     Case: 09-60075     Document: 00511056071          Page: 1    Date Filed: 03/18/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 18, 2010

                                       No. 09-60075                    Charles R. Fulbruge III
                                                                               Clerk

JIMMY FORD,

                                                   Plaintiff - Appellee
v.

DIVERSIFIED TECHNOLOGY, INC.,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                 No. 3:99-CV-435


Before KING, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
        After reviewing the trial record, we conclude that the jury had sufficient
evidence to support its verdict and its award of compensatory and punitive
damages.
        The determinative question presented in this appeal is straightforward —
whether the evidence supports the verdict of the jury.
        There was substantial evidence that Mr. Ford was a long-time employee
who had received overwhelmingly positive evaluations throughout his entire

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-60075       Document: 00511056071          Page: 2    Date Filed: 03/18/2010

                                       No. 09-60075

career with the defendant. His level of performance earned him routine and
healthy bonuses. But then one day in his fifteenth year of employment, he was
involved in an EEOC investigation that displeased his boss and, according to his
testimony, he was verbally berated and immediately punished with loss of
prestige and responsibility. After he filed his own EEOC charge, he was denied
his routine bonus — the only employee not to receive one — and was fired when
the litigation commenced.
       Now, the defendant asserted its reasons for hostility shown against Mr.
Ford, unrelated to the EEOC investigation, and argues that under the
circumstances, Mr. Ford’s participation in the investigation was not protected
activity under Title VII. But the circumstances can be looked at in two (or more)
different ways, including the view that Mr. Ford was punished for failing to
impede the investigation by kicking the EEOC agent out of the room,1 as his boss
suggested. Moreover, if the jury chose, the timing of the adverse consequences
to Mr. Ford in this case could be seen as especially telling of truth and of the
actual motives for animus toward him, both in connection to the EEOC
investigation and the EEOC charge, as well as to the amended charge.
       Now, the defendant argued to the jury and to us that the motive for denial
of bonuses, the hostile attitude and the ultimate discharge was only personal —
not illegal — because the new boss (who had been around a long time) had
always been possessed of a low opinion of Mr. Ford and was out to get him for
non-illegal reasons. That argument indeed is supported by some evidence and
even by admissions of Mr. Ford. But in the final call — because of substantial
evidence on both sides — it was up to the jury, and to the jury alone, to decide
what factor or factors motivated the discrimination against Mr. Ford. And in



       1
        The defendant argues for the first time on appeal that this was not protected activity,
but insofar as the district court may have erred, the error was plainly not plain.

                                              2
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                                        No. 09-60075

making the call, the jury rejected the defendant’s account of the reasons for what
happened.
       The same is true for punitive damages — the disputed evidence, its nature
and characteristics, was for the jury to sort out. One supportable view of that
evidence is that defendant’s conduct, especially when timed with the EEOC
investigation and his EEOC charge, was knowing, willful, and even evincing of
malice, when weighed against the long, loyal and unblemished service that Mr.
Ford claimed, notwithstanding that there was also some evidence of charitable
attitudes, expressed apologies and generous severance pay. The defendant’s
evidence could have persuaded the jury to accept the defendant’s side, but it did
not; the jury sided with Mr. Ford.
       The final word is that this appeal was purely, totally and always a jury
case. The jury decided and we AFFIRM.2 The mandate shall issue forthwith.
                                   AFFIRMED; MANDATE ISSUED FORTHWITH.




       2
          We feel compelled to observe that, for no reason that is in the record, nor for any
reason offered by the district court in response to the mandamus finally filed by Mr. Ford, the
district court sat on the verdict for six and one half years before it entered judgment. It is
truly regrettable that the plaintiff has been denied his just recovery for these several years by
the lack of judicial diligence. Indeed, it was only after a mandamus petition had been filed
that the district court took any action. This is not the first time such inexcusable delays have
occurred in that court. We urge the court to be more responsive and responsible to its duties
and to the litigants. We once again encourage the district court to ask for assistance when it
is unable to timely fulfill its judicial obligations.

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