without merit. In Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the United States Supreme Court clarified the employer liability standard for supervisory harassment of an employee under Title VII as follows:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. R.Civ.P. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Ellerth,
Here, Aramark argues that the plaintiffs did not suffer any tangible em
c. Iowa law
As mentioned previously in this opinion, the plaintiffs’ state law claims under the ICRA are analyzed in essentially the same way as their federal law claims under Title VII. Retaliation claims under the ICRA are evaluated utilizing the same standards as federal retaliation claims.
Soto v. John Morrell & Co.,
At the time
Strieker
was decided on September 7, 2001, the Iowa Supreme Court utilized the same model for analyzing employer liability for sexual harassment perpetrated by either a coworker or a supervisor.
See Greenland,
To establish a hostile work environment, the plaintiff must show: (1) he or she belongs to a protected group; (2) he or she was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic; and (4) the harassment affected a term, condition, or privilege of employment. See Beard v. Flying J, Inc.,266 F.3d 792 , 797 (8th Cir.2001). Additionally, if the harassment is perpetrated by a nonsu-p'ervisory employee, the plaintiff must show the employer “knew or should have known of the harassment and failed to take proper remedial action.” Stuart v. Gen. Motors Corp.,217 F.3d 621 , 631 (8th Cir.2000). When a supervisor perpetrates the harassment, but no tangible employment action occurred, the employer may assert the Faragher-Ellerth affirmative defense to avoid liability. Faragher v. City of Boca Raton,524 U.S. 775 , 807,118 S.Ct. 2275 ,141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth,524 U.S. 742 , 765,118 S.Ct. 2257 ,141 L.Ed.2d 633 (1998).
Farmland Foods,
If a plaintiff establishes a supervisor effected a tangible work action against the plaintiff, the defendant employer or corporate entity is liable for the harassment. However, if the plaintiff fails to establish that the supervisor took a tangible employment action, the employer may assert the Faragher-Ellerth affirmative defense. The employer establishes this defense by showing it: (1) exercised reasonable care to prevent and correct promptly any ... harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
Id.
at n. 2 (citations and internal quotation marks omitted). Thus, it appears the Iowa Supreme Court now fully follows the
Ellerth/Faragher
model of vicarious liability in claims involving supervisor harassment.
See id.
Although
Farmland Foods
dealt with a racially hostile work environment claim, there is nothing to suggest the
In Farmland Foods v. Dubuque Human Rights Commission, we set forth the elements of an ICRA hostile-work-environment claim:
To establish a hostile work environment, the plaintiff must show: (1) he or she belongs to a protected group; (2) he or she was subjected to unwelcome harassment; (3) the harassment was based on a protected charactéristic; and (4) the harassment affected a term, condition, or privilege of employment. Additionally, if the harassment is perpetrated by a nonsupervisory employee, the plaintiff must show the employer knew or should have known of the harassment and failed to take proper remedial action.672 N.W.2d 733 , 744 (Iowa 2003) (internal quotations and citations omitted).
Boyle,
5. The emotional distress damages
Both plaintiffs were awarded $35,000 in emotional distress damages. In a Title VII case, “[cjompensatory damages for emotional distress must be supported by ‘competent evidence of a genuine injury,’ and a plaintiffs own testimony can carry this burden.”
Rowe v. Hussmann Corp.,
Aramark contends neither plaintiff presented sufficient evidence to justify a $35,000 award of emotional distress damages. Specifically, Aramark contends the plaintiffs’ testimony was vague and insufficient and that both plaintiffs were having emotional problems prior to their employment at Aramark. Thus, the defendant contends it is unclear whether the harassing conduct was the source of either woman’s distress after being terminated. The defendant attempts to compare the current case with the Eighth Circuit’s decision in
Forshee v. Waterloo Industries, Inc.,
The defendant argues, at least with respect to
Hall v. Gus Construction Co.,
6. Villalpando’s entitlement to back pay damages
Title VII, like other federal antidiscrimination laws, supplies broad legal and equitable remedies to make successful plaintiffs whole. 42 U.S.C. § 2000e-5;
see also McKennon v. Nashville Banner Publ’g Co.,
7. The punitive damages
Finally, the court comes to the primary issue of contention between the parties— the plaintiffs’ respective punitive damages awards.
a. Standards
Under Title. VII, punitive damages are available in employment discrimination cases such as the one filed by the plaintiffs. However, punitive damages are limited to cases in which the employer “has engaged in intentional discrimination and has done so ‘with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’ ”
Kolstad, 5
In
Kolstad v. American Dental Ass’n,
The inquiry, however, does not end with a showing of requisite malice or reckless indifference on the part of one or more individuals.
