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Date: 03-18-2019

Case Style:

Adrian Bryant v. Jeffrey Sand Company

Case Number: 18-2297

Judge: Kelly

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Eastern District of Arkansas (Pulaski County)

Plaintiff's Attorney: Austin Porter, Jr.

Defendant's Attorney: David Rollwage Bridgfort and Spencer F. Robinson


After trial, a jury awarded Adrian Bryant nominal compensatory damages and
$250,000 in punitive damages for his claim of hostile work environment against his
former employer, Jeffrey Sand Company. The district court1 denied Jeffrey Sand’s
1The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
post-trial motions and granted Bryant’s motion for attorney’s fees. Jeffrey Sand
appeals, and we affirm.
We recite the facts ascertained at trial, viewed in the light most favorable to the
jury’s verdict. Morse v. S. Union Co., 174 F.3d 917, 920 (8th Cir. 1999). Bryant
worked from 2009 to 2013 for Jeffrey Sand as a deckhand on the Cora, a barge that
dredges sand from the Arkansas River. During this period, Bryant’s co-workers on
the Cora were the foreman, Jerry Skaggs; the pumper, Donald Lambert; and another
deckhand, Chad Bateman. Bryant was the only black employee on the barge.
The evidence at trial revealed that Skaggs, Bryant’s direct supervisor, engaged
in a pattern of racially-motivated abuse. Skaggs taunted Bryant with racial slurs,
calling him “nigger,” “Kunte Kinte,” “spear chucker,” “monkey,” “bitch,” “porch
monkey,” and “boy,” among other names. On at least some occasions, he uttered
these epithets in the presence of other employees. Skaggs would give Bryant difficult
tasks that he would not assign to the Cora’s white employees. Lambert testified that
“a number of times,” Skaggs would “get up in [Bryant’s] face and use his chest to
push [Bryant] around trying to get [Bryant] to fight him.”
Bryant complained to his plant manager, Ken Bolton, twice and to the thenpresident
of the company, Joe Wickliffe, four times regarding Skaggs’s behavior. He
testified that he received no response to his complaints. Bolton testified that, in
response to a complaint from Bryant on May 4, 2012, he sent another employee,
Randy Marshall, to the Cora for a few days in an attempt to corroborate Bryant’s
allegation that Skaggs was using racial slurs. After Marshall reported back that he
had not heard any slurs, Bolton did no further investigation. Bolton did not attempt
to interview Bryant or any other employees. Jeffrey Sand has no written
anti-harassment or anti-discrimination policy and no human resources personnel.
Bryant testified that the harassment persisted and that he continued to make
complaints after May 2012. He testified about a particular incident on August 7,
2012, when Skaggs made him paint rails in the hot sun and would not allow him to
come into the air-conditioned part of the barge or to access water. When Bryant
attempted to get out of the sun and told Skaggs that he felt ill, Skaggs responded,
“[G]o out there and paint those rails like I told your black ass to,” and sent him back
outside. Bryant felt lightheaded and experienced chest pains, so he went to Lambert
for help. Lambert measured Bryant’s blood pressure, which was very high, and
