[PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                             No. 08-16135               DECEMBER 16, 2011
                       ________________________             JOHN LEY
                                                             CLERK
                  D. C. Docket No. 96-03257-CV-RRA-M

ANTHONY ASH,
et al.,
                                                                     Plaintiffs,

JOHN HITHON,

                                                           Plaintiff-Appellant-
                                                               Cross-Appellee,

                                   versus

TYSON FOODS, INC., a corporation,

                                                         Defendant-Appellee-
                                                            Cross-Appellant,

THOMAS HATLEY, an individual,

                                                                   Defendant.
                       ________________________

                Appeals from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                            (December 16, 2011)
                           ON PETITION FOR REHEARING

Before CARNES and PRYOR, Circuit Judges, and DOWD,* District Judge.

CARNES, Circuit Judge:

       The last opinion we issued in this case, Ash v. Tyson Foods, Inc., 392 F.

App’x 817 (11th Cir. 2010) (Ash IV), was the fourth one in a series from this

Court. See Ash v. Tyson Foods, Inc., 31 F. App’x 938 (11th Cir. 2002) (Ash I);

Ash v. Tyson Foods, Inc., 129 F. App’x 529 (11th Cir. 2005) (Ash II), vacated,

, 

(2006), reinstated, Ash v. Tyson Foods, Inc., 190 F.

App’x 924 (11th Cir. 2006) (Ash III).

       After our Ash IV opinion issued, John Hithon filed a petition for rehearing

en banc, which also operates as a petition for panel rehearing. See 11th Cir. R.

35-5. We grant that petition and vacate our earlier Ash IV opinion in this case,

except that we incorporate by reference the facts and the long procedural history

of this case that were set out in our earlier opinion, see Ash IV, 392 F. App’x at

818–24, although we will also repeat some of it now for the convenience of the

reader.

                                               I.




       *
         Honorable David D. Dowd, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.
     This case at one time involved multiple plaintiffs and multiple claims. It is

now down to one plaintiff and one claim. This appeal involves that one remaining

plaintiff, John Hithon, who is African-American, and his one remaining claim,

which is a 42 U.S.C. § 1981 racial discrimination claim based on Tyson Foods’

failure to promote him to shift manager at its Gadsden, Alabama chicken

processing plant. See Ash IV, 392 F. App’x at 818–19.

                                          A.

      Two shift manager slots became open at that plant in the summer of 1995

after the then-new plant manager, Tom Hatley, who is white, denied raises to the

white woman and the white man who had held those jobs. According to Hatley,

the Gadsden plant was performing poorly and he thought the two managers did not

deserve raises. In response they quit, and Hatley later filled their two shift

manager positions with white men, first Randy King and then Steve Dade. That

happened in July and August of 1995. In December of 1996, this lawsuit was

filed. In it Hithon claimed that Tyson discriminated against him based on his race

by promoting King and Dade to the two shift manager positions.

      Ash I involved Hithon and five other plaintiffs who brought, among other

claims, race and sex discrimination and retaliation claims against Tyson. In an 89-

page opinion, the district court denied Tyson’s motion for summary judgment on:

                                          3
Hithon and Anthony Ash’s promotion discrimination claims, two other plaintiffs’

retaliation claims, and one other plaintiff’s fraudulent inducement of employment

claim. The court granted Tyson’s motion for summary judgment as to all of the

other claims, and it later certified its judgment as final under Federal Rule of Civil

Procedure 54(b), permitting the plaintiffs to appeal. They did, and this Court

affirmed the district court’s order in Ash I.

                                                  B.

      After proceedings resumed in the district court on the claims that had

survived summary judgment, the court granted Tyson’s motion to sever, holding

that the promotion discrimination claims of Hithon and Ash would be tried

separately from those of the three other remaining plaintiffs.1 Ash and Hithon’s

case went to trial, and the jury returned a verdict in their favor, awarding each of

them $250,000 in compensatory damages and $1.5 million in punitive damages.

The district court held that Hithon and Ash had presented insufficient evidence of

pretext, and it granted Tyson’s Rule 50(b) motion for judgment as a matter of law

on Ash’s and Hithon’s claims.

      In Ash II we affirmed all of the district court’s judgment except for the part

that disposed of Hithon’s 42 U.S.C. § 1981 claim. On that claim we held there

      1
          Those three other plaintiffs later agreed to the dismissal of their claims with prejudice.

                                                  4
was enough evidence for a reasonable jury to find that racial discrimination was

the reason that Hithon, who is African-American, was not promoted to shift

manager. See Ash II, 129 F. App’x at 534. Our holding focused on and was

dependent upon the factual premise that Hithon had not been interviewed until

after one of the two open shift manager positions had already been filled by Randy

King. We explained in Ash II:

      [W]e conclude that Hithon presented a sufficient case of
      discrimination because he demonstrated that [plant manager] Hatley
      interviewed him after Hatley had already hired King, indicating that
      Hatley’s stated reasons for rejecting Hithon—his lack of a college
      degree, his position as a manager at a financially troubled plant, and
      his lack of experience outside of the Gads[d]en plant—were
      pretextual. This evidence of pretext along with Hithon’s prima facie
      case of discrimination was sufficient for the jury to decide whether
      Tyson discriminated. Accordingly, we conclude that the district court
      did not err in granting Tyson’s motion for judgment as a matter of law
      on [co-plaintiff] Ash’s claims, but the court erred in granting the
      motion for judgment as a matter of law on Hithon’s claims.

Ash II, 129 F. App’x at 534. As we later explained in our Ash IV opinion,

however, our judgment in Ash II was vacated by the Supreme Court for two

reasons:

      Our judgment [in Ash II] was vacated by the Supreme Court. Ash v.
      Tyson Foods, Inc., 

, 

, 

      (2006) (per curiam). The Court concluded that: “The judgment of
      the Court of Appeals, and the trial court rulings it affirmed, may be
      correct in the final analysis. In the course of its opinion, however, the
      Court of Appeals erred in two respects, requiring that its judgment

                                          5
      now be vacated and the case remanded for further consideration.” 

126 S. Ct. at 1196.

      First, the Supreme Court took issue with this Court’s analysis of the
      racial implications of the word “boy.” It instructed us that while the
      use of the word “boy” does not always evidence racial animus, neither
      is its use without modifiers always benign. 

at 1197.
      The Court stated: “The speaker’s meaning may depend on various
      factors including context, inflection, tone of voice, local custom, and
      historical usage.” 

Court rejected the “jump off the page and slap you in the
      face” standard for inferring pretext based on a comparison of
      qualifications. 

126 S. Ct. at 1197. Finally, the
      Supreme Court directed this Court to “determine in the first instance
      whether the two aspects of its decision here determined to have been
      mistaken were essential to its holding” and remanded for further
      proceedings consistent with its opinion. 

126 S. Ct. at
      1198.

Ash IV, 392 F. App’x at 822.

                                         C.

      In Ash III, which was issued after the case came back before us on remand

from the Supreme Court, we once again addressed the evidence in the record (of

the first trial) about Hatley’s use of the word “boy,” concluding:

      After reviewing the record, we conclude once again that the use of
      “boy” by Hatley was not sufficient, either alone or with the other
      evidence, to provide a basis for a jury reasonably to find that Tyson’s
      stated reasons for not promoting the plaintiffs was racial
      discrimination. The usages were conversational and as found by the
      district court were non-racial in context. But even if somehow
      construed as racial, we conclude that the comments were ambiguous

                                          6
      stray remarks not uttered in the context of the decisions at issue and
      are not sufficient circumstantial evidence of bias to provide a
      reasonable basis for a finding of racial discrimination in the denial of
      the promotions. The lack of a modifier in the context of the use of the
      word “boy” in this case was not essential to the finding that it was not
      used racially, or in such a context as to evidence racial bias, in the
      decisions at issue, even if “boy” is considered to have general racial
      implications. The statements were remote in time to the employment
      decision, totally unrelated to the promotions at issue, and showed no
      indication of general racial bias in the decision making process at the
      plant or by Hatley. Moreover, there is nothing in the record about the
      remaining factors to support an inference of racial animus in the use
      of the term “boy.”


