Blog Post

Risk v. Burgettstown Borough, Pa., No. 08-4746 (3d Cir. Feb. 12, 2010); Worldwide Network Services, Inc. v. DynCorp International, LLC, No. 08-2108 (4th Cir. Feb. 12, 2010)

Posted by: Paul Mollica
February 15, 2010
Topic: Daily Developments in EEO Law

Two significant civil rights decisions were issued by U.S. Courts of Appeals on Friday, though unpublished, upholding jury verdicts for an employee who wanted to wear a cross pin on his uniform (under the First Amendment), and against a defense company that dropped a subcontractor because of racial animus (under § 1981).

Risk v. Burgettstown Borough, Pa., No. 08-4746 (3d Cir. Feb. 12, 2010): In a nutshell, Borough Chief of
Police Roberts asked the plaintiff, a part-time police officer, to remove a cross pin from his uniform. Officer Risk complied at first, but then appealed to the Borough Council, who informally gave Risk the green-light to resume wearing the pin. "During Risk's tenure with the police force, fellow officer Lieutenant Joseph Murray
was overheard by a local store clerk, Amy Prevost, speaking to another officer about Risk's religious beliefs in a derogatory manner."

Apparently, Amy Prevost was no mere clerk in Burgettstown, but a key advisor to the local police brass. "In November 2004, Chief Roberts was chatting with Prevost, and in the course of the conversation they began discussing the impending cuts to the police force. Roberts asked Prevost her opinion regarding which three of the department's nine part-time officers should be retained, and Prevost responded by naming Risk, Lt. Murray, and a third officer, Sergeant August Modin." The chief responded by stating that he would like to release Risk because "his church attendance interfered with his obligations to the police force." Risk was eventually eased out of active duty and terminated.

A jury in a four-day trial awarded a $100,000 verdict to Risk. On appeal, the Third Circuit affirms. The town's lead argument for judgment as a matter of law was that the employee never met the qualifications for serving as a police officer because his certification by the Pennsylvania Municipal Police Officers' Education and Training Commission was invalid -- a fact not learned by the defendant until years after his termination. The town nevertheless argued that because Risk's certification was legally defective, he never met the minimum qualifications for the job and could not state a prima facie case of discrimination. But the Third Circuit holds under the after-acquired evidence rule of McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), that Officer Risk's retroactive decertification could not be relevant to liability. The panel also rejects challenges to the admissibility of other evidence about the certification, to Amy Prevost's supposedly hearsay testimony, and to various jury instructions.

Worldwide Network Services, Inc. v. DynCorp International, LLC, No. 08-2108 (4th Cir. Feb. 12, 2010): It is surprising that this opinion was not deemed to warrant publication, considering that the three panelists issued seperate opinions (running a total of 67 pages); none fully subscribed to another's opinion; and the net result was to affirm liability and compensatory damages, vacate a $10 million award and remand to punitive damage award. Also notably, each side was represented by a celebrity advocate -- Carter Phillips (Sidley & Austin) for the defendant, and Patricia Ann Millett (Akin, Gump) for the plaintiff.

DynCorp terminated a subcontract with Worldwide Network Services (WWNS) related to government work in Iraq and Afghanistan. Evidence in the record showed that representatives of the two companies rubbed each other the wrong way. Some evidence in the record implied a particular racial hostility by some DynCorp executives against WWNS executives who are African-American:

"John Mack, a consultant for DynCorp, testified that Walsh called Gray 'a stupid black mother . . . .' J.A. 1723. Also, Rosenkranz terminated DynCorp's only minority executive Richard Spencer, a Latino, who testified to 'some underlying discriminatory things' behind his termination. J.A. 1019.

"DeBeer in particular expressed racial animus, often calling Gray 'nigger' and 'kaffir.' 3 J.A. 872. According to Jones, DeBeer expressed '[t]wo to three times a week' that 'people of Anglo descent . . . had made a grave error' because they 'had taken the black man as a youth and attempted to clothe him and send him to school' and that 'the proper role of the black man was to go out and kill a lion, proving his manhood, at which point in time he should be put to work to feed his family . . . and mated with a woman so that he would have more children, who could then be put to work feeding their family.' J.A. 874. Jones said DeBeer predicted that DynCorp's relationship with WWNS would end and explained that 'that ending was being manufactured by . . . factions within DynCorp' that opposed Cannon. J.A. 869. Jones noted that DeBeer was 'consumed by . . . hatred' for 'Cannon and everybody associated with him.' J.A. 873.

"Finally, DynCorp celebrated WWNS's demise during a company dinner in October 2006 hosted by Rosenkranz. At the dinner, Walsh received a T-shirt that read, 'WWNS - I took them down, and all I got was this lousy T-Shirt." J.A. 1139. After Walsh put on the T-shirt, DynCorp employee Bill Cavanaugh presented a letter purportedly from Gray to Walsh and read it aloud in mock Ebonics. According to a DynCorp executive, Rosenkranz 'was laughing his ass off.' J.A. 1029."

After WWNS was dropped, it sued under a variety of state and federal law claims. A jury heard the evidence and granted a split verdict, finding (particulalrly relevant here) that DynCorp committed racial discrimination in violaiton of § 1981. It awarded WWNS compensatory damages of $3.42 million for the § 1981 violation, $83,000 for tortious interference with contract, $558,510.42 for breach of contract, $42,092.62 for breach of a separate contract, and $720,000 for breach of the implied covenant of good faith and fair dealing. The jury also awarded WWNS $10 million in punitive damages.

The three Fourth Circuit opinions sort through the manifold claims of evidence/jury instruction errors, and collectively affirm the verdict, except for the punitive damage award under § 1981. Judge Duncan writes for the panel, affirming liability, rejecting the claims of trial error, but vacating the $10 million punitive award as a matter of law. Judge Duncan concludes that the record lacks evidence of malice to support the award, i.e., "WWNS has been unable to cite any evidence that DynCorp terminated the CivPol Subcontract 'in the face of a perceived risk that [its] decision would violate federal law.' [Citation omitted.] The district court likewise failed to cite such evidence, and we could find none upon combing the record. Accordingly, we conclude that the award of punitive damages should be vacated." The panel remands for a new trial, on punitive damages only, devoted solely to a tortious interefence count under Virginia law. Judge Niemeyer would vacate and remand for a new trial based on an alleged error in the jury charge, which allowed the jury to impute the racial animus of some executives to the defendant on a basis that Judge Niemeyer believed was out of keeping with circuit precedent, especially the "cat's paw" decision in Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277, 291 (4th Cir. 2004) (en banc). Finally, visiting U.S. District Court Judge Jones would have affirmed the judgment outright.

Well worth a read, in its entirety, and a strong candidate for a cert petition on the "cat's paw" issue.