_______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _______________________________________________________ Nos. 07-2851, 07-3030 _______________________________________________________ EDWARD D. HEATON, Plaintiff-Appellee, v. THE WEITZ COMPANY, INC., Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Iowa _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF AFFIRMANCE OF THE JUDGMENT ON BEHALF OF PLAINTIFF-APPELLEE _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov TABLE OF CONTENTS TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF AMICUS CURIAE'S INTEREST. . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . 8 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. The district court correctly denied Weitz's motion for JMOL or new trial because the record contains sufficient evidence from which a jury could find that Heaton was laid off in retaliation for having objected to ethnically derogatory name-calling by another Weitz supervisor. . . . . . . . . . . . . . . . . . . . . 11 II. The district court correctly found that the record contains sufficient evidence to support the jury's award of compensatory and punitive damages. . . . . . . . . 24 A. Heaton's testimony provided sufficient evidence to support the jury's award of compensatory damages for emotional distress. . . . . . . . . . . . . . . 24 B. The trial record contains sufficient evidence that Weitz's managers acted in reckless disregard of Heaton's federally-protected rights to support the jury's award of $25,000 in punitive damages. . . . . . . . . . . . . . . . . . . . . . . 26 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 TABLE OF AUTHORITIES Cases page Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . 11 Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990) . . . . . . . . 23 Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000) . . . 2, 9, 13, 14, 18 Bell v. Clackamas County, 341 F.3d 858 (9th Cir. 2003) . . . . . . . . . . . .20, 21 Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006) . . . . . 11, 20 Chalfant v. Titan Distribution, Inc., 475 F.3d 982 (8th Cir. 2007) . . . . . . 3, 26 Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847 (8th Cir. 2005) . . . . . . 14 Christensen v. Titan Distribution, Inc., 481 F.3d 1085 (8th Cir. 2007) . . . passim Dominic v. DeVilbiss Air Power Co., 493 F.3d 968 (8th Cir. 2007) . . . . . . . . 29 EEOC v. Convergys Customer Mgmt., 491 F.3d 790 (8th Cir. 2007) . . . . . . . 2, 25 EEOC v. Kohler Co., 335 F.3d 766 (8th Cir. 2003) . . . . . . . . . . . . 12, 14, 22 Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000) . . . . . . . . 19 Foster v. Time Warner Entm't Co., 250 F.3d 1189 (8th Cir. 2001) . . . . . 24 Gilooly v. Mo. Dep't of Health & Senior Servs., 421 F.3d 734 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 12 Green v. Franklin Nat'l Bank of Minneapolis, 459 F.3d 903 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 13 Hammond v. Northland Counseling Ctr., Inc., 218 F.3d 886 (8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 24 Hite v. Vermeer Mfg. Co., 446 F.3d 858 (8th Cir. 2006) . . . . . . . . . . . passim Hudson v. Norris, 227 F.3d 1047 (8th Cir. 2000) . . . . . . . . . . . . . . . 15, 18 Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) . . . . . . . . .14, 18, 22, 24 Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999) . . . . . . . . . . . . . . . 3, 26 Lettieri v. Equant, Inc., 478 F.3d 640 (4th Cir. 2007) . . . . . . . . . . 2, 19, 20 MacGregor v. Mallinckrodt, Inc., 373 F.3d 923 (8th Cir. 2004) . . . . . . 10, 11, 26 Mathieu v. Gopher News Co., 273 F.3d 769 (8th Cir. 2001) . . . . . . . . . . . 24 O'Bryan v. KTIV Television, 64 F.3d 1188 (8th Cir. 1995) . . . . . . . . . . . . 14 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . 11 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . . . . . . . . . . . . . . .11 Sims v. Sauer-Sundstrand Co., 130 F.3d 341 (8th Cir. 1997) . . . . . . . . . . . 21 Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir. 1997) . . . . . . . . . . . . . 13 Wallace v. DTG Operations, Inc., 442 F.3d 1112 (8th Cir. 2006) . . . . . . . . 12 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997) . . . . . . . .2, 18, 19, 23 Statutes 42 U.S.C. § 1981a(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 42 U.S.C. §§ 2000e et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 STATEMENT OF AMICUS CURIAE'S INTEREST The Equal Employment Opportunity Commission was established by Congress to administer and enforce Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Title VII makes it unlawful for a covered employer to retaliate against someone for opposing conduct he or she reasonably believes violates the law. This prohibition is critical to the enforcement of Title VII, for several reasons. Administrative charges filed by aggrieved individuals are what generally trigger EEOC investigations. Even before that, eradication of workplace discrimination ideally begins when a conscientious employer responds promptly and effectively to an internal employee complaint. Employees would be unlikely to speak out, however, and Title VII's purposes would go unfulfilled, if employers were allowed to retaliate with impunity when employees call attention to discriminatory conduct. Therefore, preventing and remedying retaliation are critical to the achievement of Title VII's purposes. Not every act of retaliation follows immediately on the heels of an employee's protected conduct. This appeal raises an important issue concerning the types of proof that can support a jury's finding that an employer's actions were motivated by retaliatory animus. This appeal also raises important issues concerning the types of evidence that can support a jury's award of compensatory and punitive damages, which further Title VII's goals of compensating aggrieved individuals for their injuries and deterring employers from future retaliatory conduct. Because a proper resolution of these issues is important to effective enforcement of Title VII, the EEOC offers its views. STATEMENT OF THE ISSUES<1> 1. Whether the record contains sufficient evidence to support