Ash III, 190 F. App’x at 926. As for comparative qualifications, this Court held

that the “‘jump off the page test’ was not essential to [our] initial conclusion that

the comparative qualifications evidence did not provide sufficient evidence of

pretext.” 

We stated:

      On this record, we conclude that the plaintiffs did not meet their
      burden under Cooper to show that the disparities between their
      qualifications and the qualifications of King and Dade were “of such
      weight and significance that no reasonable person, in the exercise of
      impartial judgment, could have chosen the candidate selected over the
      plaintiff for the job in question.”

applying the standard from Cooper v. Southern Co., 

, 732 (11th Cir. 2004)).

      After reaching those conclusions, we “reinstate[d] the previous holdings of

our [Ash II ] decision.” Ash III, 190 F. App’x at 927. Those previous holdings in

                                           7
Ash II, which we reinstated in Ash III, included a remand for a new trial on

Hithon’s § 1981 claim that Tyson’s failure to promote him to shift manager was

based on racial discrimination. See Ash II, 129 F. App’x at 536. That remand for

a new trial in Ash II and Ash III was not on the basis of insufficient evidence to

support the jury’s finding that the reason Tyson had not promoted Hithon to shift

manager was racial discrimination. Instead, we specifically held that there was

enough evidence to support that finding, which is why we “reverse[d] the district

court’s grant of judgment as a matter of law in favor of Tyson on Hithon’s

discrimination claims.” Ash III, 190 F. App’x at 927.

      The reason we reversed the judgment as a matter of law in favor of Tyson

on Hithon’s promotion discrimination claim in Ash II and Ash III was that we

concluded Hithon had established a prima facie case of discrimination, and there

was some evidence (at the first trial) that could lead a reasonable jury to find that

Hatley had not interviewed Hithon until he had already hired King. Ash II, 129 F.

App’x at 534. That particular evidence about the timing of the interviews for that

slot was enough to support the jury’s verdict in favor of Hithon and against Tyson

on the § 1981 racial discrimination claim.

      If there had not been any further issues requiring a new trial, in Ash III we

would have affirmed the judgment in favor of Hithon based on the evidence

                                           8
presented at the first trial. But there were other issues that did require a new trial.

The district court had alternatively ruled that Hithon had not presented enough

evidence to support a compensatory damages award in the amount of $250,000 or

to support any punitive damages award at all. We affirmed those rulings, which

meant that the case had to be sent back for a second trial notwithstanding the

sufficiency of the evidence to support Hithon’s § 1981 claim. Ash III, 190 F.

App’x at 927 (“[W]e affirm the district court’s order alternatively granting a new

trial because there was insufficient evidence to support the jury’s punitive

damages award, and the compensatory damages award was excessive.”).

                                               D.

       During the second trial, the one that followed our decision in Ash III, there

were a number of changes in the evidence. One thing that changed was the

evidence about the timing of the King hire,2 which went to the issue of pretext.

The evidence at the second trial ruled out the factual conclusion that the evidence

in the first trial would have allowed the jury to reach about the timing of events

that were crucial to filling the shift manager position that went to King.


       2
          King was already working as a shift manager at a Tyson plant in Arkansas when Hatley
chose him to fill one of the shift manager slots at the Gadsden plant. Technically speaking, King
made a lateral move and was actually transferred instead of being “hired” or “promoted,” but to
simplify matters we follow the parties’ lead and refer to him in this opinion as having been hired
for the shift manager position at the Gadsden plant.

                                                9
The evidence at the second trial, which included Hithon’s own testimony on the

subject, established that Hithon had met with Hatley (the decision maker) and had

discussed his interest in the shift manager position before King was hired, not

afterwards as the evidence at the first trial had indicated. That change meant that,

unlike the situation at the first trial, which is the evidence we were considering in

Ash II and Ash III, at the second trial there was no evidence that Hatley had failed

to even talk with Hithon until after the slot that went to King had been filled. So,

the racial discrimination claim could not survive at the second trial on the theory

that pretext was shown by the failure of Hatley to talk with Hithon about one of

the slots until he had already filled it with King. That theory was out.

      As we explained in our earlier Ash IV opinion, during the liability phase of

the second trial Tyson sought judgment as a matter of law at the close of Hithon’s

evidence and then moved for a directed verdict at the close of all evidence. Ash

IV, 392 F. App’x at 819. The district court denied those motions. 

verdict the jury answered special interrogatories and found that Hatley did not

discriminate against Hithon based on race when he hired King for one of the two

shift manager positions, but he did discriminate when he promoted Steve Dade to

the other open shift manager position. See 

The jury awarded Hithon




                                          10
compensatory damages in the amount of $335,000 and $1,000,000 in punitive

damages. 

      After the jury returned its verdict, Tyson renewed its motion for judgment as

a matter of law under Rule 50(b), and the district court denied that motion in part

and granted it in part. See 

ruled that there was enough evidence for

Hithon’s discrimination claim to have gone to the jury but that there was not

enough “evidence to support a finding that Hatley’s actions warranting punitive

damages could be imputed to Tyson.” 

also filed a Rule 59 motion

for remittitur of the jury’s compensatory damages award or, alternatively, a new

trial, which the court denied. See 

was that the district court entered

judgment for Hithon in the amount of $35,000.00 for back pay, $29,049.33 for

back pay interest, and $300,000.00 for mental anguish, for a total award of

$364,049.33 in compensatory damages, but the court set aside the jury’s award of

$1,000,000 in punitive damages. All of that led to this appeal by Hithon and

cross-appeal by Tyson.

                                         II.

      Hithon’s appeal challenges the district court’s judgment vacating the jury’s

punitive damages award. Tyson’s cross-appeal challenges: the district court’s

refusal to enter judgment in its favor based on the law of the case; the court’s

                                         11
denial of its motion for judgment as a matter of law based on insufficient evidence

of discrimination; a number of evidentiary rulings the court made; and the court’s

refusal to order remittitur of the jury’s award of compensatory damages. We will

begin by addressing each of the issues raised in Tyson’s cross-appeal, since

Hithon’s appeal depends on the judgment in his favor on the discrimination claim

surviving Tyson’s cross-appeal.

                                         A.

      Tyson first contends that in Ash III this Court remanded the case for the sole

purpose of determining whether Hatley, the decision maker for Tyson, racially

discriminated against Hithon when he selected King for the first available shift

manager job, not whether he did so when he selected Dade for the second shift

manager position to become available. Tyson argues that the law of the case, as

established in Ash III, precluded the jury from considering whether Hatley

discriminated against Hithon in promoting Dade to fill that second slot. “We

review de novo the district court’s application of the law of the case doctrine.”

Alphamed, Inc. v. B. Braun Med., Inc., 

, 1285 (11th Cir. 2004).

      Under the law of the case doctrine, the district court and this Court are

bound by findings of fact and conclusions of law made by this Court in an earlier

appeal of the same case. Friedman v. Mkt. St. Mortg. Corp., 

, 1294

                                         12
(11th Cir. 2008). There are, however, some exceptions to this doctrine, including

the presentation of “substantially different” evidence at a retrial. 

