Professional Documents
Culture Documents
No. 08-2108
No. 08-2166
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:07-cv-00627-GBL-JFA)
Argued:
Decided:
ARGUED:
Carter
Glasgow
Phillips,
SIDLEY
&
AUSTIN,
LLP,
Washington, D.C., for Dyncorp International, LLC.
Patricia Ann
Millett, AKIN, GUMP, STRAUSS, HAUER & FELD, LLP, Washington,
D.C., for Worldwide Network Services, LLC, and Worldwide Network
Services, International, FZCO.
ON BRIEF: Eric D. McArthur,
SIDLEY & AUSTIN, LLP, Washington, D.C.; George D. Ruttinger,
Keith J. Harrison, Clifton S. Elgarten, CROWELL & MORING, LLP,
Washington, D.C., for Dyncorp International, LLC.
Thomas P.
Goldstein, Anthony T. Pierce, Michele A. Roberts, Merrill C.
Godfrey, Monica P. Sekhon, Won S. Shin, Michael S. Bailey, AKIN,
GUMP, STRAUSS, HAUER & FELD, LLP, Washington, D.C., for
Worldwide Network Services, LLC, and Worldwide Network Services,
2
International, FZCO.
Charles P. Roberts, III, CONSTAGY, BROOKS
& SMITH, LLP, Winston-Salem, North Carolina; Robin S. Conrad,
Shane B. Kawka, NATIONAL CHAMBER LITIGATION CENTER, INC.,
Washington, D.C., for Chamber of Commerce of the United States
of America, Amicus Supporting Dyncorp International, LLC.
Bernard J. DiMuro, Jonathan R. Mook, Michael E. Barnsback,
DIMURO GINSBERG, PC, Alexandria, Virginia; John Brittain, Sarah
Crawford, Tricia Jefferson, LAWYERS COMMITTEE FOR CIVIL RIGHTS
UNDER LAW, Washington, D.C., for Lawyers Committee for Civil
Rights Under Law, Amicus Supporting Worldwide Network Services,
LLC, and Worldwide Network Services, International, FZCO.
Sean
A. Lev, Priya R. Aiyar, Kfir B. Levy, KELLOGG, HUBER, HANSEN,
TODD, EVANS & FIGEL, PLLC, Washington, D.C., for The National
Urban League, Amicus Supporting Worldwide Network Services, LLC,
and Worldwide Network Services, International, FZCO.
Network
International,
LLC
U.S.C.
and
1981
Services,
(DynCorp)
Inc.
various
for
torts
(WWNS)
sued
discrimination
after
DynCorp
DynCorp
under
42
terminated
three
jury
evidentiary
rulings,
two
instructions,
and
the
I.
A.
DynCorp
State
to
Worldwide
contracted
provide
with
services
Personal
the
in
Protective
United
Iraq
and
Services
States
Afghanistan
program
enforcement,
societies
carried
criminal
undergoing
out
the
justice,
post-conflict
services
through
of
for
the
(WPPS)
and
Department
and
other
CivPol provides
assistance
reconstruction.
its
International
to
DynCorp
Technical
February
to
2004
provide
DynCorp
entered
communication
into
and
subcontracts
with
information-technology
DynCorp
expire
August
between
then
and
issued
task
orders
2006. 1
October
that
WWNS
had
would
been
B.
The quality of WWNSs work remains unclear.
2006
the
threatened
State
to
Department
terminate
twice
DynCorp
as
complained
a
result.
In January
about
One
WWNS
and
complaint
stated,
WWNSs
inadequate
to
technical
the
performance
point
where
complained
it
has
has
in
disrupted
J.A. 117.
to
WWNS
general
been
critical
about
radio
failures.
good in every category and stated that DynCorp would hire WWNS
again.
After
receiving
investigated
WWNSs
the
work
State
and
Department
generated
complaints,
two
internal
DynCorp
reports.
CivPol
headquarters
for
Iraq.
Second,
the
Middle
East
(Kellogg),
contributed.
but
other
DynCorp
employees
also
C.
DynCorps relationship with WWNS began to deteriorate in
December
2005
Division.
became
when
Robert
DynCorp
hired
Rosenkranz
Vice-President
of
new
became
Operations,
6
executives
President,
Walter
in
the
Richard
Merrick
ITS
Walsh
became
Deputy
CivPol
Program
Information-Technology
Manager,
Manager.
and
With
Leon
these
DeBeer
became
arrivals,
DynCorp
DynCorp
failed
to
provide
WWNS
employees
In
with
however,
indicate
that
Cashon,
Rosenkranz,
Merrick,
in
to
the
certain
CivPol
Subcontracts
questionable
expiration,
behavior
toward
DynCorp
WWNS.