Kolstad,
Recognizing Title VII as an effort to promote prevention as well as remediation, and observing the very principles underlying the Restatements’ strict limits on vicarious liability for punitive damages, we agree that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s “good-faith efforts to comply with Title VII.” [Kolstad v. Am. Dental Ass’n], 139 F.3d [958], 974 [ (D.C.Cir.1998) ] (Tatel, J., dissenting). As the dissent [in the opinion below] recognized, “[g]iving punitive damages protection to employers who make good-faith efforts to prevent discrimination in the workplace accomplishes” Title VII’s objective of “moti-vat[ing] employers to detect and deter Title VII violations.”
Thus, even in situations where a managerial employee acts with malice or a reckless indifference to the rights of others, liability for punitive damages may not be imputed to an employer who makes good-faith efforts to prevent discrimination and comply with Title VII.
“It should be presumed a plaintiff has been made whole for his [or her] injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment and deterrence.”
State Farm Mut. Auto. Ins. Co. v. Campbell,
In considering whether an employee serving in a managerial capacity acted with malice or reckless indifference, thus warranting punitive damages, the court must view the evidence in the light most favorable to the plaintiffs.
See Salitros v. Chrysler Corp.,
As mentioned in the preceding discussion, Title VII allows punitive damage awards in the “narrow class of cases” where the employer acts with malice or reckless indifference to the federally protected rights of an aggrieved employee. 42 U.S.C. § 1981a(b)(l); see
also Lawrence v. CNF Transp., Inc.,
Aramark argues insufficient evidence supports the punitive damages awards because evidence of malice or reckless indifference by an employee serving in a- managerial capacity is lacking. Unfortunately for the defendant, however, after meticulously reviewing the evidence in a light most favorable to the plaintiffs, this court is satisfied that the evidence presented at trial was sufficient to support the jury’s punitive damages award. Both plaintiffs testified they were the victims of persistent egregious sexual harassment by Tomoson, their first-line supervisor. Not only did Tomoson comment about the plaintiffs’ bodies, specifically their breasts, on a regular basis, he made crude jokes, attempted to dirty dance with them, and physically touched both plaintiffs in inappropriate areas. In addition, Tomoson preformed these acts with other employees as well. The Eighth Circuit upheld a punitive damage award based on comparable conduct in
Kimzey v. Wal-Mart Stores, Inc.,
The defendant relies heavily on
Dudley v. Wal-Mart Stores, Inc.,
Wal-Mart relies heavily on our statement in Fitzgerald that in assessing agency for punitive damages purposes, we look at whether a managerial employee has “some power to set policy for the company.”68 F.3d at 1263 (citing Mattingly, Inc. v. Beatrice Foods Co.,835 F.2d 1547 , 1565 (10th Cir.1987)). Wal-Mart’s focus on the words “power to set policy” overlooks the context of that statement; in the same sentence, we stated that “we look at the stature and authority of the agent to exercise control, discretion and independent judgment over a certain area of a business.” Id. This language in Fitzgerald by no means implies the proposition, squarely contrary to our established precedent, that only an executive with power to set policy for all of Wal-Mart’s many stores can be an agent of the company. See Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc.,703 F.2d 1152 , 1175 n. 17 (10th Cir.1981) (en banc).
EEOC v. Wal-Mart Stores, Inc.,
Furthermore, assuming
arguendo,
Tomoson did not serve in a “managerial capacity” and his conduct could not, therefore, be imputed to Aramark, ample evidence existed in the record that the management above Tomoson knew of his abusive conduct and failed to take effective action to stop such conduct. The jury was entitled to conclude that based on the pervasiveness and overtness of Tomoson’s conduct, that Wisecup knew of his actions. The sexually explicit conduct and comments occurred in plain sight during regular business hours with great frequency. Lopez testified the conduct complained of would have been observable to Wisecup, and that Wisecup witnessed and was made aware of some of the incidents that occurred between the plaintiffs and their coworkers. Based on the totality of the evidence in this case, a reasonable inference is that Wisecup was aware of the degradation of Aramark’s female employees in general, and specifically, of Lopez and Villalpando.