convinced Skaggs to call an ambulance. It was later determined that Bryant had
suffered a heart attack, and he did not return to work for two weeks.
On January 30, 2013, Clay McGeorge, then the sales director (and now the
president) of Jeffrey Sand, received an anonymous email stating: “Hi Clay I want to
remain anonymous but I would like to inform you about the racist comments I’ve
overheard the foreman on dredge Cora make.” McGeorge alerted Wickliffe and
Bolton to the email and Bolton interviewed several employees. Lambert corroborated
that Skaggs had made racist comments toward Bryant, but Bolton discounted Lambert
as merely a disgruntled employee. Several other employees told Bolton that they had
heard second-hand about Skaggs using racial slurs. Bateman, the other deckhand,
later admitted that he had authored the anonymous email. He testified that he had not
heard Skaggs make racist comments personally, but had heard Bryant complaining
about it and believed Bryant’s accusations. Bolton did not interview Bryant as part
of his investigation. The company took no disciplinary action against Skaggs.
Jeffrey Sand fired Bryant shortly after the investigation into the email,
purportedly for absenteeism. Bryant brought this suit under 42 U.S.C. § 1981 on July
13, 2016, alleging a racially hostile work environment and retaliatory termination.
The district court granted summary judgment in favor of Jeffrey Sand on the
retaliation claim but allowed the hostile-work-environment claim to proceed to trial.
The jury found in Bryant’s favor and awarded him $1.00 in compensatory damages
and $250,000 in punitive damages. The district court denied Jeffrey Sand’s post-trial
motions for judgment as a matter of law and to amend the award of punitive damages.
It also granted Bryant’s motion for $64,432.50 in attorney’s fees and $1,028.15 in
costs. Jeffrey Sand appeals.
Jeffrey Sand argues it was entitled to judgment as a matter of law because there
was insufficient evidence to charge punitive damages to the jury and because
Bryant’s claim is time-barred. We review the district court’s denial of Jeffrey Sand’s
motion de novo, viewing the facts in the light most favorable to Bryant and drawing
all reasonable inferences in his favor. Weitz Co. v. MacKenzie House, LLC, 665
F.3d 970, 974 (8th Cir. 2012). Judgment as a matter of law is proper if “a party has
been fully heard on an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue.” Id. (quoting Fed. R. Civ. P.
Under either Title VII or § 1981, an award of punitive damages requires the
plaintiff to show that his employer engaged in a discriminatory practice with “malice”
or “reckless indifference” to his federally protected rights. 42 U.S.C. § 1981a(b)(1);
Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997). This standard may be
satisfied when an employer exhibits reckless indifference toward discriminatory
actions taken by those serving in a managerial capacity, MacGregor v. Mallinckrodt,
Inc., 373 F.3d 923, 931 (8th Cir. 2004), or when a supervisor’s “sufficiently abusive”
behavior manifests malice, Ogden v. Wax Works, Inc., 214 F.3d 999, 1009–10 (8th
Cir. 2000) (quoting Kimbrough v. Loma Linda Dev., Inc., 183 F.3d 782, 785 (8th Cir.