(quotation marks omitted). Our predecessor Court recognized that when a district

court’s judgment has been reversed and the case has been remanded for a new trial

the parties are permitted to introduce new evidence: “The parties [are] free on

such a reversal to introduce other evidence and to present by amendment new

issues, if not inconsistent with what the appellate court had adjudged.” Doran v.

Petroleum Mgmt. Corp., 

, 93 (5th Cir. 1978) (quotation marks and

alteration omitted).3

       When we issue “a limited mandate, . . . the trial court is restricted in the

range of issues it may consider on remand,” United States v. Davis, 

, 1252 (11th Cir. 2003), but our Ash III remand was not limited to the failure

to promote Hithon to the shift manager slot that King filled. While we might not

have reversed and remanded for a new trial but for the evidence at the first trial

concerning the King slot, the fact remains that we did not limit the new trial to the

issue of whether Hithon had been discriminated against with regard to that one

slot. We could have limited it in that way, but we did not. Instead, our remand


       3
        In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

                                              13
language stated that we: “reverse the district court’s grant of judgment as a matter

of law in favor of Tyson on Hithon’s discrimination claims.” Ash III, 190 F.

App’x at 927 (emphasis added). The use of the plural “claims” instead of the

singular “claim” indicates that we intended to leave open for the second trial both

the discrimination claim about the King slot and the discrimination claim about the

Dade slot. There were no other “claims” left in the case. The “claims” language

in our statement of reversal and remand established that we were sending the case

back for another trial on both the King slot and the Dade slot, leaving open the

possibility that different evidence at the second trial might establish that Tyson

had discriminated against Hithon based on race in filling the Dade slot. And there

was new and substantially different evidence at the second trial, including the

testimony of a number of witnesses who had not testified at the first trial.4

                                                 B.

       Tyson contends that, even putting aside law of the case considerations, it

was entitled to judgment as a matter of law at the second trial. It argues that the

evidence did not support the jury’s finding that Hatley discriminated against



       4
          At the first trial there was testimony from nine witnesses on the liability issue, while at
the second trial there was testimony from twelve witnesses on that issue. And some of the
witnesses who testified at both trials gave testimony at the second trial that was more favorable
to the plaintiff than their testimony at the first trial had been.

                                                  14
Hithon on the basis of race in filling the second shift manager position because

there was insufficient evidence that the proffered race-neutral reasons for selecting

Dade instead of Hithon were pretextual.

      “We review the denial of a motion for a judgment as a matter of law de

novo, and apply the same standards as the district court.” Goldsmith v. Bagby

Elevator Co., 

, 1275 (11th Cir. 2008). “We will reverse only if the

facts and inferences point overwhelmingly in favor of one party, such that

reasonable people could not arrive at a contrary verdict.” 

omitted). We view all the evidence and draw all inferences from it in the light

most favorable to Hithon because he is the nonmoving party. See 

is the issue, and judgment as a matter of law to the defendant

is under consideration, we “must evaluate whether the plaintiff has demonstrated

such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence.” Combs v.

Plantation Patterns, 

, 1538 (11th Cir. 1997) (quotation marks

omitted). Having considered the parties’ arguments on rehearing and carefully

revisited the record, for the reasons discussed below we are convinced that enough

evidence was presented at the second trial for a reasonable juror to reject as

                                          15
unworthy of credence Tyson’s proffered reasons for promoting Dade and to justify

the verdict in favor of Hithon on the § 1981 racial discrimination claim. See 

                                         1.

        Tyson’s proffered race-neutral reason for promoting Dade instead of Hithon

was that the Gadsden plant had been performing poorly and Hatley wanted

someone who had not been part of management during the plant’s period of poor

performance. We have held that when the proffered race-neutral reason “is one

that might motivate a reasonable employer, an employee must meet that reason

head on and rebut it, and the employee cannot succeed by simply quarreling with

the wisdom of that reason.” Chapman v. AI Transp., 

, 1030 (11th

Cir. 2000) (en banc). Tyson’s proffered reason was race-neutral and could have

motivated a reasonable employer’s selection decision, if it were true.

        Hithon, however, did meet and rebut that proffered reason head on at the

second trial. He presented evidence that the Gadsden plant was not performing as

poorly as Tyson presented it to be, and that Dade himself had come from a Tyson

plant that was performing so poorly it had been closed. Dade worked at the Boaz,

Alabama plant before he came to the Gadsden, Alabama plant. Human resources

manager (at the complex level) Richard Allan Trotter testified at the second trial

                                         16
that the Boaz plant had closed because of poor performance. Human resources

manager (at the plant level) Everneza Higgins testified that the Boaz plant was

rumored to have closed because of poor performance. Hatley, by contrast,

testified that the Boaz plant had closed because of lack of demand for the kind of

meat that plant produced. The testimony conflicted about why the Boaz plant

where Dade had served in a managerial position had closed. The jury was entitled

to resolve that conflict in the testimony and reasonably could have done so by

crediting the testimony of the two human resources managers and finding that the

plant from which Dade transferred had done at least as poorly as the Gadsden

plant. From that the jury would have had sufficient reason to disbelieve Tyson’s

proffered reason for selecting Dade instead of Hithon, especially in light of the

other evidence that Hithon presented at the second trial.

                                         2.

      In addition to meeting head on Hatley’s proffered reason for promoting

Dade and presenting evidence that it was false, Hithon presented evidence at the

second trial that Dade, unlike Hithon, failed to meet the minimum written and

unwritten requirements for the shift manager position. The written requirements

for the shift manager position were listed on a “job summary” and included “three

to five years experience.” It was undisputed that Hithon had thirteen years of

                                         17
experience in the poultry industry when he applied for the shift manager job, while

Dade had only two. And there was testimony at the second trial indicating that the

required “experience” was poultry production experience. Human resources

manager Higgins testified that there was “a question” about whether Dade met the

minimum written requirements for the shift manager job. Lola Hithon, John

Hithon’s wife who worked in human resources at the Gadsden plant, testified that

Dade did not meet the minimum written requirements. She told the jury that:

“One of the minimum requirements for that position is that a person have three to

five years experience. And from my knowledge of Steve [Dade], his background

in poultry, he did not meet that requirement.” Anthony Ash, a former

superintendent at the plant and a former plaintiff in this case, testified that Dade

did not have the three to five years required experience.

      In addition to presenting evidence about the written requirement of three to

five years experience for the shift manager position, Hithon presented evidence at

the second trial that there was an unwritten requirement that an applicant have

experience in both first and second processing to be seriously considered for a

shift manager position. Four management level former employees of Tyson, who




                                          18
had worked at the Gadsden plant, testified that they had been told that experience

in both stages of processing was necessary.5

       Ash was one of the four. He testified at the second trial that having

experience in both first and second processing was “a criteria for becoming a shift

manager or a superintendent.” According to Ash, “[i]f you wanted those jobs, you

had to work both processes.” He testified that Hatley himself told him that

experience in both types of processing was required, which is significant because

Hatley was the one who decided who would fill the shift manager positions.

       Dale Carroll was another of the four witnesses who gave such testimony.

Carroll, who was promoted to shift manager at the Gadsden plant in 1994, was the

manager who quit after Hatley denied him a raise and whose slot was later filled

by Dade. He testified at the second trial that he had “been told” that “you needed”

first and second processing experience to be promoted to shift manager. Before

becoming a shift manager Carroll had one year of experience in first processing

and four years of experience in second processing.

       James Blake, an African-American superintendent who had applied for a

shift manager position about the same time Hithon did, was the third person who



       5
         According to the evidence, “first processing” refers to the initial stages of processing a
chicken, which includes killing, while “second processing” involves the later stages.