For
Moreover, Walsh
paying
invoices
from
WWNS
for
work
already
completed. 2
In
opportunity
Because
almost
to
all
cure
of
alleged
WWNSs
deficiencies
business
in
came
the
from
work.
DynCorp,
D.
Beyond the above questionable behavior, the record contains
evidence of DynCorps racial animus toward WWNS.
consultant
stupid
for
black
DynCorp,
mother
testified
. . .
that
J.A.
Walsh
1723.
John Mack, a
called
Also,
Gray
Rosenkranz
J.A. 1019.
J.A. 872.
According to Jones,
said
WWNS
would
DeBeer
end
manufactured
Cannon.
by
predicted
and
explained
. . .
J.A. 869.
that
DynCorps
that
factions
that
within
J.A. 874.
relationship
ending
DynCorp
was
that
with
being
opposed
At the dinner,
J.A. 1139.
After Walsh
According
to
DynCorp
J.A. 1029.
executive,
Rosenkranz
was
E.
In October 2006 WWNS brought this action against DynCorp
and EDO Corp in the District of Columbia.
claims
of
tortious
interference
civil
discrimination
interference
with
conspiracy
under
with
U.S.C.
contract
prospective
(Count
42
The complaint
5);
(Count 3);
economic
conspiracy
1981
advantage
under
the
Subcontract,
and
breach
of
warranty.
WWNS
and
DynCorp
10
under
Federal
Rule
of
Evidence
701,
which
prohibits
lay
and
403. 5
The
district
court
overruled
this
objection,
decision
1891.
to
Later,
terminate
DynCorp
its
tried
relationship
to
offer
with
WWNS.
rehabilitative
The
court held, Well, Ill allow Ms. Gill to testify about her
interaction with Mr. DeBeer, and whether or not he used any
racial slurs in her presence, but [h]ow she was treated by the
company is irrelevant.
J.A. 1568.
WWNS
called
him
on
rebuttal,
Mack
testified
that
J.A. 1723.
Walsh
About
11
ten
questions
later,
DynCorp
objected
and
moved
to
strike
Federal
parties
to
Rule
of
supplement
Civil
Procedure
discovery
when
26(e),
new
which
evidence
requires
surfaces.
the
requested
an
Logistics
Mgmt.,
instruction
Inc.,
discrimination
based
354
F.3d
on
Hill
277
(4th
claim,
v.
DynCorp
Lockheed
Cir.
had
Martin
2004).
The
12
they
[DynCorp]
were
responsible
not,
and
the
jury
J.A. 1656.
punitive
damages,
the
J.A. 1762.
district
court
gave
the
following instruction:
[Y]ou may award punitive damages if WWNS . . . [has]
shown by clear and convincing evidence that DynCorp
maliciously,
or
with
reckless
indifference,
discriminated
against
WWNS,
and/or
that
DynCorp
tortiously interfered with the contracts between
[WWNS] and its employees, and/or conspired with EDO to
interfere with the contracts between [WWNS] and its
employees, and/or that DynCorp tortiously interfered
with WWNSs prospective economic advantage.
J.A. 1771.
that began, WWNS claims the acts of DynCorp were done with
malice or reckless indifference to WWNSs federally protected
rights.
The jury
We have
II.
On
appeal,
DynCorp
asserts
(1) that
the
district
court
admitted;
(4) that
Spencers
testimony
should
have
been
14
We consider
A.
We
first
consider
DynCorps
challenge
to
the
district
1981
reversible
discrimination
error
in
claim.
refusing
to
district
provide
court
commits
proffered
jury
instruction only when the instruction (1) was correct; (2) was
not substantially covered by the courts charge to the jury; and
(3)
dealt
with
some
point
in
the
trial
so
important,
that
United States v.
Passaro, 577 F.3d 207, 221 (4th Cir. 2009) (internal quotations
omitted).
Id.
15
was
failure
to
based
on
give
in
Hill,
that
reviewing
instruction
the
we
district
must
consider
courts
Hills
Lockheed also
written
jobsites
reprimands
safety
company policy.
based
inspector
and
on
errors
was
Hill received
discovered
terminated
by
pursuant
her
to
who had often called her a damn woman and useless old lady
who should retire.
Hill sued Lockheed under Title VII of the Civil Rights Act,
42 U.S.C. 2000e (Title VII), and the Age Discrimination in
Employment Act, 29 U.S.C. 621-34 (ADEA), arguing that but
for the inspectors discrimination she would have received fewer
reprimands and avoided termination.
291
(emphasis
added).
Accordingly,
we
found
summary
safety
inspector
decisionmaker
or
could
the
one
argues
that
be
considered
principally
the
actual
responsible
for
the
governs
case
now
Id. at 297-98.
the
Hill
rule
the
In that
in
deciding
to
terminate
Hill.