See Baker v. John Morrell & Co.,
Recklessness and outrageousness may be inferred from evidence of “management’s participation in the discriminatory conduct,” Kimzey,107 F.3d at 575 , or where an employee’s repeated complaints to supervisors fall on deaf ears. Henderson v. Simmons Foods, Inc.,217 F.3d 612 , 619 (8th Cir.2000). In light of [the department manager’s] knowledge of [the coworker’s] abusive conduct, his repeated failure to take effective action to put a stop to such conduct, and his defense of and excuses for that conduct, all chargeable to [the employer], the evidence is sufficient to support the award of punitive damages.
Id.
Likewise, in
Kimbrough v. Loma Linda Development, Inc.,
In support of its contention that the plaintiffs have not met their “formidable burden” of showing entitlement to punitive damages, Aramark cites
Webner v. Titan Distribution, Inc.,
The Eighth Circuit also held that punitive damages liability was not appropriate in
Browning. Browning,
Consequently, although during the trial of this matter, this court originally expressed reservations with respect to the submission of the punitive damages issue to the jury, after an extensive and thorough review of the entire trial transcript it is clear that sufficient evidence existed to support both the submission of the issue and the subsequent punitive damages awards to both plaintiffs. Accordingly, this court finds the defendant is not entitled to judgment as a matter of law on these grounds. Although this court, had it been the trier of fact, may have been inclined to arrive at a contrary conclusion as did the jury in this case, the determination in this case was within the rightful province of the jury and because sufficient evidence supports the jury’s conclusion, the punitive damages awards to both plaintiffs must stand.
c. Aramark’s good-faith defense
As noted above, an employer may escape vicarious liability for the discriminatory employment decisions of managerial employees where those decisions are contrary to the employer’s “good faith efforts to comply with Title VII.”
Ogden,
“Employers have an ‘affirmative obligation’ to prevent civil rights violations in the workplace.”
Madison v. IBP, Inc.,
Although Aramark did have a formal non-discrimination policy in place, the extent to which such policy was enforced is highly suspect. Tomoson testified he had never received any training about sexual harassment and did not know if there was a policy. Likewise, Wisecup indicated he received virtually no training and did not know who was responsible for such training at Aramark, but thought that it “probably” was someone in human resources. Aramark attempts to rely on the 1-800 video that was shown and the 1-800 hotline card that was provided to the employees. However, the testimony elicited at trial indicated the training was not taken seriously, that the video could not be heard, and was not available in Spanish, despite the high number of Spanish-speaking employees. Aramark also points out that its handbook for nonunion employees contained an antidiscrimination policy, but it is clear this handbook was only for “nonunion” employees, and that it was simply distributed to new employees without discussion, comment or guidance. In addition, neither plaintiff recalled seeing the EEO posters and policies Aramark contended it posted in its Sioux City facility,
Furthermore, even if such practices could be considered “good-faith efforts,” it is clear that sufficient evidence was presented at trial indicating this policy was effectively disregarded by Aramark. Wi-secup knew of the harassment and failed to admonish or reprimand Tomoson. Vil-lalpando called the 1-800 hotline, but no action was taken. Even more disturbing is the number of coworkers who were aware Villalpando called the hotline when she returned to work despite Aramark’s representation that the hotline was designed to be confidential in nature. Lopez filed a complaint with the union following her termination, which was not given credence simply due to the lack of corroborating evidence by a handful of witnesses. Based on the fact that many, if not all of the witnesses were illegally working in this country and desperately needed their jobs, the lack of corroboration should have hardly been dispositive of Aramark’s investigation. Even more distasteful was Aramark’s decision to suspend the investigation upon receiving notice that Lopez did not want her job back and that Tomo-son received no adverse repercussions and his conduct was not further observed or inquired into. If the jury accepted this evidence, which its verdict in the plaintiffs’ favor suggests it did, then it could have concluded that Aramark did not make a good faith effort to comply with Title VII despite its formal anti-discrimination policy.
See Baker,
It behooves the court to note that a contrary conclusion would essentially usurp the plaintiffs’ rights to a trial by jury, a right that has been regarded as both fundamental and sacred, and deserving of jealous guardianship.