the jury's finding that Heaton was laid off and not re-hired later in retaliation for having objected to ethnically derogatory name-calling by another Weitz supervisor. Apposite cases: Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000) Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997) Lettieri v. Equant, Inc., 478 F.3d 640 (4th Cir. 2007) 2. Whether the district court correctly ruled that Heaton's testimony, alone, supports the jury's award of compensatory damages for emotional distress. Apposite cases: Christensen v. Titan Distribution, Inc., 481 F.3d 1085 (8th Cir. 2007) EEOC v. Convergys Customer Mgmt., 491 F.3d 790 (8th Cir. 2007) 3. Whether the district court correctly ruled that the trial record contains sufficient evidence that Weitz's managers acted in reckless disregard of Heaton's federally- protected rights to support the jury's award of $25,000 in punitive damages. Apposite cases: Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999) Chalfant v. Titan Distribution, Inc., 475 F.3d 982 (8th Cir. 2007) STATEMENT OF FACTS A. BACKGROUND Edward Heaton is a journeyman ironworker of Italian and Hispanic descent. In 2000, he became a member of the local ironworkers union in Cedar Rapids, Iowa. In October 2000, he began working for the Weitz Company as a journeyman ironworker. Within seven months he was promoted to foreman and, in December 2002, to general foreman. On January 6, 2003, he became one of three superintendent ironworkers, supervising up to twenty crew members at times. Heaton was "handpicked" for the position by Weitz Vice President Michael Novy, and he reported directly to Novy. Heaton v. The Weitz Co., No. 05-cv-102 LRR, 2007 WL 2034370, *3 (N.D. Iowa July 13, 2007). As of January 2003, Heaton had never been told his work at Weitz was deficient and had never been the subject of any disciplinary action. On April 24, 2003, Heaton complained to Weitz's personnel officer, Chantry DeVries, that a teamster superintendent at the company, Noel Huber, had instructed teamsters to make racially derogatory remarks to him (including, among other things, calling him a "f---g spic"). Id. Heaton told DeVries that he wanted the behavior stopped. He told DeVries that he did not want to tell Novy and did not want Novy involved, and said he was afraid he was going to be retaliated against by losing his job or his promotion. Id. Heaton explained to the jury that based on statements Novy had made concerning his relationship with Huber, Heaton believed Novy and Huber were friends outside of work. Id.; Trial Transcript (Tr.) 23:5-27:20. DeVries assigned the complaint to Novy for investigation, and Novy found Heaton's complaint substantiated. Heaton, 2007 WL 2034370, *3. Within a week, Novy informed Heaton that Huber was no longer with the company. Novy stated "he hated to let Huber 'go'" because Huber was a long-time employee who went to Novy's church, and Novy knew Huber's children. Id. Just before Huber stopped working for Weitz, he had been working at a job site with project manager Brian Henecke. On May 28, 2003, Henecke and Heaton were assigned to work on a project site together. Heaton testified that the day before beginning the work, he and Henecke discussed the job and reached agreement on how the work would be distributed among workers from different trades. Nevertheless, early the next day a dispute arose over the distribution of the work between Heaton's crew and other Weitz employees. During the ensuing verbal dispute, Henecke called Heaton a "spic" and called one of Heaton's crew a "goon." Jurisdictional disputes are common in the industry and rarely result in disciplinary action. In this instance, however, Henecke asked Novy to fire Heaton. Id. at *4. Novy called Heaton to his office, told him he was fired because Henecke wanted him fired, and handed Heaton the standard severance of two paychecks. When Heaton protested and asked if this was because of his earlier complaint, Novy promptly withdrew the termination, but informed Heaton he could not work on a project with Henecke until Heaton apologized to Henecke. Id. Eventually Heaton apologized to Henecke and, in August 2003, Heaton was assigned to work with Henecke on a job at a Quaker Oats plant. As Heaton was performing work at the plant, Novy and Henecke drove out and, without advance warning, removed Heaton's two best workers from the job on the ground that they had not passed Quaker Oats' newly-required background check. Both individuals had worked at the same job site in the past without objection, and one successfully obtained a security clearance to work at a different, restricted site (a nuclear power plant) shortly thereafter. Novy testified at trial that the employees were transferred to other Weitz jobs, but the employees testified that, to the contrary, they were given no other work by Weitz and had to find new employment. Removal of these two employees caused Heaton to fall behind schedule on the job, causing him stress and anxiety. Id. Heaton had been assigned to begin working on another project as soon as he finished the Quaker Oats job. At the last minute, Novy reassigned the job to another superintendent with more seniority than Heaton. Id. On October 29, 2003, Novy called Heaton into his office and informed him that the company had insufficient work to keep Heaton employed as a superintendent. He told Heaton he could either accept a demotion to journeyman (the least senior position for an ironworker, and four levels below Heaton's position as superintendent) or be laid off. During their conversation, Novy told Heaton "things are catching up with you." Id. Heaton chose to take a few weeks off rather than be demoted to a journeyman. On November 4, Novy told Heaton there would not be any work available for him until the fall of 2004. Id. at *5. In October and November 2003, there was a work slowdown period for ironworkers at Weitz, but Weitz kept the other superintendents working by finding "odd jobs" for them in its warehouses or reassigning them to other divisions within the company. Id. Although there had been occasions when Weitz demoted a superintendent or