UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD P. SHAW,
Plaintiff-Appellee,

v.

THE TITAN CORPORATION,
                                                                No. 96-2143
Defendant-Appellant,

and

JACK EDDLEMON,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert E. Payne, District Judge.
(CA-96-324)

Argued: July 7, 1997

Decided: May 18, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and
Joseph F. ANDERSON, Jr., United States District Judge
for the District of South Carolina,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: K. Stewart Evans, Jr., MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Washington, D.C., for Appellant. John Michael
Bredehoft, CHARLSON & BREDEHOFT, P.C., Reston, Virginia, for
Appellee. ON BRIEF: Kelly Marie Boehringer, MCGUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., Washington, D.C.; John
Joseph Michels, Jr., MCGUIRE, WOODS, BATTLE & BOOTHE,
L.L.P., McLean, Virginia, for Appellant. Elaine C. Bredehoft,
CHARLSON & BREDEHOFT, P.C., Reston, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Donald P. Shaw brought a wrongful termination action against his
former employer, Titan Corporation, in the Circuit Court of Fairfax
County, Virginia. Shaw alleged that he was fired because of his race,
gender, and age in violation of the public policy embodied in the Vir-
ginia Human Rights Act. See Va. Code Ann.§§ 2.1-714 to 725
(Michie 1995 & Supp. 1997). The case was removed to federal dis-
trict court on the basis of diversity of citizenship, and tried before a
jury on June 3-7, 1996. The jury returned a verdict for Shaw, award-
ing $65,000 in compensatory damages and $400,000 in punitive
damages.1

Titan then filed a motion for judgment as a matter of law and a
motion for a new trial pursuant to Rules 50(b) and 59 of the Federal
Rules of Civil Procedure. Titan argued: (1) that because it had intro-
duced evidence and argument for the proposition that Shaw was dis-
charged pursuant to a legitimate reduction in its workforce, the
district court erred in refusing to give the jury any of Titan's proposed
causation instructions;2 (2) that the public policy of Virginia (on
_________________________________________________________________
1 By consent of the parties, the punitive damages award was reduced
to $350,000 in compliance with the Virginia statutory limit on punitive
damages. See Va. Code Ann. § 8.01-38.1 (Michie 1992).
2 Titan had presented, in the alternative, "but-for-causation" instruc-
tions (stating that the jury could find Titan liable for damages only if it

                    2
which the claim for wrongful discharge was premised) does not per-
mit punitive damages for discriminatory conduct in the workplace;
(3) that the district court admitted prejudicial evidence; and (4) that
the district court erred when it ruled that the punitive damages award
was not excessive. The district court denied Titan's post-trial motions.
Titan now appeals. For the reasons stated herein, we affirm.

I.

Shaw began working at Titan, a government consulting firm, in
1987. In early 1994, Titan determined that it would have to reduce its
workforce to remain profitable. Accordingly, it began evaluating
employees and identifying those that could be terminated. Several
employees expressed concern that the reduction-in-force appeared to
be targeting women and minority employees. Titan formed a commit-
tee to administer the reduction-in-force. The committee noted Titan's
status under prior "conciliation agreements" with the federal Office of
Federal Contract Compliance and Programs (OFCCP), which in
auditing the company had found significant under-representation of
women and minorities. One member told the committee"that any lay-
off action would be subject to meeting a requirement that you did not
lay off a disproportionate number of minorities or females." (J.A. at
87-88.)

During the course of committee meetings, the fact that a dispropor-
tionate number of women and minorities were being targeted for ter-
mination was discussed. As the reduction-in-force proceeded, Ed
_________________________________________________________________

found that Shaw would not have been discharged but for illicit discrimi-
nation, and that, conversely, the jury could not find Titan liable if it
found that the company would have included Shaw in its reduction in
force even in the absence of any consideration that it may have given to
his race, sex, age, or any combination of these factors), "sole-cause"
instructions (stating that the jury could not find Titan liable unless it
found that illicit discrimination was the sole cause of Shaw's discharge),
and "mixed-motive" instructions (closely tracking the burden-shifting
framework followed by the federal courts in Title VII cases where the
employee alleges wrongful discrimination and the employer alleges a
legitimate business motivation).

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Knauf, the president of Titan's east coast operation, asked a commit-
tee member "if the mix changed, what the impact of that change
would be. For example, if we had another white male in the mix, what
would be the numbers or our representation?" (J.A. at 664.) Subse-
quently, a memorandum was prepared which analyzed the impact of
"identify[ing] a `sacrificial lamb'" white male, and concluded, "our
representation [of women and minorities] is so low that we still have
disparity. . . . [W]e are `damned if we do and damned if we don't.'"
(J.A. at 1081.)

