                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JAN 7 2003
                                      TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk


 RANDALL B. GODINET,

           Plaintiff - Appellee,

 v.                                                    Nos. 01-3318 & 02-3042
                                                      D.C. No. 96-CV-4127-DES
 MANAGEMENT AND TRAINING                                     (D. Kansas)
 CORPORATION, doing business as Flint
 Hills Job Corps Center,

           Defendant - Appellant.




                                   ORDER AND JUDGMENT*


Before HENRY, PORFILIO, and BRISCOE, Circuit Judges.




       Defendant Management and Training Corporation appeals from orders in the

United States District Court for the District of Kansas awarding compensatory damages,

back pay, and prejudgment interest to Plaintiff Randall B. Godinet for intentional




       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
employment discrimination in violation of Title VII of the Civil Right Act of 1964.1

Plaintiff, a Samoan male formerly employed at Defendant’s Flint Hills Job Corps Center

in Manhattan, Kansas, alleged discrimination on the basis of race and color occurred (1)

when he was not promoted to a supervisory position at Flint Hills; and (2) when he was

not hired at Defendant’s facility in Kittrell, North Carolina, both because of race and in

retaliation of his pursuit of a discrimination claim against Flint Hills. After a week-long

trial, on June 20, 2001, a jury found intentional discrimination on all claims and awarded

compensatory damages totaling $20,800, pecuniary damages of $5,700, and punitive

damages of $150,000. The district court entered judgment consistent with the jury

verdict, awarding $21,251 in back pay, prejudgment interest of $17,248.85 and attorneys’

fees and costs of $257,014.91. We exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

          Defendant, a corporation headquartered in Ogden, Utah, specializes in providing

management, training, and staff for more than twenty “job corps” centers throughout the

country under federal contracts with the Department of Labor. Through the job corps

program, young adults, ages 16 to 21, are provided skills training and an opportunity to

earn a GED, high school diploma and/or a vocational certificate.




         Defendant consolidated into the instant case an earlier appeal of an order granting
          1

Plaintiff attorneys’ fees and costs. Because it did not discuss attorneys’ fees in its briefs
or at oral argument, we assume Defendant conceded the issue.

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       Since January 1992, Plaintiff had been working at Defendant’s Flint Hills facility

as a Residential Advisor within the Residential Living Department, one of three

departments in the Group Life Division. About a month and a half later, he was promoted

to the position of “prime shift” Senior Residential Advisor. Throughout his tenure,

Plaintiff received above-average to excellent job evaluations. Plaintiff contended he was

being groomed for a promotion to Residential Living Supervisor: he was selected for a

one-week management training program in March 1993, participated in personnel

decisions, was informally appointed for one month as acting Residential Living

Supervisor and occasionally as acting Group Life Manager, and was chosen as the

facility-wide employee-of-the-month in March, 1993.

       In June 1993, Kim Matsen, then Residential Living Supervisor, resigned at Flint

Hills to accept a post at the Kittrell Job Corps Center. Plaintiff was appointed as Acting

Residential Living Supervisor until a decision was made regarding a long-term

replacement. He relayed his interest in obtaining the position permanently to Tom

Adams, Group Life Manager. Earlier, in April 1993, Plaintiff had informed Adams of an

offer he received to serve as Executive Director of the Boys and Girls Club in Oceanside,

California. Adams reassured Plaintiff and his wife that he was the top choice for the Flint

Hills vacancy, should consider himself well-trained, and would be given an opportunity to

interview. In reliance on Adams’ assurances, Plaintiff rejected the outside offer.




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       On June 10, 1993, never having interviewed Plaintiff, Adams informed him that

Kristen Johnson, the Counseling Supervisor, would transfer laterally to become Resident

Living Supervisor. Approximately 18 months later, in December 1994, Johnson was

transferred back to her position as Counseling Supervisor. Harold B.C. Brown, an

African-American man, was hired as Residential Living Supervisor.