assistant superintendent, in most instances it was done for disciplinary reasons. See id. On the rare occasion when someone was demoted for non-disciplinary reasons, as in response to changes in workloads, he was moved down one rank rather than the four-rank demotion that Novy offered Heaton if he wanted to continue working at Weitz. Id. Heaton sent a certified letter to Novy on December 15, 2003, and emailed the human resources (HR) official, DeVries, on January 16, 2004, advising them both that he was available to return to work and had been since his layoff on November 4, 2003. Id. at *6. In his email to DeVries, he complained that he believed he was being subjected to retaliation. Novy did not respond. DeVries responded to Heaton's email, but never investigated his complaint of retaliation. Id. On March 8, 2004, Weitz again offered Heaton a journeyman's position. Heaton declined because journeymen are the first to be laid off. Approximately a year later, Heaton learned that an ironworker superintendent position had become available in January 2005, but was not offered to him. Id. Heaton testified at trial that, after he was terminated, "he felt 'inadequate' and had no sense of identity." Id. He sought help from a psychologist and family counselor and began taking antidepressant medication that had undesirable effects. He testified that neither the medication nor the "talk therapy" helped him. Id. Following the three-day trial, the jury awarded $63,750 in backpay and lost benefits, $73,320 for emotional distress, and $25,000 in punitive damages. Id. at *1. Weitz thereafter moved for judgment as a matter of law (JMOL) or a new trial, arguing there was insufficient evidence from which the jury could find that Heaton's complaints were causally connected to his termination, that he suffered emotional distress warranting $73,000 in compensatory damages, and that Weitz's actions constituted a reckless disregard for Heaton's civil rights, justifying the jury's award of $25,000 in punitive damages. B. District Court Decision The district court denied Weitz's motion for JMOL or a new trial. Viewing the facts as a whole in the light most favorable to Heaton, the district court held that "a reasonable jury could find that Weitz retaliated against Heaton." Id. at *7. Relying on a decision finding evidence of retaliation in the context of a Family and Medical Leave Act (FMLA) claim, the district court found sufficient evidence to connect Heaton's complaint and his subsequent lay-off based on the "pattern of adverse actions against [Heaton]" beginning shortly after he complained to the HR official on April 24, 2003, and continuing until he was laid off on November 4, 2003. Id. (citing Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006) ("pattern of adverse actions that occur just after protected activity can supply the extra quantum of evidence to satisfy the causation requirement")). In support of the verdict, the district court noted the racially-charged comment by Henecke in May 2003, Novy's termination of Heaton following that incident and his immediate retraction of the termination, Novy's requirement that Heaton apologize to Henecke, the removal of Heaton's crew members from the Quaker Oats job in August, the lack of any disciplinary problems before April 24, 2003, the six-month period between the complaint and layoff, and Novy's statement to Heaton in October 2003 that "things are catching up to you." Id. (citing Bassett v. City of Minneapolis, 211 F.3d 1097, 1104 (8th Cir. 2000) (finding evidence of retaliation where plaintiff received a favorable evaluation prior to her complaint and then suffered a pattern of increasing levels of discipline leading up to her termination less than two months later). The district court also found sufficient evidence to support the jury's award of compensatory and punitive damages. Id. at *9-11. The district court rejected Weitz's argument that Heaton's own testimony, unbuttressed by any other evidence, was not enough to warrant an award of damages for emotional distress. Based on a recent Eighth Circuit decision concerning emotional distress damages in a claim brought under the Americans with Disabilities Act, the court held that a plaintiff's own testimony is sufficient as long as the plaintiff offers "specific facts as to the nature of his claimed emotional distress and the causal connection to the employer's alleged violations." Id. at *9 (quoting Christensen v. Titan Distribution, Inc., 481 F.3d 1085, 1096-97 (8th Cir. 2007)). Given the subjective nature of such an award and the respect given to a jury's "collective wisdom," the district court found sufficient evidence in Heaton's testimony that he sought counseling from both a psychologist and family counselor and took antidepressant medications. The court concluded the jury could have determined that this emotional harm resulted from Heaton's feeling that his pride in his identity as an ironworker, after having worked as an ironworker for over a decade, was taken from him when Novy offered Heaton the choice between a four-step demotion to journeyman or layoff. Id. The district court also rejected Weitz's challenge to the jury's award of $25,000 in punitive damages. The court noted that both Novy and DeVries testified they were aware of Weitz's anti-discrimination and anti-retaliation policies and that federal and state law prohibited retaliation against an employee who complained of racially charged comments. Id. at *10. The trial evidence further permitted the jury to conclude that DeVries failed to address Heaton's complaints personally or monitor Novy's response, and that Novy and Henecke, who were both members of Weitz's management team, participated in the retaliation. The district court found this evidence sufficient to support a jury finding that Weitz acted with knowledge that it might be violating federal law. Id. The district court further held that the amount of punitive damages awarded was not excessive in light of the evidence and the total award of compensatory damages. Id. at *11. STANDARD OF REVIEW This Court reviews a district court's denial of a