On March 2, 1994, Shaw's supervisor, Richard Leadbetter, advised
Shaw that he would be terminated the next day. When Shaw asked
why, Leadbetter intimated that the reduction-in-force process had
malfunctioned. The next day Shaw was terminated. Jack Eddlemon,
the Titan officer who terminated Shaw, offered Shaw"a world class
corporate apology for the way [the workforce reduction] was handled
in your case." (J.A. at 325.) He then explained to Shaw that "the com-
pany is really vulnerable. . . . [W]e are letting go 10 to 1 women and
minorities and we have to have an ace to throw on the pile." (J.A. at
326.) A Titan employee was told that Shaw was chosen to be the "ace
on the pile" because of his age: "[T]hey are justifying it because he
is the oldest in Jack[ Eddlemon]'s organization." (J.A. at 189.)

Shaw argued at trial that, under the common law of Virginia, he
was wrongfully terminated because of his race, gender, and age, in
violation of the public policy against such discrimination embodied
in the Virginia Human Rights Act. He also argued that punitive dam-
ages were appropriate because Titan's conduct, firing him on the
basis of race, gender, and age, was reprehensible. At trial, Titan main-
tained that Shaw was terminated in the regular course of a reduction-
in-force.

II.

On appeal, Titan raises four assignments of error arising from the
district court's denial of its Rule 50 and Rule 59 motions. First, the
company argues that the trial court erred when it failed to instruct the
jury on specific theories of causation. Titan argues that the mixed-
motive theory of causation was applicable to this action and that the
district court committed reversible error because it did not give a

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mixed-motive instruction. Further, Titan contends that the district
court should have given a specific but-for causation instruction. Titan
also argues that the district court admitted irrelevant and unfairly prej-
udicial evidence during the course of the trial. Additionally, Titan
asserts that the district court erred in allowing the jury to consider an
award of punitive damages because punitive damages are impermissi-
ble as a matter of law under the common law of Virginia in a case
of wrongful termination in violation of public policy. Finally, the
company urges us to reverse the excessive award of punitive damages
because the jury's decision was not supported by the evidence. Titan
asserts that each of these errors provides the basis for judgment as a
matter of law under Rule 50 or for a new trial under Rule 59.

We address these arguments in turn.

A.

Titan raises two arguments presenting novel issues of Virginia law
not addressed by controlling precedents. The parties agree that Vir-
ginia law applies to this diversity action. We therefore certified the
following two questions to the Virginia Supreme Court:

          1. Whether, under the common law of Virginia, the dis-
          trict court erred in refusing to give the jury an explicit but-
          for causation, sole-cause, or mixed-motive instruction, and
          instead instructing the jury that it could find for Shaw on his
          claim of wrongful termination in violation of public policy
          if Shaw proved by a preponderance of the evidence,"that
          Titan terminated him because of his race, his gender, his
          age, or because of a combination of those factors."

          2. Whether, under the common law of Virginia, puni-
          tive damages may be recovered for wrongful termination in
          violation of public policy, where the public policy violated
          is embodied in the Virginia Human Rights Act which
          expressly prohibits the award of punitive damages.

The Virginia Supreme Court, in its discretion, accepted the certified
questions, and issued its opinion on April 17, 1998.

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In response to the first certified question, the Virginia Supreme
Court stated that the common law of Virginia did not require that the
plaintiff prove that the improper motive was the sole cause for the dis-
charge. The court also held that Virginia common law did not require
that the district court give a specific but-for causation instruction.
Additionally, the court noted that the common law of Virginia has not
embraced the mixed-motive causation standard. Therefore, the first
question was answered in the negative. Based upon the Virginia
Supreme Court's answer to our certified question, it is clear that the
district court did not err in its jury instructions on causation.

The Virginia Supreme Court responded to the second certified
question in the affirmative, noting that Shaw filed his action for
wrongful termination before the 1995 amendments to the Virginia
Human Rights Act, which barred punitive damages, took effect.
Therefore, the action for wrongful termination was governed by the
common law of torts. The Virginia Supreme Court reasoned that
wrongful termination, like any other intentional tort, could support an
award of punitive damages. Because the Virginia Supreme Court
answered this question in the affirmative, the award of punitive dam-
ages was not erroneous.

B.

In addition to the two points of law addressed by the Virginia
Supreme Court, Titan raises two additional arguments before us.