       Plaintiff resigned from Flint Hills on June 11, 1993. Besides checking “no” on an

exit interview form in response to the question, “Do you feel that the company provides

equal opportunity for all employees?,” Plaintiff filed no internal grievances. On the day

he resigned, Plaintiff also applied for the position of Residential Living Manager at

Kittrell, North Carolina, a department headed by his former boss, Matsen.

       Matsen informed Plaintiff he was the top candidate for the position and

recommended to her superiors, including Mose Watkins, Defendant’s Utah-based

Corporate Director of Group Life Operations and an African-American man, that

Plaintiff, whom she deemed the more qualified candidate, be hired. However, shortly

after Plaintiff applied to Kittrell, Watkins called Matsen to inform her Edison Mosley, an

African-American man who was earlier forced to resign from a position with Defendant

for mishandling property, had been hired as Resident Living Manager.

       Plaintiff alleged a “discriminatory swapping” scheme occurred at Flint Hills –

Johnson was transferred to allow for the appointment of an African-American man first as

Counseling Supervisor (on June 14, 1993) and then, when Johnson was transferred back


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to her old position, as Residential Living Supervisor (in December 1994). In support of

this theory, aside from Masten’s testimony about his superior qualifications, Plaintiff

offered the testimony of three Caucasian and Hispanic Flint Hills Counseling Department

employees. They stated that at a meeting on or about June 14, 1993, Adams informed

them they need not apply for a supervisory position, because, after viewing a picture of

the Flint Hills staff, Watkins told Adams to hire an African-American counseling

manager. The three employees then met with the Flint Hills Human Resources

Supervisor, who confirmed that Defendant had to hire an African-American man.

       Regarding his claims of discrimination and retaliation against Kittrell, Plaintiff

testified that on or about July 2, 1993, he contacted Hank Owens, a corporate executive

located at Defendant’s Utah headquarters. Plaintiff told Owens he intended to file a

discrimination claim against Flint Hills, and that he had applied for employment at

Kittrell. Plaintiff testified that Owens stated Adams was “up to his old tricks,” but did not

further investigate. At trial, Owens testified he might have relayed the conversation to

Watkins, his boss, and that corporate directives had been “suggested” at either

Defendant’s human resources or regional vice-president level to increase the number of

African-Americans in management positions.

       On appeal, Defendant urges us to reverse the jury verdict, contending the district

court erred in refusing to grant judgment as a matter of law under Fed. R. Civ. P. 50 both

at the conclusion of Plaintiff’s case and at the close of all the evidence. Alternatively, it


                                             -5-
requests a new trial, alleging the trial judge gave prejudicial jury instructions regarding

mitigation and, in violation of the Federal Rules of Evidence, admitted irrelevant

testimony. Finally, Defendant argues the punitive damages instruction was erroneous and

the jury’s award thereof unsupported by the evidence.

        Section 703(a)(1) of the Civil Rights Act of 1964 provides that it is “unlawful

employment practice for an employer . . . to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual . . . because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e--2(a) (1).

Further prohibited is retaliation: an employer may not “discriminate against any of his

employees or applicants for employment . . . because he has opposed any practice made

an unlawful employment practice” by the 1964 Civil Rights Act. 42 U.S.C. § 2000e--

3(a).

        The burden shifting framework of McDonnell-Douglas Corp. v. Green applies in

race discrimination trials. 411 U.S. 792 (1973). To sustain a prima facie case of race

discrimination, a plaintiff must show: (1) he belongs to a racial minority (2) he applied for

a position for which he was qualified; (3) he was rejected; and (4) the position was filled

by a person of another race. Id. at 802. On appeal, Defendant concedes Plaintiff made

out a prima facie case of discrimination against Flint Hills, and implicitly did so against

Kittrell. Therefore, following a full trial on the merits, “the sequential analytical model

adopted from McDonnell-Douglas . . . drops out and we are left with the single


                                             -6-
overarching issue whether plaintiff adduced sufficient evidence to warrant a jury’s

determination that adverse employment action was taken against the plaintiff based on his

race.” Tyler v. RE/MAX Mountain States, Inc., 232 F. 3d 808, 812 (10th Cir. 2002)

(internal quotations omitted).

