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Hemmings v Tidymans, Appeal Arises, Sex Discrimination, Violation of Federal, State Antidiscrimination, Counterparts, Verdict and Damages, District Court, Washington State Law, District Court. Case study for law students.
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CONNIE HEMMINGS and PATTY LAMPHIEAR, Plaintiffs-Appellees, v. TIDYMAN'S INC., a Washington Corporation, Defendant-Appellant. CONNIE HEMMINGS and PATTY LAMPHIEAR, Plaintiffs-Appellants, v. TIDYMAN'S INC., a Washington Corporation, Defendant-Appellee.
No. 99-35932, No. 99-
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
285 F.3d 1174; 2002 U.S. App. LEXIS 6686; 88 Fair Empl. Prac. Cas. (BNA) 945; 82 Empl. Prac. Dec. (CCH) P41,108; 2002 Cal. Daily Op. Service 3102; 2002 Daily Journal DAR 3794
March 5, 2001, Argued and Submitted, Seattle, Washington April 11, 2002, Filed
PRIOR HISTORY: [**1] Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CV-97-00068-WFN. Wm. Fremming Nielson, Chief District Judge, Presiding.
Hemmings v. Tidyman's, Inc. 65 F. Supp. 2d 1157, 1999 U.S. Dist. LEXIS 13867 (E.D. Wash., Aug. 20, 1999).
DISPOSITION: Affirmed in part, reversed in part and remanded to the district court for further proceedings.
COUNSEL: Richard C. Eymann, Eymann, Allison, & Hunter, Spokane, Washington, for the plaintiffs- appellees-cross-appellants.
James Michael Kalamon, Paine, Hamblen, Coffin, Brooke & Miller, Spokane, Washington, for the defendant-appellant-cross-appellee.
JUDGES: Before: Harry Pregerson, Sidney R. Thomas, and Ronald M. Gould, Circuit Judges. Harry Pregerson, Circuit Judge, delivered the opinion of the Court as to Parts I, II, III, IV, V, VI, and VII, in which Sidney R. Thomas, Circuit Judge, joined. Judge Thomas delivered the opinion of the Court as to Parts VIII and IX. Judge Pregerson joined as to Part VIII and dissents specially from Part IX. Ronald M. Gould, Circuit Judge joined as to Parts I, II, III, IVA, IVB, V, VI, VII, VIII and IX and filed a dissenting opinion as to Part IVC.
OPINIONBY: Harry Pregerson; Sidney R. Thomas
OPINION: [*1177] PREGERSON, Circuit Judge:
This appeal arises out of a jury verdict in favor of two women who sued their [1178] employer for sex discrimination. The women, Connie Hemmings ("Hemmings") and Patty Lamphiear ("Lamphiear"), [*2] charged their employer, Tidyman's Inc. ("Tidyman's"), with discriminating against them on the basis of their sex in violation of federal and state antidiscrimination laws by failing to pay them wages and compensation equal to their male counterparts, failing to promote them, and retaliating against them after they complained of the discrimination.
Tidyman's appeals the jury verdict and damages award in favor of the plaintiffs on four grounds. First, Tidyman's contends that the district court erred at trial by admitting into evidence improper statistical expert testimony. Second, Tidyman's argues that the district court abused its discretion by denying Tidyman's' motion for a new trial on the grounds that the evidence was insufficient, that misconduct by the plaintiffs' counsel permeated the trial and prejudiced the jury, and that the size of the jury verdict was excessive. Third, Tidyman's challenges the district court's ruling that the plaintiffs could seek "double damages" under a Washington state law that provides for the doubling of any wages willfully and intentionally withheld from employees. See RCW §§ 49.52.050, 49.52.070. Tidyman's argues that the district court erred [**3] by not applying the Title VII cap on compensatory damages to the plaintiffs' damage awards for future losses and for violations of Washington state law. Finally, Tidyman's argues that the Washington state law is intended to cover only accrued wages that are not
paid, rather than wages not paid because the employer paid a lower wage as a result of discrimination.
Hemmings and Lamphiear cross-appeal on the issue of punitive damages. After the jury awarded the plaintiffs punitive damages, the district court granted Tidyman's' renewed motion for judgment as a matter of law on the basis that the evidence did not support punitive damages. The plaintiffs contend that the district court erred as a matter of law by applying the wrong standard to determine whether the evidence supported the punitive damages awards. The plaintiffs ask that we reinstate the punitive damages awards in full, arguing that we should not apply the Title VII damages cap to these awards because it is unconstitutional. Finally, the plaintiffs argue that the district court erred by excluding costs for depositions and the preparation of certain affidavits from the attorney fees award.
We have jurisdiction under 28 U.S.C. § 1291. [**4] We reverse the district court's determination that the plaintiffs were not entitled to punitive damages, and we reverse the award of double damages under the Washington state statute. In all other respects, we affirm the district court. We conclude that Title VII's cap on punitive damages is constitutional, direct the district court to reinstate the jury's punitive damages award, and apply the Title VII cap to the punitive damages.
I.
Factual Background
A. Connie Hemmings.
In 1973, Connie Hemmings began working in the Billings, Montana office of Tidyman's, a chain of grocery stores in the Pacific Northwest. She started as an accounts payable clerk in the bookkeeping department, and was promoted to officer manager. In 1986, the Billings office closed, and Tidyman's transferred its corporate headquarters to Spokane, Washington. Hemmings moved with her family to Spokane to work in the new office because of the opportunities it offered her for career advancement.