First, Titan argues that the district court admitted irrelevant,
inflammatory, and prejudicial evidence that Titan had allegedly dis-
criminated against women and minorities, failed to follow its own
internal policies for reduction in force, and was audited by the
OFCCP. Titan asserts that this evidence had a tendency to inflame the
jury. At trial, however, Titan neglected to contemporaneously object
to the admission of this evidence.

A district court's decision to admit evidence at trial is reviewed
under the abuse of discretion standard. See Martin v. Cavalier Hotel
Corp., 48 F.3d 1343, 1357 (4th Cir. 1995). A district court's denial
of a Rule 59 motion for a new trial is likewise reviewed for abuse of

                    6
discretion. See Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors,
Inc., 99 F.3d 587, 594 (4th Cir. 1996).

We note that "[a] motion for a new trial should not be granted . . .
where the moving party has failed to timely object to the alleged
impropriety giving rise to the motion." Dennis v. General Elec. Corp.,
762 F.2d 365, 367 (4th Cir. 1985). Because Titan failed to object at
the time the "inflammatory" evidence was initially offered, we deter-
mine that the district court did not abuse its discretion when it denied
the Rule 59 motion.

Second, Titan argues that the district court erred when it denied
Titan's motion to reduce or set aside the punitive damages award
because that award was not supported by the evidence, was excessive,
and constituted a violation of Titan's due process rights. See BMW of
N. Am., Inc. v. Gore, 116 S. Ct. 1589, 1598-99 (1996).

Appellate review of a district court's "Rule 50 determination . . .
is circumscribed with respect to any facts the jury found, but plenary
with respect to any legal conclusions underlying the verdict." Price
v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996), cert. denied,
117 S. Ct. 1246 (1997). As previously stated, a district court's denial
of a Rule 59 motion is reviewed for abuse of discretion. See Atlas
Food Sys. & Servs., 99 F.3d at 594.

To assess whether Titan's due process rights were violated by this
award of punitive damages, we weigh three factors: (1) the reprehen-
sibility of the conduct, (2) the ratio between compensatory and puni-
tive damages, and (3) the difference between the punitive damages
award and the civil or criminal sanctions available for similar con-
duct. See BMW, 116 S. Ct. at 1598-99. Titan alleges that an applica-
tion of these factors here indicates that the award of punitive damages
was not appropriate. We disagree. First, we find that Shaw's dis-
charge on the basis of his age, gender, and race, the grounds upon
which the jury found liability, is reprehensible conduct. Second, the
ratio of compensatory to punitive damages, approximately 1:5, is not
unreasonable. Finally, the third factor's inquiry regarding the relation-
ship between a potential criminal penalty and the punitive damages
award is not applicable in the discriminatory discharge context
because workplace non-discrimination remedies have traditionally

                     7
been a product of the civil justice system. Comparing available civil
remedies, punitive damages are capped under the Virginia Human
Rights Act at $350,000. Shaw's award was reduced after trial to com-
port with that statutory limitation. Therefore, the punitive damages
award is in line with the available civil remedies. Thus, applying the
factors set forth in BMW, we determine that this award of punitive
damages did not impinge upon Titan's right to due process.

The Supreme Court has also instructed that "a district court sitting
in diversity must apply state law standards to determine whether a
verdict is excessive." Steinke v. Beach Bungee, Inc., 105 F.3d 192,
197 (4th Cir. 1997) (citing Gasperini v. Center for Humanities, 116
S. Ct. 2211, 2224-25 (1996)). Under Virginia law, which controls this
case, the excessiveness of punitive damages turns on an examination
of four factors: (1) "consideration of [the] reasonableness between
the damages sustained and the amount of the award and the measure-
ment of punishment required, [(2)] whether the award will amount to
a double recovery, [(3)] the proportionality between compensatory
and punitive damages, and [(4)] the ability of the defendant to pay."
Poulston v. Rock, 467 S.E.2d 479, 484 (Va. 1996) (citations omitted).
After a thorough review of the factors considered by district court
when it determined that this punitive damages award was reasonable,
we conclude that the district court did not abuse its discretion when
it upheld the jury's award of punitive damages. See Steinke, 105 F.3d
at 197 (holding "that a district court's decision on the question of
remittitur should be reviewed under an abuse of discretion standard").

Finally, an award of punitive damages will only be set aside for
insufficiency of the evidence when "no substantial evidence is pres-
ented to support it, it is against the clear weight of the evidence, it is
based upon evidence that is false, or it will result in a miscarriage of
justice." Barber v. Whirlpool Corp., 34 F.3d 1268, 1279 (4th Cir.
1994). Here, substantial evidence on the record adequately supports
the award of punitive damages.

III.

Based upon the foregoing, we affirm the rulings of the district court
in all respects.

AFFIRMED

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