The award of punitive damages is supported by the record. Bryant repeatedly
complained to supervisors that his manager, Skaggs, was using racial slurs. Those
supervisors never interviewed Bryant in response to his complaints, even though
Skaggs’s comments evidenced a “clear intent” to discriminate against Bryant based
on race. MacGregor, 373 F.3d at 932. Even when another employee corroborated
Bryant’s allegations, the company did not take any action to discipline Skaggs or
prevent further harassment. Jeffrey Sand also lacked any formal or informal policy
prohibiting workplace discrimination. The jury could have reasonably concluded
from these facts that Jeffrey Sand exhibited reckless indifference to Bryant’s rights.
See Williams v. ConAgra Poultry Co., 378 F.3d 790, 796 (8th Cir. 2004) (“[W]hen
the victim of harassment repeatedly complains to various supervisors of harassment
and the harassment is not stopped, a submissible case on punitive damages has been
We also conclude that Bryant’s § 1981 claim was timely under the applicable
four-year statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369, 383–85 (2004) (explaining that federal statute of limitations in 28 U.S.C. § 1658
applies to such claims). “[U]nder federal law one act of the hostile work environment
must occur . . . within the § 1981 statute of limitations period. If that requirement is
met, a party may then recover for all illegal acts that made up the hostile work
environment.” Madison v. IBP, Inc., 330 F.3d 1051, 1061 (8th Cir. 2003). The
continuing violation rule applies to punitive, as well as compensatory, damages. See
id. at 1060–61. Thus, in order for Bryant’s claim to be 2 timely, at least one act of the
2Jeffrey Sand argues that Kline v. City of Kansas City, Missouri, Fire
Department, 175 F.3d 660 (8th Cir. 1999), stands for the proposition that damages in
a continuing violation case are limited to those within the statute-of-limitations
period. That is incorrect, as Madison makes clear. Kline was effectively overruled
by the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 122 (2002), which held that a hostile-work-environment claim is not
time-barred so long as at least one act of the continuing violation falls within the
limitations period.
hostile work environment must have occurred after July 13, 2012—four years before
Bryant filed his complaint.
Several witnesses testified that Skaggs’s abuse continued into the limitations
period and that Jeffrey Sand was on notice of that abuse. Bryant suffered a heart
attack in August 2012 after Skaggs forced him to work in the hot sun without access
to water, even after Bryant told Skaggs that he felt ill. The jury readily could have
inferred—from Skaggs’s own words—that this abuse was motivated by racial animus.
Jeffrey Sand was on notice of Skaggs’s abuse from Bryant’s earlier complaints but
was alerted again to the issue in January 2013 when another employee sent an
anonymous email asserting that he overheard the abuse. The jury reasonably could
have concluded that the company’s response to this complaint was inadequate and
evidenced a reckless disregard for Bryant’s protected rights continuing well into the
limitations period. We accordingly find no error in the district court’s denial of
Jeffrey Sand’s motion for judgment as a matter of law.
Jeffrey Sand also argues that the jury’s award of $250,000 in punitive damages
violates due process because it is excessive and disproportionate to the nominal
compensatory damages award. We review the constitutionality of the punitive
damages award de novo. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S.
424, 436 (2001).
“Juries have considerable flexibility in determining the level of punitive
damages.” Ondrisek v. Hoffman, 698 F.3d 1020, 1028 (8th Cir. 2012). An award of
punitive damages nonetheless violates due process when it is so “grossly excessive”
or “arbitrary” that the defendant failed to receive fair notice of the severity of the
penalty that might be imposed. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 416–17 (2003); see BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996).
The Supreme Court has identified three factors that guide our inquiry: “(1) the degree
of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual
or potential harm suffered by the plaintiff and the punitive damages award; and
(3) the difference between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases.” State Farm, 538 U.S. at 418.
The degree of a party’s reprehensibility is the “most important” factor in our
analysis. Id. at 419 (quoting Gore, 517 U.S. at 575); Bowles v. Osmose Utilities
Servs., Inc., 443 F.3d 671, 675 (8th Cir. 2006). We must consider whether:
the harm caused was physical as opposed to economic; the tortious
conduct evinced an indifference to or a reckless disregard of the health
or safety of others; the target of the conduct had financial vulnerability;
the conduct involved repeated actions or was an isolated incident; and
the harm was the result of intentional malice, trickery, or deceit, or mere
State Farm, 538 U.S. at 419. Citing these factors, the district court opined that Jeffrey
Sand’s conduct was “clearly . . . reprehensible.” Skaggs’s abuse was repeated, not
isolated, and involved both verbal racist insults and physical altercations. His actions
