Medlock v. Ortho Biotech, Inc., 97-3037

Citation164 F.3d 545
Decision Date05 January 1999
Docket NumberNo. 97-3037,97-3037
Parties78 Fair Empl.Prac.Cas. (BNA) 1592, 74 Empl. Prac. Dec. P 45,731, 75 Empl. Prac. Dec. P 45,731, 1999 CJ C.A.R. 811 Oliver MEDLOCK, Jr., Plaintiff-Appellee, v. ORTHO BIOTECH, INC., Defendant-Appellant, and Johnson & Johnson Companies, Ortho Pharmaceutical Corp., William C. Pearson, III, W. Thomas Amick, James A. Moreland, Richard W. Zahn, C. Daniel Smith, Craig Manjean and Carol Webb, Defendants. Equal Employment Advisory Council, Amicus Curiae.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

David J. Waxse (Barbara A. Harmon with him on the briefs) of Shook, Hardy & Bacon, L.L.P., Overland Park, Kansas, for the Defendant-Appellant.

Alan V. Johnson of Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., Topeka, Kansas, for the Plaintiff-Appellee.

Robert E. Williams, Ann Elizabeth Reesman, and Jennifer Nicole Long of McGuiness & Williams, Washington, D.C., filed an amicus curiae brief for the Equal Employment Advisory Council.

Before BRISCOE, McWILLIAMS and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

After a seven-day trial, a jury found that Ortho Biotech, Inc. ("OBI") had terminated Oliver Medlock, Jr. in retaliation for his filing and pursuing a claim of discrimination based on race in violation of Title VII. The questions we must resolve on appeal are: (1) did Medlock present sufficient evidence to support the jury's finding of retaliatory discharge as well as its award of punitive damages; (2) did the district court err in administering a mixed motives instruction to the jury; (3) did the verdict form allow the jury to erroneously disregard after-acquired evidence on which OBI could have legitimately relied to terminate plaintiff; (4) did the district court abuse its discretion in refusing to instruct the jury that its determination of damages could consider plaintiff's conduct after his termination; (5) did the district court err in refusing to reduce the award for future loss of compensation under 42 U.S.C. § 1981a(b)(3); and, finally, (6) did the district court err in awarding plaintiff attorney fees? We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

I

Plaintiff began working for OBI in June 1989. In 1991, shortly after a meeting at which plaintiff learned that a scheduled salary increase was going to be postponed for six months, plaintiff called his division manager, C. Daniel Smith, and irately expressed his dissatisfaction with various aspects of his job, including his level of pay. Smith submitted a memo concerning the conversation to his superior, William Pearson, III, describing plaintiff as "very angry and hostile about the way that he has and is being managed with Ortho Biotech." II Appellant's App. at 334-35.

In February 1992, plaintiff confronted Pearson after a sales meeting. During that discussion, Medlock accused Pearson of building a file of inaccurate information about him and threatened to harm him physically if he continued to do so. Later that month, Pearson met with his superiors to discuss his confrontation with plaintiff. Although Pearson recommended that plaintiff be terminated for violating company rules, OBI management decided to investigate the matter further and no action was taken at that time.

The next month, plaintiff contacted Smith again. According to Smith, plaintiff barraged him with obscenities. Smith used his dictation equipment to record the conversation. He later played the tape for Pearson, and then sent Pearson a memorandum stating that Medlock "is becoming more difficult to manage because of his BAD attitude and his dislike for Ortho Biotech and our policies. I feel that Oliver should be put on formal warning or terminated as soon as possible." II Appellant's App. at 403.

That same day, Pearson submitted a memorandum to upper management describing the continuing difficulty he was having with plaintiff and recommending they take "immediate action to resolve this situation." Id. at 402. Shortly thereafter, plaintiff met with representatives of OBI's upper management. They discussed plaintiff's job performance and his altercation with Pearson in February of that year. Although Medlock's version of that story did not vary greatly from Pearson's, management decided to give him another chance.

