42 U.S.C. § 1981 · C relations

fact · supports The evidence at trial revealed that Skaggs, Bryant's direct supervisor, engaged in a pattern of racially-motivated abuse. Skaggs taunted Bryant with racial slurs, calling him "nigger," "Kunte Kinte," "spear chucker," "monkey," "bitch," "porch monkey," and "boy," among other names. On at least some occasions, he uttered these epithets in the presence of other employees. Skaggs would give Bryant difficult tasks that he would not assign to the Cora 's white employees. Lambert testified that "a number of times," Skaggs would "get up in [Bryant's] face and use his chest to push [Bryant] around trying to get [Bryant] to fight him."

fact · supports Bryant complained to his plant manager, Ken Bolton, twice and to the then-president of the company, Joe Wickliffe, four times regarding Skaggs's behavior. He testified that he received no response to his complaints. Bolton testified that, in response to a complaint from Bryant on May 4, 2012, he sent another employee, Randy Marshall, to the Cora for a few days in an attempt to corroborate Bryant's allegation that Skaggs was using racial slurs. After Marshall reported back that he had not heard any slurs, Bolton did no further investigation. Bolton did not attempt to interview Bryant or any other employees. Jeffrey Sand has no written anti-harassment or anti-discrimination policy and no human resources personnel.

fact · supports On January 30, 2013, Clay McGeorge, then the sales director (and now the president) of Jeffrey Sand, received an anonymous email stating: "Hi Clay I want to remain anonymous but I would like to inform you about the racist comments I've overheard the foreman on dredge Cora make." McGeorge alerted Wickliffe and Bolton to the email and Bolton interviewed several employees. Lambert corroborated that Skaggs had made racist comments toward Bryant, but Bolton discounted Lambert as merely a disgruntled employee. Several other employees told Bolton that they had heard second-hand about Skaggs using racial slurs. Bateman, the other deckhand, later admitted that he had authored the anonymous email. He testified that he had not heard Skaggs make racist comments personally, but had heard Bryant complaining about it and believed Bryant's accusations. Bolton did not interview Bryant as part of his investigation. The company took no disciplinary action against Skaggs.

rule Under either Title VII or § 1981, an award of punitive damages requires the plaintiff to show that his employer engaged in a discriminatory practice with "malice" or "reckless indifference" to his federally protected rights. 42 U.S.C. § 1981a(b)(1) ; Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997). This standard may be satisfied when an employer exhibits reckless indifference toward discriminatory actions taken by those serving in a managerial capacity, MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 931 (8th Cir. 2004), or when a supervisor's "sufficiently abusive" behavior manifests malice, Ogden v. Wax Works, Inc., 214 F.3d 999, 1009-10 (8th Cir. 2000) (quoting Kimbrough v. Loma Linda Dev., Inc., 183 F.3d 782, 785 (8th Cir. 1999) ).

held The award of punitive damages is supported by the record. Bryant repeatedly complained to supervisors that his manager, Skaggs, was using racial slurs. Those supervisors never interviewed Bryant in response to his complaints, even though Skaggs's comments evidenced a "clear intent" to discriminate against Bryant based on race. MacGregor, 373 F.3d at 932. Even when another employee corroborated Bryant's allegations, the company did not take any action to discipline Skaggs or prevent further harassment. Jeffrey Sand also lacked any formal or informal policy prohibiting workplace discrimination. The jury could have reasonably concluded from these facts that Jeffrey Sand exhibited reckless indifference to Bryant's rights. See Williams v. ConAgra Poultry Co., 378 F.3d 790, 796 (8th Cir. 2004) ("[W]hen the victim of harassment repeatedly complains to various supervisors of harassment and the harassment is not stopped, a submissible case on punitive damages has been made.").

fact · supports The jury found in Bryant's favor and awarded him $ 1.00 in compensatory damages and $ 250,000 in punitive damages.

rule The next guidepost for our consideration is proportionality. While punitive damage awards are ordinarily within a single-digit multiple of the compensatory damage award, this ratio's usefulness diminishes when the jury awards only nominal damages. The Supreme Court has "consistently rejected the notion that the constitutional line is marked by a simple mathematical formula" comparing compensatory and punitive damages. Gore, 517 U.S. at 582, 116 S.Ct. 1589. "Punitive damages may withstand constitutional scrutiny when only nominal or a small amount of compensatory damages have been assigned, even though the ratio between the two will necessarily be large." JCB, Inc. v. Union Planters Bank, NA, 539 F.3d 862, 876 (8th Cir. 2008).