Jacob v. City of New York,
With, perhaps, some exceptions, trial by jury has always been,
and still is, generally regarded as the normal and preferable mode of disposing of issues of fact in civil cases at law as well as in criminal cases. Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.
Id. (citation omitted). Accordingly, because sufficient evidence existed for the jury to reasonably conclude punitive damages were warranted, this determination must be preserved and the defendant’s motion for judgment as a matter of law is denied in its entirety.
C. The Amount Of The Punitive Damages Award
1. Excessive verdict
Arguments that punitive damages awards are excessive fall into two categories: (1) challenges based on the sufficiency of the evidence supporting the amount of the award, and (2) constitutional challenges to the award under the Due Process Clause, which “prohibits the imposition of grossly excessive or arbitrary punishments.”
State Farm,
A constitutionally reduced verdict ... is really not a remittitur at all. A remitti-tur is a substitution of the court’s judgment for that of the jury regarding the appropriate award of damages. The court orders a remittitur when it believes the jury’s award is unreasonable on the facts. A constitutional reduction, on the other hand, is a determination that the law does not permit the award. Unlike a remittitur, which is discretionary with the court ... a court has a mandatory duty to correct an unconstitutionally excessive verdict so that it conforms to the requirements of the due process clause.
Johansen v. Combustion Eng’g, Inc.,
A district court has a mandatory duty to correct unconstitutionally excessive verdicts to conform with the requirements of the due process clause.
Ross,
In contrast, a remittitur is ordered “only when the verdict is so grossly excessive as to shock the conscience of the court.”
Ouachita Nat’l Bank v. Tosco Corp.,
The Eighth Circuit Court of Appeals has recently discussed when it is appropriate for a district court to order a remittitur:
In this circuit, a district court should order remittitur “only when the verdict is so grossly excessive as to shock the conscience of the court.” Ouachita Nat’l Bank v. Tosco Corp.,716 F.2d 485 , 488 (8th Cir.1983). A verdict is not considered excessive unless there is “plain injustice” or a “monstrous” or “shocking” result. Jenkins v. McLean Hotels, Inc.,859 F.2d 598 , 600 (8th Cir.1988).
Eich,
2. Statutory damages cap provision
Section 1981a(b)(3)(D) of Chapter 42 of the United States Code provides that “the sum of the amount of compensatory damages awarded under [Title VII] for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed ... $300,000.” Back pay is specifically excluded from the realm of the cap. 42 U.S.C. § 1981a(b)(2). Thus, in this case, because the plaintiffs were awarded $35,000 in emotional distress damages, the maximum amount of punitive damages they could have received under Title VII was $265,000. The jury’s award of $260,000 to each plaintiff was therefore within Title VII’s statutory limitation on damages. Thus, because no reduction of the punitive damages is warranted under 42 U.S.C. § 1981a, the court will now consider the excessiveness of the punitive damages award.
3. Constitutionality
a. Standards
“The general rule is that the amount of punitive damages must bear some reasonable relation to the injury inflicted and its cause.”
In re Atlas Mach. & Iron Works, Inc.,
In
Gore,
the Court held that the Constitution provides an upper limit on punitive damage awards so that a wrongdoer has “fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that ... may [be] impose[d].”
Id.
at 574, 116
b. Analysis under the Gore guideposts
i. Reprehensibility.
As mentioned previously, “the most important indicium of reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.”
Gore,
the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery or deceit or mere accident.
State Farm,
Here, Tomoson’s unlawful conduct in this case, which is imputed to Aramark due to his managerial capacity and supervisory stature, cannot be characterized as anything but reprehensible. Tomoson physically touched the female workers at Aramark, picked them up and shook them to watch their breasts move, leered at their breasts, commented about their breasts, told lewd jokes, and dirty danced in a simulated sexual manner behind female workers. In addition, Tomoson treated the women who went along with his conduct with favoritism, allowing them to take longer breaks and assigning them to easier job duties. In addition, Tomo-son’s conduct created workplace friction, which ultimately escalated into physical harm to Villalpando on two occasions, one time requiring a trip to the hospital. To-moson’s conduct was repetitive, consistent and routine throughout the entire time the plaintiffs were employed at Aramark. Ultimately, the plaintiffs’ objections to Tomo-son’s conduct resulted in retaliation and caused economic harm to the plaintiffs. The harm was heightened by the fact that many, if not all, of the workers at Ara-mark, including Lopez and Villalpando, were financially vulnerable because they were poor and uneducated. At a minimum, Tomoson’s behavior amounted to a reckless indifference to the plaintiffs’ federally protected rights.