                                                 19
testified at the second trial about the necessity of experience in both types of

processing. He testified that he was “told that if you wanted to move up to a shift

manager, you had to have both first and second processing experience.” Hithon

himself was the fourth witness on this matter. He testified that former plant

manager John Pittard told him that he “needed to be a superintendent in first

processing and second processing in order to be a shift manager.”

      In addition to those four witnesses who testified that experience in both

types of processing was required, two others testified at the second trial that it was

desirable even if not absolutely required. John Pittard was plant manager at the

Gadsden plant from 1986 to 1994. He testified that while “there is no hard fast

rule” about the steps required before one could become a shift manager, “[m]ost of

the time” people who were promoted to shift superintendent or shift manager had

worked in either first or second processing, although “[t]hey could possibly come

out of one of the . . . support departments.” And he also testified that the “best

candidate” for shift manager “would have experience on both ends of the plant.”

Randy King, a white male who was promoted to shift manager in 1995, testified at

the second trial that he had first and second processing experience. He acquired

that experience in order to “obtain[] knowledge” because he “had aspirations to

learn it all and wanted to run it someday.”

                                          20
      Viewing the testimony of those six witnesses in the light most favorable to

Hithon, a jury reasonably could have found that Tyson had made experience in

first and second processing a necessary qualification for the shift manager

position, and that everyone recognized that it was highly desirable.

And it was undisputed that Hithon had extensive experience in both first and

second processing. There was evidence that Dade, by contrast, had either little or

no experience in either type of chicken processing. According to Ash, Dade had

worked in the personnel department—not in processing— at the Boaz plant before

he came to the Gadsden plant. Lola Hithon, who worked in human resources,

testified that Dade had human resources experience but that she was “not aware

of” his having any experience processing chickens.

      There was also evidence presented that Dade had so little experience in

chicken processing that Ash and Hithon had to train him when he took over as

shift manager. Ash testified that Dade

      told [him] that he didn’t know anything about the processing area,
      that they had promoted him into the job and that he knew that I had
      plenty of knowledge of the processing and that he would rely on me
      to train him. And he said he was going to be like a monkey on my
      back and he wanted to drain me of all the knowledge that I knew in
      order for him to succeed.




                                         21
Hithon testified that Dade admitted to him that “he didn’t have any production

experience, but he was willing to learn new things and he was going to drain all of

our minds.” Human resources manager Higgins testified that Hithon had

complained to her that Dade “didn’t know the job” and that “he and Mr. Ash were

having to train [Dade].”6

           Hatley testified that Dade had worked as a “superintendent” at the Boaz

plant. Former shift manager Dale Carroll testified that Dade had been a

“supervisor” at Boaz. Higgins testified that Dade had “some production

experience.” Higgins did not say how much production experience Dade had, but

it could not have been much because he had worked in the poultry industry for

only a little over two years when he was promoted to the shift manager position at

the Gadsden plant.

       In other words, there was a conflict in the evidence about whether Dade

completely lacked any processing experience, but no witness testified that he had

any significant processing experience. It was undisputed, as we have noted, that

Hithon had 13 years processing experience. A reasonable jury could have

concluded either that Dade had no processing experience or, at best, that he



       6
        Higgins did not testify, however, that Hithon ever said to her that he thought the
promotion of Dade or the fact that he had to train Dade was racially discriminatory.

                                                22
certainly did not have as much as Hithon. Thus, a reasonable jury could have

found that Hithon met both the written and unwritten requirements for a shift

manager position, while Dade met neither of them. See Vessels v. Atlanta Indep.

Sch. Sys., 

, 772 (11th Cir. 2005) (“[W]here the qualifications

disparity is not the sole basis for arguing pretext, the disparity need not be so

dramatic to support an inference of pretext.” (emphasis omitted)).

                                                3.

       In addition, as we discussed in our now-vacated Ash IV opinion, there was

testimony presented at the second trial about two occasions when Hatley used the

word “boy” in reference to African-American male employees.7 On one occasion

the comment was directed at Ash, and on another occasion the comment was

directed at Hithon. Hithon’s counsel elicited the following testimony from Ash



       7
          Tyson contends that the district court’s decision to admit testimony about Hatley’s use
of the word “boy” was an abuse of discretion because the law of the case mandated that these
were just “stray remarks.” In Ash III our statements about the use of the word “boy” were based
on the testimony presented at the first trial, see Ash III, 190 F. App’x at 926, and at the second
trial Hithon was free to present new or additional evidence about the term, see 

. The district court did not abuse its discretion in admitting that testimony in light of the
Supreme Court’s instruction that the term may be evidence of racial animus, depending on
“various factors including context, inflection, tone of voice, local custom, and historical usage.”

, 126 S. Ct. at 1197. In Ash III we discussed the context of Hatley’s use of
the term but concluded “there is nothing in the record about the remaining factors to support an
inference of racial animus in the use of the term ‘boy.’” Ash III, 190 F. App’x at 926. At the
second trial Hithon introduced additional evidence that developed the record regarding those
remaining factors.

                                                23
about the time in July 1995 (before the promotion decisions at issue) when Hatley

used the word “boy” when talking to Ash:

       [I]t was break time, it was lunch time. And we were just sitting in the
       cafeteria having lunch. And Mr. Hatley walks up to the table without
       saying anything, but he just said, “Boy, you better get going.”

       So I looked at him. I was shocked that he said it, because, you know, I felt
       like he said it in a mean and derogatory way.

Ash testified that Hatley’s use of the word was offensive to him:

       A. Because, you know, being in the South, and everybody know[s]
       being in the South, a white man says boy to a black man, that’s an
       offensive word.

       Q. What do you equate that to, using the word “boy” to a black man?

       A. I equate that to just a racial comment because you might as well
       use the “N” word if you are going to say that.8




       8
          After Ash gave that answer, plaintiff’s counsel said: “He might as well have walked up
and said ‘nigger’ to you; right?” Tyson argued in its brief to this Court that plaintiff’s counsel
engaged in misconduct and attempted to stir the passions of the jury by interjecting that word into
the litigation —a word that no one had ever accused Hatley or anyone else at the plant of using.
We agree with Tyson that plaintiff’s counsel’s interjection of that word, which the witness
himself apparently was unwilling to utter, was an improper attempt to inflame the jury. If
Tyson’s attorney had requested a mistrial and been denied one, we would face the question of
whether to reverse the judgment on this ground. However, Tyson’s attorney did not request a
mistrial on this ground and conceded to us at oral argument that he had made a strategic decision
not to seek one. An attorney who gambles and loses at trial cannot expect to play a different
hand in the court of appeals.

                                                24
Ash described Hatley’s tone as “mean and demeaning, degrading.” He testified

that in response to the comment his wife had told Hatley: “‘He’s not a boy. He’s

a man.’”

       Ash’s wife also testified about that same incident involving her husband.

She described how she was having lunch in the cafeteria with her husband and her

sister when Hatley used “boy” to refer to Ash. She testified that when he did it

Hatley “just looked at [her] with a smirk on his face like it was funny and then he

walked off.”

