Kim v. Nash Finch Co.
| Decision Date | 12 November 1997 |
| Docket Number | 95-2074,Nos. 95-2012,s. 95-2012 |
| Citation | 123 F.3d 1046 |
| Parties | 75 Fair Empl.Prac.Cas. (BNA) 1741, 72 Empl. Prac. Dec. P 45,258, 39 Fed.R.Serv.3d 348 Jin Ku KIM, Appellant/Cross-appellee, v. NASH FINCH COMPANY, Appellee/Cross-appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Before McMILLIAN and BEAM, Circuit Judges, and PERRY, * District Judge.
Jin Ku Kim appeals from a final judgment entered in the District Court 1 for the Northern District of Iowa, upon a jury verdict, finding in his favor and against Nash Finch Co. in his employment discrimination case but reducing the amount of damages awarded by the jury. For reversal, Kim argues the district court erred in denying his motion to amend the pleadings to conform to the evidence under Fed.R.Civ.P. 15(b) and in applying the Title VII cap, 42 U.S.C. § 1981a(b)(3), to limit compensatory and punitive damages. On cross-appeal, Nash Finch argues the district court erred in holding (1) Kim's claim that he was unlawfully denied a promotion from leadman to foreman in November 1990 was actionable under 42 U.S.C. § 1981, (2) there was sufficient evidence of intentional discrimination, (3) there was sufficient evidence of retaliation, (4) there was sufficient evidence of malice or reckless indifference to support punitive damages, and (5) the jury verdict awarding damages for lost wages and compensatory damages was supported by sufficient evidence or, in the alternative, was not excessive. For the reasons discussed below, we affirm the judgment of the district court.
Nash Finch is a wholesale and retail food distributor. In 1978 Kim, an American citizen of Korean ancestry, began working as a grocery picker in Nash Finch's Cedar Rapids warehouse. A superintendent runs the warehouse. During the period of time at issue Bill Mund was the warehouse superintendent. The four warehouse departments--receiving, shipping, maintenance, and transportation--are each supervised by a salaried "foreman." By October 1979, Kim was one of six hourly "leadmen" who assisted the warehouse shipping foreman; Kim also acted as shipping foreman on Saturdays and filled in when the shipping foreman was absent. The shipping department has 80-90 employees; the full shipping crew can consist of up to 70 employees; on Saturdays, however, the shipping crew is smaller, about 25-40 employees. For more than 10 years, Kim received "superior" or "outstanding" annual performance evaluations.
The position of shipping foreman became vacant in November 1990 and in April 1992. Kim applied for both vacancies, but in each instance Nash Finch promoted someone else. The individual promoted in November 1990 was white, younger than Kim, had less than a year's experience as a leadman, had been trained by Kim, and had no formal education beyond high school. The individual promoted in April 1992 was white, younger than Kim, had not worked in the warehouse for 10 years, had been trained by Kim, and had no formal education beyond high school. In comparison, Kim was a college graduate and the senior leadman in the shipping department. Nash Finch told Kim that he had not been promoted because of his inability to control costs and manhours, lack of aggressiveness, difficulty in controlling large crews, and poor temperament. When Kim objected to being passed over for promotion, the Nash Finch EEO compliance officer advised Kim to file a complaint or consult a lawyer. In May 1992 Kim filed an employment discrimination charge against Nash Finch with the Iowa Human Rights Commission and the Equal Employment Opportunity Commission, alleging Nash Finch unlawfully failed to promote him in November 1990 and in April 1992 on the basis of race, national origin and age.