motion for judgment as a matter of law de novo, viewing the evidence in the light most favorable to the jury verdict. See MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 931 (8th Cir. 2004). This Court "will not set aside a jury verdict 'unless there is a complete absence of probative facts to support the verdict.'" Id. at 927 (citation omitted). The court does not make credibility determinations or weigh the evidence, and views all inferences in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). ARGUMENT I. THE DISTRICT COURT CORRECTLY DENIED WEITZ'S MOTION FOR JMOL OR NEW TRIAL BECAUSE THE RECORD CONTAINS SUFFICIENT EVIDENCE FROM WHICH A JURY COULD FIND THAT HEATON WAS LAID OFF IN RETALIATION FOR HAVING OBJECTED TO ETHNICALLY DEROGATORY NAME-CALLING BY ANOTHER WEITZ SUPERVISOR. "Title VII's anti-retaliation provision forbids employer actions that 'discriminate against' an employee . . . because he has 'opposed' a practice that Title VII forbids . . . ." Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2410 (2006); see 42 U.S.C. § 2000e-3(a). As the Supreme Court has explained, the primary purpose of this provision is to permit employees to take appropriate steps to secure a workplace free of discrimination without suffering repercussions that would deter such efforts in the future. See id. (primary purpose of anti-retaliation provision is "[m]aintaining unfettered access to statutory remedial mechanisms") (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). In this instance, Heaton's claims of retaliation survived summary judgment and were tried to a jury. Therefore, this Court should not be concerned with the elements of plaintiff's prima facie case, but only with whether there was sufficient evidence at trial from which the jury could have reasonably concluded that Weitz's managers acted out of a retaliatory motive when they took steps that resulted in Heaton's termination and subsequent non-rehire. See EEOC v. Kohler Co., 335 F.3d 766, 772, 773 & n.7 (8th Cir. 2003); see also Hite, 446 F.3d at 865 (retaliation claim under FMLA). To render a verdict in Heaton's favor, the jury was required to find that Heaton suffered an adverse action after he engaged in protected activity and that a retaliatory motive played a part in the adverse action. See Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 (8th Cir. 2006); Gilooly v. Mo. Dep't of Health & Senior Servs., 421 F.3d 734, 739 (8th Cir. 2005). Since Weitz's witnesses testified that Heaton was laid off because there was a work slowdown that made Heaton's services as a supervisor unnecessary, the issue on appeal is whether the evidence sufficed for the jury to find that Weitz's asserted reason was not the real reason for Heaton's layoff but, rather, a pretext for retaliation.<2> In evaluating whether sufficient evidence exists to permit a jury to find that the employer's asserted reasons were a pretext for retaliation, this Court has held that "the passage of time between events does not by itself foreclose a claim of retaliation." See Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997). Although a greater gap in time "weakens the inference of retaliation," other evidence can suffice to present a question for the jury. Id. (summary judgment reversed where evidence showed factual dispute over whether supervisor's negative comments, rendered six months after plaintiff complained, were actually justified). This Court has found various types of evidence adequate to sustain a jury's retaliation verdict for a plaintiff, both in Title VII cases and in other similar contexts. In Kohler, for example, this Court found sufficient the defendant's inconsistent enforcement of company policy combined with a temporal proximity of one month. See 335 F.3d at 774.<3> See also Hite, 446 F.3d at 867-68 (employee can prove pretext in FMLA retaliation claim by showing employer varied from its normal policy or practice in addressing employee's situation). This Court has also noted that comments by the defendant's management could permit a jury to find that an adverse action was motivated by retaliatory intent. See O'Bryan v. KTIV Television, 64 F.3d 1188, 1194-95 (8th Cir. 1995) (retaliatory motive in age discrimination claim could be inferred from statements made by general manager); see also Hite, 446 F.3d at 866-67 (employer's discriminatory comments may establish causation). In a number of other cases, this Court has held that evidence of an employer's retaliatory motivation could be inferred from "[a] pattern of adverse actions that occur just after protected activity." See id. at 866. In Bassett, for example, this Court concluded that an extensive pattern of disciplinary measures following on the heels of protected activity established causation in a Title VII retaliation claim. See 211 F.3d at 1105-06. See also Kim v. Nash Finch Co., 123 F.3d 1046, 1060-62 (8th Cir. 1997) (same). This Court applied a similar analysis in a First Amendment context in Hudson v. Norris, 227 F.3d 1047, 1051 (8th Cir. 2000). This Court held that a large number of adverse actions occurring within four months of the plaintiff's protected activity, along with evidence of pretext, established causation for the plaintiff's retaliation claim, where the plaintiff's employment record had been exemplary before the protected conduct and the reasons given for some of the adverse actions were shown to be false. Id. at 1051-53. Likewise, this Court concluded that a pattern of disciplinary actions and negative comments following a plaintiff's use of FMLA leave demonstrated the employer's retaliatory motive in a plaintiff's claim of retaliation under the FMLA. See Hite, 446 F.3d at 865-67. In each of these cases, this Court found sufficient evidence either to survive summary judgment or to uphold a district court's denial of JMOL based on a series of events that demonstrated the employer's on-going animosity toward the plaintiff that began shortly after the plaintiff engaged in some form of protected conduct. After Heaton complained to DeVries concerning Huber's racially derogatory comments (Tr.21:24-27:20), Heaton experienced a similar