See Kim,
However, aside from the purely condemnable nature of Tomoson’s conduct, the court finds a number of additional factors increase the reprehensibility level of the defendant’s conduct. For instance, upper management at Aramark, specifically Wisecup, failed to address the plaintiffs’ complaints or admonish Tomoson regarding his overt behavior, the 1-800 hotline, which was represented to employees to be a confidential medium to report workplace misconduct was anything but, and management, in addition to employees at Aramark, received minimal, if any, training with respect to sexual harassment. Furthermore, even after Lopez filed a formal complaint, after interviewing a few witnesses, Tomoson and Lopez, due to the lack of corroboration of Lopez’s complaint, the investigation was dropped and Tomoson was never reprimanded in any way by the company. Further, after the company received notice of Vil-lalpando’s claim, no investigation was conducted because “she no longer worked there.”
16
Additionally, no evidence was presented by the defendant that it implemented additional sexual harassment training or policies following this incident.
See TXO Prod. Corp. v. Alliance Res. Corp.,
ii.
Proportionality.
“The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff[s].”
Gore,
Despite requiring the disparity between the punitive and actual monetary awards to be reasonable, the Supreme Court has declined to impose a “bright-line ratio which a punitive damages award cannot exceed,” and continues to rebuke the imposition of any rigid mathematical formula in determining the reasonableness of a punitive to compensatory damages ratio.
State Farm,
iii. Comparable civil or criminal penalties.
The third indicium of excessiveness is exposed through a comparison between the punitive damages award and “the civil or criminal penalties that could be imposed for comparable misconduct.”
Gore,
iv. Resolution. In light of the foregoing analysis of the punitive damages award under the Gore guideposts, on balance, the court has concluded that the punitive damages award of $260,000.00 per plaintiff is reasonable and does not violate the defendant’s due process rights. Consequently, the defendant’s due process claim as to the amount of punitive damages awarded to the plaintiffs is rejected.
4. Remittitur
The defendant has alternatively requested remittitur of all amounts awarded by the jury, including punitive damages. The defendant relies on all of the arguments previously discussed herein as support for this request. The proper role of the federal courts in reviewing the size of a jury verdict in determining whether a remittitur is warranted is a matter of federal law.
Schaefer v. Spider Staging Corp.,
As discussed in detail above, there is sufficient evidence to support the imposition of both the compensatory and punitive damages against the defendant in this case. The amounts the jury awarded do not “shock the conscience” of this court, nor are they “monstrous” or “shocking.”
See Eich,
D. New Trial
1. Standards under Rule 59(e)
Rule 59(e) provides that a new trial may be granted “in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.”
Fed.R.Civ.P.
59(a)(1). The Eighth Circuit Court of Appeals has filled out this rather vague authorization for a new trial by explaining that “ ‘[t]he key question is whether a new trial should [be] granted to avoid a miscarriage of justice.’”
Belk,
With respect to motions for new trial on the question of whether the verdict is against the weight of the evidence, we have stated: “In determining whether a verdict is against the weight of the evidence, the trial court can rely on its own reading of the evidence — it can ‘weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain a verdict.’ ” Ryan v. McDonough Power Equip.,734 F.2d 385 , 387 (8th Cir.1984) (citation omitted). Similar language appears in Brown [ex rel. Brown v. Syntex Labs., Inc.], 755 F.2d [668,] 671-73 [ (8th Cir.1985) ]; Slatton [v. Martin K. Eby Constr. Co.], 506 F.2d [505], 508 n. 4 [(8th Cir.1974)]; Bates [v. Hensley], 414 F.2d [1006], 1011 [ (8th Cir.1969) ], and early authority cited in Bates. See also Leichihman v. Pickwick Int'l,814 F.2d 1263 , 1266 (8th Cir.1987). These cases establish the fundamental process or methodology to be applied by the district court in considering new trial motions and are in contrast to those procedures governing motions for judgment as a matter of law.