[1179] Hemmings was promoted to controller in 1987, replacing Mike Davis, who became the Chief Financial Officer ("CFO") and Hemmings' direct supervisor. Davis consistently gave Hemmings outstanding job performance evaluations. [*5] Hemmings decided to go back to college during this period to enhance her career potential. She obtained her bachelor degree in business management and graduated with honors.
Hemmings oversaw a number of employees as part of her job. Hemmings was concerned about the lack of women in management positions at Tidyman's and what she perceived as roadblocks to their promotions. Hemmings initiated conversations about this topic with various executives and managers of Tidyman's, including Jack Heuston, the President. n1 Heuston laughed at the suggestion that more women should be in management and told Hemmings that women in management would "need to lift 50 pounds of potatoes."
n1 Hemmings also discussed with Jim Armstrong, the director of risk management, the need to hire more women in management to avoid liability in future lawsuits.
In May of 1996, Hemming's supervisor, Davis, was promoted to Chief Operating Officer and the CFO position opened. Trial witnesses testified that Hemmings was well-qualified for the CFO [**6] position. She had experience overseeing financial statement reporting, supervising staff, working with internal audits, and working with banks and third-party administrators.
Hemmings was interviewed for the position along with another woman and one man. This was the first time Tidyman's used an interview process to hire for an upper management position; previously, job openings were not posted and individuals were merely informed that they received the promotion. An all-male hiring committee interviewed Hemmings. The hiring committee concluded that Hemmings
45,000 per year. [**10] On August 31, 1995, Lamphiear's pay was raised from $ 28,600 to $ 35,000--$ 3000 below the minimum recommended salary.
Lamphiear testified that after she and Hemmings served Tidyman's with the demand letter in July 1996, she also encountered threats and intimidation from male managers at Tidyman's. She was threatened by CEO Maxwell and insulted by CFO Davis. Lamphiear experienced the most problems with her new supervisor, Babbit, who verbally abused Lamphiear n3 and made veiled threats about eliminating her job.
n3 Lamphiear's therapist testified that Lamphiear was upset during visits because of Babbit's increasing use of inappropriate sexual innuendos, including references to naked men and women and cutting off a penis.
Lamphiear's emotional health deteriorated rapidly. She began having nightmares and trouble sleeping. In 1997, Lamphiear attempted to set up a meeting with her supervisors related to a work project. After confirming that they would attend, none of the men came to the meeting. Lamphiear felt [*11] undermined and increasingly insecure at work. Her problems with Babbit continued to escalate. Although Lamphiear was working long [1181] hours, approximately eighty hours a week, Babbit continued to assign her new projects. When Lamphiear tried to refuse the projects, Babbit reported her to senior management as uncooperative. Feeling persecuted at work, Lamphiear experienced severe depression and her therapist placed her on a suicide watch.
At the recommendation of her doctor, Lamphiear left her position on sick leave, due to job-related stress. While on sick leave, Lamphiear was informed by Tidyman's that her position had been eliminated. Lamphiear was offered only lower-paid positions, working again under the supervision of Babbit. Lamphiear declined to accept these positions. Although Tidyman's eliminated Lamphiear's former position, a new employee was hired for a very similar position, entitled "DSD Buyer," which Babbit did not supervise.
II.
Procedural History
The plaintiffs brought suit against Tidyman's in federal court in February, 1997 for violations of the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000(e) et seq., and the Washington [**12] Law Against Discrimination, Revised Code of Washington ("RCW") § 49.60 et seq. The plaintiffs alleged that Tidyman's discriminated against them under both disparate impact and disparate treatment theories. n4 Before trial, both sides brought numerous motions in limine, including a motion by Tidyman's to exclude the testimony of the plaintiffs' statistical expert, Dr. Nyak Polissar ("Dr. Polissar"). The district court denied Tidyman's' motion and Dr. Polissar testified at trial.
n4 "'Disparate treatment'... is the most easily understood type of discrimination: The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.... Claims of 'disparate impact'... involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977).
At the close of the evidence, Tidyman's filed a motion for judgment as a matter of law contending, inter alia, that the Washington statute authorizing double damages for the willful and intentional deprivation of wages was not intended to cover an employer's failure to pay wages owed because of
discrimination. The district court denied the defendant's motion.
The jury returned large verdicts for both Hemmings and Lamphiear. With respect to Hemmings, the jury found by special verdict that Tidyman's discriminated against Hemmings under a disparate treatment theory by retaliating against her on the basis of her gender. The jury also found that Tidyman's discriminated against her under a disparate impact theory by failing to promote her and by failing to provide adequate pay and benefits on the basis of her gender. n5 The [*1182] jury awarded Hemmings $ 120,000 in lost wages and benefits, $ 1,580,000 in future lost earnings and benefits, and $ 230,000 in noneconomic damages, for a total of $ 1,930,000.
n5 The following questions and answers are excerpted from the special jury verdict form for Connie Hemmings:
Question No. 1: Did Defendant Tidyman's violate the law against disparate treatment discrimination by:
(A) Not promoting Connie Hemmings on the basis of her gender?
Answer: No.
(B) Retaliating against Connie Hemmings on the basis of her gender?
Answer: Yes.
(C) Paying different compensation to Connie Hemmings on the basis of her gender?
Answer: No.
Question No. 2: Did Tidyman's violate the law against disparate impact discrimination by:
(A) Not promoting Connie Hemmings on the basis of her gender?
Answer: Yes.
(B) Not providing greater pay and benefits to Connie Hemmings on the basis of her gender?
Answer: Yes.
