Oliphant v. Perkins Restaurants Operating Co.

• Decision Date: 10 May 1995
• Docket Number: Civ. A. No. 94-2022-GLR.
• Citation: 885 F. Supp. 1486
• Parties: Teresa Hoffman OLIPHANT, Plaintiff, v. PERKINS RESTAURANTS OPERATING COMPANY, Ahmad Haji, Defendants.
• Court: U.S. District Court — District of Kansas

885 F. Supp. 1486

Teresa Hoffman OLIPHANT, Plaintiff, v. PERKINS RESTAURANTS OPERATING COMPANY, Ahmad Haji, Defendants.

Civ. A. No. 94-2022-GLR.

United States District Court, D. Kansas.

May 10, 1995.

Gail M. Hudek, Paul F. Pautler, Jr., Hudek & Associates, P.C., Kansas City, MO, for plaintiff Teresa Hoffman Oliphant.

John A. Vering, III, Renana B. Abrams, Armstrong, Teasdale, Schlafly & Davis, Kansas City, MO, Louis P. Britt, III, Donna K. Fisher, Delaine R. Smith, McKnight, Hudson, Lewis & Henderson, Memphis, TN, for defendants Perkins Restaurants, Inc., a Minn. corp., Ahmad Haji, Perkins Restaurants Operating Company, a Delaware limited partnership.

MEMORANDUM AND ORDER

RUSHFELT, United States Magistrate Judge.

On the 11th day of April the above-captioned action came on for hearing upon Defendants' Renewed Motion for Judgment as a Matter of Law and Motion to Alter or Amend Judgment (doc. 118). Plaintiff appeared in person and by Gail M. Hudek and Kim Jones, her attorneys. Defendants appeared by Donna K. Fisher, their attorney. After giving due consideration to the motions, the memoranda of the parties, and other matters of record, and after hearing statements and arguments of counsel, the court took them under advisement. It now makes the following rulings:

This case proceeded to trial by jury from September 15 through 23, 1994. The jury returned a special verdict in favor of plaintiff upon her claim for sex and pregnancy discrimination, pursuant to 42 U.S.C. § 2000e, and awarded her actual and punitive damages in the respective amounts of $50,000 and $115,000 against both defendants. The jury also found for plaintiff upon her claim of outrage, pursuant to the law of Kansas, and awarded her actual damages of $140,500 against both defendants. It further found in her favor upon her claim of negligent retention, also pursuant to Kansas law. It awarded her actual damages of $50,000 upon the latter claim against the defendant Perkins Restaurants, Inc. (Perkins). The jury found for defendants and against plaintiff upon her claims for assault and violations of the Fair Labor Standards Act.

On September 23, 1994, at the conclusion of the trial the court took under advisement the oral motion of defendants for judgment as a matter of law as to all claims, pursuant to Fed.R.Civ.P. 50(a). On October 25, 1994, it conducted a hearing to determine among other matters what amounts of punitive damages, if any, should be awarded plaintiff upon the claim of outrage, pursuant to Kansas law. After receiving evidence and hearing arguments, the court entered an award of punitive damages in the amount of $20,000 against defendant Ahmad Haji (Haji) upon the claim of outrage. It deemed the evidence previously submitted to the jury at trial insufficient, however, to allow punitive damages on that claim as to the defendant Perkins. It thus sustained in part and otherwise overruled the still pending defense motion for judgment as a matter of law.

Upon motion by plaintiff for reconsideration and after further review of the evidence at trial and the law of Kansas, the court determined it had erroneously disallowed punitive damages against defendant Perkins upon the claim of outrage. On January 6, 1995, consequently, it entered an order, granting the motion for reconsideration, awarding punitive damages against defendant Perkins in the amount of $300,000 upon the claim of outrage, and entering judgment consistent with the verdicts of the jury and the additional findings by the court.

Fed.R.Civ.P. 50(b) provides as follows:

Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed.... If a verdict was returned, the court may, in disposing of the renewed motion, allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law....

