Sherman v. Burke Contracting, Inc.
| Citation | 891 F.2d 1527 |
| Decision Date | 16 January 1990 |
| Docket Number | No. 88-8382,88-8382 |
| Parties | 51 Fair Empl.Prac.Cas. (BNA) 1640, 52 Empl. Prac. Dec. P 39,576, 29 Fed. R. Evid. Serv. 1358 Willie Lewis SHERMAN, Plaintiff-Appellee, v. BURKE CONTRACTING, INC., and William E. Burke, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
M. McNeill Holloway, III, Thomson, Ga., E. Ray Stanford, Jr., Atlanta, Ga., for defendants-appellants.
John P. Batson, Jacque D. Hawk, Hawk, Hawk, & Lyons, Augusta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and ATKINS *, Senior District Judge.
I.
Willie Lewis Sherman brought this suit against his former employer, Burke Contracting, Inc., and its president and principal owner, William Burke, (collectively Burke) seeking recovery for two acts of racial discrimination. Sherman's complaint contained five counts alleging violations of federal civil rights statutes and Georgia tort law. 1 All of the counts were based on two factual episodes. The first episode occurred when Burke terminated Sherman's employment. According to the complaint, Burke did so because Sherman, a black man, was married to a white woman. Sherman subsequently complained to the Equal Employment Opportunity Commission (EEOC), contending that Burke fired him on account of his race. The second episode occurred a few days after Sherman had found work with another contractor, Palmer Construction Co. (Palmer). Sherman alleged that Burke, in retaliation against him for complaining to the EEOC, persuaded Palmer to fire him. 2
Sherman asked the court to order Burke to restore him to his former position with the company and to award him back pay. Sherman also sought $50,000 in compensatory damages, $1,000,000 in punitive damages, and reasonable attorney's fees and costs.
Burke moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. 3 The court denied the motion. Burke then answered the complaint, denying the alleged wrongdoing. Prior to trial, the parties entered into a pretrial stipulation, approved by the court, which provided for a bifurcated jury trial. The parties would first try the issue of liability; if the jury found for Sherman, the court would then recall the jury to consider damages. 4 At trial, the parties chose to present the case as if it consisted of two claims rather than the several claims stated in Sherman's complaint. As Sherman explained in his opening statement, he contended that Burke had violated the "United States Code" on two occasions--when it terminated him because his wife was white and when it persuaded Palmer to fire him in retaliation for his EEOC complaint. Burke, on the other hand, denied that it had violated the Code by terminating Sherman or that it had caused Palmer to terminate him as a retaliatory measure in violation of the Code.
Sherman introduced evidence to establish his factual allegations. Burke then moved for a directed verdict on each claim. 5 The court granted Burke's motion in part, striking all of Sherman's claims except those brought under 42 U.S.C. §§ 1981, 2000e-2(a)(1), and 2000e-3(a) (1982). At the close of its case, the defense moved for a directed verdict on the remaining claims. Burke, however, failed to explain why the remaining claims were deficient, and the court summarily denied the motion.
The court then held a charge conference; apparently, the parties were uncertain how the court should instruct the jury. The court decided to give a "conversational" charge, built around two special interrogatories that would, in effect, determine the liability issues. See generally Fed.R.Civ.P. 49(a).
In its instruction to the jury, the court stated that Sherman had two claims. The first claim was that Burke had violated the nondiscrimination provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1982), when it terminated Sherman because he was married to a white woman. 6 The court instructed the jury on the elements of a section 2000e-2(a)(1) claim and asked it to answer the following question:
Sherman's second claim, according to the court, was that Burke had violated 42 U.S.C. § 1981 (1982) by persuading Palmer to fire Sherman because he had complained to the EEOC. On this claim, the court asked the jury the following question:
3. Did either defendant intentionally discriminate against the plaintiff on account of his race so as to infringe upon his right:
(a) to make and enforce a contract of employment?
(b) to sue, be a party to an action or give evidence?
The jury answered question one in the negative, thus exonerating Burke on the section 2000e-2(a)(1) claim. It answered both paragraphs of question three in the affirmative, however, thus finding for the plaintiff on the section 1981 claim.