Special Jury Verdict form for Connie Hemmings, April 13, 1999.
In Lamphiear's case, n6 the jury found that Tidyman's violated the law against disparate treatment discrimination by failing to promote her, retaliating against her, and paying her different compensation on the basis of her gender. The jury further found that Tidyman's discriminated against Lamphiear under a disparate impact theory by failing to promote her and by failing to provide greater pay and benefits. The jury additionally found that Tidyman's violated the Washington state law against the willful and intentional deprivation of past wages. The jury awarded Lamphiear $ 596,500 in past lost wages and benefits, $ 1,024,000 in future lost earnings and benefits, and $ 650,000 in non-economic damages, for a total award of $ 2,270,500.
n6 The following questions and answers are excerpted from the special jury verdict form for Patty Lamphiear:
Admission of the Statistical Expert Testimony
Tidyman's argues that the district court erred by admitting the testimony of the plaintiffs' statistical expert, Dr. Polissar, because the prejudicial effect of the testimony outweighed its probative value. Tidyman's also contends that the statistical evidence was insufficient to support the jury finding of disparate impact discrimination in either of the plaintiffs' cases. We review a district court's admissibility ruling on expert testimony for abuse of discretion. United States v. Cordoba, 194 F.3d 1053, 1056 (9th Cir. 1999). We will not reverse the admissibility ruling unless it is "manifestly erroneous." Id.
A. Dr. Polissar's Testimony.
The centerpiece of the plaintiffs' disparate impact case was the expert testimony of Dr. Polissar. Dr. Polissar testified that statistical analysis of Tidyman's' management revealed gender disparities in promotions and wages. In its pretrial motion to exclude Dr. Polissar's testimony, [**17] Tidyman's argued that Dr. Polissar's analysis included improper comparisons, which lacked probative value and would improperly prejudice the jury. The district court denied the motion, and ruled that any flaws in the analysis could be addressed through cross-examination or impeachment. The district court also stated if it determined that portions of Dr. Polissar's analysis were improper, it would give a limiting instruction to the jury. n
n7 Tidyman's did not renew its objection to Dr. Polissar's testimony at trial and no limiting instruction was given.
Tidyman's provided Dr. Polissar with information about the names, gender, starting salary and position, and ending salary and position of the employees in Tidyman's' management. Dr. Polissar testified about the statistical analysis he performed using this data. n8 Dr. Polissar concluded that women in management at Tidyman's earn an average of $ 12,000 less than men in management. The mean starting salary for women in management at Tidyman's was $ 26,400, while [**18] the mean starting salary for men was $ 38,400.
n8 At trial, Dr. Polissar testified that he had a masters and a doctoral degree in statistics from Princeton University, and that he had been a faculty member in the Department of Bio-statistics at the University of Washington for fifteen years before becoming a full-time consultant. Tidyman's did not object at any point on the ground that Dr. Polissar was unqualified, or that the statistical analysis he presented was outside of his area of expertise.
Dr. Polissar also testified that he analyzed the progression of wages of women and men over time as a method of controlling for factors other than gender -- such as experience -- that might explain the initial wage differential. Dr. Polissar used regression analysis n9 to control for differences in experience, and reached the same conclusion -- that gender predicted a statistically significant wage differential. Dr. Polissar also performed a "step analysis," which compared the number of women to the number of men within [*19] each rank of Tidyman's' management hierarchy. Dr. Polissar explained that some of the step [1184] levels had no women employees, which made comparison analysis impossible for those levels. Where comparisons were possible, Dr. Polissar testified that the step analysis revealed wage differentials between men and women for most of the ranks. For example, at the "step four" level, which includes assistant store manager, office manager, system analyst, and controller, the average salary for female workers was $ 29,400, while the average salary
for male workers was $ 40,800.
n9 "A regression analysis is a common statistical tool... designed to isolate the influence of one particular factor -- e.g. sex -- on a dependent variable -- e.g. salary." Equal Employment Opportunity Comm'n v. Gen. Tel. Co. of Northwest, Inc., 885 F.2d 575, 577 n.3 (9th Cir. 1989).
Finally, Dr. Polissar analyzed the distribution of men and women in different job categories at Tidyman's and concluded that the distribution reflected [**20] a pattern of segregation of men and women that was unlikely to be due to chance. n10 He also testified that the percentage of women in hourly positions was higher than the percentage of women in salary positions.
n10 Polissar testified to the following percentages of women and men employees by department: grocery, 100 men; meat, 83 men; produce, 94 men; floral, 100 women; pharmacy, 73 men; bakery, mixed; expresso, 93 women; store support, mixed; store management, 86.2 men; bookkeepers, 100 women.
On cross-examination, Tidyman's attempted to show that Dr. Polissar's analysis was fundamentally flawed because it assumed that each individual was equally qualified. Tidyman's elicited testimony from Dr. Polissar that his analysis failed to take into account individual qualifications, preferences, motivations, and individual fields.
B. The Standard for Admission of Expert Testimony.
Tidyman's argues that Dr. Polissar's testimony lacked probative value and prejudiced the jury. These arguments relate most directly to [**21] Federal Rules of Evidence 403 and 702. Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403. In applying Rule 403, "district courts enjoy 'wide latitude'." Fireman's Fund Ins. Co. v. Alaskan Pride P'ship, 106 F.3d 1465, 1468 (9th Cir. 1997).