series of events demonstrating a pattern of animosity on the part of Weitz's management leading up to his layoff in early November 2003. A reasonable jury could infer from this series of events, as this jury apparently did, that Novy became hostile toward Heaton after Heaton's harassment complaint (which Novy found substantiated, see Tr.118:19-120:25) caused the termination of a long-time Weitz employee who was also a personal friend of Novy's. The jury could infer that at that point Novy, who had previously hand-picked Heaton for the supervisory position (Tr.13:23-15:4, 113:8-14), began looking for opportunities to retaliate by making Heaton's work situation increasingly uncomfortable. Specifically, Heaton and his foreman both testified that, during a jurisdictional dispute about a month after Heaton complained, Weitz project manager Henecke called Heaton a "spic" (the same derogatory term that Huber had used) and referred to Heaton's foreman as a "goon." (Tr.29:20-33:4, Tr.235:18- 237:17). The next day, Novy informed Heaton that, at the insistence of Henecke, he was terminating Heaton because of this dispute. (Tr.33:16-35:15, 122:25- 125:17). Henecke admitted that he had never before recommended anyone be terminated for a jurisdictional dispute while working at Weitz, and Novy admitted that he had never terminated or even disciplined anyone for such a reason. (Tr.123:21-125:7, 227:2-25). Although Novy rescinded the termination after Heaton asked if it was because he had reported Huber's racist remarks (Tr.35:14- 36:25, 126:5-6), the jury was nevertheless entitled to infer from this incident that Heaton was facing heightened animosity from a manager who had, only five months earlier, hand-picked Heaton for a promotion to a supervisor. Animosity on the part of Weitz's managers continued over the next several months. After Novy rescinded Heaton's termination, he told Heaton that he could not work on any jobs with Henecke until Heaton apologized to Henecke. (Tr.125:18-126:4, 228:2-10). A couple of months later, Novy and Henecke, without advance warning and with questionable justification, removed two critical crew members from a job Heaton was performing, causing Heaton to fall behind in the job and to suffer stress and anxiety as a result. (Tr.37:1-39:8, 238:11-240:13). The jury could reasonably find that this pattern of animosity culminated in Novy's decision in October 2003 to reassign Heaton's next job to a different supervisor and then demote Heaton because of an alleged lack of work, telling Heaton "things are catching up to you" and giving Heaton the ultimatum to "either accept the demotion or [Weitz would] have no more work for you." (Tr.39:12-41:1). In demoting Heaton and then laying him off, Novy deviated from Weitz's normal practice of reassigning supervisors other work until business picked up again. (Tr.41:5-46:19, 129:12-131:13, 241:10-242:9, 249:14-251:6). Given both the implausibility that Novy could accurately predict in November 2003 that there would be no supervisory work for Heaton for the foreseeable future and this significant deviation from Weitz's normal practice, along with the comments Novy made when he presented this ultimatum to Heaton, the jury could infer that Novy's conduct toward Heaton in October and November 2003 was a reaction to Heaton's earlier complaint. In light of all of this evidence, the jury could further conclude that Weitz, having laid Heaton off in retaliation for complaining six months earlier, continued the same retaliatory animus when it determined not to bring Heaton back on as a supervisor when supervisory positions opened up in January 2005, even though Heaton was listed as available at the union hall. Thus, regardless of whether each of the events leading up to Heaton's layoff is, itself, an "adverse action," a reasonable jury could readily infer that this series of events, following close in time to Heaton's complaint, reflects a pattern of animosity on the part of Weitz's management. All of these incidents fell within the six-month period between Heaton's complaint and his termination. When these incidents are considered in light of Heaton's additional evidence of his exemplary record with Weitz before he engaged in protected activity (Tr.20:11-21:23) and Novy's statement to Heaton, a week before his layoff, that things were "catching up to him" (Tr.40:13-17), the evidence as a whole more than suffices to permit a reasonable jury to infer that when Novy finally laid Heaton off in November, it was merely the culmination of an on-going pattern of retaliatory acts. The district court's denial of JMOL on this basis is consistent not only with this Court's decisions in Bassett, Kim, Hudson, and Hite, but also with the decisions of other circuits. In Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997), for instance, the Court of Appeals for the Third Circuit held that "a plaintiff can establish a link between his or her protected behavior and subsequent discharge if the employer engaged in a pattern of antagonism in the intervening period." The Third Circuit held in that case that evidence of a similar "pattern of antagonism" was sufficient to connect Woodson's second administrative complaint (filed in February 1990) to his termination in 1992. The Third Circuit emphasized that it was not analyzing the evidence of the company's animosity piece by piece, but viewing it altogether to determine whether the evidence, "based on the whole picture," could support the jury's verdict in Woodson's favor. See id. at 921. The Third Circuit concluded that "[w]hile each piece of evidence alone is not sufficient to support an inference of a pattern of antagonistic behavior, taken together the evidence is sufficient." Id.