The court then recalled the jury to determine the issue of damages under section 1981. The jury awarded Sherman $10,000 in compensatory damages and $12,500 in punitive damages, and the court subsequently entered judgment against Burke in the amount of $22,500. 7
Burke immediately moved for judgment n.o.v. or, alternately, for a new trial, but the court denied the motions. Sherman then moved for a clarification of the court's final judgment, which had not stated upon what count, or counts, of the complaint it was based. Sherman wanted the court to specify that the judgment gave him relief on his retaliation claim under section 2000e-3(a), as well as under section 1981. The court granted his motion and entered the following order:
Willie Lewis Sherman, the prevailing party in the above-captioned case, asks the Court to "clarify" the judgment entered in this case on February 29, 1988, following a two-day jury trial. The jury's findings of fact [i.e., its answer to question three], of course, related solely to plaintiff's causes of action [against Burke] under 42 U.S.C. § 1981. In view of the need to demonstrate a proper regard for the vital and necessary function of the jury in our judicial system, I am prepared to accept and adopt as my own these findings with respect to Sherman's Title VII claim [under section 2000e-3(a) ] as well and to award him no further relief than that provided for under the verdict. Judgment is hereby entered accordingly [in the sum of $22,500]. 8
Burke appeals from this judgment.
II.
Burke raises two issues that require discussion. The first is whether an employer can be held liable under 42 U.S.C. § 2000e-3(a) (1982) for retaliating against an employee after an employment relationship has terminated. 9 The second is whether the district court erred in allowing the jury to hear certain incriminating evidence over Burke's objection. 10 We raise a third question sua sponte in light of the Supreme Court's decision in Patterson v. McLean Credit Union, --- U.S. ----, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which the Court handed down after oral argument in this case: whether Sherman can recover from Burke under section 1981 for interfering with the employer-employee relationship between Palmer and Sherman. If Sherman cannot recover under section 1981, a fourth question then arises: whether Sherman's punitive damages award is sustainable under section 2000e-3(a). We address these issues in order.
Section 2000e-3(a) makes it unlawful for an employer "to discriminate against any of his employees" because they have filed a complaint with the EEOC. Retaliation against an employee who has filed an EEOC complaint constitutes discrimination within the meaning of the statute. Although Burke concedes as much, it points out that section 2000e-3(a) only prohibits an employer from discriminating "against any of his employees." Burke therefore argues that liability under section 2000e-3(a) requires the existence of an employer-employee relationship between the parties at the time of the retaliation. In this case, no such relationship existed between Burke and Sherman when Burke persuaded Palmer to fire Sherman. Accordingly, Burke argues that the district court should have dismissed Sherman's section 2000e-3(a) claim.
We recently rejected a similar argument in Bailey v. USX Corp., 850 F.2d 1506 (11th Cir.1988). In that case, an employer had made a negative recommendation to a former employee's prospective employer in retaliation for an EEOC complaint made by that employee. Reasoning that a "strict and narrow interpretation of the word 'employee' to exclude former employees would undercut the obvious remedial purposes of Title VII," see id. at 1509-10, we held that a former employee may sue a former employer for retaliation under section 2000e-3(a).
We recognize that the facts in the instant case are not identical to those in Bailey. In Bailey, the former employee could not obtain other employment because his former employer had "blacklisted" him. Here, Sherman had already obtained new employment when the act of retaliation occurred. In our view, however, the distinction between a blacklisting that prevents a former employee from obtaining a new job and similar conduct that causes him to lose a new job is meaningless. In accordance with our holding that "former employees may sue for retaliation under Title VII," id., we conclude that section 2000e-3(a) proscribed Burke's retaliatory conduct in this case.
To prove that Burke caused Palmer to fire him, Sherman introduced into evidence a tape recording of a conversation he had with Wade Palmer, the owner of Palmer Construction, a few weeks after he left Palmer's employ. In that conversation, which Sherman recorded without Wade Palmer's knowledge, Wade Palmer stated that William Burke had urged him to fire Sherman for complaining about Burke to the EEOC. 11
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