Rule 702 governs the admissibility of expert testimony. Fed. R. Evid. 702. Under Rule 702, expert testimony is admissible if the testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Id. Whether testimony is helpful within the meaning of Rule 702 is in essence a relevancy inquiry. See Raskin v. Wyatt Co., 125 F.3d 55, 67 (2d Cir. 1997) ("Expert testimony which does not relate to any issue in the case is not relevant, and ergo, non-helpful.") (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993)). The trial court acts as" gatekeeper" and determines whether expert scientific testimony is sufficiently relevant and reliable to be admissible. [**22] Daubert, 509 U.S. at 589.
C. Tidyman's' Challenges.
Tidyman's attacks the probative value of the statistical evidence on two grounds: (1) that Dr. Polissar used an inappropriate comparison pool; and (2) that Dr. Polissar's analysis did not account for variables such as individual skills and preferences. Both arguments lack merit.
Courts have long recognized that statistical evidence may be used to establish a prima facie case of disparate impact discrimination. See, e.g., Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307- 08, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977) ("Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.").
the 'affected' pool of employees who seem to have differential rates of promotion or termination might be compared against benchmark pool of employees who are not 'affected.'"); Stender v. Lucky Stores, 803 F. Supp. 259, 295-98 (N.D. Cal. 1992) (upholding the statistical analysis based entirely on employer workforce data where the plaintiffs challenged the placement and promotion practices of the employer).
Use of a data set comprised of the employer's entire management in a case challenging the failure to promote lower management to higher management and pay equal wages is consistent with the principle of Wards Cove, that the comparison pool for analysis should be the group from which individuals will be chosen for the job action, in this case promotion and payment of higher wages. In the instant case, Dr. Polissar testified to the existence of disparities between the percentages of female and male employees of Tidyman's in terms of their movement from middle or lower management to upper management positions. We find that Dr. Polissar appropriately used the employer management data set for his statistical analysis.
b. Store Management versus Corporate Management.
Tidyman's next attacks the plaintiffs' statistical evidence on the ground that Dr. Polissar improperly included the management employees of the local stores within the management data pool -- rather than just the corporate management. Tidyman's contends that because the plaintiffs were not qualified for store management positions, the statistical analysis should not have included the store management employees. n
n13 Tidyman's' attack involves disputed facts concerning the store management -- namely, whether the two plaintiffs were qualified for store management positions and whether store experience was a prerequisite to store management positions. For example, Lamphiear testified that she was qualified to be a store manager. Ron Bashaw, a former Tidyman's' store manager, also testified that Lamphiear was qualified for a store management position. The plaintiffs introduced testimony that no objective criteria were used in awarding store promotions. Tidyman's presented testimony that the individuals actually promoted to store manager and assistant manager positions all had store experience, which Lamphiear and Hemmings lacked.
Rather than argue that corporate positions and store management positions require entirely separate qualifications, Tidyman's asserts only that promotion to store management requires "special qualifications" that the two plaintiffs lacked. Tidyman's does not dispute that store management may be a career path to corporate management for some employees. n14 In other words, while there was contradictory testimony about whether Lamphiear and Hemmings were individually qualified for the store management positions, it was undisputed that store management positions could result in promotion to corporate management positions.
n14 There is evidence that Tidyman's itself treated the corporate and store management employees as a group. For example, Tidyman's treated corporate staff and store management in the same group for the purpose of its salary policy. Tidyman's' internal corporate management flow charts include store director and manager positions.
[1187] Tidyman's' argument misunderstands the purpose of including the [*28] store management employees. The data set had to include the store management employees to fully capture the potential pool of internal applicants for the upper level corporate management positions. n15 Inclusion of the store management positions was necessary to analyze and compare promotions
between men and women. n
n15 Even assuming that the two individual plaintiffs were unqualified for store management positions, the inclusion of the store management employees in the management data set was proper given the fluid movement of employees between the store and corporate management. In Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir. 1994), the Sixth Circuit considered a similar argument in the context of alleged discrimination in promotion in the municipal fire and police departments. Id. at 1163. The Court rejected the argument that the inclusion of all patrol officers and fire privates in the pool was inappropriate because not all of the patrol officers and fire privates were qualified for promotion. Id.
n16 Moore v. Hughes Helicopters, 708 F.2d 475, 482 (9th Cir. 1983), a case relied on by Tidyman's, is inapposite. In Moore, this court concluded that the plaintiffs failed to establish a prima facie case of discrimination by pointing to the low percentage of women in high job grades alone. Id. at 484. The court found that the statistical analysis lacked probative value because the plaintiff women did not have the skills for the higher job grades, and the higher job grades were heavily filled by applicants from outside of the company. Id.
The instant case is easily distinguishable: here, no one disputes that Hemmings and Lamphiear were qualified for upper level management jobs. Rather, Tidyman's challenges whether the plaintiffs were qualified for each of the management positions, including positions below their positions as controller and senior buyer. Tidyman's' organizational diagrams indicate that Hemmings' position as controller was higher in Tidyman's' hierarchy than the store management positions. Lamphiear's position as senior buyer was below the highest level of store management, on an even level with some of the store management positions, and above others.
Moore is distinguishable on other grounds as well. The statistical analysis used by Hemmings and Lamphiear involved interpretative statistical tools such as regression analysis rather than the straight percentage used in Moore. Additionally, in Moore the plaintiffs attempted to use statistics from an employer data set when the higher positions were filled from outside rather than internal applicants. In this case, Tidyman's promoted from within, and the use of the employer management data set is thus appropriate.
