72 F.3d 648 (8th Cir. 1995), 94-4001, Pulla v. Amoco Oil Co.

Docket Nº:94-4001, 95-1047.
Citation:72 F.3d 648
Party Name:Thaddeus C. PULLA, Appellant/Cross-Appellee, v. AMOCO OIL COMPANY, Appellee/Cross-Appellant.
Case Date:December 19, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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72 F.3d 648 (8th Cir. 1995)

Thaddeus C. PULLA, Appellant/Cross-Appellee,


AMOCO OIL COMPANY, Appellee/Cross-Appellant.

Nos. 94-4001, 95-1047.

United States Court of Appeals, Eighth Circuit

December 19, 1995

Submitted Oct. 18, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 22, 1996.

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[Copyrighted Material Omitted]

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Robert O'Connell, Chicago, Illinois, argued (Charles E. Gribble and Pamela J. Prager, Des Moines, Iowa, on the brief) for appellant/cross-appellee.

I. John Rossi, Des Moines, Iowa, argued, for appellee/cross-appellant.

Before McMILLIAN, Circuit Judge, WHITE, [*] Associate Justice (Ret.), and LOKEN, Circuit Judge.

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WHITE, Associate Justice (Ret.).


The Amoco Oil Company ("Amoco") appeals from a jury verdict that it invaded the privacy of Thaddeus C. Pulla ("Pulla"), one of its employees, by searching his credit card records to determine if he had abused his sick leave. Amoco filed a series of post-trial motions challenging both the verdict and the jury's award of $500,000 in punitive damages on a variety of grounds, but the district court rejected Amoco's motions for judgment as a matter of law, a new trial and a remittitur. Pulla v. Amoco, 882 F.Supp. 836 (S.D.Iowa 1994). On appeal, Amoco renews four of its claims of error, including its argument that the punitive damages award in this case violates due process. In his cross appeal, Pulla raises two claims of error. We exercise jurisdiction over these appeals pursuant to 28 U.S.C. Sec. 1291, and we now AFFIRM in part, REVERSE in part, and REMAND this case for further proceedings.


Pulla has worked continuously for Amoco since April 14, 1974. By 1989, when he was 48 years old, Pulla had worked his way up to a class 8 supervisor of new accounts in Amoco's credit card department. At that time, his supervisor, Robert Langois ("Langois"), judged his work to be satisfactory and noted that he was "promotable with future development." However, on May 22, 1989, Langois told Pulla that his performance was unsatisfactory and that he might be transferred to another department. Ten days later, Pulla was asked to consider remaining in his position until age 50 at which time he could consider early retirement. On July 28, 1989, Langois demoted Pulla to a class 7 sales authorization representative. While this transfer and demotion did not reduce his pay, it did reduce his possibilities for future pay increases. Isabella Hurless, a 45 year-old, replaced Pulla as the supervisor of new accounts.

After filing an administrative complaint with the Equal Opportunity Employment Commission on March 13, 1990, Pulla filed this action on February 20, 1991. He alleged that Amoco demoted and transferred him because of his age and in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq., and his employment contract. To support his ADEA claim, Pulla reported that Langois made several ageist comments, including such statements as Pulla was "too old for the job," "had been with the company too long," and "should consider early retirement."

Based on incidents that occurred after he filed his complaint, Pulla amended his complaint on September 9, 1992. This amendment alleged that Amoco had retaliated against him in violation of the ADEA and his employment contract and had violated state tort law by invading his privacy. The basis of the invasion of privacy claim (and the most significant alleged retaliatory action) was Amoco's inspection of his credit card records. This alleged invasion of privacy stemmed from the action of Pulla's co-worker, Tammy Leckband ("Leckband"). Pulla and Leckband worked together at Amoco's Credit Card Service Center in Des Moines, Iowa, where they handled authorizations for customer purchases and investigations of related problems. Pulla often called in sick, and over the course of 1991, he missed two months of work. Leckband was one of the employees who covered his shift when he was absent. Because she was "mad" at Pulla for what she viewed as an abuse of his sick leave, which burdened her, Leckband checked Pulla's personal credit card records against the days that he called in sick. In so doing, she found that Pulla had used his credit card at various restaurants and bars on days when he had called in sick. On November 8, 1991, she reported these observations to Anthony Wieczorek ("Wieczorek"), the individual who supervised her and Pulla.