Plaintiff continued to express his dissatisfaction with his compensation, and ultimately filed administrative charges with the Equal Employment Opportunity Commission in December 1993. Among other claims, plaintiff alleged that his compensation was the product of racial discrimination. In August 1994, plaintiff filed suit in district court claiming racial discrimination along with numerous other causes of action. One month after his deposition in that suit was taken, plaintiff was suspended by OBI and, a month after that, he was terminated. He subsequently added to his complaint a claim for retaliatory discharge in violation of Title VII.

Defendant prevailed on all claims except one--the jury found that OBI terminated plaintiff in retaliation for his filing and pursuing his race discrimination claim under Title VII. Though OBI contends that it had legitimate nondiscriminatory reasons for terminating plaintiff in the light of new information it learned during plaintiff's deposition, the jury nevertheless found by a preponderance that plaintiff was terminated for reasons of retaliation.

II

After trial, defendant moved for judgment as a matter of law ("JMOL") on the ground that plaintiff had not adduced sufficient evidence to support a finding of retaliatory discharge in violation of Title VII. We review the district court's denial of that motion de novo. See Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir.1997). In determining whether the district court's refusal to grant JMOL constitutes error, "[w]e do not weigh the evidence, pass on the credibility of the witnesses, or substitute our conclusions for that of the jury." Id. (internal quotation omitted). Rather, we may only reverse "if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion." Id. 1

A

Under 42 U.S.C. § 2000e-3(a), it is unlawful for an employer to discriminate against an employee "because he has opposed any practice made an unlawful employment practice" by Title VII. To prevail on a retaliatory discharge claim, a plaintiff must establish that the decision to terminate her resulted from retaliatory animus. A plaintiff may meet that burden in two ways. Typically, a plaintiff will rely on the familiar framework enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), under which the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the defendant is able to articulate a legitimate nondiscriminatory reason for the adverse action, the plaintiff must then show that the articulated reasons are a pretext for retaliation. However, the plaintiff may also establish discrimination directly, in which case the McDonnell Douglas framework is inapplicable. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 557-58, 560 (10th Cir.1996).

To prevail via this direct method, a plaintiff must introduce direct or circumstantial evidence that the alleged retaliatory motive "actually relate[s] to the question of discrimination in the particular employment decision, not to the mere existence of other, potentially unrelated, forms of discrimination in the workplace." Thomas v. National Football League Players Ass'n, 131 F.3d 198, 204 (D.C.Cir.1997) ("NFLPA "); see also Thomas v. Denny's, Inc., 111 F.3d 1506, 1512 (10th Cir.1997) (holding that plaintiff may prove discriminatory motive by "presenting 'evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged [retaliatory] attitude' " (quoting Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1471 n. 5 (10th Cir.1992)) (emphasis added)); Greene, 98 F.3d at 560 (holding that plaintiff may establish age discrimination "directly, by presenting direct or circumstantial evidence that age was a determining factor in his discharge"). Defendant argues that "[n]o evidence was presented at trial that plaintiff's filing and pursuit of his discrimination charge was a 'motivating factor' in the decision to terminate him." Appellant's Br. at 22. We disagree.

One month after plaintiff's deposition, during which he testified about his race discrimination claim, defendant sent a letter to plaintiff, stating: "As a result of issues raised in your deposition, effective immediately, you are suspended from all duties on behalf of the Company." Appellant's Add.App. at 3011. In a letter explaining the reasons for plaintiff's termination shortly thereafter, defendant states: "During the entire term of your employment, you have communicated your deep dissatisfaction with your compensation to Ortho Biotech management and Ortho Biotech human resources personnel." Id. at 3012. On its face, defendant's suspension letter admits that defendant considered the subject matter of plaintiff's deposition in its decision to terminate him, a deposition which included testimony about his Title VII race discrimination claim. The termination letter explicitly references plaintiff's communication of his dissatisfaction with his compensation. Taken in the light most favorable to plaintiff, we must conclude the letters, coupled with the close temporal proximity between plaintiff's deposition and firing, directly support the jury's finding that defendant terminated plaintiff in retaliation for his pursuit of his Title VII race discrimination claim.

Defendant argues that, notwithstanding the language in its letters to Medlock, it is entitled to JMOL because no reasonable jury could reject the nondiscriminatory reasons on which it purportedly relied to terminate plaintiff. According to defendant, it only decided...

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