In sum, the district court did not abuse its discretion by admitting the expert testimony based on the analysis of the data set of Tidyman's' management employees. n
n17 An additional line of case law supports rejecting Tidyman's' argument that the store management employees should have been excluded from the data set. Federal courts have rejected defendant's arguments that statistical analysis should be limited to a pool of "qualified applicants" where the job qualification standards are themselves discriminatory. Failure to post vacancies and the use of subjective promotion practices -- both practices of Tidyman's prior to the plaintiffs' lawsuit in 1996 -- may be evidence of discrimination. Paxton v. Union Nat'l Bank, 688 F.2d 552, 563-64 (8th Cir. 1992). The Eleventh Circuit described the relevance of a lack of formal promotion procedures for statistical analysis:
Courts should adopt the benchmark which most accurately reflects the pool of workers from which promotions are granted unless that pool has been skewed by other discriminatory hiring practices. Where, as here, no application is required for most promotions, it makes no sense to compare the percentage of... applicants... to the percentage of... appointees. Forehand v. Florida State Hosp., 89 F.3d 1562, 1574 (11th Cir. 1996).
In the instant case, the plaintiffs introduced testimony that one of the informal requirements to a store management position was prior experience in a night crew position. A former store manager of Tidyman's testified that women were directed away from such positions.
analysis accounted for experience and seniority within the company. By tracking the employees over time, Dr. Polissar was able to control outside factors that may have contributed to women originally being placed in lower management positions. See Gen. Tel. Co., 885 F.2d at 582 (concluding that the plaintiff's statistical analysis was probative of discrimination despite its failure to include employment interests); Adams, 231 F.3d at 427-28 (concluding [**34] that the defendant's objections that the analysis did not control for outside factors went to the weight of the evidence, not its admissibility); Bruno v. W.B. Saunders Co., 882 F.2d 760, 766 (3d Cir. 1989) (affirming the district court's admission of statistical studies, despite the failure of the studies to take "account of the minimum qualifications of the jobs into which promotion or transfer occurred"). n
n19 Tidyman's cites Ottaviani v. State Univ. of New York, 875 F.2d 365 (2d Cir. 1989) for the proposition that a statistical study must include all possible nondiscriminatory factors. However, Ottaviani involved a specific challenge to the plaintiff's expert's decision to exclude available data about academic rank from the statistical analysis. Id. 374-75. The district court in Ottaviani ruled that academic rank was not in itself a discriminatory measure, and thus appropriate for inclusion in the analysis. Based on this ruling, the district court considered only the plaintiff's analysis that included rank. Id. at 375. Unlike in Ottaviani, the plaintiffs' expert in this case did not have available data of the criteria which Tidyman's complains are excluded, such as data about the employees' educational background. Ottaviani, which involved the inclusion of available data about one factor, cannot be read to stand for the broad proposition that a statistical study must include all possible criteria.
In sum, the testimony of Dr. Polissar had probative value. The analysis could have helped the jury determine contested facts and evaluate whether the promotion and compensation practices of Tidyman's had a disparate impact or reflected disparate treatment against women at the management level. Any inadequacies in the methodology were presented to the jury by the cross-examination of Dr. Polissar. We conclude that the district court did not abuse its discretion by failing to exclude the plaintiffs' expert testimony.
IV.
Motion for a New Trial
Tidyman's also appeals the district court's denial of its motion for a new trial under Federal Rule of Civil Procedure 59 on the grounds that the great weight of the evidence is against the jury's findings, the verdict was excessive, and that counsel misconduct deprived the defendant of a fair trial. A district court may grant a motion for a new trial based on the insufficiency of the evidence only if the verdict" is against the 'great weight' of the evidence or 'it is quite clear that the jury has reached a seriously erroneous result.'" Ace v. Aetna Life Ins. Co., 139 F.3d 1241, 1248 (9th Cir. 1998).
We review [*36] a district court's denial of a motion for a new trial for an abuse of discretion. De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000). We will reverse the denial of a motion for new trial based on the insufficiency of the evidence only if the district court made a legal error in applying the [1190] standard for a new trial or if the record contains no evidence in support of the verdict. See Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1372 (9th Cir. 1987).
A. The Weight of the Evidence.
The district court found that the jury verdict was not "against the clear weight of the evidence," and denied Tidyman's' motion for a new trial. Tidyman's contends that the jury's findings of: (1) disparate impact in both plaintiffs' cases; (2) retaliation in both plaintiffs' cases; (3) discriminatory intent against Lamphiear; and (4) the equal pay violation in Lamphiear's case were against the great weight of the evidence. We conclude, however, that each of the jury's findings is supported by sufficient evidence in the record and affirm the district court's denial of the motion.
To establish a prima facie case of disparate impact under [**37] Title VII, the plaintiffs must: (1)
show a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1482 (9th Cir. 1987) (en banc). The plaintiffs sought to demonstrate that the subjective processes for awarding promotions, benefits, and salaries had a disparate impact on the two women. Dr. Polissar's statistical conclusions about the large disparities in salaries and the lack of women in upper management, as well as the anecdotal testimony by multiple witnesses about the subjective promotion processes and award of salary and benefits, is sufficient to support the jury's conclusion that the plaintiffs established a case of disparate impact discrimination.
The plaintiffs also had to show three elements to establish a prima facie case of disparate treatment discrimination: (1) membership in a protected class; (2) qualification for the position at issue; and (3) an adverse employment action. See Morgan, 232 F.3d 1008, 1016. The jury only [**38] found disparate treatment of Lamphiear. The jury heard the testimony of a former store manager that Lamphiear's gender affected the company's treatment of her, and that she received significantly lower pay than her male counterparts. Tidyman's' own internal study found that Lamphiear was underpaid for her position. Multiple witnesses, including the plaintiffs, testified to gender-based discriminatory comments made by Tidyman's' male managers to, and about, the plaintiffs. This combined testimony is sufficient to support the jury finding of intentional discrimination against Lamphiear.
