Free Trial Brief - District Court of Arizona - Arizona

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Mishka L. Marshall (#016641) MARSHALL LAW GROUP, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 Telephone: 602/274-7873 Facsimile: 602/274-8207 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

SEAN L. HARGROW, Case No. CIV 2003-0642 PHX DGC Plaintiff, V. FEDERAL EXPRESS CORPORATION, a Delaware corporation doing business in Arizona; JOHN and JANE DOES I-X;
BLACK CORPORATION I-X, WHITE LIMITED LIABILITY COMPANIES I-X, PLAINTIFF'S TRIAL BRIEF RE PUNITIVE DAMAGES

Defendants.

Plaintiff Sean Hargrow submits this trial memorandum on the law of punitive damages pursuant to Title VII and 42 U.S.C. § 1981. MEMORANDUM OF POINTS AND AUTHORITIES In his pleadings, Plaintiff has requested punitive damages for his claims discrimination and retaliation pursuant to U.S.C. § 2000e-2 and 3, 42 U.S.C. § 1981. Plaintiff submits this Trial Brief to apprise the Court of the applicable law of punitive damages on these civil rights claims. The legal principles guiding a court in a Title VII dispute apply with equal force to a § 1981 action. Manatt v. Bank of America, 339 F.3d 792, 797 (9th Cir. 2003).

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Document 139

Filed 11/02/2006

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Punitive damages are available in Title VII cases when the defendant employer engages in a discriminatory practice with "malice or reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1); accord Beard v. Flying J, Inc., 266 F.3d 792, 800 (8th Cir. 2001) (citing 42 U.S.C. § 1981a(1), (b)(1). In Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999), the Supreme Court held that punitive damages liability can be imposed on an employer when "an employee serving in a managerial capacity committed the wrong while acting within the scope of his employment." Id. at 543. However, the Court further held that "an employer cannot be held vicariously liable for the discriminatory employment decisions of managerial agents where [those] decisions are contrary to the employer's good faith efforts to comply with Title VII. The three-part framework developed by the Supreme Court to determine whether a prevailing Title VII plaintiff is entitled to punitive damages requires the court to consider whether the plaintiff established the following: (1) that the employer acted with the requisite mental state, i.e., that the employer acted "in the fact of a perceived risk that its actions will violate federal law," Kolstad, 527 U.S. at 536; (2) that liability may be imputed to the defendant employer by showing tha the employees who discriminated against the plaintiff are managerial agents acting within the course and scope of their employment. id. at 539;and (3) even if the plaintiff establishes that the employer's managerial agents recklessly disregarded federally protected rights, that the employer failed to engage in good faith efforts to implement an anti-discrimination policy, id. An employer may escape vicarious liability for the discriminatory employment decisions of managerial employees where those decisions are contrary to the employer's "good faith efforts to comply with Title VII." Kolstad, 527 U.S. at 545. The Supreme Court in Kolstad did not define the contours of what measures constitute "good faith efforts," recognizing only that "Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms" and the "purposes underlying

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Title VII are similarly advanced where employers are encouraged to adopt antidiscrimination policies and to educate their personnel on Title VII's prohibitions." Id.. "Employers have an `affirmative obligation' to prevent civil rights violations in the workplace." Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998). The existence of a written anti-discrimination policy, standing alone, does not insulate an employer from vicarious liability by establishing it made good faith efforts to comply with Title VII. E.g., Bruso v. United Airlines, Inc., 239 F.3d 848, 858 (7th Cir. 2001) (implementation of a formal anti-discrimination policy is not sufficient in and of itself to insulate an employer from a punitive damages award); Roman v. U-Haul Internat'l 233 F.3d 655, 670 (1st Cir. 2000) (a written non-discrimination policy, without more, is insufficient to insulate an employer from punitive damages liability) (citations omitted); Cadena v. Pacesetter Corp, 224 F.3d 1203, 1210 (10th Cir. 2000) (even if an employer defendant presents evidence showing it maintains on paper a strong anti-discrimination policy and makes good faith efforts to educate its employees about that policy and Title VII, a plaintiff may still recover punitive damages if he demonstrates the employer failed to adequately address Title VII violations of the law of which it was aware); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 517 (9th Cir. 2000)(an employer must not only show that it has adopted an antidiscrimination policy, but that it has implemented that policy in good faith). The purposes of Title VII would be undermined if anti-discrimination

policies were not implemented and were allowed instead to serve only as a device to allow employers to escape punitive damages for the discriminatory activities of their managerial employees. Id. at 517. Plaintiff requests that the Court consider the above legal principles when determining whether to instruct the jury as to Plaintiff's punitive damages claims. Respectfully submitted this 2nd day of November, 2006. s/Mishka L. Marshall Mishka L. Marshall MARSHALL LAW GROUP, P.C.

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777 E. Thomas Rd., Suite 210 Phoenix, Arizona 85014 Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on November 2, 2006 I transmitted by electronic filing the foregoing Trial Brief re Punitive Damages to the United States District Court for the District of Arizona using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary H. Beard FEDERAL EXPRESS CORPORATION 3620 Hacks Crossing Road, Building B-3rd Floor Memphis, Tennessee 38125 Lori Higuera Alec Hillbo FENNEMORE CRAIG, PC 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Counsel for Defendant s/Mishka L. Marshall Mishka L. Marshall

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