Id.
at 780. Thus, the court in
Pence
concluded the district court may grant a new trial on the basis that the verdict is against the weight of the evidence, if the first trial results in a miscarriage of justice.
Id.; see also Ogden,
2. The merits
Here, the defendant contends allowing the jury verdict, with respect to the punitive damages, to stand would result in a miscarriage of justice due to Villalpando’s incredible testimony at trial that she complained about Tomoson’s conduct. This is so, avers the defendant, because her trial testimony directly conflicts with her deposition testimony and her responses on her ICRC questionnaire. In her deposition testimony, Villalpando indicated she did not remember if she complained to anyone regarding Tomoson’s conduct. With respect to her ICRC questionnaire, Villal-pando indicated she did not complain to anyone because she was afraid of Tomo-son’s response.
After reviewing the matter, the court finds that the jury’s award of punitive damages to the plaintiffs was not against the great weight of the evidence— nor does the award result in a miscarriage of justice. There was evidence presented at trial that would support a finding that the defendant acted with callousness, or reckless indifference, to the plaintiffs’ federally protected rights not to be discriminated against on the basis of their gender. The fact that Villalpando did not remember whether she complained as she testified during her deposition, is not directly at odds with her trial testimony. Often, discrepancies and inconsistencies arise with respect to a witness’s deposition testimony and trial testimony. Villalpando was cross-examined at length regarding the inconsistency between her deposition testimony and her trial testimony, and she stood by her trial testimony without waiver, adequately explained the reason for her differing responses and was a credible witness. Additionally, at least with respect to Villalpando’s testimony regarding the 1-800 hotline, it was corroborated by Lopez, in part, who testified everyone knew about the call the following day. 17 The mere fact of this discrepancy does not give this court cause to believe a new trial is warranted.
The defendant further argues, however, that based on Villalpando’s answer on her ICRC questionnaire that essentially the jury verdict was based on false evidence. Thus, the defendant moves for a new trial on the basis that the plaintiffs proffered false testimony at trial involving a material issue. This court disagrees. The standard for granting a new trial based on false testimony is set forth in
Davis v. Jellico Community Hospital, Inc.,
[A] new trial should be granted where the court is reasonably well satisfied that the testimony given by a material witness is false; that without it, a jury might have reached a different eonclusion; that the party seeking a new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after trial.
Id.
at 133;
Gibson v. Total Car Franchising Corp.,
Second, based on the overwhelming evidence presented at trial regarding the defendant’s reprehensible and discriminatory conduct, it is unlikely the jury would have reached a different conclusion. First, the jury was aware Aramark disputed Villal-pando’s testimony that she complained to Wisecup. Wisecup himself testified he received no complaints. The jury was also aware Aramark disputed the fact that Vil-lalpando called the 1-800 hotline. Herz-berger testified no employee utilized the 1-800 hotline to report sexual harassment, only that the hotline was called to report Tomoson was sleeping in his truck. Although Lopez corroborated Villalpando’s call, she was unable to corroborate exactly what Villalpando called to report. However, the jury chose to credit Villalpando’s testimony in spite of these facts. Further, even if this court were to assume the falsity of Villalpando’s testimony, this factor does not tip the scales in the defendant’s favor. The problem arises, in this court’s eyes, in the defendant’s refusal to acknowledge that it is imputed with liability for Tomoson’s conduct because he served in a managerial capacity. Accordingly,
even if
this court were to disbelieve
Finally, the third element clearly cannot be satisfied in this case. Although the defendant may have been taken by surprise by Villalpando’s testimony, the defendant clearly had the ICRC questionnaire available and can be charged with its knowledge at the time of trial. Accordingly, a new trial is not warranted on any of the grounds asserted by the defendant and the defendant’s motion for a new trial is denied in its entirety.
III. CONCLUSION
The court has considered each of the grounds raised in the defendant’s Motion For Judgment As A Matter Of Law, And, Alternatively For New Trial, And For Re-mittitur Of All Amounts Awarded and concludes that the motion must be denied on all grounds. The court notes that it previously reserved ruling on the plaintiffs’ Fee Application and the defendant’s resistance thereto until the resolution of these post-trial motions in recognition of the fact that additional service may have been provided by counsel in order to defend against the defendant’s exorbitant post-trial motions. Therefore, the plaintiffs shall have to and including April '28, 2006, in which to file a supplemental fee application for fees and expenses incurred subsequent to the date of the original fee application. The defendant shall then have to and including May 5, 2006, in which to file a response to the plaintiffs’ supplemental fee position.