This
required
role
in
the
employers
decisionmaking
process
and
had
the
ADEA.
principles
guided
Hill,
our
354
F.3d
decision
at
286.
because
both
We
said
statutes
agency
defined
supervisor
has
been
empowered
by
the
company
as
at
762.
Therefore,
the
Court
said
that
tangible
Id.
Reeves
supervised
assembly-line
workers
for
Sanderson
director
of
manufacturing
and
the
husband
of
company
ADEA,
alleging
that
his
termination
resulted
from
found
had
that
Reeves
overcome
judgment
notwithstanding
the
Reeves,
Chestnut
was
principally
responsible
for
Id. at 151-
52.
Reeves
had
produced
evidence
that
Chestnut
exercised
Id. at 152.
need
not
be
the
formal
decisionmaker
to
impose
as
. . .
responsible
the
for,
action.
(quoting
purposes,
Reeves
distinguishes
Ellerth
or
be
was
the
decisionmaker
actual
Reeves,
also
between
would
subordinate
the
530
U.S.
clarifies
the
formal
person
the
at
the
one
principally
the
For
our
151-52)).
Hill
rule.
decisionmaker,
authorized
behind,
to
make
Reeves
which
the
under
relevant
believe
the
term
subordinate
this
employee
in
the
Hill
rule
interpretation,
and
assuming
for
purposes
of
We
Furthermore, we
rests
discrimination
claim
. . .
upon
the
case,
however,
WWNS
and
DynCorp
Id. at 291.
offered
In
conflicting
other
Rosenkranz,
and
collectively.
DynCorps
evidence
Walsh
that
authorized
to
Cashon,
make
Merrick,
that
decision
accounting
completed work.
were
indicated
department
to
stop
payment
to
WWNS
for
absent from Hill and Reeves, where none debated who had formal
decisionmaking authority.
Second, even assuming that only Cashon could be considered
the
formal
decisionmaker,
we
are
unwilling
to
conclude
that
the
Hill
and
Reeves
subordinate
employees
who
lacked
B.
Next,
courts
we
denial
consider
of
DynCorps
DynCorps
challenge
renewed
Rule
to
the
50(b)
district
motion
for
We review de
law.
Judgment as a
LLC,
562
F.3d
305
(4th
Cir.
2009)
(internal
21
Co. of Va., 526 F.3d 142, 147 (4th Cir. 2008) (A court may
award judgment as a matter of law only if there is no legally
sufficient evidentiary basis for a reasonable jury to find for
the
non-moving
party.).
On
this
issue,
we
must
view
the
Dennis
v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th
Cir. 2002).
In this case, 1981 liability required proof that race
actually motivated DynCorps decision to terminate the CivPol
Subcontract, that is, that race actually played a role in the
. . . decisionmaking process and had a determinative influence
on the outcome.
only
Cashon
Subcontract.
made
the
decision
Accordingly,
DynCorp
to
terminate
concludes
that
the
all
CivPol
other
Hill.
stand.
the
discriminatory animus of at least Rosenkranz and Walsh having
been set out.
22
Subcontract.
The
record
also
contains
evidence
that
checkered
misfortune. 10
October
2006
dinner
celebrating
WWNSs
on
other
grounds
by
statute,
Civil
Rights
Act
of
termination
defendant
may
carry
terminated
10
this
burden
contract
with
by
showing
it,
(2) it
that
was
23
the
defendants
legitimate
expectations,
and
(4)
the
2007).
Once
the
prima
facie
case
has
been
nondiscriminatory
termination.
Id.
(internal
reason
for
quotations
the
contract
omitted).
Once
the
to
reasons
the
plaintiff
were
not
discrimination.
to
its
prove
true
that
reasons,
the
but
defendants
were
pretext
Id.
stated
for
At this
discrimination
vel
non.
Reeves,
530
U.S.
at
142-43
that
(1)
DynCorp
terminated
the
CivPol
Subcontract,
SBA
because
Gray
and
Bailey
are
African
American,
(3)
In
turn,
DynCorp
24
articulated
legitimate,
reason
example,
the
was
merely
jury
might
pretext
have
for
discrimination.
disbelieved
Cashons
For
testimony
denial
of
DynCorps
Rule
50(b)
motion
regarding
the
1981 claim.
C.
We
next
challenges.
consider
three
evidentiary
rulings
that
DynCorp
United
1.
First,
DynCorp
argues
that
the
district
court
committed
and
of
the
Iraq
WWNSs
and
Tiger
performance.
25
United States v.
Kelloggs excluded
Reports
Discussed
were
technical
topics
include
whether
WWNSs
chosen
method
of
encrypting
wireless
701.
See
Certain
Underwriters
at
Lloyds,
London
v.
Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000) (noting that Rule
701
generally
opinion
as
to
does
not
matters
permit
which
are
lay
witness
beyond
the
to
express
realm
of
an
common
Therefore,
2.
