                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-1804



ARNOLD WHITE; DELBERT GASKINS,

                                           Plaintiffs - Appellees,

          versus


BFI WASTE SERVICES, LLC,

                                            Defendant - Appellant.

-----------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                     Amicus Supporting Appellees.



                            No. 05-1837



ARNOLD WHITE; DELBERT GASKINS,

                                           Plaintiffs - Appellants,

          versus


BFI WASTE SERVICES, LLC,

                                              Defendant - Appellee.

-----------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                    Amicus Supporting Appellants.
Appeals from the United States District Court for the Eastern
District of Virginia at Alexandria. Gerald Bruce Lee, District
Judge. (CA-02-1833-1; CA-02-1832-1)



Argued:   March 17, 2006                   Decided:   May 23, 2006


Before NIEMEYER, LUTTIG,* and KING, Circuit Judges.


Affirmed in part, reversed in part, and remanded with instructions
by unpublished per curiam opinion.


ARGUED: Ronald Alan Lindsay, SEYFARTH SHAW, L.L.P., Washington,
D.C., for Appellant/Cross-Appellee.     Christopher Edwin Brown,
Alexandria, Virginia, for Appellees/Cross-Appellants. Barbara L.
Sloan, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C.,
for Amicus Supporting Appellees/Cross-Appellants.      ON BRIEF:
Christina S. Pignatelli, SEYFARTH SHAW, L.L.P., Washington, D.C.,
for Appellant/Cross-Appellee.     James L. Lee, Deputy General
Counsel, Carolyn L. Wheeler, Acting Associate General Counsel,
Vincent J. Blackwood, Assistant General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Supporting
Appellees/Cross-Appellants.


Unpublished opinions are not binding precedent in this circuit.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




    *
      Judge Luttig heard oral argument in this case but resigned
from the court prior to the time the decision was filed.     The
decision is filed by a quorum of the panel pursuant to 28 U.S.C.
§ 46(d).

                               -2-
PER CURIAM:

     Arnold   White   and   Delbert    Gaskins     commenced        this   action

against BFI Waste Services, LLC (“BFI”), their employer, alleging

discrimination because of race, in violation of Title VII of the

Civil Rights Act of 1964 and 42 U.S.C. § 1981.             In a prior appeal,

we reversed a portion of the district court’s decision granting

summary judgment to BFI, remanding the case for trial on the

plaintiffs’ claim of a hostile work environment. See White v. BFI

Waste Services, LLC, 375 F.3d 288 (4th Cir. 2004).                         On the

plaintiffs’   hostile    work     environment     claim,    a    jury   has   now

returned a verdict in favor of the plaintiffs, awarding each

plaintiff $600,000 in compensatory damages and $2 million in

punitive damages.       The district court reduced the compensatory

damages awards by one half because they represented double damages

and remitted the $2 million punitive damages awards to $600,000 on

the ground that they were excessive.

     On appeal, BFI has assigned a broad array of errors with

respect to all phases of the trial proceedings.                 In general, BFI

contends that the jury selection process was flawed; that the

evidence was insufficient to support the jury’s verdict both as to

liability and as to punitive damages; that the district court

improperly    instructed    the    jury;   that    the     jury’s    awards    of

compensatory and punitive damages were excessive; and that the

district court improperly disposed of post-trial motions.


                                     -3-
     We agree that the evidence was insufficient to award punitive

damages and reverse that part of the judgment.             Otherwise, we

affirm.


                                   I

     White and Gaskins, who are black, were employed by BFI as

garbage truck drivers, working at BFI’s facility in Merrifield,

Virginia.     White had worked at that facility since 1989 and

Gaskins since 1996.      In 2002 the two employees commenced this

action, complaining that BFI’s managers discriminated against them

by creating a racially hostile work environment over the years

that they worked at the Merrifield facility.              The plaintiffs

alleged that BFI’s managers constantly slurred and insulted them

racially by calling them -- as well as other black drivers --

“nigger,” “boy,” “Zulu warrior,” and “porch monkey,” among others.

At   trial,    White   and   Gaskins    described   how    the   managers

meticulously avoided speaking their racial epithets in the open or

over the company’s radio, but rather verbally accosted the black

drivers in face-to-face encounters or by muttering under their

breath.     White described one incident, however, where a manager

openly spoke a racial slur at a company picnic.           When White and

his family exited from an expensive car, the manager said to him,

“Boy, you make too much money.”