Wieczorek admonished Leckband for reviewing Pulla's credit card records, and instructed her never to repeat such behavior. She was not otherwise disciplined. After finishing this conversation with Leckband, Wieczorek asked another employee to print out this same material and gave it to Bruce Williams, an Amoco Human Resources representative, who placed this information in Pulla's personnel file with red marks on the days in which Pulla had called in sick. Pulla soon

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learned that Amoco had retrieved this information, began to suffer feelings about being watched, and felt that this investigation put him in a bad light. Finally, Wieczorek referred to Pulla's absence problem in a subsequent evaluation, and singled Pulla out for the unique requirement that he obtain a doctor's note before submitting any claims for sick leave.

Amoco moved for summary judgment on the age discrimination claims, state law contract claims as well as the invasion of privacy claim. On January 11, 1994, the district court 1 granted summary judgment to Amoco on the state law contract claims, but ruled that a genuine dispute of material fact existed as to the ADEA and the invasion of privacy claims. Thus, Pulla's ADEA and invasion of privacy claims were tried to a jury.

After Pulla presented his evidence of age discrimination and invasion of privacy to the jury, Amoco requested that the district court 2 dismiss his claims as a matter of law under Fed.R.Civ.P. 50(a). Amoco argued that Pulla had (1) only offered some stray comments referring to his age on his ADEA claim; (2) failed to present any evidence of retaliation based on his filing of this action; and (3) failed to establish that the search of his credit card records was "highly offensive" and "objectionable" so as to constitute an invasion of privacy.

The district court explained that it would take Amoco's Rule 50(a) motion under advisement. However, it also noted that the invasion of privacy claim was "clearly submissible," and that he would also allow Pulla's ADEA claims to go to the jury although the evidence on these claims was thin. After Pulla attempted to introduce more evidence in support of his privacy claim, and Amoco presented four additional witnesses to close out the presentation of all of the evidence, Amoco failed to renew its motion for judgment as a matter of law.

Amoco agreed to most of the jury instructions governing liability, but contended that the instruction on Amoco's ratification of the invasion of Pulla's privacy should not be submitted to the jury because no evidence in the record could support such a finding. Amoco also objected to submitting the punitive damages instructions to the jury on the ground that there was insufficient evidence to support those instructions. The court rejected these two objections and submitted all of Pulla's claims to the jury.

The jury found in favor of Amoco on the ADEA claims, but found for Pulla on the invasion of privacy claim. On the invasion of privacy claim, the jury awarded Pulla $1 in actual damages for past pain and suffering and $1 in actual damages for future pain and suffering. The jury also answered special interrogatories explaining that it found clear and convincing evidence that Amoco's invasion of Pulla's privacy willfully and wantonly disregarded his rights and that Amoco's conduct was specifically directed at Pulla. Finally, the jury awarded Pulla a total of $500,000 in punitive damages.

On May 20, 1994, Amoco filed a series of post-trial motions, contending that, with respect to both the determination of liability and the award of punitive damages, it deserved judgment as a matter of law under Fed.R.Civ.P. 50, or in the alternative, that the court should order a new trial pursuant to Fed.R.Civ.P. 59 and remit the punitive damages award. The district court held that Amoco waived most of its claims of error, but proceeded to reject them all on the merits. In so doing, the district court engaged in the necessary post-trial review of the punitive damages award to determine whether it was excessive under Iowa law, unconstitutional

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under the Due Process Clause, and/or should be remitted. Focusing on the potential damages arising from invasions to credit card privacy, the district court concluded that the award did not warrant a new trial nor need to be remitted. Amoco then brought this timely appeal, challenging the district court's post-trial rulings. Pulla cross appealed, contending that the district court erroneously rejected his breach of contract claim, and that it erred by refusing to allow him to amend his complaint to conform to the evidence presented in support of a disparate impact violation of the ADEA.



    The district court carefully analyzed Amoco's claims of error, explaining that Amoco waived most of its claims by (1) failing to move for judgment as a matter of law on that ground; (2) failing to move for judgment as a matter of law at the close of the evidence; and/or (3) failing to object to the relevant jury instruction(s). In this appeal, Amoco re-asserts four of its claims of error, the first three of which we deal with in this Section A. 3 These three claims challenge the district court's rulings that: (1) the search of Pulla's credit card records was sufficiently offensive so as to invade Pulla's privacy;...

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