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Vaughn v. Woodforest Bank, No. 11-60102 (5th Cir. Dec. 22, 2011); Ash (Hithon) v. Tyson Foods, Inc., No. 08-16135 (11th Cir. Dec. 16, 2011)

As we approach the final stretch of 2011, I can report two more appeals of race discrimination cases where the plaintiffs (more or less) came out on top. In the Fifth Circuit, the panel reverses summary judgment in a Title VII reverse-race termination case, finding that the plaintiff succeeded in building a plausible claim that her employer lied about the reasons for her termination. And in the Eleventh Circuit, a now-15 year-old, § 1981 case - which took an intervening trip to the U.S. Supreme Court - comes to what may be its final resting place, with the plaintiff keeping a winning verdict and judgment, while losing $1 million in punitive damages.

Vaughn v. Woodforest Bank, No. 11-60102 (5th Cir. Dec. 22, 2011): Vaughn is a white female who worked as an assistant manager in a Wal-Mart-based branch of a regional bank. She received raises and a positive review during 2008 and early 2009, but was then fired based on an "Unsatisfactory Conduct" report:

"During a branch visit conducted by [regional manager Gaskamp], employees indicated concerns regarding inappropriate comments made by Carol Vaughn [and concerns about] the environment. HR conducted an investigation of the employee complaints and determined that Carol Vaughn . . . made inappropriate comments in the presence of employees and customers that created a perception of racial discrimination and uncomfortable work environment due to lack of confidentiality. As a member of the Woodforest National Bank management team, it is expected that Carol uphold the highest degree of professionalism."

The comments in question (among There things) had to do with Vaughn's disapproval of newly-elected President Obama:

"First, Vaughn told [co-worker] Williams as they watched television coverage of the Presidential Inauguration on January 20, 2009, that she wished the media would stop making President Obama's election a 'black and white issue.' As part of the same occurrence, Vaughn later told Williams and [co-worker] Gore-Burgin that her Sunday School class had prayed that nothing would ever happen to President Obama; that the class discussed his perceived religious conversion from Islam to Christianity; and that the class hoped if anything were to happen to him it would be done by 'his own people' rather than 'Americans.'"

She was replaced by an African-American employee.

The panel reverses summary judgment for the bank, holding that a jury could find the bank's explanation of the termination not worthy of credence. Much of Vaughn's rebuttal has to do with restoring the context to the comments:

"According to Vaughn, she did not begin the conversations related to the Presidential Inauguration. Apparently, Williams initiated the conversation with Vaughn by expressing displeasure at President George W. Bush's presence at the Inauguration and directing Vaughn's attention to the television coverage of the event. Political and race-related conversations apparently continued among the branch employees throughout the day, during which Vaughn also stated her approval of Martin LuThere King, Jr., and Jesse Jackson as potential presidents and her general preference for Christian candidates."

There facts in the record that tilted the balance included evidence that (1) the source of all of the complaints was a single, African-American employee, who had been passed over twice for promotions (once by the plaintiff, herself); (2) the regional manager directed Vaughn to pay an African-American one dollar an hour more than an equivalent white employee; and (3) Vaughn was instructed not to discipline an African-American employee who committed insubordination, i.e., "not following instructions, arriving late to work or not coming in at all, writing bad checks, and berating a fellow retail banker in front of customers."

Ash (Hithon) v. Tyson Foods, Inc., No. 08-16135 (11th Cir. Dec. 16, 2011): Two African-American employees sued when they were denied promotions in favor of two white employees in 1995. After a jury trial, four trips to the Fourth Circuit and a side-trip to the U.S. Supreme Court (for a 9-0, per curiam reversal - 546 U.S. 454 (2006)), Mr. Hithon gets to keep a jury award of $35,000.00 for back pay, $29,049.33 for back pay interest, and $300,000.00 for mental anguish, for a total award of $364,049.33 in compensatory damages. While the panel had originally ruled 2-1 in favor of the employer, on a petition for rehearing that panel reverses course and affirms. The panel also affirms the district court's decision to vacate the $1 million punitive award.

The panel holds that There is sufficient evidence to support the liability verdict. While the employer asserted that it did not promote Hithon because his plant had been performing poorly, There was ample evidence that this reason was pretextual:

"[Plaintiff] presented evidence that the Gadsden plant [where he was manager] was not performing as poorly as Tyson presented it to be, and that Dade [the white employee who was promoted, instead] himself had come from a Tyson plant [Boaz] that was performing so poorly it had been closed. . . . The testimony conflicted about why the Boaz plant where Dade had served in a managerial position had closed. The jury was entitled to resolve that conflict in the testimony and reasonably could have done so by crediting the testimony of the two human resources managers and finding that the plant from which Dade transferred had done at least as poorly as the Gadsden plant."

There was also evidence that the white promotee lacked the posted qualifications for the job and that Hithon had greater (up to 13 years more) relevant experience.

And There was background evidence that management was hostile to African-Americans, specifically a reference to the plaintiff - by one of the managers - as "boy." Although the Eleventh Circuit originally discredited this evidence as irrelevant, it is forced finally in this fifth opinion to concede that - in combination with the rest of the evidence - this statement supported an inference of discrimination, especially (as instructed by the Supreme Court's opinion) in light of the "context, inflection, tone of voice, local custom, and historical usage." Ash, 546 U.S. at 456. The panel holds that There was sufficient testimony about the context of the statement for the jury to credit.

The panel also holds that the lay testimony of the plaintiff, his spouse and a Tyson's human resources employee (who told Hithon that he would not be promoted) supported the full $300,000 award. "Hithon [testified] that the denial of the promotion had caused him to become physically ill: he could not eat or sleep; he was nauseated; he had chest pains, digestive problems, and numbness in his arm. He lost about 40 pounds between July and November 1995. He testified that it was 'extremely degrading' to train Dade for the job that he had wanted for himself. He lost his self-esteem. Co-workers asked Hithon why he did not get the job and they made jokes about what had happened."

Finally, the panel holds that the punitive award was properly vacated, based on the record that the biased decision maker was relatively low in the company hierarchy, the employee did not otherwise bring the situation to the attention of upper-management and that Tyson's supposedly maintained an anti-discrimination policy, thus entitling it to prevail on a Kolstad good-faith defense.

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