To meet their prima facie burden of establishing retaliation, Hemmings and Lamphiear needed to demonstrate: (1) they engaged in a protected activity; (2) they suffered an adverse employment action; and (3) the existence of a causal link between the activity and adverse action. See Morgan v. Nat'l R.R. Passenger Corp., 232 F.3d 1008, 1017 (9th Cir. 2000). Testimony by Hemmings that she was denied promotion opportunities and pay raises, excluded from meetings, and otherwise shunned at work following her complaint letter concerning sex discrimination constitutes substantial evidence to [**39] support a jury conclusion that Tidyman's retaliated against her. Testimony by Lamphiear that she was berated, harassed, and given an additional workload following her complaint letter supports a jury finding of retaliation against Lamphiear.
Tidyman's contends that the great weight of the evidence is against finding an equal pay violation in Lamphiear's case because the plaintiffs failed to introduce sufficient evidence that Lamphiear's work [1191] was similar to Ormsby's, the supervisor whom Lamphiear replaced. Tidyman's argues that Lamphiear failed to establish that her position shared a "common core" of tasks with the position when held by Ormsby. Cf. Stanley v. Univ. of California, 178 F.3d 1069, 1074 (9th Cir. 1999) (discussing the "common core" of tasks test under the more stringent Federal Equal Pay Act). Contrary to Tidyman's' contention, Lamphiear introduced testimony that she assumed the central responsibilities of the job, and was later given additional responsibilities. The jury could have easily credited this testimony and found that the positions shared a common core. Moreover, under the Washington State Equal Pay Act, a plaintiff need only prove that the [*40] employer paid different wages to men and women who performed similar work. Adams v. Univ. of Washington, 106 Wn.2d 312, 722 P.2d 74, 76-78 (Wash. 1986) (en banc).
In sum, we find that each of the contested jury findings was based on significant evidence in the record. Because evidence in the record supports the verdict, we conclude that the district court did not abuse its discretion by denying Tidyman's' motion for a new trial on the ground that the great weight of the evidence did not support the jury's findings.
B. The Size of the Damages Award.
Tidyman's next contends that the size of the damages awards meant that the jury must have been motivated by sympathy or sheer guesswork, and that the district court abused its discretion by not granting a new trial on this basis. We will not reverse a district court's denial of a motion for a new trial unless the damages are "grossly excessive or monstrous." Los Angeles Memorial Coliseum Com'n v. NFL, 791 F.2d 1356, 1360 (9th Cir. 1986).
The plaintiffs introduced testimony of a certified public accountant, Anson Avery ("Avery"), to support their request for damages. Avery testified that approximately [**41] $ 4.4 million in damages were due to the plaintiffs collectively for past lost wages and future lost wages. The jury returned a verdict
subjective policies which had disparate impact on all women, including plaintiffs, and that proves our case because they did not have a business necessity for doing it, and there were ways to fix it. (Emphasis supplied).
n21 Tidyman's also complains that the plaintiffs' attorney referred to the defendant's case as a "jack rabbit defense," that a verbal assault on Lamphiear by one of the defendant's employees was a rape of her mind, that a female board member and a paralegal sitting at the counsel table were mere "tokens." While in poor taste, these comments do not rise to the level of misconduct. Tidyman's itself made similar remarks in its closing arguments. For example, it referred to the plaintiffs case as "a whole big bag of rabbits the plaintiffs brought in, [because ]their case has no merit and they want to distract you."
Tidyman's failed to object to this statement or any other statement made by counsel during closing argument. Nor did Tidyman's move for a mistrial on the basis of counsel's misconduct. The first time Tidyman's complained of the misconduct was in its motion for a new trial. The district court noted that it would have sustained an objection to the comment during closing argument: "I remember the comment and I thought I sua sponte corrected it, but maybe I just thought about it and would have sustained an objection had [*1193] one been made because it was totally improper." Although the district court acknowledged the impropriety of the remark, it denied the motion for a new trial and ruled that a new trial was not necessary to avoid a miscarriage of justice.
The federal courts erect a "high threshold" to claims of improper closing arguments in civil cases raised for the first time after trial. Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir. 1986). The rationale for this high threshold is two-fold. First, raising an objection after the closing argument and before the jury begins deliberations "permits the judge to examine the alleged prejudice [**46] and to admonish... counsel or issue a curative instruction, if warranted." Id. As noted above, the trial judge is in a superior position to evaluate the likely effect of the alleged misconduct and to fashion an appropriate remedy. The second rationale stems from courts' concern that allowing a party to wait to raise the error until after the negative verdict encourages that party to sit silent in the face of claimed error.
"We will review for plain or fundamental error, absent a contemporaneous objection.. ., where the integrity or fundamental fairness of the proceedings in the trial court is called into serious question." Bird v. Glacier Electric Coop Inc., 255 F.3d 1136, 1148 (9th Cir. 2001).
Plain error review requires: (1) an error, (2) the error is plain or obvious, (3) the error was prejudicial or effects substantial rights, and (4) review is necessary to prevent a miscarriage of justice. See Smith v. Kmart Corp., 177 F.3d 19, 25 (1st Cir. 1999) (describing the plain error standard in a civil counsel misconduct case). "Plain error is a rare species in civil litigation, encompassing only those errors that reach the pinnacle of fault [**47] envisioned by the standard set forth above. Id. at 26 (internal citations and quotations omitted).