Second, DynCorp challenges the district courts failure to
exclude Spencers testimony about his termination by Rosenkranz
under Federal Rules of Evidence 401 and 403.
decision
1891.
relevant
DynCorps
We
because
to
terminate
believe
of
decision
that
its
Spencers
Rosenkranzs
to
relationship
terminate
testimony
apparent
the
with
WWNS.
was
indeed
participation
CivPol
in
Subcontract.
of
undue
prejudice.
Thus,
we
affirm
the
district
courts
3.
Finally, DynCorp challenges the district courts failure to
strike Macks testimony that Walsh called Gray a stupid black
mother . . . .
26(e)
provides
J.A. 1723.
that
party
who
has
made
disclosure
or
incomplete
Macks
or
incorrect.
allegation
became
Fed.
R.
to
WWNS
known
Civ.
P.
several
26(e)(1)(A).
days
before
trial, but DynCorp was not made aware of it until Mack testified
at trial.
not dispute.
Upon
discovering
allegation,
DynCorp
that
objected
WWNS
had
not
and
moved
to
disclosed
strike
Macks
because
of
take
J.A. 1730.
into
consideration
WWNSs
27
failure
to
notify
DynCorp
arguing that Macks testimony should have been struck, but the
court denied this motion.
Federal Rule of Civil Procedure 37(c)(1) provides: If a
party
fails
to
provide
information
or
identify
witness
as
R.
Civ.
violation
P.
was
37(c)(1).
harmless
WWNS
but
asserts
concedes
that
that
the
no
Rule
26
substantial
justification existed.
We have said that a court determining harmlessness under
Rule 37(c)(1) should consider five factors:
(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that
party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
partys explanation for its failure to disclose the
evidence.
S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d
592, 597 (4th Cir. 2003).
Although DynCorp
was
trial
surprised
undisturbed.
racial
animus
Spencers
by
Macks
testimony,
the
continued
termination
from
by
Macks
testimony.
Rosenkranz,
28
the
This
racially
includes
charged
October
2006
dinner
celebrating
WWNSs
misfortune,
and
Walsh
this ground.
D.
Finally,
$10 million
we
consider
punitive-damages
alleged
errors
award.
regarding
DynCorp
the
argues
that
and
that
the
jury
instruction
on
that
issue
was
erroneous.
1.
We
begin
by
considering
the
district
courts
denial
of
Lowery v.
Circuit City Stores, Inc., 206 F.3d 431, 442-43 (4th Cir. 2000).
A plaintiff who prevails under 1981 is entitled under
the
common
law
to
punitive
damages
. . .
for
conduct
. . .
to
federally
protected
right.
Id.
at
441
42 U.S.C. 1983.
aggrieved
individual.
42
U.S.C.
1981a(b)(1).
malice
employers
federal
or
knowledge
law,
not
discrimination.
(1999).
reckless
that
its
it
indifference
may
awareness
be
acting
that
it
pertain
to
the
in
violation
of
is
engaging
in
will
damages.
violate
Id. at 536.
federal
law
to
be
liable
in
punitive
Smith, we have held that any case law construing the punitive
damages standard set forth in 1981a, for example Kolstad, is
equally applicable to clarify the common law punitive damages
standard with respect to a 1981 claim.
441.
30
Regarding
that
are
this
requirement,
particularly
relevant
Kolstad
to
the
noted
case
hypotheticals
before
us.
The
while
intending
to
cause
injury
might
escape
was
lawful.
This
informs
our
remark
that
punitive
Title
VII
and
damages of $225,000.
record
did
not
1981,
the
jury
awarded
punitive
support
punitive
31
damages.
Notably,
we
found
to
find
that
in
intentionally
refusing
to
promote
the
the
of
the
judgment
awarding
the
plaintiff
Id.
In the end, we
City
had
presented
evidence
that
it
required
every
education
on
the
federal
anti-discrimination
laws.
manager
accommodation
testified
requirements
of
that
the
he
was
ADA
familiar
and
its
with
the
prohibition
sexual
harassment
at
32
work
that
read,
Sexual
harassment
is
unlawful
and
unacceptable
in
the
workplace.
Anderson v. G.D.C., Inc., 281 F.3d 452, 460 (4th Cir. 2002).
Although the supervisor denied reading the poster, we found that
a reasonable jury could nevertheless infer that [his] awareness
of the poster suggested at least a rudimentary knowledge of its
import.
manager
Sufficient
Id.
was
specifically
evidence
aware
was
of
also
FedExs
found
where
internal
ADA
(en
banc).
Lisa
Ocheltree
sued
her
employer
Scollon
Productions, Inc., under Title VII because she was the victim
of severe or pervasive sex-based harassment in her workplace.