IT IS SO ORDERED.
Notes
. Only the hostile environment sexual harassment and retaliation claims were submitted to the jury.
. As to be discussed more fully below, the court recites these facts in the light most favorable the plaintiffs, according them the benefit of all reasonable inferences drawn from the evidence at trial.
See Minneapolis Cmty. Dev. Agency v. Lake Calhoun Assocs.,
. Neither plaintiff, however, remembered seeing or being informed of these postings.
. Neither plaintiff received this handbook, presumably because both Lopez and Villal-pando were union employees, and the handbook was for non-union personnel.
. At this time, Scott Utech was in training to take over for Colt as business agent for the union.
. Curly’s Foods Inc. is a division of John Morrell and is an industry leader in manufacturing further processed meat products.
. The defendant repeatedly asserts the plaintiffs failed to prove the environment was sufficiently severe
and
pervasive. However, this court notes, the correct standard is severe
or
pervasive.
See Harris
v.
Forklift Sys., Inc.,
. In its brief, the defendant actually contends Villalpando testified she complained to the “General Manager,” which based on the record would have been Herzberger. However, after an extensive review of the trial transcript it is clear that Villalpando indicated she complained to "Jay,” meaning Jay Wisecup, the production manager, not the general manager as asserted by the defendant. See Trial Tr. 648:11-25; 644:3 to 654:8.
. This standard, although given a cursory overview in this section, will be expounded upon during the court’s discussion of the plaintiffs' sexually hostile work environment claim.
. Aramark does not contest that Tomoson qualified as a supervisor, thereby implicating the Ellerth/Faragher vicarious liability model.
. This court notes, however, that in
Greenland,
the issue before the court was whether the plaintiff’s claims under the ICRA preempted her common law claims for intentional infliction of emotional distress, assault and battery. Thus, the Iowa Supreme Court's opinion merely listed the elements of a sexual
. Interestingly, prominent among the reasons for the Texas Revolution that took place at the Alamo in San Antonio, Texas, was the complaint that the Mexican government " 'ha[d] failed and refused to secure, on a firm basis, the right to trial by jury, that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen.’ ” See James L. “Larry” Wright & M. Matthew Williams, Remember the Alamo: The Seventh Amendment of the United States Constitution, the Doctrine of Incorporation, and State Caps on Jury Awards, 45 S. Tex. L.Rev. 449, 451-53 (2004) (quoting the Texas Declaration of Independence para. 10 (1836)).
. The analysis mandated by these two Supreme Court cases will be discussed in further
. Final Jury Instruction No. 8, "Punitive Damages,” provides:
If you decide to award punitive damages on a particular claim, you should consider the following factors in determining the amount of the punitive damages to award: the nature of the defendant's conduct under the totality of the circumstances; the frequency of the defendant's conduct; how reprehensible the defendant's conduct was toward the plaintiff, what amount of punitive damages, in addition to any damages for emotional distress and backpay already awarded, is needed, considering the defendant's financial condition, to punish the defendant for its wrongful conduct toward the plaintiff that is at issue in that particular claim and to deter the defendant and others from similar wrongful conduct in the future; the amount of fines and civil penalties, if any, applicable to similar conduct; and whether the amount of punitive damages bears a reasonable relationship to the compensatory damages awarded.
. Although
Gore
involved a Fourteenth Amendment due process review of a state's imposition of punitive damages on a tortfea-sor, the Court of Appeals for the Eighth Circuit has applied the
Gore
analysis to review a federally imposed punitive damages award in an employment discrimination case.
See Henderson,
. The defendant, in its brief, asserts Herz-berger testified an investigation was never conducted because the Company never received a complaint about harassment. However, the page citation given by the defendant to the trial transcript with respect to Herzber-ger’s testimony reveals otherwise:
Q. Did you conduct a similar investigation when Maricela Villalpando made her claim?
A. I did not, no.
Q. And why not?
A. She was no longer employed at Ara-mark.
See Trial Tr. 852:18-25.
. Lopez, however, could only corroborate the fact that Villalpando called, not what she called to report. Rather, Lopez testified that she thought Villalpando only called to report that some of the workers were illegal.