       Hithon himself was not present when Hatley referred to Ash as “boy,” but

on a different occasion Hatley referred to Hithon himself as “boy” in speaking to

him. Sometime after May but before July 1995, as he was leaving a conference

room, Hithon heard Hatley say “hey, boy.” Hithon testified: “More than likely we

were talking about numbers of some kind. And as I was leaving, [Hatley] said,

‘Hey, boy.’ And I hesitated, but I continued to walk.” Hithon described Hatley’s

tone of voice as “extremely condescending.” He explained that the term “was

offensive” to him and that it was racially derogatory.9

       9
         An amicus brief that was submitted in support of Hithon’s petition for rehearing
recounted the facts incorrectly when discussing the evidence at the second trial about the one
occasion when Hatley used the word “boy” in reference to Ash and the other occasion when
Hatley used the word in reference to Hithon. Amici assert: “At the second trial, following Ash
III, counsel elicited testimony that Hithon and Ash were having lunch in the cafeteria in July
1995 (before the promotion decision at issue) when Hatley “walk[ed] up to the table without

                                              25
       In our now-vacated Ash IV opinion, we concluded that the evidence about

the use of the word “boy” that was presented at the second trial “was not ‘new and

substantially different’ enough for us to revisit the conclusion of law made in our

Ash III decision after the Supreme Court’s remand.” Ash IV, 392 F. App’x at 833

(citation omitted), but we now reach a different conclusion. Some new and

substantially different evidence about Hatley’s use of the word “boy” was

presented at the second trial, 

p.15 n.4, and that evidence cannot be

considered in isolation. We instead must consider it in combination with all of the

other evidence.

       At the first trial there was virtually no evidence about the factors relating to

the use of the word “boy” that the Supreme Court set forth in the Ash III remand:

“context, inflection, tone of voice, local custom, and historical usage.” 

, 126 S. Ct. at 1197. At the second trial, Ash, Ash’s wife, and Hithon

testified about their perception of Hatley’s tone of voice or facial expression when

he used the term. Ash testified about his understanding of the word’s implications


saying anything, [and then] said ‘Boy, you better get going.’” In reality, there was no testimony
or other evidence that Hithon was present when that statement was made to Ash. Instead, Ash
and his wife both testified that only they and Mrs. Ash’s sister were present. Despite Hithon’s
absence during that incident, amici assert that “Hithon also testified that Hatley addressed him as
‘boy’ a second time.” (emphasis added). That is simply not true. The record shows that Hithon
testified about only a single occasion when Hatley referred to him as “boy.” Although we
welcome amicus curiae briefs that are helpful, misstatements of facts are not helpful.


                                                26
in terms of local custom and historical usage, and Hithon elaborated on that

subject as compared to his testimony in the first trial. And the evidence about the

timing of the comment to Ash was also different at the second trial. At the first

trial Ash and his wife testified that the comment in the cafeteria was made

sometime after the promotion decisions at issue in this case, but at the second trial

they testified that the comment was made just before the promotion decisions.

      The jury’s verdict on Hithon’s two claims suggests that, even with the new

evidence, Hatley’s use of the word “boy” alone did not establish discrimination.

The same evidence about Hatley’s use of that word applied to both the King slot

and the Dade slot. Yet the jury decided against Hithon on the King slot, and

Hithon has not challenged that part of the verdict on appeal. It follows that

Hatley’s use of the word “boy” was not enough by itself to convince the jury of

racial discrimination. But we do not view that evidence by itself in relation to

Hithon’s claim about the Dade slot, which the jury did resolve in Hithon’s favor.

                                          4.

      Instead, we consider all of the evidence cumulatively, viewing it in the light

most favorable to Hithon, to determine whether it is enough for a reasonable jury

to have found that Tyson discriminated against Hithon based on race by promoting

Dade to the shift manager position. As we have discussed, there was enough

                                         27
evidence for a reasonable jury to have found pretextual Tyson’s proffered race-

neutral reason of wanting a shift manager who had not been in management at the

failing plant; to have found that there was a written job requirement of three to

five years experience in the poultry business, which Hithon met but Dade did not;

to have found that there was also an unwritten job requirement of experience in

first and second processing, which Hithon met but Dade did not; and to have

found that Hatley, the decision maker, used the word “boy” in a racially

demeaning way to refer to Hithon and another African-American male employee

on two occasions just before the decision was made.

      In light of all of the evidence, we cannot say that “the facts and inferences

point overwhelmingly in favor of one party, such that reasonable people could not

arrive at a contrary verdict.” 

(quotation marks

omitted). The verdict could have gone either way, and it went Hithon’s way. We

cannot say that the evidence he presented at the second trial was not sufficient to

demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence.” 

(quotation marks omitted). Accordingly, we reject Tyson’s challenge to the

sufficiency of the evidence to support a verdict that Tyson discriminated against

                                         28
Hithon on the basis of race when it failed to promote him to the shift manager

position that went to Dade.

                                         III.

      Tyson also challenges a number of the district court’s rulings admitting

evidence during the damages phase of the bifurcated second trial. The evidence in

question related to claims on which Tyson had prevailed at the summary judgment

stage. That evidence involved: Hithon’s demotion from his superintendent

position; Dade’s negative evaluation of him; the denial of a pay raise to Hithon in

1996; the taking away of his office and restricting his long distance calls; Tyson’s

temporary promotion of Hithon’s wife to a shift manager position after Dade left;

and what Hithon alleged was his constructive discharge. Tyson argues that the

district court confused the jury by instructing it as follows about the limitations on

considering some of that evidence: “This questioning is not to get into the

question of whether he was wrongfully denied [the shift manager] position after

Dade left. Nothing to do with that. It’s just how applying for that position and

perhaps his wife getting it temporarily instead of him would affect his mind.”

That instruction is not a model of clarity, but Tyson did not object to it when it

was given.




                                          29
      As for the evidence Tyson complains about, the district court did not abuse

its discretion by admitting that evidence. It was arguably relevant to the issue of

whether Hithon suffered mental anguish, and if so how much, after Tyson racially

discriminated against him by promoting Dade instead of Hithon to the shift

manager position. Hithon was not using that evidence to establish liability, and

the district court gave a limiting instruction to which Tyson did not object. It

charged the jury:

      Let’s be clear about one thing. Sometimes evidence is admissible for
      one purpose and improper for another purpose. You found one event
      of discrimination. I instruct you that there is no other wrongful
      employment act of the defendant in this case, and you must not think
      so.

      For example, after the act of discrimination you found in this case, the
      evidence showed that Mrs. Hithon was temporarily named shift
      manager, the very job that the plaintiff wanted. The fact that the
      plaintiff did not get the job at that time has nothing to do with this
      case except to the extent you find it relevant to the plaintiff’s mental
      anguish claim.

We presume that the jury followed that instruction. See United States v. Lopez,

, 1237 (11th Cir. 2011) (“We presume that juries follow the

instructions given to them.”).




                                         30
                                         IV.

      The compensatory damages part of the judgment against Tyson totaled

$364,049.33, of which $300,000 was for mental anguish Hithon suffered. The

district court denied Tyson’s post-trial motion for remittitur of the $300,000

amount or, in the alternative, a new trial. Tyson challenges the district court’s

denial of that motion.

      Our review of a district court’s decision not to remit compensatory damages

is “highly deferential.” Griffin v. City of Opa-Locka, 

, 1315 (11th

Cir. 2001). And “[w]e are particularly deferential to the fact finder’s

determination of compensatory damage awards for intangible, emotional harms

because the harm is so subjective and evaluating it depends considerably on the

demeanor of the witnesses.” 

omitted). We have held that

“[w]hen an award of damages has been reviewed and upheld by the trial judge, it

is entitled to a presumption of validity.” Ferrill v. Parker Grp., Inc., 

,

476 (11th Cir. 1999); see also Sykes v. McDowell, 

, 1105 (11th Cir.

1986) (“A jury verdict may be vacated as excessive only if it is so large as to

shock the conscience.” (quotation marks omitted)).

      Tyson contends that the amount of the jury’s award for mental anguish

indicates bias, passion, and prejudice. It argues that Akouri v. Fla. DOT, 

1338 (11th Cir. 2005), is the “most comparable case.” The Akouri case, however,

is not comparable because Akouri did not present any evidence of mental anguish

while Hithon did. See 

      Akouri, a native of Lebanon, had unsuccessfully applied for three

promotions over the course of six years. 