Id. at 327.
evidence
that
Productions
would
knew,
allow
either
jury
directly
or
to
by
find
that
imputation,
Scollon
that
it
Id. at 336.
case
Ocheltree.
DynCorp
before
WWNS
terminated
has
the
us
been
presents
unable
to
CivPol
Id.
scenario
comparable
cite
evidence
Subcontract
33
any
in
the
face
to
that
of
cite such evidence, and we could find none upon combing the
record. 12
11
2.
Even
damages
aside
could
instruction
from
not
on
the
above
stand
error,
because
punitive
the
damages
the
award
district
was
of
punitive
courts
also
jury
erroneous.
S. Atl. Ltd.
Pship of Tenn., L.P. v. Riese, 284 F.3d 518, 530 (4th Cir.
2002) (internal quotations omitted).
flawed,
there
can
be
prejudiced
the
quotations
omitted).
district
courts
no
reversal
challenging
partys
Because
instruction
the
case.
DynCorps
on
error
seriously
Id.
(internal
objection
punitive
damages
to
the
was
not
jury
instruction
must
necessarily
have
caused
the
controlling
legal
principles
to
the
inevitable
1380, 1399 (4th Cir. 1987); see also Fed. R. Civ. P. 51(d)(2).
identity
and
cannot
discrimination).
be
the
35
direct
target
of
. . .
In
this
case,
the
district
court
gave
the
following
shown
by
maliciously,
clear
or
against WWNS.
and
with
convincing
reckless
J.A. 1771.
evidence
that
indifference,
DynCorp
discriminated
American
properly
instructed,
malice
also
has
awareness
that
one
may
McCaughtry,
308
F.3d
dissenting)
(arguing
instruction
know
layperson
technical
be
682,
breaking
694
that
that
legal
law.
Cir.
layperson
cause
had
not
meaning
the
(7th
would
the
know
that
relating
Cf.
Perry
to
v.
2002)
(Posner,
J.,
would
not
without
technical
meaning
reckless
the
reckless
indifference
indifference
in
to
instruction
federally
specifically
protected
means
rights.
the
face
of
perceived
risk
that
[its]
decision
would
Therefore, we
ignorance
principles.
instruction,
evidence
we
$10 million
1911.
note
fundamentally
the
of
was
DynCorp
again
DynCorp
might
in
concluded
whether
that
Subcontract
controlling
legal
Regarding
evidence
of
WWNS
has
suspected
that
terminating
record.
punitive
Therefore,
federal
law,
not
and
Notwithstanding,
damages,
DynCorps
we
prejudiced
that
violate
for
was
which
Section
believe
1981
serious
the
identified
we
the
found
the
the
by
any
CivPol
no
jury
such
awarded
district
court
violation.
J.A.
prejudice
necessarily
3.
Although
claim
should
disposition.
the
be
punitive-damages
vacated,
The
the
district
award
jurys
court
based
verdict
instructed
on
the
1981
complicates
that
our
punitive
The jury
specify
Count 3.
how
much
was
allocable
to
Count
rather
than
III.
For
courts
the
reasons
refusal
to
stated
give
above,
DynCorps
we
affirm
proposed
the
jury
district
instruction
DynCorps
Rule
50(b)
motion
regarding
WWNSs
prayer
for
Accordingly, we
AFFIRM IN PART AND REVERSE IN PART.
14
38
DynCorp
subcontract
International,
with
Worldwide
information-technology
this
action,
refused
Network
services,
alleging
LLC
that
to
renew
its
LLC
for
Services,
Worldwide
DynCorps
Services
commenced
termination
of
the
1981.
The
subcontract
had
been
entered
into
to
assist
Services
because
of
Worldwide
Services
poor
to
the
corporation
under
Hill
v.
Lockheed
Martin
Logistics Management, Inc., 354 F.3d 277, 291 (4th Cir. 2004)
(en banc) (holding that an employer will not be liable under
Title
VII
of
Discrimination
the
in
Civil
Rights
Employment
Act
Act
of
of
1967
1964
or
the
Age
(ADEA)
for
the
39
racial
animus
to
the
corporation
for
purposes
of
The jury
plaintiffs
claim
rests
upon
the
discriminatory
to
which
Worldwide
Services
claim
was
based
on
the
authority
to
end
the
relationship
between
the
two
on
the
corporation.
40
Because
Worldwide
Services
presented
considerable
evidence
of
this
mid-level
managers
court
to
have
refused
to
give
an
instruction
under
Hill.
racial
animus
influenced
the
may,
as
decision
factual
not
to
matter,
renew
have
substantially
Worldwide
Services
Accordingly, I believe
actually
motivated
by
racial
animus
in
deciding
not
to
DynCorps request for a new trial, I would not reach the other
issues addressed by the majority, with one exception.
In view
Judge
Duncan
with
majority
on
her
discussion
of
41
I.