<4> The Fourth Circuit recently applied a similar analysis in Lettieri v. Equant Inc., 478 F.3d 640 (4th Cir. 2007), in holding that the evidence sufficed to enable a jury to find a causal connection between plaintiff's protected activity and her subsequent termination. Shortly after the plaintiff's supervisor learned that Lettieri had filed a complaint of gender discrimination, the supervisor retracted a planned demotion for Lettieri. In the following weeks, however, the supervisor gradually reduced Lettieri's job responsibilities and supervisory authority and then began asserting to upper management that she was not needed, eventually resulting in her termination seven months after having engaged in protected activity. Immediately after her termination, Lettieri's supervisors sought approval to hire a replacement, id. at 650-51, suggesting the pretextual nature of the supervisor's explanation. The Fourth Circuit noted that where temporal proximity, alone, is insufficient to demonstrate retaliatory motive, "evidence of recurring retaliatory animus during the intervening period can be sufficient to satisfy the element of causation." Id. at 650. The Fourth Circuit held that "[t]hese intervening events- which occurred regularly after Lettieri's complaint and can reasonably be viewed as exhibiting retaliatory animus on the part of [Lettieri's supervisors]-are sufficient to show a causal link between Lettieri's complaint and her termination." Id. at 651 (citation omitted) (reversing summary judgment).<5> See also Bell v. Clackamas County, 341 F.3d 858, 865-67 (9th Cir. 2003) (upholding jury's verdict in favor of plaintiff based on "strong circumstantial evidence of retaliation" consisting of a pattern of animosity-including drastically reduced performance evaluation scores and threats of termination-which started immediately after plaintiff complained of race discrimination in May 1998 and continued until his formal termination seven months later). The primary case on which Weitz relies, Sims v. Sauer-Sundstrand Co., 130 F.3d 341 (8th Cir. 1997), see Weitz Opening Brief (Weitz Brf) at 11-12, provides no useful standard for this Court to apply in the present appeal. In Sims, this Court affirmed the district court's grant of JMOL for the defendant because the plaintiff presented no evidence at trial to connect his March 1993 discrimination charge, alleging age discrimination in his layoff the prior year, with the company's hiring of another individual in March 1994 and its May 1995 notice that it would not interview the plaintiff for any current job openings. See 130 F.3d at 343-44. This Court stated that "[t]he simple fact of not being hired or asked to interview for a position after an EEOC filing is, by itself, insufficient to prove causal connection, particularly when the incident occurred more than two years after the protected activity" id. at 344, and concluded that, in Sims, that was all there was. The company told Sims in 1995 that he lacked the necessary educational background or experience for these positions, and presented evidence at trial that the job had increased in complexity since Sims left the company. Sims countered that the company had hired persons without the necessary background and that his many years with the company served as adequate qualification, but this Court found no evidence in the record to support either contention. Id. Thus, this Court decided Sims based solely on a lack of evidence to support the plaintiff's contentions. The decision does not provide a general standard for examining retaliation claims after a jury verdict. More importantly, the decision does not provide any guidance for a situation like this, in which Heaton presented several different types of evidence from which a jury could both disbelieve the reason Weitz offered and find a six-month pattern of animosity on the part of Weitz's managers that began almost immediately after Heaton complained about racially derogatory comments. Weitz further errs in arguing, based on its presentation of only its version of the facts, that each category of evidence on which the district court relied below should be examined separately and that no piece of evidence is sufficient, alone, to "provide a causal connection to establish the retaliation claim." See, e.g., Weitz Brf at 17; see generally id. at 12-17. Such a parsing of the evidence has no support in logic or this Court's precedent. See Hite, 446 F.3d at 865 (court "evaluate[s] the causal-connection evidence 'in light of all the evidence in the record'") (quoting Kohler, 335 F.3d at 773 n.7); Kim, 123 F.3d at 1061 (finding "evidence as a whole" sufficient to permit jury to find ultimate fact of retaliation). As the Third Circuit explained in Woodson, the evidence that supports "causal connection" is properly considered in its entirety in determining whether the reason offered by the defendant (here, a slowdown in construction work) is actually a pretext masking a retaliatory intent. See Woodson, 109 F.3d at 921 (question is whether plaintiff's evidence is "sufficient based on the whole picture").<6> The circumstantial evidence presented to the jury in this case was more than sufficient for a reasonable jury to conclude that retaliation, and not the construction work slowdown, was the real reason Novy reassigned Heaton's next job to another supervisor in October 2003 and then forced Heaton, in November 2003, to choose between layoff and a four-step demotion to journeyman. Considering the evidence as a whole, the district court properly denied Weitz's motion for JMOL. II. THE DISTRICT COURT CORRECTLY FOUND THAT THE RECORD CONTAINS SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S AWARD OF COMPENSATORY AND PUNITIVE DAMAGES. A. Heaton's testimony provided sufficient evidence to support the jury's award of compensatory damages for emotional distress. "Emotional distress damages 'must be supported by competent evidence of genuine injury.'" Christensen, 481 F.3d at 1097 (quoting Foster v. Time Warner Entm't Co., 250 F.3d 1189, 1196 (8th Cir. 2001)). The plaintiff's own testimony can be sufficient, even without medical evidence or other corroboration, as long as the plaintiff offers "specific facts as to the nature of his claimed emotional distress and the causal connection to [the employer's] alleged violations." Id. See also Mathieu v. Gopher News Co., 273 F.3d 769, 783 (8th Cir. 2001) ("plaintiff's own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff's burden") (quoting Kim, 123 F.3d at 1065); Hammond