Well established principles apply to the consideration of a motion for judgment as a matter of law:¹ Fed.R.Civ.P. 50(a)(1) allows the court to grant a motion for judgment as a matter of law, "if during a trial by jury 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." It may appropriately grant such a motion, "only if the evidence, viewed in the light most favorable to the nonmoving party, `points but one way and is susceptible to no reasonable inferences supporting' the nonmoving party." Riggs v. Scrivner, Inc., 927 F.2d 1146, 1149 (10th Cir.) (quoting Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir.1988)), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). The court is not permitted to evaluate the credibility of witnesses, weigh the evidence, or determine where the preponderance of evidence lies. Martin v. Unit Rig & Equipment Co., 715 F.2d 1434, 1438 (10th Cir.1983). The court, however, may evaluate the evidence to the extent necessary to determine whether there is sufficient evidence to support a jury verdict for the plaintiff, because "a mere scintilla of evidence is insufficient to create a jury question." Honce v. Vigil, 1 F.3d 1085, 1088 (10th Cir.1993). With these principles in mind, the court will address the grounds of the motion:

1. Sufficiency of the evidence to support a finding that defendants' conduct was wilful, wanton or malicious.

Defendants contend the evidence is not sufficient to support a finding that the conduct of defendants was wilful, wanton or malicious. Neither in their memoranda nor in oral argument, however, have they pursued this contention. Upon a motion for judgment as a matter of law or to amend or alter the judgment, the court must consider the evidence in the light most favorable to the plaintiff as the prevailing party and thus sufficient to uphold the finding of the jury.

In answer to Questions 6, 12, and 15 of the Special Verdict Form (doc. 103) the jury determined that defendants were wilful, wanton or malicious by both clear and convincing and a preponderance of the evidence. The Memorandum and Order of January 6, 1995, describes much of the evidence which supports these findings. To supplement it, the court will note that the evidence showed that during a period of over one year defendant Haji in his anger and without excuse repeatedly derided, cursed and yelled at plaintiff, called her demeaning names, and threatened to fire her if she complained about him to the upper management of defendant Perkins. He belittled her as a woman and for her pregnancy. At all material times he acted in his capacity as a restaurant manager for defendant Perkins. The evidence also showed that other employees had notified the upper management of Perkins about Haji's misconduct. Viewing all the evidence in the light most favorable to plaintiff, the court finds it amply supports the jury verdict that the misconduct of defendants was wilful, wanton or malicious.

2. Sufficiency of the evidence to support an award of punitive damages under K.S.A. 60-3072(d)(1) against defendant Perkins.

Defendants contend the evidence is insufficient to support an award of punitive damages against Perkins upon the claim of outrage. The Memorandum and Order of January 6, 1995, describes the evidence and findings upon this issue. The evidence hereinafter discussed further addresses this issue.

3. Whether the award of punitive damages against defendants should be reduced, pursuant to K.S.A. 60-3702(b).

Defendants contend the amount of punitive damages should be reduced on the claim of outrage either to nothing or a nominal amount. K.S.A. 60-3702(b) enumerates seven factors which the court should consider in assessing the amount of punitive damages: (1) likelihood at the time of the alleged misconduct that serious harm would arise from the defendant's misconduct; (2) degree of defendant's awareness of that likelihood; (3) profitability of defendant's conduct; (4) duration of the misconduct and any intentional concealment of it; (5) attitude of the defendant upon discovery of the misconduct; (6) financial condition of the defendant; and (7) the total deterrent effect of other damages and punishment imposed upon defendant as a result of the misconduct.

In the Memorandum and Order of January 6, 1995, the court explained the rationale for its award of punitive damages upon the claim of outrage. It will elaborate further: The likelihood that serious harm would arise from the misconduct of defendant Haji may have been no more than slight, when it began. It increased through weeks and months for over a year during which he continued to harass plaintiff and other employees, particularly female. Defendant Haji himself testified that plaintiff was very sensitive and emotional and would sometimes cry in the course of being corrected for mistakes.

Both plaintiff herself and other witnesses testified she was often in tears after the defendant had directed abusive language, names, accusations and threats of retaliatory discipline against her. On one occasion in the very small office in which plaintiff did her work, plaintiff lost his temper, threw everything off her desk, threw a stapler against the wall, caused binders to fall on her, and yelled words like "fuck," "shit," and "goddamned bitch" at her. At other times he expressed to employees his views that he didn't think much of women working, that they were lazy, stupid, ignorant, always sick, having to change their "pad," and using pregnancy as an excuse for absence from work. He characterized pregnant women as unproductive and lazy.

When plaintiff became pregnant, the abuse continued. When she presented a note from her doctor, requiring her to be on medical leave, Haji called her at home almost...