In
February
Services)
2004,
Division
Department
to
the
ITS
(International
of
DynCorp
won
provide
support
for
civilian
contract
Technical
from
police
the
State
(CIVPOL)
task
extended
orders
one
renewable
issued
year
under
by
(February
four
DynCorp.
2004
one-year
The
to
subcontracts
February
options.
2005)
DynCorp
term
and
was
renewed
the
Small
Business
disadvantaged
Administration
company.
Before
its
as
subcontract
Section
with
8(a)
DynCorp,
DynCorp,
however,
Worldwide
Services
received
over
$20
million in revenues.
Richard Cashon, a DynCorp vice president and its program
manager
for
evaluating
the
CIVPOL
Worldwide
program,
Services
42
was
charged
performance
with
formally
under
the
In January 2006,
Cashon
as
rated
Worldwide
Services
performance
exceptional
of
their
staff
dynamic
the
number
and
of
technically
flexib[ility]
environment.
Cashon
in
competent
terms
wrote
of
that
individuals
operating
he
would
in
on
a
have
no
Cashons
received
criticizing
both
positive
two
evaluations,
letters
DynCorp
and
from
the
Worldwide
in
early
State
Services
2006
Department
performance.
Enforcement
Affairs
wrote
letter
to
DynCorps
CEO
to
The letter
been
inadequate
to
the
point
where
it
has
disrupted
clear
the
that
DynCorps
relationship
with
State
43
Department
Baghdad
sent
second
letter
to
DynCorp
that
focused
and
this
letter
Services performance.
was
even
more
critical
of
Worldwide
strategies
to
effect
acceptable
standards
of
IT/communications support.
After receiving these letters, DynCorp developed a plan to
manage Worldwide Services more actively.
Walsh began by
Bailey,
and
in
the
first
meeting
Walsh
emphasized
that
Walsh
Services
traveled
to
Afghanistan
to
performance
on
the
and,
ground
In February
observe
as
Worldwide
Walsh
later
Walsh
Rosenkranz
shared
expressed
[Worldwide
Services]
his
hope
into
observations
that
DynCorp
shape.
with
could
Rosenkranz
Rosenkranz,
still
also
whip
described
shared
Walshs
view
that
Worldwide
Services
received
most
responsible
for
DynCorps
relationship
with
Worldwide Services.
In
addition
to
Walshs
efforts,
DynCorp
also
conducted
Iraq
and
Afghanistan,
and
DynCorps
management
completed
by
June
19,
2006,
noted
received
the
concern
But
from
that
Afghanistan,
completed
the
Afghanistan
CIVPOL
45
between
July
program
22-31,
suffers
The
2006,
from
the
officer
State
Department
overseeing
the
--
this
CIVPOL
emphasized
the
State
from
contract
time
--
the
contracting
complaining
about
Departments
concern[s]
about
all
DynCorp
Task
Orders.
After
describing
number
of
discuss
this
broad
deficiencies,
noting
problems
their
systemic.
Board
of
questioned
responded
and
Shortly
that
that
after
DynCorp
held
the
it
[t]he
pervasiveness
Directors
about
spectrum
State
might
subcontractor in question.
of
information
varied
received
at
Departments
become
nature
suggests
meeting,
technology
of
that
these
they
are
this
letter,
its
which
Cannon
was
complaints.
necessary
to
Cannon
replace
the
it
was
typical
for
the
program
manager
to
make
such
Services
commenced
this
action
alleging,
among
Charles
Jones,
Worldwide
Services
Deputy
Program
offensive
Iraq
Manager
IT
Services
statements
and
employees
the
made
DynCorp
reported
in
by
Leon
employee
Iraq.
DeBeer,
to
whom
DynCorps
Worldwide
Specifically,
Jones
nigger,
testified
that
bush
DeBeer
native,
regularly
and
kaffir.
complained
that
He
white
also
people
would have more children, who could then be put to work feeding
the family.
Second, Jones testified that while he was in Iraq, he heard
Mike Kehoe, DynCorps Deputy Program Manager in Iraq for another
State Department contract, describe the acronym for Worldwide
Network Services, WWNS, as standing for where white men never
stay.
Third,
John
Mack,
part
owner
of
Worldwide
Services,
The
majority
attributes
Spencers
termination
to
Rosenkranz
and
repeatedly
refers
to
it
as
evidence
of
Rosenkranzs racial animus.
But Spencer testified that while
Rosenkranz signed his termination letter, Spencer had a fairly
good relationship with Rosenkranz, who is not a bad guy.
Spencer instead suggested that his termination was the decision
of Herb Lanese, DynCorps CEO at the time, who did not like
Spencer for whatever reason.
Moreover, Spencer did not
attribute any racial motivation to Rosenkranz in signing the
letter.