A supervisor told Akouri

that he was not promoted to one of those positions because “it supervised white

employees, as opposed to black or Hispanic employees, and that they would not

take orders from him, particularly if he had an accent.” 

discrimination claims against his employer under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq. 

awarded him $552,000 in mental

anguish damages. 

Finding that Akouri had failed to prove that he had

suffered mental anguish, the district court entered judgment notwithstanding the

verdict, reducing the jury’s award to nominal damages. 

so because

Akouri had presented no evidence at all to support any mental anguish damages.

the district court’s judgment, explaining that any inferences

made by the jury based on Akouri’s demeanor while testifying at trial were not

enough to support the award of damages for mental anguish. 

There

was nothing in the record to support that award, because Akouri “made no attempt

                                        32
to describe any kind of harm, mental, emotional, or otherwise, arising from the

discrimination.” 

We reasoned that “if Akouri [had] suffered

emotional pain or distress, it could have been presented by one or more direct

questions during his testimony.” 

n.6.

      By contrast, when Hithon testified during the damages phase of the trial, his

counsel did question him about his emotional pain and distress. Hithon answered

that the denial of the promotion had caused him to become physically ill: he could

not eat or sleep; he was nauseated; he had chest pains, digestive problems, and

numbness in his arm. He lost about 40 pounds between July and November 1995.

He testified that it was “extremely degrading” to train Dade for the job that he had

wanted for himself. He lost his self-esteem. Co-workers asked Hithon why he did

not get the job and they made jokes about what had happened. Dade gave him a

negative performance evaluation, which was the first one Hithon had ever gotten

in his 13 years at Tyson. Then in March 1996, when Dade left Tyson, Hithon’s

wife was promoted to acting shift manager, making her his supervisor, even

though Hithon had more experience than she did, and she had not even applied for

the shift manager job.

      In support of Hithon on the mental anguish issue, his wife recounted how,

until he was denied the promotion in 1995, the couple had no marital problems,

                                         33
but after that, Hithon’s “whole attitude” changed and he would come home and

close himself in the bedroom, not speaking to his wife or children. His

relationship with his wife and children deteriorated, and friends noticed his strange

behavior. She testified that Hithon often vomited before work, and he lost a lot of

weight.

       Human resources manager Higgins testified that Hithon came to her and

told her about Dade’s promotion and complained that it was “not fair.”10 He was

“pretty upset.” She testified that before then Hithon had always been

“down-to-earth” and “very calm” and “very rational,” and she had “never really

seen him emotional.” In 20 years of knowing him, she had never seen him as

upset as he was after he was denied the promotion. Based on all of that evidence,

and applying our highly deferential standard of review, we conclude that the

district court did not abuse its discretion in denying Tyson’s motion for remittitur

of the mental anguish component of the compensatory damages award.

                                              V.

       We turn now to Hithon’s appeal, in which he contends that the district court

erred by vacating the jury’s award against Tyson of $1,000,000 in punitive



       10
         Higgins did not testify, however, that Hithon had ever complained to her that the
unfairness of the promotion decision involved any racial discrimination.

                                               34
damages. We review de novo a district court’s decision to grant a motion for

judgment as a matter of law that vacates a punitive damages award. Toole v.

Baxter Healthcare Corp., 

, 1317 (11th Cir. 2000).

      A plaintiff seeking punitive damages against an employer for job

discrimination faces daunting obstacles under the law established by decisions of

the Supreme Court and this Court. “Punitive damages are disfavored by the law

and are awarded solely to punish defendants and deter future wrongdoing.”

(quotation marks omitted). “The Supreme Court has

directed that, for the issue of punitive damages to reach the jury in a section 1981

case, the plaintiff must come forward with substantial evidence that the employer

acted with actual malice or reckless indifference to his federally protected rights.”

Miller v. Kenworth of Dothan, Inc., 

, 1280 (11th Cir. 2002) (citing

Kolstad v. Am. Dental Ass’n, 

, 536–37, 

, 2125–26

(1999)) (emphasis added). “Malice means an intent to harm and recklessness

means serious disregard for the consequences of one’s actions.” E.E.O.C. v.

W&O, Inc., 

, 611 (11th Cir. 2000) (alteration and quotation marks

omitted).

      “[P]unitive damages will ordinarily not be assessed against employers with

only constructive knowledge of harassment.” 

(quotation

                                          35
marks omitted). Instead, punitive damages are available only if “the

discriminating employee was high up the corporate hierarchy or . . . higher

management countenanced or approved his behavior.” 

quotation marks omitted).

       Moreover, “in the punitive damages context, an employer may not be

vicariously liable for the discriminatory employment decisions of managerial

agents where these decisions are contrary to the employer’s good-faith efforts to

comply with [§ 1981].” 

, 119 S. Ct. at 2129 (quotation

marks omitted);11 see also 

(“[T]he Supreme Court has

held that employers may assert a good faith defense to vicarious liability for

punitive damages where the employment decisions of managerial agents . . . are




       11
          Kolstad involved a Title VII claim, but we have held that an award of punitive damages
on a § 1981 claim, just like one under Title VII, 42 U.S.C. § 1981a, must be supported by proof
that the employer’s conduct was malicious or recklessly indifferent. See 

(“Under § 1981, punitive damages may be awarded when the defendant’s conduct is shown to be
motivated by evil motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.” (quotation marks omitted)); see also 

(holding that a plaintiff with a § 1981 claim must present “substantial evidence that the
employer acted with actual malice or reckless indifference to his federally protected rights”);
Bryant v. Jones, 

, 1296 n.20 (11th Cir. 2009) (noting that “discrimination claims . .
. brought under the Equal Protection Clause, 42 U.S.C. § 1981, or Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2, are subject to the same standards of proof and employ the
same analytical framework”).



                                               36
contrary to the employer’s good-faith efforts to comply with [§ 1981].” (quotation

marks omitted)).

      Applying the law established in all of those decisions, the district court

determined after the damages verdict was returned that the evidence did not

present a jury question on the punitive damages issue. In doing so, the court

correctly distinguished the question of whether there was sufficient evidence that

in deciding to promote Dade instead of Hithon, Hatley discriminated on the basis

of race from the question of whether there was sufficient evidence to support an

award of punitive damages against Tyson—not against Hatley the decision maker,

but against Tyson the employer. See, e.g., 

–46, 119 S. Ct.

at 2124–29 (distinguishing between the facts that will support an award of

compensatory damages and the additional facts required for an award of punitive

damages); 

–81 (analyzing the two issues separately and

reversing the award of punitive damages while affirming the award of

compensatory damages); 

(same).

      The district court gave three reasons why the jury’s award of punitive

damages against Tyson could not stand: 1) Hithon had “not attempted to refute

the argument that Hatley was not far enough up in the corporate hierarchy to

impute his actions to his employer”; 2) “[i]t is undisputed that Tyson’s higher

                                         37
management was never informed of Hatley’s discriminatory acts or that they

approved of his behavior in any way”; and 3) “[i]t is undisputed that Tyson had

implemented several policies to prevent discrimination in promotion and hiring

decisions.”

                                               A.

       The first two reasons the district court gave for setting aside the punitive

damages award relate to the requirement that they cannot be awarded against a

corporate employer without proof that either the employer itself knew about or

ratified the discriminatory acts, or the decision maker who discriminated was far

enough up in the corporate hierarchy that his discriminatory acts should be

imputed to the corporate employer. See 

; 

.12 There was no dispute in the evidence about the facts relating to

this requirement for punitive damages, because there was no evidence to support a

finding that Hithon had carried his burden of establishing it.