We readily conclude that the plaintiffs' counsel's statement during closing argument was error. Counsel inappropriately referred to other cases that she herself had litigated. The fact that she personally had litigated the cases had no relevance to the lawsuit. Nor should she have suggested that this litigation "proved the case." We also find that the error was "plain." Plaintiff's remarks were obviously improper and blatant enough for the trial judge to recall them easily.
We next must consider whether counsel's error was prejudicial and fundamentally unfair. "The burden of making a 'concrete showing of prejudice' resulting from improper closing argument falls upon appellant." Moses v. Union Pac. R.R., 64 F.3d 413, 418 (8th Cir. 1995). In evaluating the likelihood of prejudice from the comments, we should consider" the totality of circumstances, including the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case, [**48] and the verdict itself." Puerto Rico Aqueduct & Sewer Auth. v. Constructora Lluch, Inc., 169 F.3d 68,
82 (1st Cir. 1999); see also Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir.
We note, however, that this remedy is available only in "extraordinary cases." Bird, 255 F.3d at 1148. For instance, in Bird, the court concluded that counsel's closing arguments offended fundamental [*1194] fairness where counsel: (1) argued in inflammatory terms; (2) linked the defendant's behavior to white racism in exploitation of Indians; (3) appealed to historical racial prejudices of or against the white race; and (4) used incendiary racial and nationalistic terms to encourage the all- tribal member jury to award against the non-Indian defendant. Id. at 1152.
The misconduct in this case is substantially different [**49] from the misconduct in Bird. Here, the misconduct was an isolated, short comment during a closing statement that covered 66 pages when transcribed. Tidyman's urges us to weigh other instances where the plaintiffs referred to prior lawsuits against Tidyman's as evidence that the plaintiffs deliberately violated the district court's ruling excluding such references. Tidyman's first points to its testimony by Hemmings and contends that, in conjunction with her testimony, the "district court sustained defense counsel's objections to testimony that Tidyman's had been sued before." A review of the record does not support this contention.
Hemmings testified about conversations that she had with the director of loss prevention, "the discussions that I had with him were that we [Tidyman's] had been sued before and we lost and we need to get women in management positions." The defense objected to this statement on hearsay grounds, and the trial court sustained the objection. Hemmings then testified as follows, without objection by defense counsel:
Q: Connie, what was your part of the conversation with Mr. Armstrong?
A: That we needed to get more management -- women in management [**50] positions to prevent getting continually sued.
Q: And you indicated that the company has been sued before. Do you know who had sued the company; were they women?
A: There were two women and one -- actually two guys that I know of.
Q: And did those women sue the company for discrimination?
A: Yes. Hemmings went on to describe the failure of the defendant to establish programs that would have supported the movement of women into management programs, despite corporate recognition of the need for such programs. Tidyman's did not object to any portion of this testimony.
The jury also heard from the plaintiffs' expert, Dr. Polissar, that Tidyman's had been sued before by plaintiffs' counsel:
Q: Have you ever -- have you and I ever worked together before?
A: Yes, we have on one other case.
Q: And what case was that?
A: That was a case -- a lawsuit against Tidyman's and you were representing the plaintiff and you asked me to help out on that.
Q: And was our plaintiff a woman?
A: Yes.
recover "compensatory and punitive damages... in addition to" relief authorized under § 706(g) of the Civil Rights Act of 1964. 42 U.S.C. § 1981a(a)(1). The new remedies -- not authorized by § 706(g) -- in turn are subject to the statutory cap. Pollard, 121 S. Ct. at 1950. The Supreme Court concluded that front pay awards were available under [*1196] § 706(g), and therefore excluded under the term "compensatory damages," within the meaning of the 1991 Civil Rights Act. 121 S. Ct. at 1952. Following Pollard, we reject Tidyman's' claim that the Title VII statutory cap applied to the plaintiffs' front pay awards.
B. Application of the Statutory Cap to Washington State Law Claims.
Tidyman's' second argument is that the district court abused its discretion by failing to apply the Title VII damages cap to the state damages awards. Tidyman's contends that even if the awards were controlled entirely by state law, the federal damages cap applies because Washington courts [**55] look to federal law when interpreting their anti-discrimination statutes.
Tidyman's does not challenge the district court's allocation of the non-economic damages to the state law claims. The special verdict form in this case did not differentiate plaintiffs' state and federal law claims. Any portion of the non-economic damages allocated to the federal Title VII claim would be subject to the $ 300,000 cap. In this case, Hemmings was awarded $ 230,000 in non-economic damages, an amount less than the federal cap. Tidyman's' argument thus potentially applies only to the $ 650,000 non-economic damages the jury awarded to Lamphiear, which the district court allocated to Lamphiear's state law claims.
Tidyman's argues that we should apply the federal damages cap to the state law discrimination claim because Washington state courts, "in the absence of state authority," will consider federal law "persuasive" when construing sections of the Washington anti-discrimination law that "parallel" the federal law. Xieng v. Peoples Nat'l Bank, 120 Wn.2d 512, 844 P.2d 389, 399 (Wash. 1993) (en banc); Goodman v. Boeing, 75 Wn. App. 60, 877 P.2d 703, 713 (Wash. Ct. App. 1994). [**56] In Passantino, however, we rejected the defendant's argument that the Title VII cap should apply to the Washington Law Against Discrimination. 212 F.3d at 509-10. We noted that Title VII explicitly prohibits limiting state law remedies and that Title VII was not intended to force plaintiffs to choose among remedial statutes. Id. at 510. We do not find any evidence in the form of case law, statutory language, or legislative history indicating an intent by the Washington legislature to cap damage awards at $ 300,000. Accordingly, we conclude, consistent with our ruling in Passantino, that the Title VII damages cap does not apply to the Washington state law discrimination claims.