According to Kim, immediately after he filed his employment discrimination charge in May 1992, Nash Finch began to systematically retaliate against him. For example, Nash Finch supervisors no longer assigned Kim to fill in for the shipping foreman, gave him much lower performance evaluations, orally warned him about his poor "attitude" (toward management), characterized him as unwilling to assume more job responsibility when he declined a Sunday shipping crew assignment, placed him under constant surveillance at work, and excluded him from meetings at work. Nash Finch mischaracterized a September 1992 incident involving Kim and another employee as race-based, gave Kim a Kim continues to work for Nash Finch and has not been discharged, demoted, reduced in compensation, or reassigned; however, as noted above, he has received oral and written reprimands and has been required to attend special retraining. Brief for Appellee/ Cross-Appellant at 1.
written reprimand about the incident, and placed the written reprimand in Kim's personnel file. Kim alleged Nash Finch fabricated the race basis of the incident in order to discredit him when the local civil rights commission was investigating his (Kim's) employment discrimination charge. In November 1992, after another incident involving a co-worker and another meeting with management, Nash Finch issued Kim a written reprimand about the incident. During the summer and fall of 1993, Nash Finch reviewed its warehouse operations with the assistance of a consultant and discovered what it regarded as productivity problems, particularly with respect to the Saturday shipping crew, which Kim supervised, and required Kim to attend special retraining in order to improve productivity on Saturdays. Kim regarded this special retraining as punitive and humiliating in light of his status as a leadman, seniority and experience.
In November 1992 Kim received a right-to-sue letter and filed this lawsuit in federal district court. In count I Kim alleged that Nash Finch unlawfully discriminated against him on the basis of race, color, national origin, and age when it failed to promote him to the position of shipping foreman in April 1992 in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e, and the Age Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. § 621 et seq. In count II Kim alleged that Nash Finch unlawfully discriminated against him on the basis of race, color, national origin, and age when it failed to promote him to the position of shipping foreman in November 1990 in violation of 42 U.S.C. § 1981. 2 In count III Kim alleged that Nash Finch unlawfully retaliated against him for filing an employment discrimination charge in violation of Title VII, 42 U.S.C. § 2000e-3(a). Kim sought back pay, promotion and other equitable relief, and compensatory and punitive damages, as well as attorney's fees and costs, including expert witness fees.
Nash Finch filed a motion for summary judgment, asserting that Kim had not been promoted because he had no transportation experience and because of his relatively weak management skills. The district court denied the motion for summary judgment and in September 1994 the case was tried to a jury. At trial Mund testified that he never seriously considered Kim for promotion because Kim lacked personal loyalty to him (Mund). Kim, his wife and his son testified about how Kim had suffered physically and emotionally from his adverse treatment by Nash Finch. Kim developed high blood pressure and headaches from stress and became anxious, withdrawn and depressed; he had difficulty sleeping and felt humiliated and ostracized at work.
In special verdicts, the jury found Nash Finch had discriminated against Kim on the basis of race but not age in failing to promote him to shipping foreman in November 1990 and in April 1992, and had retaliated against him for filing employment discrimination charges. The jury awarded Kim $15,000 in lost wages and benefits and $100,000 in non-economic damages (for emotional distress and loss of enjoyment of life) for the 1990 promotion claim, $21,000 in lost wages and benefits and $150,000 in non-economic damages for the 1992 promotion claim, and $1.5 million in non-economic damages for the retaliation claim. Finally, the jury awarded Kim $7 million in punitive damages. The special verdict permitted the jury to award punitive damages for either the 1992 promotion or the retaliation claim. Both parties filed post-trial motions.
The district court denied Nash Finch's motion for judgment as a matter of law or, in the alternative, for new trial, reduced the damages award, granted in part Kim's motion for equitable relief (for promotion to shipping foreman when available and front As discussed below, the parties disputed whether the 1992 promotion and retaliation claims were submitted under both Title VII and 42 U.S.C. § 1981 or only Title VII. The district court found that Kim had waived any argument that these claims had been brought under both statutes because Kim did not object to the jury instructions and the special verdict forms which submitted the 1992 promotion and retaliation claims under Title VII without referring to 42 U.S.C. § 1981. Id. at 1057 (). The district court also held that the Title VII statutory damages cap applied, thus limiting the award for non-economic damages and punitive damages for those claims to a maximum of $300,000. Id. at 1057 (). The district court did not review the punitive damages award for excessiveness. Id. at 1056 (). 3 This appeal and cross-appeal followed.
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