Considered in its full context, Spencers testimony
about his termination should not be used to impute racial animus
to Rosenkranz.
48
guests
Cavanaugh,
--
approximately
DynCorps
Vice
40
persons
President
for
--
at
Business
which
Bill
Development,
Cavanaugh then
purported
to
be
from
Gray.
According
to
Spencer,
that
the
evidence
most
strongly
described
49
Its
The
district
court
refused
to
give
the
instruction,
employer liability under Title VII and the ADEA, whereas this
case
involves
Plaintiffs
liability
pursuing
under
claims
1981.
under
Title
The
VII
court
or
the
stated,
ADEA
are
1981
because
Title
VII
and
ADEA
actions
must
first
Hill
statement
standard
is
not
correct
of
law
for
claims
to
the
standard
instructed
the
jury
that
stated
in
Hill,
the
race
of
the
district
[Worldwide
court
Services]
jury
found
that
DynCorps
(Emphasis added).
decision
not
to
renew
or
II.
DynCorps
Worldwide
decision
Services
not
was
to
renew
its
corporate
subcontract
decision,
with
and
the
Services
poor
performance,
as
graphically
and
Services
the
vast
alleges
bulk
of
that
its
race
direct
was
motivating
evidence
of
racial
middle
manager,
DeBeers
views
about
Worldwide
at
DynCorp
testified
that
the
person
who
had
the
did
not
have
any
racial
51
animus
toward
Worldwide
Services.
There was
participated
in
the
decision.
While
there
was
some
Specifically,
how
the
jury
DynCorps
might
have
suggestion
ruled.
that,
The
absent
record
DeBeers
amply
racial
animus, the evidence may have been too weak as a matter of law
to support a 1981 claim and that therefore DeBeers racial
animus
was
critical.
Because
the
district
court
allowed
This
is
because
DeBeer,
as
the
subordinate
of
testimony
of
DeBeers
racial
animus,
the
jury
was
52
racial
motivating
animus
factor
subcontract.
Had
could
be
in
its
not
the
district
imputed
renewing
court
to
DynCorp
Worldwide
applied
as
Services
Hill,
the
jury
would have been told that DynCorp was not liable . . . for the
improperly motivated person [DeBeer] who merely influences the
decision.
motivations
may
be
attributed
to
the
employer
If Hill had been applied, the jury would have been told that
Worldwide
Services
had
to
prove
that
DeBeer
possessed
such
decision
or
the
actual
decisionmaker
for
the
employer
that Cashon made the decision with Rosenkranz and Walsh and that
DeBeer did not have the authority of one principally responsible
for
the
decision
but
could
only
53
be
tagged
as
one
having
influence
on
it,
DeBeers
racial
animus
would
not
have
been
imputable to DynCorp.
In
limiting
discrimination
responsible
in
for
corporations
Hill
the
to
the
liability
conduct
corporations
of
for
racial
persons
action,
we
actually
carried
out
only
responsible
the
animus,
for
not
when
when
its
executives
corporations
any
corporate
and
employees
decision
acted
with
racial
employee
manifested
racial
animus.
The district court, however, rejected the application of
Hill to 1981 and instead instructed the jury that the race of
Worldwide
Services
actually
led
to
owners
the
must
have
decision
to
been
factor
terminate
that
DynCorps
only
was
the
district
courts
instruction
erroneous
racial
animus,
perhaps
even
the
evidence
fatally
recognized this.
thin,
to
support
and
the
verdict
district
was
court
thin,
surely
for
discrimination
under
Title
VII
was
subject
to
Indeed,
instructions,
excluding
only
the
language
specifically
(Emphasis added).
Hill
accurately
describes
when
the
racial
animus
of
submit
that
how
racial
animus
is
imputed
to
55
III.
In Hill, a former Lockheed mechanic, whose employment was
terminated on the basis of three written reprimands, brought an
action against her corporate employer under Title VII and the
ADEA, alleging that her teams safety inspectors discriminatory
animus
led
him
to
report
admittedly
valid
infractions,
safety
inspectors
alleged
discriminatory
animus
should
be
violated corporate rules and standards, and she did not assert
that her direct supervisors, who issued the reprimands, or her
two program managers, who terminated her employment, acted with
discriminatory animus.
not
for
the
improperly
motivated
person
who
merely
Hill,
corporate liability under Title VII and the ADEA to the actions
of only formal decisionmakers for the employer, because doing
so might allow employers to insulate themselves from liability
simply by hiding behind the blind approvals, albeit non-biased,
of formal decisionmakers.
But we
Id. at 291.
corporation
who
actually
made
the
adverse
employment
though
Hill
defined
corporate
liability
under
only
Title VII and the ADEA, the agency issue resolved in Hill exists
under any discrimination statute creating corporate liability.
See
Burlington
Indus.,
Inc.
v.