VI.
Punitive Damages
The plaintiffs cross-appeal the district court's finding that punitive damages are not available as a matter of law. The plaintiffs contend that the district court applied the wrong standard in granting Tidyman's' renewed motion that, as a matter of law, the evidence was insufficient to support an award of punitive damages. Specifically, the plaintiffs allege that the district court failed to consider adequately the directives of the Supreme [**57] Court's decision in Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 144 L. Ed. 2d 494, 119 S. Ct. 2118 (1999). The plaintiffs argue that under Kolstad, the district court should have denied the defendant's renewed motion for judgment as a matter of law.
"Judgment as a matter of law is appropriate when the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, which is contrary to the jury's verdict." Gilbrook v. City of Westminster, 177 F.3d 839, 864 (9th Cir.), cert. denied, 120 S. Ct. 614 (1999) (quoting Omega Envtl., Inc. v. [*1197] Gilbarco, Inc., 127 F.3d 1157, 1161 (9th Cir. 1997)). We review de novo legal conclusions about the availability of punitive damages. See EEOC v. Wal-Mart Stores, Inc., 156 F.3d 989 (9th Cir. 1998).
The district court instructed the jury that the plaintiffs were entitled to punitive damages if they demonstrated that Tidyman's' conduct was willful and egregious, or displayed a reckless indifference towards the plaintiffs' federal civil rights. The jury awarded each plaintiff $ 1 million in punitive damages. After the verdict, [**58] however, Tidyman's made a renewed motion that the punitive
damages were not supported by the evidence as a matter of law. The district court granted the defendant's motion. The district court found that the plaintiffs "did not present a legally sufficient evidentiary basis for a reasonable jury to find by a preponderance of the evidence that Defendant's conduct toward either Plaintiff was willful and egregious or displayed a reckless indifference to the Plaintiff's federal rights sufficient to justify an award of punitive damages." (Emphasis supplied).
In the interim between the jury's deliberations of the punitive damages award and the district court ruling on the motion for a judgment as a matter of law, the Supreme Court decided Kolstad. In Kolstad, the Supreme Court resolved a circuit split over the appropriate standard for determining the availability of punitive damages under Title VII by establishing a three-part inquiry to address when the evidence supports a punitive damages verdict. 527 U.S. at 530.
In the first step, the Supreme Court clarified the requisite mental state of employers, the analysis primarily at issue in this case. Under Title VII, [**59] the jury may award punitive damages if the moving party demonstrates that "the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual. " 42 U.S.C. § 1981a(b)(1). Interpreting this section, the Supreme Court concluded that Congress intended to impose a heightened standard of liability for the award of punitive damages, but rejected the argument that the heightened standard requires that an employer's behavior be "egregious." Kolstad, 527 U.S. at 534-35. Instead, the Court concluded that Congress intended for punitive damages to apply in intentional discrimination cases where the plaintiff can show that the employer knowingly or recklessly acted in violation of federal law. Id. at 535.
The Court found that the questions of malice and reckless indifference are subjective questions concerning the employer's motive or intent, rather than an objective inquiry into whether the employer's behavior is "egregious." Id. at 535-38. The defendant is appropriately subject to punitive damages if it acts [**60] "in the face of a perceived risk that its actions will violate federal law." Id. at 536. The Supreme Court explained that although egregious conduct could be evidence of an intentional violation of the law, it was not a necessary element. Id. at 535.
The Supreme Court also held that the plaintiff must "impute liability for punitive damages to respondent." Id. at 539. Under this step, the plaintiff must show that the intentional discrimination by an employee is attributable to the employer by using traditional agency principles, e.g., that a managerial employee acted within the scope of his or her employment. Id. at 540-41.
Finally, the Supreme Court clarified that the defendant employer may raise as an affirmative defense its good faith efforts to comply with Title VII, if such efforts were contrary to the actions of its [1198] managerial agents. Id. at 545-46. As we noted in Passantino, the Supreme Court did not eliminate the rule that a sufficiently senior agent may be treated as the corporation's proxy. Passantino, 212 F.3d at 516. The affirmative defense is thus unavailable to the [*61] employer for the actions of agents sufficiently senior to be considered proxies. Id. at 516-17.
Although the district court was aware of Kolstad, n22 it did not apply the Kolstad framework to the question of the availability of punitive damages in this case. Importantly, the district court applied the old, pre-Kolstad standard for demonstrating the relevant mental state of the defendant by requiring that the plaintiff establish sufficient evidence that the defendant's conduct toward either plaintiff "was willful and egregious or displayed a reckless indifference." (Emphasis supplied). As discussed above, the plaintiffs did not need to demonstrate "egregious" conduct. We conclude that the district court erred by applying the incorrect standard for determining the availability of punitive damages.
n22 Plaintiffs' counsel addressed the Kolstad opinion at oral argument on the defendant's motion for judgment as a matter of law.
Both parties urge us to review the record to determine [**62] if the evidence was legally sufficient to support an award of punitive damages by a reasonable jury. n23 We conclude that it was and