held The final factor for consideration is how the award compares to penalties authorized for similar misconduct. Jeffrey Sand emphasizes that, had Bryant brought his hostile-work-environment claim under Title VII, any award of punitive damages would be statutorily capped at $ 50,000 because the company has fewer than 101 employees. 42 U.S.C. § 1981a(b)(3)(A). But Bryant brought his claim under § 1981, so Jeffrey Sand was on fair notice that the jury's award could exceed the Title VII cap. See Williams, 378 F.3d at 798-99 (declining to find any "constitutionally required ratio between § 1981 damages awards and the Title VII cap"). Considering the egregiousness of Jeffrey Sand's conduct, the company should have been aware that the trial could result in a substantial monetary award if the jury concluded that one was "necessary to deter future misconduct." Gore, 517 U.S. at 584, 116 S.Ct. 1589. We conclude that the jury's punitive damages award was constitutionally sound.

fact · supports Jeffrey Sand does not dispute that Bryant was the prevailing party at trial and that the hours expended by Bryant's counsel were reasonable. Instead, it argues only that the district court erroneously accepted the lodestar rate of $ 350 per hour based solely on Bryant's counsel's representation that he had been awarded fees at this rate in similar recent cases. Jeffrey Sand argues that the district court should have demanded a sworn affidavit attesting that this was his counsel's "normal" hourly rate.

rule A prevailing party in a § 1981 action may be awarded a reasonable attorney's fee. 42 U.S.C. § 1988(b).

held The law imposes no such requirement. Bryant's counsel averred that his requested rate was "reasonable and commensurate" with his qualifications and extensive experience. He supported that statement by providing a list of recent fee awards he had obtained, including one from only a few months prior in which the same district court had concluded his $ 350 rate was reasonable. Jeffrey Sand has produced no evidence undermining the reasonableness of the rate. The district court's decision to accept the rate as reasonable, in light of its own experience and knowledge, was not an abuse of discretion.

fact · supports James Fountain, a white man, hired Haynes to work for WCI in 2006 and supervised Haynes for the duration of his employment. During his employment, Haynes drove a large, multi-ton "front-end loader" truck in Duncan, South Carolina, to pick up trash from WCI's customers.

fact · supports Haynes has produced evidence that Joe Hicks, a white employee also supervised by Fountain, had several workplace infractions, including twice using a cellphone while driving, driving while distracted, and responding to a traffic situation late. Haynes also pointed to evidence, which appears undisputed, that Hicks became angry and yelled at Fountain before quitting his job. Yet, Hicks was permitted to return to his job, and Haynes, who had fewer infractions and did not yell at his supervisor, was not permitted to return to his job and instead had his employment terminated. Considering this evidence, a reasonable fact finder could conclude that Hicks and Haynes were appropriate comparators, because they dealt with the same supervisor, were subject to the same standards, and engaged in similar conduct. See Cook , 988 F.2d at 511. Indeed, it appears that Hicks, who had more infractions and was less respectful to his superiors, may have engaged in more egregious conduct, yet received more favorable treatment.

fact · supports Contrary to WCI's argument, the nature of Haynes's previous infractions does not render Hicks an inappropriate comparator. WCI argues in particular that Haynes and Hicks are not proper comparators, because Haynes's infractions caused damage and Hicks's did not. As an initial matter, disputes of fact in the record call into question WCI's assertion that Haynes's infractions caused damage to property. For example, Haynes points to evidence that the police officer did not issue any citation as a result of his undershooting a driveway because there was no damage and that Fountain himself said the incident was not that bad.

rule Turning first to the issue of an appropriate comparator, this Court has emphasized that a comparison between similar employees "will never involve precisely the same set of work-related offenses occurring over the same period of time and under the same sets of circumstances." Cook v. CSX Transp. Corp. , 988 F.2d 507, 511 (4th Cir. 1993). Rather, to establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator "dealt with the same supervisor, [were] subject to the same standards and ... engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Haywood v. Locke , 387 F. App'x 355, 359 (4th Cir. 2010) (quoting Mitchell v. Toledo Hosp ., 964 F.2d 577, 583 (6th Cir. 1992) ) (alterations in original).

held Taken as a whole, the evidence in the record could permit a reasonable factfinder to conclude that Haynes and Hicks are proper comparators. Because Haynes is similar to Hicks in all relevant respects but was treated differently from Hicks, a white employee, the district court erred in holding that Haynes had failed to establish a proper comparator.

fact · cuts-against Before receiving Haynes's call, Fountain spoke with the company mechanics. According to WCI, the mechanics said that Haynes seemed frustrated with the delay to repair his normal truck and said, "Forget this" or "F*** this." After speaking with the mechanics, Fountain met with the district manager and human resources manager and decided that Haynes's employment should be terminated. On October 8, 2015, Fountain and the district manager informed Haynes that his employment was being terminated for job abandonment.