                                 I. Denial of Rule 50 Motions

       We review de novo denials of Fed. R. Civ. P. 50 motions for judgment as a matter

of law, applying the same legal standard as the district court, and construing the evidence

in the light most favorable to the non-moving party. Tyler, 232 F.3d at 812. “Judgment

as a matter of law is appropriate only if the evidence points but one way and is susceptible

to no reasonable inferences which may support the opposing party’s position.” Id.

(internal quotations omitted). We determine “only whether the jury verdict is supported

by substantial evidence when the record is viewed most favorably to the prevailing party”

and should not “retry issues, second guess the jury’s decision making, or assess the

credibility of witnesses.” Webco Indus., Inc. v. Thermatool Corp., 278 F.3d 1120, 1128

(10th Cir. 2002). Substantial evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion, even if different conclusions also might

be supported by the evidence.” Id. (internal quotations omitted).

       Defendant attempted to rebut Plaintiff’s showing of discriminatory pretext by

stressing the impressive education, work history, and supervisory skills of Johnson and

Mosley. Requirements for the position of Resident Living Supervisor included a


                                             -7-
bachelor’s degree in a behavioral science or associated field and two years experience,

one of which must have been in a supervisory capacity. Both chosen candidates had a

college degree and substantial managerial experience with Defendant; by contrast,

Plaintiff was one semester short of a bachelor’s degree and had no supervisory experience

at a job corps center.

       Well-established case law supports Defendant’s contention that we afford

businesses considerable latitude in hiring decisions. See, e.g., Simms v. Okla., 165 F.3d

1321, 1330 (10th Cir. 1999) (“Our role is to prevent unlawful hiring practices, not to act

as a ‘super personnel department’ that second guesses employers’ business judgments”);

Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1319 (10th Cir. 1999) (at least in

cases where qualification is only basis for alleged discrimination, “[t]he disparity in

qualifications must be overwhelming to be evidence of pretext”) (internal quotations

omitted). Nevertheless, viewing the evidence in the light most favorable to Plaintiff as

the prevailing party, we believe he presented “substantial evidence” of discrimination.

Plaintiff had managerial experience in California, performed “acting” supervisor duties at

Flint Hills, and was repeatedly assured by decision-makers that he was the top candidate

for the vacancies at Flint Hills and Kittrell. Defendant inconsistently applied educational

requirements; in numerous instances it accepted directly related experience instead of

formal education. Brown had considerable experience and education, but previously had

been passed over for a promotion and forced to resign from his position. Moreover,


                                            -8-
Plaintiff did not rely solely on job qualifications; he also offered the testimony of the

three employees about the Watkins directive on hiring African-Americans. Given the

deference afforded the jury under Rule 50 and our limited scope of appellate review, we

affirm the finding of intentional discrimination.

       Defendant also contends Plaintiff failed to prove retaliation motivated the decision

to reject his application at Kittrell. To establish a prima facie case of retaliation, a

plaintiff must show: (1) he engaged in protected opposition to Title VII discrimination;

(2) he suffered resultant adverse employment; and (3) a causal connection exists between

the protected activity and the adverse employment action. See Cole v. Ruidoso Mun.

Sch., 43 F.3d 1373, 1380 (10th Cir. 1994). Defendant did not explicitly concede Plaintiff

established a prima facie case of retaliation; however, we assume it did so implicitly

because its appellate argument was devoted entirely to rebutting pretext. Among other

evidence supporting Plaintiff’s allegation, Owens testified it was “possible” that after the

telephone call, he spoke with Watkins, and acknowledged he informed Don Myrtle,

Regional Vice President of Management and Training Corporation, of the conversation.

Again, because we defer to the jury’s assessment in the absence of unreasonableness or

lack of substantial evidence, we uphold the finding of retaliation.

                    II. Jury Instructions on Calculation of Back Pay

       We review a district court’s refusal to give a requested jury instruction for abuse of

discretion. However, we review de novo the question of whether the judge’s instructions,


                                              -9-
as a whole, properly stated the applicable law and directed the jury to the relevant inquiry.