     The evidence at trial showed that the plaintiffs received

BFI’s employee handbook, which contained procedures to follow in

                                  -4-
response to such discrimination.      The handbook directed that

employees contact managers in case of discrimination, and it

provided a telephone number that employees could call anonymously

to lodge complaints.   The evidence showed that the plaintiffs did

not complain often through that process; indeed, they testified

that they never complained about the vast majority of the epithets

they suffered.   Moreover, BFI offered testimony that when it did

receive such a complaint, it reprimanded the manager involved and

had him apologize to the employee.    But there was also evidence

that both plaintiffs complained regularly to a shop steward who

collected employee complaints and relayed them to BFI managers.

The shop steward testified that BFI never responded to these

complaints and that hostile conditions continued in the workplace.

     Both White and Gaskins testified that they suffered over the

many years that they were harassed by BFI’s managers and that

their personalities changed during the period.   They related how

their families in turn suffered. White testified that he had gone

to see a doctor but provided no further details.

     The jury returned a general verdict for both White and

Gaskins, awarding each $600,000 in compensatory damages and $2

million in punitive damages.      The district court reduced each

compensatory damages award, cutting it in half, on the ground that

it was a double recovery for the same injury -- one under Title

VII and the other under § 1981.    As to the punitive damages, the


                                -5-
court remitted the award to $600,000 per plaintiff, which the

plaintiffs accepted in lieu of a new trial on damages.

     From the judgment entered, BFI filed this appeal, alleging

multiple errors, and the plaintiffs cross-appealed, challenging

the district court’s reduction in damages.

     We have examined the briefs of the parties, considered their

oral arguments, and reviewed the record, and reject all appeals

except    that    relating     to     the    award   of        punitive     damages.

Accordingly, we reverse the award of punitive damages and in all

other respects affirm.        While we do not address further all of the

points raised by the parties, we believe that a few merit further

discussion.


                                        II

     With respect to the sufficiency of the evidence on liability,

BFI alleges that it had a complete defense because it had in place

an effective antiharassment policy, and when it was made aware of

complaints, it responded to its employees in accordance with that

policy. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,

765 (1998).      While the existence of a policy is necessary to

provide   defendants     with    an    affirmative       defense,      it    is   not

sufficient,      and   that    defense       is   lost    if     the   policy     was

ineffective. See Matvia v. Bald Head Island Management, Inc., 259

F.3d 261, 268 (4th Cir. 2001); Barrett v. Applied Radiant Energy

Corp., 240 F.3d 262, 266 (4th Cir. 2001).

                                       -6-
       In this case there was sufficient evidence on which the jury

could have relied to find that BFI’s policy was ineffective.

Although BFI directed our attention to some testimony, including

that of White, which affirmed BFI’s responsiveness to complaints,

the Merrifield shop steward testified, without contradiction, that

BFI     never      addressed    the   numerous    complaints     about   racial

harassment that he presented to management.              The jury reasonably

could have believed the shop steward’s testimony and consequently

could       have   determined    that   BFI’s    antiharassment    policy     was

ineffective.         Moreover, there was also evidence that, despite

BFI’s responsiveness, the hostile environment continued to exist

at    the    Merrifield   facility      during   the   entire   time   that   the

plaintiffs worked there, which, for White, was over 10 years, and

for Gaskins, about 6 years.


                                        III

       With respect to BFI’s contention that the evidence was

insufficient to support an award of punitive damages, we agree.

       To justify an award of punitive damages, a plaintiff alleging

discrimination must demonstrate that his employer acted “with

malice or with reckless indifference to [his] federally protected

rights.”        Kolstad v. American Dental Association, 527 U.S. 526,

535 (1999) (quoting 42 U.S.C. § 1981a(b)(1) (emphases omitted)).

Moreover, “an employer may not be vicariously liable for the

discriminatory employment decisions of managerial agents where

                                        -7-
these decisions are contrary to the employer’s good-faith efforts

to comply with Title VII.”          Id. at 545 (internal quotation marks

and   citation    omitted).         We   have   held    that   distributing        an

antiharassment policy and conducting training seminars “preclude

the award of punitive damages.”           Bryant v. Aiken Regional Medical

Centers, Inc., 333 F.3d 536, 549 (4th Cir. 2003).

      In this case, BFI demonstrated that it had distributed an

antiharassment policy and that it had conducted training seminars.