57
Ellerth,
524
U.S.
742,
754
(1998).
the
same
general
question
[of]
the
proper
extent
of
a[]
have
explicit
provided
an
direction
to
be
clear
we
have
previously
principles
apply
recognized
in
that
interpreting
the
that
this
Id. at 155.
same
1981
as
general
apply
in
F.3d 179, 184, 18690 (4th Cir. 2001) (noting that under both
1981
and
Title
liability
on
employers
without
VII
[the
there
must
corporate
liability
for
distinguishing
be
some
defendant]
racially
between
basis
and
hostile
the
two
for
imposing
analyzing
work
statutes
the
environment
(internal
alleging
that
his
corporate
employer
An
intentionally
make,
the
decision
to
take
an
adverse
employment
action
basis
an
employee
of
sex
alleging
or
intentional
religion
premised
discrimination
on
on
subordinate
While we must
Inc.,
421
U.S.
454,
461
(1975),
the
standard
for
because
decisions
in
Poland
v.
it
other
Chertoff,
was
circuits
494
erroneously
that
F.3d
have
1174,
decided,
criticized
1182-83
(9th
relying
on
Hill.
See
Cir.
2007)
(finding Hills rule too narrow and holding instead that even
if the biased subordinate was not the principal decisionmaker,
the biased subordinates [improper] motive will be imputed to
the employer if the subordinate influenced, affected, or was
involved in the adverse employment decision); EEOC v. BCI CocaCola Bottling Co. of L.A., 450 F.3d 476, 487 (10th Cir. 2006)
(critiquing Hills peculiar focus on who is a decisionmaker for
59
relation,
cause
injury
(internal
quotation
marks
and
citation omitted)); Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th
Cir. 2004) (criticizing Hill as inconsistent with the normal
analysis of causal issues in tort litigation); cf. Ricci v.
DeStefano, 129 S. Ct. 2658, 2689 (2009) (Alito, J., concurring)
(noting circuit split and describing Hill as adopting [t]he
least employee-friendly standard by ask[ing] only whether the
actual decisionmaker acted with discriminatory intent).
it
would
be
inappropriate
for
us
to
limit
Hill
But,
arbitrarily,
actions.
Worldwide
Services
argument
that
Hill
was
to
corporation
for
liability
under
Title
VII
and
at
441.
184,
186-90;
Lowery,
206
F.3d
at
It
was
thus
is
claim,
required,
would
including
the
vacate
award
of
the
judgment
punitive
on
the
damages,
and
61
contrary,
DynCorp
it
(WWNS)
technology
believe
International,
subcontract
Inc.
entered
to
services
that
LLC
into
provide
for
there
the
was
ample
(DynCorp)
with
Worldwide
communication
U.S.
State
evidence
terminated
Network
and
To
that
the
Services,
information-
Departments
Civilian
62
(1999).
Indeed, DynCorp was warned by WWNS that ending the CivPol
Subcontract might violate WWNSs federally protected rights.
On
immediately
and
overnight
comply
with
mail,
its
demanding
obligations
that
under
DynCorp
the
CivPol
shows
that
the
executives
(J.A. 2692.)
who
made
The evidence
the
decision
to
to
confirm
that
DynCorps
in-house
counsel
received
the
[WWNSs]
2694.)
services
Richard
under
Walsh,
the
CivPol
Division
subcontract.
Vice-President
of
to
other
DynCorp
executives
including
Cashon,
of
the
slides
of
the
presentation
63
stated
that
[r]ecent
(J.A. 2788.)
(4th
Cir.
2002),
it
is
clear
jury
could
reasonably
F.3d
at
458-59.
The
only
evidence
presented
that
the
of
this
court
the
poster
found
that
suggested
the
at
Id. at 460.
employees
least
mere
rudimentary
racial
discrimination
if
they
continued
to
pursue
the
64
The letter
was sent well before WWNS had ceased operations under the CivPol
Subcontract in either Iraq or Afghanistan.
task
order
in
Iraq
was
not
scheduled
to
end
until
letter dated July 28, 2006, that DynCorp intended to let the
personnel
extended
portion
its
of
purchase
this
of
task
services
order
from
expire,
DynCorp
WWNS
Iraq
in
also
another
thirty days.
Moreover,
the
four
task
orders
in
Afghanistan
continued
to
continue
with
WWNS
in
if
the
(J.A.
1678.)
According
65
to
DynCorps
own
PowerPoint
(J.A. 2791.)
was
aware
that
its
actions
might
violate
WWNSs
that
reason.
See
State
Farm
Mut.
Auto.
Ins.
Co.
v.
Campbell, 538 U.S. 408, 425 (2003) (holding that a single digit
ratio,
especially
four
to
one
or
less,
between
punitive
and
66
For
these
reasons,
while
otherwise
agree
with
Judge
67