       12
           Dudley also held that there could be no punitive damages unless the discriminatory acts
were 

–23. The Supreme Court in Kolstad rejected the requirement
of 

, 119 S. Ct. at 2124, but did not abrogate Dudley’s requirement
that there could be no punitive damages based on constructive knowledge unless the decision
maker were high in the corporate hierarchy. Our later decision in Miller recognizes that Kolstad
did not affect that part of Dudley; Miller reiterates and applies Dudley’s high-in-the-hierarchy
rule. See 

; see also 

, 119 S. Ct. at 2127 (citing
that part of our decision in 

–23, with favor for the proposition that
“agency principles limit vicarious liability for punitive damages awards”).

                                               38
      Hithon presented no evidence at all that the higher corporate officials of

Tyson countenanced or approved Hatley’s discrimination based on race or even

knew that he was alleged to have done it until Hithon filed his lawsuit a year after

he was denied the promotion. Not only that, but there was not any evidence that

Hithon had asserted to any officials at the local plant, or elsewhere, that he thought

that he had been denied the promotion because of his race. He did say that he

thought the promotion decision was “not fair,” but there was no evidence he ever

said it was because of his race. There is no evidence he complained about racial

discrimination to Higgins, the local plant’s human resources manager, or to

anyone else, including his own wife. At the time Hithon was denied the

promotion, Lola Hithon was a shift human resources manager at the Gadsden

plant. Her duties included investigating complaints. She testified as a witness for

her husband at the trial, yet neither she nor he testified that at the time he was

denied the promotion, or at anytime before the lawsuit was filed, Hithon had told

her that he thought the reason he was denied the promotion was racial

discrimination. So far as the record shows, he did not assert that to anyone, much

less to anyone at the corporate headquarters in Arkansas.

      Counsel for Hithon does not dispute this. Instead, she takes the position

now, as she did during the damages phase of the trial, that it did not matter

                                          39
because Hatley was manager at the local plant. She argued to the jury: “Now, the

defendant may come in here and argue and say, well, you’ve got to show corporate

headquarters knew about this. Our position is, Hatley was as high as you can get

at Gadsden, high as you can get for this man.” The problem with her position is

that it is flatly contrary to the law of this circuit.

       Hithon’s own evidence establishes without dispute that Tyson is a huge,

multi-national company. Its annual report, which was admitted as a plaintiff’s

exhibit at trial, shows that Tyson is an $11 billion corporation with 107,000

employees and more than 300 facilities and offices in 28 states and 20 countries.13

       Instead of acknowledging how difficult those facts made it for Hithon to

establish that Hatley was high in the Tyson corporate hierarchy, Hithon’s counsel

instead sought to sidestep that requirement. She urged the local jurors to send the

big corporation a big message. After reminding the jury what a big corporation

Tyson was, she implored: “I want you as a jury in Gadsden, Alabama, to tell them,



       13
          In her argument to the jury during the damages phase, Hithon’s counsel stated that the
jury could “look in the book” and see that “they are in 80 countries—plants all over the world.”
To the extent counsel meant that Tyson had plants in 80 countries, “the book” does not say that.
Instead, Tyson’s annual report, which she put into evidence, showed that while Tyson was
“providing products and services to customers throughout the United States and more than 80
countries,” its approximately 107,000 employees were “employed at more than 300 facilities and
offices in the United States and around the world.” We do not mean to suggest that her mistaken
statement was material. Under either scenario—plants in 80 countries or sales in 80 countries
with more than 300 facilities and offices around the world—the result is the same.

                                               40
‘You are not going to make decisions like this anymore.’” Of course, it was

undisputed that Tyson—the big, multi-national corporation with more than

100,000 employees and with plants all over the world—had not made the decision

about who would be promoted to shift manager at the Gadsden plant; a local plant

manager had made it.

      The law does not allow a jury to impose punitive damages on an employer

based on the decision of one who is not high enough in the corporate hierarchy

simply because the jury wants to send a big corporation a big message. See

–30, 119 S.Ct at 2122 (“Punitive damages are limited . . .

to cases in which the employer has engaged in intentional discrimination and has

done so with malice or with reckless indifference to the federally protected rights

of an aggrieved individual.” (quotation marks omitted) (emphasis added)). Nor

does the law allow a jury to impose punitive damages simply on the basis that the

decision maker was in charge of one of the hundreds of plants and offices that the

employer had worldwide.

      Hithon’s counsel also argued to the jury that punitive damages were

warranted against Tyson because the Gadsden plant, which Hatley managed, had

1,400 employees. However, her own exhibit (Tyson’s annual report) showed that

Tyson had a total of 107,000 employees, which means that less than 1.5 percent of

                                         41
Tyson’s employees worked at the Gadsden plant. That exhibit also showed Tyson

had hundreds of facilities and offices around the world, and Hatley was just one

manager of one of its plants.

      Our decision in Dudley is instructive. We found in that case that evidence

supported the jury’s verdict that a Wal-Mart store manager or co-manager, or both,

had “misused the authority delegated to them by Wal-Mart: they discriminated

against plaintiff on account of her race, demoting her.” 

.

Nonetheless, we reversed the jury’s award of $250,000 in punitive damages. 

We did so because: “Neither [the manager or co-manager of the store]

is high enough up Wal-Mart’s corporate hierarchy—if they can be said to be in the

corporate management hierarchy at all—to allow their discriminatory acts to be

the basis for punitive damages against the corporation.” 

The same is

true in this case. Like the store manager and co-manager of Wal-Mart in Dudley,

as a local plant manager for Tyson, a multi-national corporation with hundreds of

facilities and offices worldwide, Hatley—if he can be said to be in the corporate

hierarchy at all—is not high enough up in it to allow his discriminatory acts to be

a basis for punitive damages against the corporation.

      In explaining its decision to set aside the punitive damages award in this

case, the district court listed six levels of Tyson officials, outside the local plant,

                                           42
who were above all of the plant managers, like Hatley, in the corporate hierarchy:

“the Complex Manager, the Regional Manager, the Division Vice President, the

Senior Vice President of Operations, and the Executive Vice President of

Operations,” and “[p]resumably there is also a president who is over the Executive

Vice President of Operations.” The district court also found that it was

“undisputed that Tyson’s higher management was never informed of Hatley’s

discriminatory acts or that they approved of his behavior in any way,” and even if

Hatley did act with malice or reckless indifference, his actions could not be

imputed to Tyson. We agree. Hithon failed to offer any evidence that “higher

management countenanced or approved [Hatley’s] behavior,” 

(quotation marks omitted), or even knew anything about the racial

discrimination before the lawsuit was filed. And the undisputed evidence shows

that Hatley, a manager at one of hundreds of Tyson’s facilities and offices

worldwide, was not high enough up in the corporate hierarchy at Tyson, if he was

in the hierarchy at all, to meet the Dudley requirement for imputing his

discriminatory conduct to Tyson.

                                         B.

      The district court also based its decision to set aside the award of punitive

damages on the fact that Hatley’s conduct in making the promotion decision based

                                         43
on race was contrary to Tyson’s good faith efforts to comply with job

discrimination laws. The legal premise for that reasoning is well established. See

, 119 S. Ct. at 2129; see also 

.

The Kolstad decision could not have been any clearer about it. In that decision the

Supreme Court forthrightly held:

      In light of the perverse incentives that the Restatement’s “scope of
      employment” rules create, we are compelled to modify these principles to
      avoid undermining the objectives underlying Title VII. Recognizing Title
      VII as an effort to promote prevention as well as remediation, and observing
      the very principles underlying the Restatements’ strict limits on vicarious
      liability for punitive damages, we agree that, in the punitive damages
      context, an employer may not be vicariously liable for the discriminatory
      employment decisions of managerial agents where these decisions are
      contrary to the employer’s good-faith efforts to comply with Title VII. . . .
      [G]iving punitive damages protection to employers who make good-faith
      efforts to prevent discrimination in the workplace accomplishes Title VII’s
      objective of motivating employers to detect and deter Title VII violations.