v. Northland Counseling Ctr., Inc., 218 F.3d 886, 893 (8th Cir. 2000) (and cases cited therein). The district court properly denied Weitz's motion for JMOL or a new trial on the jury's award of compensatory damages. Heaton testified at trial that, after he was terminated, "he felt 'inadequate' and had no sense of identity." See Heaton, 2007 WL 2034370, at *6 (Tr.57:1-58:7). He sought help from a psychologist and family counselor and began taking antidepressant medication that had undesirable effects. (Tr.58:22-59:5). He testified that neither the medication nor the "talk therapy" helped him. (Tr.59:6-25). Given the subjective nature of an award of compensatory damages for emotional distress and the respect given to juries' "collective wisdom," the district court found sufficient evidence in Heaton's testimony that he sought counseling from both a psychologist and family counselor and took antidepressant medications. Heaton, 2007 WL 2034370, at *6. The court concluded that, among other things, the jury could have determined that this emotional harm resulted from Heaton's feeling that his pride in his identity as an ironworker, after having worked as an ironworker for over a decade, was taken from him when Novy offered Heaton the choice between a four-step demotion to journeyman or layoff. Id. Heaton's testimony in this case is comparable to that in other cases in which this Court has affirmed a jury's award of compensatory damages for emotional distress. In Christensen, for example, this Court concluded that Christensen's testimony and that of his wife-describing how emotionally distraught, withdrawn, and stressed he felt after losing his job-was sufficient to support the jury's award of $65,000 in emotional distress damages. See Christensen, 481 F.3d at 1097. Similarly, in EEOC v. Convergys Customer Mgmt., 491 F.3d 790, 797-98 (8th Cir. 2007), this Court recently upheld an award of $100,000 for emotional distress caused by an employer's denial of a disability accommodation where the plaintiff testified that his termination "caused him severe depression, he became isolated, ashamed, and gained a significant amount of weight." Id. at 797. In upholding the jury's award, this Court noted the highly subjective nature of awards for pain and suffering and emphasized that it is the jury's responsibility to make this determination. Id. at 798. Likewise in this case, Heaton's testimony concerning his feelings of depression, inadequacy, and helplessness after Weitz terminated his employment, and his description of the medical and psychological treatment that he sought and its ineffectiveness in eliminating his feelings of despondency, are more than sufficient to sustain the jury's award of compensatory damages here. The district court correctly upheld the jury's award of compensatory damages. B. The trial record contains sufficient evidence that Weitz's managers acted in reckless disregard of Heaton's federally- protected rights to support the jury's award of $25,000 in punitive damages. Under Title VII, a plaintiff may recover punitive damages if the jury finds that the employer "engaged in a discriminatory practice . . . with malice or with reckless indifference to the [plaintiff's] federally protected rights." 42 U.S.C. § 1981a(b)(1). This standard requires more than the employer's knowledge that it is discriminating against an employee; it requires, in addition, that the employer knows "it may be acting in violation of federal law." See Chalfant v. Titan Distribution, 475 F.3d 982, 991 (8th Cir. 2007) (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535 (1999)); MacGregor, 373 F.3d at 931 (citations omitted); see also Christensen, 481 F.3d at 1096. An employer can be held liable for the reckless indifference of discriminatory acts of those serving in a managerial capacity. Id. (citation omitted). As the district court correctly noted, see Heaton, 2007 WL 2034370, at *10- 11, there are a number of factors that support the jury's finding that Weitz's managers and agents acted with reckless indifference to whether the company was violating federal law. First, DeVries testified that she was aware of Weitz's anti- discrimination and anti-retaliation policies and that federal and state law prohibited retaliation against an employee who complained of racially charged comments. (Tr.207:16-208:10). Nevertheless, after assigning the initial investigation to Novy even though Heaton had asked her not to involve Novy and had shared his fear of retaliation for complaining about Huber, DeVries thereafter failed to ask Heaton whether he had experienced any retaliation. Later, when Heaton complained directly to DeVries in January 2004 that he believed he was being subjected to retaliation, DeVries again failed to follow up personally on Heaton's complaints and asked Novy to investigate, instead. (Tr.210:23-217:12). Second, when Novy informed Heaton in May 2003 that he was firing him over the jurisdictional dispute between Heaton and Henecke the prior day, Novy retracted the termination decision immediately after Heaton asked if he was being fired because he had complained about being called a "f---g spic." (Tr.35:14- 36:25, 126:5-6). The jury was entitled to infer from Novy's sudden change in position that Novy was aware his action might have violated Heaton's statutory protection from retaliation. Novy's statement to Heaton five months later that "things are catching up to you," when he forced Heaton to choose between a four- step demotion or a layoff (Tr.40:13-17), further suggests that Novy recklessly disregarded his duty not to take an adverse action against someone who had engaged in protected conduct. Finally, Henecke, another Weitz manager who had been working with Huber immediately before Huber was "let go" for calling Heaton racially derogatory terms, thereafter called Heaton the same racially derogatory term. (Tr.29:20-33:4). This occurred during the jurisdictional dispute that immediately preceded Novy's May 2003 meeting with Heaton where Novy-at Henecke's request-fired Heaton and then retracted the decision on the same day. (Tr.33:16-35:15). There is no evidence