Some cases are hard. Some cases illustrate the at times seemingly insurmountable barriers that plaintiffs must overcome time and again to hold one of our Nation's large corporations accountable for lawless and wrongful conduct. And some cases also illustrate the erosion of the primacy of the civil jury to find facts and decide cases. Ash v. Tyson Foods is all three. On December 16, 2011, on the 5th pass by the Eleventh Circuit at the case, Judges Carnes and Pryor reversed their earlier per curiam opinion and allowed to stand the 2d jury verdict in the plaintiff's favor, although the court scornfully vacated the jury's $1 million punitive damages award, which was the 2d jury to assess $1 million or more in punitive damages in the case.
15 years of litigation is too much to discuss in a blog post but here is a chronology of the case:
- December 16, 1996 - the case is filed in federal district court in Birmingham, Alabama. There are six plaintiffs, Anthony Ash, Eddie Bullock, Robin Davenport, John Hithon, Travis Tanner and Vivian Thornton
- November 18, 1999 - the trial court, Magistrate Judge Robert Armstrong, partially grants but mostly denies Tyson's motions for summary judgment. Left standing are racial discrimination in promotion claims by Ash and Hithon, retaliation claims by Bullock and Tanner, and a fraudulent inducement claim by Thornton. Davenport's claims are dismissed. The claims of Ash and Hithon are severed for trial from the others.
- February 6, 2002 - after plaintiffs stay the case and obtain appealability of the summary judgment order, the Eleventh Circuit affirms without issuing a written opinion of any kind, simply a one word order "affirmed." Judges Anderson, Dubina and Mills preside over Ash I.
- September 19, 2002 - a jury returns identical verdicts in favor of both Ash and Hithon on their race discrimination claims awarding each $250,000 in compensatory damages and $1.5 million in punitive damages.
- March 26, 2004 - a year and a half after the trial, the Magistrate Judge Robert Armstrong grants Tyson's Rule 50 motions and vacates the jury's verdicts in the plaintiff's favor. The same day stipulations of dismissal are filed as to the claims of Bullock, Tanner and Thornton.
- May 18, 2004 - although Magistrate Judge Armstrong has already vacated the jury's verdict and granted Tyson's Rule 50 motion, Judge Armstrong, nonetheless, also grants Tyson's alternative motion for a new trial. Judge Armstrong explains that the compensatory damages and punitive damages awards "are against the great weight of the evidence and are outrageously excessive and shocking to the judicial conscience." A second jury will later award Hithon $300,000 in compensatory damages and $1 million in punitive damages.
- April 19, 2005 - the Eleventh Circuit (Judges Dubina, Carnes and Marcus) affirms the district court's rulings regarding Ash's discrimination claims but reverses regarding Hithon's, although it upholds the new trial order explaining that "there was insufficient evidence to support the jury's punitive damages award and the compensatory damages award was excessive." This is Ash II.
- February 21, 2006 - the Supreme Court reverses the Eleventh Circuit in a per curiam opinion. 546 U.S. 454 (2006). The Court chastised the Eleventh Circuit for its efforts to disregard or explain away the racially discriminatory bias that can reasonably be inferred from a white supervisor referring to a grown African-American man as "boy":
First, there was evidence that Tyson's plant manager, who made the disputed hiring decisions, had referred on some occasions to each of the petitioners as "boy." Petitioners argued this was evidence of discriminatory animus. The Court of Appeals disagreed, holding that "while the use of 'boy' when modified by a racial classification like 'black' or 'white' is evidence of discriminatory intent, the use of 'boy' alone is not evidence of discrimination." Id. at 533. (citation omitted). Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage. Insofar as the Court of Appeals held that modifiers or qualifications are necessary in all instances to render the disputed term probative of bias, the court's decision is erroneous. - August 2, 2006 - undeterred by the Supreme Court's reversal the Eleventh Circuit (Judges Dubina, Carnes and Marcus) repeats its earlier ruling. Ash's claims are finished and Hithon's remanded for a second jury trial. This is Ash III.
- August 14, 2007 - a second jury returns a verdict for Hithon and against Tyson on his race discrimination claim. The jury awards Hithon $35,000 in back pay, $300,000 in compensatory damages and $1 million in punitive damages.
- August 17, 2010 - more than 3 years after the second jury's verdict in Hithon's favor against Tyson, the Eleventh Circuit in a 2-1 decision by Judges Carnes and Pryor vacates the jury's verdict and orders, notwithstanding the verdicts of two separate juries at two separate trials nearly five years apart, that judgment be entered in Tyson's favor. Judge David Dowd (a visiting district judge from the Northern District of Ohio) dissents, explaining simply "Two juries have found the issues in favor of the plaintiff Hithon and granted both compensatory and punitive damages." Judge Dowd does suggest that the punitive damages should be remitted. This is Ash IV.
- December 16, 2011 - exactly 15 years after the case was filed, Judges Carnes and Pryor reverse themselves on a petition for rehearing. On its 5th pass at the case, the Eleventh Circuit partially lets stand a jury's verdict in Hithon's favor against Tyson Foods and upholds the jury's award of compensatory damages and back pay, although it strikes down the $1 million punitive damages award explaining, in essence, that Tyson Foods is too large and unwieldy to be held accountable for the lawlessness of its manager's conduct. This is Ash V.
The lead plaintiffs' counsel in the case is Alicia K. Haynes of the Birmingham, Alabama firm of Haynes & Haynes. Whatever your view of this case may be lawyer Haynes is to be commended for her extraordinary representation of her clients in this case.
Robert L. Abell
www.RobertAbellLaw.com