To overcome this evidence of good-faith efforts to comply with

Title   VII    and   §    1981,    the   plaintiffs     pointed       only    to   the

ineffectiveness      of    BFI’s    antiharassment        policy.          While   the

ineffectiveness of an antiharassment policy defeats an employer’s

affirmative      defense,    as    we    have   already      noted,    a     policy’s

ineffectiveness alone cannot demonstrate the lack of good faith

required for justifying an award of punitive damages.                          If it

could, employers with antiharassment policies who failed on their

affirmative defenses would automatically be exposed to punitive

damages, and there would have been no need for the Kolstad Court

to formulate the additional “good-faith efforts” inquiry.

      Having     examined    the    record,     we     can   find     no     evidence

demonstrating BFI’s malice or reckless indifference -- its lack of

good faith -- except for the simple assertion by the plaintiffs

that its policy proved ineffective with respect to them.                      Because




                                         -8-
evidence of ineffectiveness, without more, fails to support an

award of punitive damages, we reverse that aspect of the judgment.


                                     IV

       BFI argues that it should be granted a new trial because the

district court committed error during jury selection. It contends

that    the    district   court   erred    in   refusing,    because   of    a

discriminatory purpose, to let it exercise a peremptory strike

against juror 18, a black female, and that its objection to the

plaintiffs’ peremptory strike of juror 24, a white man, was

improperly overruled.

       The applicable principles are well established.            A party can

object to an opposing party’s peremptory strike if the objecting

party believes that the peremptory challenge was exercised for a

racially      discriminatory    reason.     The   court    can   sustain    the

objection if the objecting party has made out a prima facie case

of discrimination and if the party exercising the peremptory

challenge fails to provide a genuine and race-neutral reason for

exercising the strike.         See Miller-El v. Cockrell, 537 U.S. 322

(2003); Purkett v. Elem, 514 U.S. 765 (1995).             A district court’s

rulings relating to peremptory challenges are given deference as

its factual findings are reviewed for clear error.               See Jones v.

Plaster, 57 F.3d 417, 421 (4th Cir. 1995).

       In this case when the court asked BFI for its reason for

striking juror 18, BFI’s counsel provided the explanation that the

                                     -9-
juror was a member of a union and worked for U.S. Airways, which

BFI’s counsel claimed “has had a history of employee problems.”

The court found this to be pretextual because U.S. Airways was

completely unrelated to the case and because juror 18’s testimony

about her union membership permits no justifiable inference about

her union sympathies.     BFI’s explanations also revealed some

inconsistency when they were repeated. While the district court’s

findings may have been too sensitive, the court was in the best

position to assess BFI’s genuineness, and we are not in a position

to second-guess its judgment when there is a basis, albeit weak,

for the judgment.

     With respect to juror 24, the district court determined that

the plaintiffs’ race-neutral explanation for the strike, i.e.,

that the juror was an older person, was not pretextual.     As to

that, we also defer.


                                V

     In ruling on BFI’s motion for a new trial, the district court

appeared to apply a standard that the evidence must be taken “in

the light most favorable to the Plaintiffs because they are the

nonmoving party.”   Of course, that is the standard for ruling on

a motion for judgment as a matter of law, not a motion for a new

trial.   The district court was required to evaluate BFI’s motion

for a new trial by determining whether the jury verdict was

against the clear weight of the evidence and resulted in a

                               -10-
miscarriage of justice. See Wyatt v. Interstate & Ocean Transport

Co., 623 F.2d 888, 891-92 (4th Cir. 1980).

     While the district court did recite the incorrect standard,

it also acknowledged its obligation to “weigh[] the evidence and

assess[] witness credibility” in order to determine whether the

jury verdict contradicts the clear weight of evidence or results

in a miscarriage of justice.       In addition, there is no other

indication in the record that the district court actually applied

the wrong standard and evaluated the evidence in the plaintiffs’

favor.   To the contrary, the district court properly analyzed the

weight of the evidence and found the jury verdict was supported by

substantial evidence.   Accordingly, we conclude that the court’s

mere invocation of the improper standard did not materialize to

cause the defendants prejudice.


                                  VI

     In sum, we reverse the judgment of the district court insofar

as it awards the plaintiffs punitive damages, and in all other

respects we affirm.   We remand the case to the district court with

instructions to enter a judgment consistent with this opinion.



                              AFFIRMED IN PART, REVERSED IN PART,
                              AND REMANDED WITH INSTRUCTIONS




                               -11-