–46, 119 S. Ct. at 2129 (alterations, citations, and

quotation marks omitted) (emphasis added). As we have already noted, the

analytical framework and rules about employer liability under Title VII and § 1981

are the same. 

p.37 n.11.

      The factual basis for the district court’s conclusion that Tyson had

established the Kolstad good faith defense in this case is unassailable—it is based

on uncontradicted evidence. The evidence is undisputed that Tyson made

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“good-faith efforts to comply with” the anti-discrimination laws. Those efforts

included a written company policy forbidding racial and other unlawful types of

discrimination, communication of that policy to all decision makers and other

employees, and training on the policy.

      Tyson’s Equal Employment Opportunity, Fair Employment Practice,

Personnel Policy required that all “management team members” be “responsible

for complying with the provisions of the Equal Employment Opportunity Policy.”

The “Personnel Actions” part of the policy stated:

      All actions concerning company people should be in the spirit of and
      consistent with the principles of Equal Employment Opportunity.
      Such actions include, but are not limited to the following:
      recruitment, training, compensation, transfers, return from layoffs,
      education, hiring, promotion, benefits, layoffs, company sponsored
      training, social and recreational programs. All personnel decisions
      regarding the above are made without regard to race, color, religion,
      age, national origin, disability, veterans’ status, or sex (except where
      sex is a bona fide occupational qualification).


(formatting altered) (emphasis added). That employment opportunity policy was

included in Tyson’s policy manual. Tyson also had an additional written policy

titled “Management Standards of Behavior,” which unequivocally required that

“Managers/Supervisors must ensure that the work environment under their

supervision is free from all discrimination. . . .”


                                           45
      As part of its effort to prevent discrimination in the workplace, Tyson

ensured that its employees, including its managers, were well aware of and were

trained on its anti-discrimination policy. The “Management Standards of

Behavior” policy required that “[t]he Site Personnel Managers reinforce this

policy by conducting yearly training sessions with all management personnel

regarding this policy.” Higgins, the human resources manager at the Gadsden

plant, was the site personnel manager responsible for that training. She testified

that she had “been training” other managers, including plant managers, on Tyson’s

policies and procedures as part of their corporate training for the twenty years that

she had worked in human resources for Tyson. It was undisputed that Hatley

himself was well aware of Tyson’s policy prohibiting racial and other forms of

unlawful discrimination in promotion and other decisions. He had been trained on

the anti-discrimination policy, and he knew racial discrimination was against the

law as well as against the policy.

      The evidence that Tyson had made “a good faith effort to comply with” the

law prohibiting racial discrimination in the workplace, see 

, 119 S. Ct. at 2129, was overwhelming, uncontradicted, and undisputed. No

reasonable jury could find to the contrary from the evidence. Yet this jury

accepted the invitation of Hithon’s counsel to do just that. In her argument at the

                                         46
damages stage, counsel did not point to any evidence indicating that Tyson had

failed to make a good faith effort to prevent racial discrimination. She did not

suggest anything at all that the company could have done but failed to do. Instead,

she urged the jury to, in effect, misapply the law by assessing punitive damages

against Tyson because of Hatley’s conduct notwithstanding the company’s good

faith efforts to prevent racial discrimination.

      Counsel argued that while Tyson had “nice policies” prohibiting

discrimination, “they don’t follow them.” She argued that punitive damages were

necessary “to punish” Tyson for not following its policies, even though the only

evidence that anyone had not followed those policies was the one decision Hatley

made to promote Dade instead of Hithon. Counsel urged the jury to assess

punitive damages against Tyson as a way of “you going back and telling Tyson

their decision was wrong.” The wrong decision was Hatley’s decision not to

promote Hithon because of his race, a decision contrary to Tyson’s policies and

good faith efforts to prevent unlawful discrimination. Counsel asked rhetorically:

“What amount of money is going to make Tyson pay attention to the fact that they

have to follow their own policies and they have to follow the law?”

      Again, counsel for Hithon never suggested that there was any evidence at all

before the jury that Tyson, as distinguished from Hatley, had ever failed to follow

                                          47
its own anti-discrimination policy or that Tyson was even aware that Hatley had

allegedly failed to do so until after this lawsuit was filed. She urged the jury to

assess punitive damages anyway, using an argument with enough hot air to float a

dirigible, an argument unmoored from the law. And the jury did as she urged,

awarding $1,000,000 of punitive damages in addition to the $335,000 in

compensatory damages. As we have discussed, one of the reasons the district

court vacated the punitive damages award was that it was “undisputed that Tyson

had implemented several policies to prevent discrimination in promotion and

hiring decisions.”

      The district court did not err. The theory that Hithon’s counsel pitched to

the jury, and pitches to us, is that an employer’s good faith efforts to prevent

discrimination in employment decisions do not matter so long as someone in a

position to make a hiring or promotion decision violates that policy even once. If

accepted, that theory would butcher precedent and eviscerate the good faith

defense.

      The only time that any type of damages, including punitive damages, are

ever considered is when there has been an unlawfully discriminatory job action.

Before the question of whether punitive damages can be assessed comes up, there

always will have been a finding that someone to whom the employer has delegated

                                          48
the authority to make an employment decision has misused that authority to

discriminate unlawfully. If, as Hithon’s counsel insists, a single misuse of

managerial authority resulting in discrimination establishes that the employer did

not make good faith efforts to prevent that discrimination, then the good faith

defense does not exist. Under her theory the only time that the good faith defense

to vicarious liability for punitive damages could come into play would be when

there was no violation of the job discrimination laws to begin with, and therefore

no basis for compensatory or punitive damages. Counsel has not explained to us

the utility of a defense that exists only when there is no need for it. Her version of

the good faith defense is a defense that has no purpose, serves no function, and

makes no sense.

      Counsel’s makeover of the good faith defense is also contrary to the

Supreme Court’s decision in Kolstad that even where the decision maker has

discriminated with the requisite “evil 

, 119 S. Ct. at 2126,

that alone is not enough “for imputing liability to an employer in the punitive

damages context,” 

119 S. Ct. at 2127. The Court decided, instead, that

“in the punitive damages context” an employer may not be held “vicariously liable

for the discriminatory employment decisions of managerial agents where these

decisions are contrary to the employer’s good faith efforts to comply with” anti-

                                          49
discrimination laws. Id. at 

(quotation marks omitted).

Hatley was, at most, one of hundreds of managerial agents for Tyson at its plants

scattered around the world. Under the Kolstad precedent, Tyson cannot be held

vicariously liable for Hatley’s decision to promote Dade instead of Hithon to the

shift manager position at the Gadsden plant, because that “discriminatory

employment decision[] of [a] managerial agent[]” was “contrary to [Tyson’s] good

faith efforts to comply with” anti-discrimination laws. 

at 2129.

       Hithon’s counsel urges us to reinstate the $1 million punitive damages

award for a reason that is contrary to the law laid down in Kolstad. Supreme

Court precedent is not like the ash on a cigarette, to be flicked off whenever

convenient. The district court followed the Kolstad decision in setting aside the

punitive damages award, and we follow that decision in affirming the district

court’s judgment.14

       AFFIRMED.




       14
         Because we are affirming the district court’s judgment vacating the punitive damages
award on the two grounds discussed in this part of our opinion, we have no occasion to address
Tyson’s alternative argument that the award was constitutionally excessive.

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