fact · supports Here, because Haynes has produced evidence that WCI's reason for his termination has changed substantially over time, he has presented sufficient evidence of pretext. Perhaps most importantly, WCI now asserts for the first time during this litigation an entirely different reason for the termination than was offered initially: Haynes's poor attitude. Additionally, when Haynes's employment was terminated, Fountain told him that he had met with the human resources department and that the reason for the termination was "job abandonment." J.A. 201. As Haynes points out, WCI's own policy defines job abandonment as "three days, no call and no show," which is inconsistent with Haynes's behavior on October 7. Haynes had in fact texted and called before returning to work after only one day.

rule The district court likewise erred in determining that Haynes had not shown any evidence of pretext. In order to show pretext, a plaintiff may show that an employer's proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact. E.E.O.C. v. Sears Roebuck & Co. , 243 F.3d 846, 852-53 (4th Cir. 2001). Once the plaintiff offers such circumstantial evidence, the case must be decided by a trier of fact and cannot be resolved on summary judgment. Id. This Court has allowed an inference of pretext in cases where an employer has made substantial changes to its proffered reason for discharge over time. Id. ; Wesley v. Arlington Cnty. , 354 F. App'x 775, 782 (4th Cir. 2009).

held While an employer is certainly permitted to expand on its original reason for a termination, such evidence of substantial changes to WCI's proffered reason for the termination permits an inference of pretext. See Sears Roebuck & Co. , 243 F.3d at 852-53. Thus, because Haynes has pointed to sufficient evidence to create a genuine issue of material fact as to whether WCI's proffered reason for the termination is pretext, summary judgment on this basis would be in error.

fact · supports This action centers primarily on Burkart's "personal vendetta" against Asians in general and Hu in particular. Burkart's racial animus stems from his belief that Asians were responsible for the downfall of a construction company that he owned prior to his employment at DOB. In particular, Burkart blames Asians for undercutting his rates to the point where he could no longer compete.

fact · supports The first proffered comparator concerns work conducted at the 34th Avenue Jobsite. Specifically, the plaintiffs allege that Burkart issued them a violation "for having a pool of water" on the 34th Avenue Jobsite. Hu Appx. at A37 ¶ 190. Later, Burkart returned to the location when white workers were performing work on the jobsite. Even though these white workers were also working next to a pool of water, Burkart did not issue them a notice of violation or otherwise interrupt their work. Instead, Burkart reserved "such negative treatment for Asian workers." Id. at A39 ¶ 202.

fact · supports According to the plaintiffs' review of building code violations, Burkart issues 63 percent of his violations to Asian-run construction companies, workers, or sites, as compared to between 8 and 28 percent for other DOB inspectors.

rule For the same reasons that we vacate the District Court's dismissal of the plaintiffs' LeClair claims, we vacate its dismissal of the plaintiffs' section 1981 claim for race-based interference with the plaintiffs' rights to make and enforce contracts. As the District Court correctly noted, "plaintiffs must meet the same pleading standard for their § 1981 claims as for their § 1983 claims under the Equal Protection Clause." Brown v. City of Oneonta, New York , 221 F.3d 329, 339 (2d Cir. 2000). Thus, to prevail on a section 1981 claim, a plaintiff must allege at least one instance in which he was treated differently from a similarly situated non-minority. Id. (citing Albert , 851 F.2d at 573 ). The section 1981 standard for determining whether a plaintiff and a comparator are similarly situated is identical to the similarity standard for a LeClair Equal Protection claim. Compare supra at 95-96, with Lizardo , 270 F.3d at 101 ( section 1981 race discrimination claim).

held Recognizing these parallels, the District Court dismissed the plaintiffs' section 1981 claim for the same reason that it dismissed their Equal Protection claims, namely, failure to plausibly allege differential treatment of a similarly situated comparator. We now vacate, on that issue, having concluded that the Amended Complaint does, in fact, state an Equal Protection claim under LeClair .

fact · supports Boxill worked at FCMC as its Specialty Dockets Coordinator. Four of the Defendants below-Michael Brandt, Carrie Glaeden, James Green, and James O'Grady-were state court judges at FCMC. The remaining Defendant, Emily Shaw, was FCMC's Court Administrator.

rule The district court dismissed these claims because " § 1981 does not provide a cause of action against state actors in their individual capacities." While that is true, plaintiffs may still bring § 1983 claims premised on violations of § 1981. See, e.g., McCormick v. Miami Univ. , 693 F.3d 654, 661-62 (6th Cir. 2012) ("[T]he more specific and express cause of action contained in § 1983 provide[s] a mechanism to address a violation of § 1981.").

held That is what Boxill did here-her complaint makes a claim "pursuant [to] 42 U.S.C. § 1983 to vindicate ... her correlative rights under 42 U.S.C. § 1981."