Thomas v. Denny’s, Inc., 111 F.3d 1506, 1509 (10th Cir. 1997).

       Defendant asserts the district court erred in failing to instruct the jury to reduce

back pay damages by what Plaintiff earned from the date he was rejected from the

position at Kittrell until the date of trial. The court instead instructed that “lost wages”

included “the amount plaintiff would have earned in his employment with Defendant if he

had been hired at . . . Kittrell . . . June 1993 to June 1, 1994, minus the amount Plaintiff

earned from other employment during this period.”

       Defendant would have applied an aggregate approach to calculation of back pay,

allowing earnings in mitigating employment in one period (a year) to reduce wages in

other years. Accordingly, in this case, the excess amount earned by Plaintiff at Oceanside

subsequent to June 1, 1994, would have offset the back pay award for the prior period of

July, 1993, through May, 1994, thereby decreasing Plaintiff’s award to zero. Defendant

offered no direct authority applying the aggregate mitigation method; it merely cited Wulf

v. City of Wichita, 883 F.2d 842, 871 (10th Cir. 1989), where, in a footnote, we stated

“[t]he relevant time period for calculating an award of back pay begins with wrongful

termination and ends at the time of trial” (internal quotations omitted).

       In its Memorandum and Order on back pay, the district court held the jury’s

recommendation of $20,000 in lost wages advisory (and therefore not a potential

reversible error), because “the amount of back pay awarded to a Title VII plaintiff is


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committed to the sound discretion of the district court.” Next, the court calculated back

pay through periodic mitigation, taking the amount Plaintiff would have earned for each

period and deducting the wages, if any, earned in other employment during that period.

Thus, earnings in one particular period which exceeded the amount Plaintiff would have

earned absent discrimination did not operate to reduce the back pay award for any other

period.2 Rejecting the aggregate approach, the court explained:

       In this particular case . . . plaintiff actually earned more money in his
       replacement employment than he would have if he had been hired by
       defendant. Defendant argues, therefore, that plaintiff has in essence
       mitigated his back pay award to zero, for in totality he has no apparent
       financial loss. This aggregate approach to mitigation does not take in to
       consideration any loss suffered at a particular point in time. . . . While the
       aggregate approach endorsed by defendant seeks equity in the long run,
       such an approach in this case fails to adequately satisfy the very real and
       concrete period injuries sustained by plaintiff.

       Calculating lost wages by the periodic mitigation method is well supported in case

law. See, e.g., Darnell v. City of Jasper, Alabama, 730 F.2d 653, 656-57 (11th Cir.

1984) (applying periodic basis under Title VII); Eichenwald v. Krigel’s, Inc., 908 F.

Supp. 1531, 1567 (D. Kan. 1995) (same); Hartman v. Duffy, 8 F. Supp. 2d 1, 6 (D.D.C.

1998) (noting “periodic mitigation is the preferred method for determining back pay

liability in discrimination cases”). Given the district court’s careful comparison of the



       2
        Note 42 U.S.C.A. § 2000e-5(g) endorses neither the periodic nor aggregate
approach, providing only that “[i]nterim earnings or amounts earnable with reasonable
diligence by the person or persons discriminated against shall operate to reduce the back
pay otherwise allowable.” The goal of the statute is to make the plaintiff whole.

                                            - 11 -
two methods and final calculation (and assuming, arguendo, the jury instructions on back

pay are subject to our review), the district court acted within the scope of its equitable

discretion in awarding Plaintiff $21,251 in back pay.

                          III. Admission of Employees’ Testimony

       We review a district court’s evidentiary rulings for abuse of discretion. Hampton

v. Dillard Dept. Stores, Inc., 247 F.3d 1091, 1113 (10th Cir. 2001), reversing only if the

ruling was “based on a clearly erroneous finding of fact or an erroneous conclusion of

law, or if it manifests a clear error in judgment,” Roberts v. Roadway Exp., Inc., 149 F.3d

1098, 1105-06 (10th Cir. 1998).