Henecke had ever used the term "spic" in reference to Heaton before this time, and the fact that Henecke used it in the incident that precipitated Heaton almost being fired strongly suggests a connection between Heaton's complaints about Huber's use of the term and Henecke's subsequent attempt to get Heaton fired. The jury was entitled to consider all of this evidence when it awarded $25,000 in punitive damages to Heaton for Weitz's retaliatory acts, and the district court correctly relied on this evidence in denying Weitz's motion for JMOL. Weitz, on the other hand, misses the point when it suggests that punitive damages are improper because the company promptly addressed Heaton's original complaint about Huber's use of the term "f---g spic." See Weitz Brf at 18-21 (citing, among other cases, Dominic v. DeVilbiss Air Power Co., 493 F.3d 968 (8th Cir. 2007) (punitive damages held improper where company investigated both plaintiff's original complaints and his subsequent complaints of retaliation)). Heaton's claim for punitive damages is not based on any claim that Weitz failed to respond appropriately to Huber's conduct. Rather, the jury's punitive damages award is based on the substantial trial evidence that, after Novy "let Huber go," Weitz managers and officials actively retaliated against Heaton with reckless disregard as to whether they were violating federal law in the process. CONCLUSION For the foregoing reasons, the EEOC urges this Court to affirm the district court's decision denying Weitz's motion for JMOL or a new trial. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ______________________________ SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 Tel (202) 663-4791; Fax (202) 663-7090 susan.oxford@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,899 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: December 21, 2007 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that I filed an original and nine copies of the foregoing brief and one digital version of the brief on diskette by first-class mail, postage pre-paid. I also certify that I served two copies of the foregoing brief and one digital version of the brief on diskette by first-class mail, postage pre-paid, to the following counsel of record. All diskettes have been scanned for viruses and are virus-free. Counsel for Plaintiff/Appellee: Amy L. Reasner, Esq. LYNCH DALLAS, P.C. 526 Second Avenue SE P.O. Box 2457 Cedar Rapids, Iowa 52406-2457 (319) 365-9101 Counsel for Defendant/Appellant: Gene R. LaSuer, Esq. DAVIS, BROWN, KOEHN, SHORS & ROBERTS, P.C. 666 Walnut Street, Suite 2500 Des Moines, Iowa 50309-3993 (515) 288-2500 Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov *********************************************************************** <> <1> The EEOC takes no position on any other issue in this appeal. <2> In previously denying summary judgment, the district court found, as a matter of law, that Heaton engaged in protected conduct when he reported Huber's racist comment to DeVries. See Heaton v. The Weitz Co., No. 05-cv-012, 2006 WL 3321328, *8 (N.D. Iowa Nov. 14, 2006). Weitz does not challenge that conclusion on appeal. Indeed, this Court recently stated that the type of reporting activity Heaton engaged in when he complained of Huber's comments is "the very essence of protected activity under Title VII." See Green v. Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006). Nor does Weitz challenge that Novy's decision to reassign Heaton's next job to another supervisor and then lay Heaton off for lack of work, and Weitz's failure to rehire Heaton when openings later arose, constitute "adverse actions" within the meaning of Title VII's protection against retaliation. See Bassett, 211 F.3d at 1105 n.16 (no question that termination is an adverse employment action "and that a series of retaliatory conduct falling short of . . . termination can, as a matter of law, constitute an adverse action"); Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997) (even "actions short of termination may constitute adverse actions within the meaning of the statute"). In this appeal, Weitz challenges only whether there was sufficient evidence for the jury to conclude that Heaton's layoff and the actions that preceded and followed it were "because of" a retaliatory motive on the part of Weitz's managers, as Heaton argued below. <3> In Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847 (8th Cir. 2005), in contrast, this Court found a temporal proximity of one month insufficient because the plaintiff failed to rebut the company's asserted reasons for laying her off. <4>Significantly, the Third Circuit has emphasized that neither temporal proximity nor antagonistic behavior is required, if other evidence serves to establish the required connection between an employee's protected activity and an employer's subsequent adverse action. See, e.g., Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000) (it is causation, not temporal proximity or evidence of antagonism, that plaintiff must establish, and "temporal proximity [or antagonism] merely provides an evidentiary basis from which an inference can be drawn") (citation omitted). <5> On appeal, Lettieri argued that under the Supreme Court's decision in White, the reduction in her job responsibilities, by itself, constituted an adverse action. She had not asserted that argument in the district court, however. Since the Fourth Circuit found the requisite connection between her protected activity and her discharge seven months later, the court did not find it necessary on appeal to determine whether the alteration in Lettieri's job duties, alone, would have also established retaliation on the part of the company. See Lettieri, 478 F.3d at 651 n.3. <6> Woodson quotes an earlier Third Circuit case for the proposition that just as a play cannot be understood based on some of its scenes but only based on its entire performance, likewise "a discrimination analysis must concentrate not on individual incidents, but on the overall scenario." Woodson, 109 F.3d at 921 (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990)).