       Based on Fed. R. Evid. 4023 and 4034, Defendant challenges the admission of

Matsen’s testimony regarding Plaintiff’s abilities. The district court properly deemed her

testimony relevant and found that prejudice did not outweigh probative value. Matsen’s

esteem for Plaintiff and recommendations for his promotion and hiring bolstered his


       3
           Rule 402 provides:
                All relevant evidence is admissible, except as otherwise provided by the
                Constitution of the United States, by Act of Congress, by these rules, or by
                other rules prescribed by the Supreme Court pursuant to statutory authority.
                Evidence which is not relevant is not admissible.


       4
           Rule 403 provides:
                Although relevant, evidence may be excluded if its probative value is
                substantially outweighed by the danger of unfair prejudice, confusion of the
                issues, or misleading the jury, or by considerations of undue delay, waste of
                time, or needless presentation of cumulative evidence.


                                             - 12 -
prima facie discrimination case and his rebuttal of Defendant’s proffered non-

discriminatory motives.

       Further, Defendant contends the district court mistakenly admitted the testimony of

the three employees regarding Adams’ recitation of Watkins’ directive to hire more

African-American managers in the Group Life Division. Defendant mistakenly

characterizes the testimony as irrelevant because Plaintiff never applied to the Counseling

Department and the discussion at issue occurred after he resigned from Flint Hills.

       First, while Adams relayed the preference for African-American managers on June

14, 1993, three days after Plaintiff’s resignation, the testimony nevertheless related to

events temporally close enough to evince the operation of discriminatory motives.

Second, although Plaintiff never applied to Counseling, it was within the Group Life

Division, and, along with Residential Living, was one of the departments to which

Watkins and Adams referred. Thus the district court did not abuse its discretion in

allowing the employees’ testimony.

                                  IV. Punitive Damages

       “Whether sufficient evidence exists to support punitive damages is a question of

law reviewed de novo.” Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257,

1262 (10th Cir. 1995). A plaintiff claiming a violation of federal civil rights must prove

defendant’s discrimination was malicious, willful, and in gross disregard of her rights.

Id.


                                            - 13 -
       Defendant urges this court to vacate the imposition of $150,000 in punitive

damages, claiming the jury instruction on vicarious liability for punitive damages and the

award itself erroneous. Under Kolstad v. American Dental Ass’n, an employer cannot be

liable for punitive damages if the manager’s challenged actions “were contrary to the

employer’s good faith efforts to comply with Title VII.” 527 U.S. 526, 546 (1999). We

have explained that in addition to adopting anti-discrimination policies, an employer must

“make a good faith effort to educate its employees about these policies and statutory

prohibitions” and that Kolstad “itself suggests that the good-faith-compliance standard

requires the employer to make ‘good faith efforts to enforce an antidiscrimination

policy.’” Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000) (citing

Kolstad, 527 U.S. at 546).

       The district court instructed that the jury may not impose punitive damages if the

decisions of Defendant’s managerial employees were “contrary to defendant’s good faith

efforts to prevent and remedy discriminatory employment decisions.” Defendant’s

rejected instruction would have barred punitive damages if “defendant had adopted anti-

discrimination policies and made a good faith effort to educate its employees on those

policies.” The court’s instruction properly reflected the law: use of the words “prevent

and remedy” stressed the employer’s need to enforce anti-discrimination policies.

       Further, Defendant argues it met the Kolstad “good faith” requirements by

adopting anti-discrimination policies and training some employees. While the record


                                           - 14 -
indicates Defendant had anti-discrimination policies and educated some supervisors, it

offered no evidence of the training of Adams, Myrtle, Owens, or Watkins, all implicated

in this case. Additionally, Defendant failed to investigate the “no” response on Plaintiff’s

exit interview form or take action after Plaintiff, by telephone, informed Owens of his

intention to file a discrimination suit against Flint Hills. Kolstad does not prevent the

imposition of punitive damages, because a jury, better positioned to evaluate witness

testimony, was entitled to credit Plaintiff’s evidence of intentional, malicious

discrimination and failure to enforce equal protection policies.

       For the foregoing reasons, we AFFIRM.



                                           ENTERED FOR THE COURT



                                           John C. Porfilio
                                           Senior Circuit Judge




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