were not accidental but intentionally malicious. Jeffrey Sand failed to meaningfully
investigate repeated complaints from Bryant and other employees. The district court
also concluded that Bryant was financially vulnerable because he had a criminal
record and so could not easily find another job.
We agree that these facts, viewed in Bryant’s favor, show that Jeffrey Sand’s
actions were “so reprehensible as to warrant the imposition of further sanctions to
achieve punishment or deterrence.” Id. The company argues that its response to
Bryant’s complaints was more fulsome than in other cases where we have upheld
sizeable punitive damage awards. See, e.g., Henderson v. Simmons Foods, Inc., 217
F.3d 612, 619 (8th Cir. 2000) (affirming award of $100,000 in punitive damages
where employer only half-heartedly responded to plaintiff’s numerous complaints of
sexual harassment); Blackmon v. Pinkerton Sec. & Investigative Servs., 182 F.3d
629, 636–37 (8th Cir. 1999) (reinstating jury’s $100,000 punitive damages award
where employee was sexually harassed by her supervisors, company failed to
investigate her complaints or take remedial action, and company engaged in
retaliation). We disagree. Jeffrey Sand’s indifference to Bryant’s complaints was no
less egregious than the meager efforts of the employers in Henderson and Blackmon.
In particular, Skaggs’s verbal and physical abuse went unchecked even after another
employee corroborated Bryant’s allegations, and even after Skaggs placed Bryant at
risk of serious injury. These circumstances are at least as repugnant as those in
Williams, where the plaintiff received $600,000 in punitive damages after his
supervisor regularly swore at him, used racist language, and treated him differently
than white employees. See 378 F.3d at 798–99.
The next guidepost for our consideration is proportionality. While punitive
damage awards are ordinarily within a single-digit multiple of the compensatory
damage award, this ratio’s usefulness diminishes when the jury awards only nominal
damages. The Supreme Court has “consistently rejected the notion that the
constitutional line is marked by a simple mathematical formula” comparing
compensatory and punitive damages. Gore, 517 U.S. at 582. “Punitive damages may
withstand constitutional scrutiny when only nominal or a small amount of
compensatory damages have been assigned, even though the ratio between the two
will necessarily be large.” JCB, Inc. v. Union Planters Bank, NA, 539 F.3d 862, 876
(8th Cir. 2008).
As in prior cases addressing nominal damages, we decline to place undue
weight on the mathematical ratio between compensatory and punitive damages. See,
e.g., Haynes v. Stephenson, 588 F.3d 1152, 1158 (8th Cir. 2009). The “general goal”
of the proportionality factor is to ensure that punitive damages are “proportional to
the actual injury suffered.” Arizona v. ASARCO LLC, 773 F.3d 1050, 1056 (9th Cir.
2014) (en banc). The higher award of punitive damages is justified in this case
because “a particularly egregious act has resulted in only a small amount of economic
damages” and “the monetary value of noneconomic harm might have been difficult
to determine.” Gore, 517 U.S. at 582. The jury may not have been able to easily
quantify the monetary value of Bryant’s injuries. But that does not mean the
indignities he suffered were insubstantial, or that a punitive damages award of
$250,000 is unreasonable. See id. at 583 (“[A] general concern of reasonableness
properly enters into the constitutional calculus.” (cleaned up) (quoting TXO Prod.
Corp. v. All. Res. Corp., 509 U.S. 443, 458 (1993))).
The final factor for consideration is how the award compares to penalties
authorized for similar misconduct. Jeffrey Sand emphasizes that, had Bryant brought
his hostile-work-environment claim under Title VII, any award of punitive damages
would be statutorily capped at $50,000 because the company has fewer than 101
employees. 42 U.S.C. § 1981a(b)(3)(A). But Bryant brought his claim under § 1981,
so Jeffrey Sand was on fair notice that the jury’s award could exceed the Title VII
cap. See Williams, 378 F.3d at 798–99 (declining to find any “constitutionally
required ratio between § 1981 damages awards and the Title VII cap”). Considering
the egregiousness of Jeffrey Sand’s conduct, the company should have been aware
that the trial could result in a substantial monetary award if the jury concluded that
one was “necessary to deter future misconduct.” Gore, 517 U.S. at 584. We conclude
that the jury’s punitive damages award was constitutionally sound.
Finally, Jeffrey Sand argues that the district court erred in awarding Bryant
attorney’s fees. A prevailing party in a § 1981 action may be awarded a reasonable
attorney’s fee. 42 U.S.C. § 1988(b). “Attorney’s fees are within the broad discretion
of the district court and will not be reversed absent an abuse of discretion.” Hanig v.
Lee, 415 F.3d 822, 825 (8th Cir. 2005). To calculate attorney’s fees, courts typically
begin by using the lodestar method, which multiplies the number of hours reasonably
expended by reasonable hourly rates. Brewington v. Keener, 902 F.3d 796, 805 (8th
Cir. 2018). “When determining reasonable hourly rates, district courts may rely on
their own experience and knowledge of prevailing market rates.” Hanig, 415 F.3d at
Jeffrey Sand does not dispute that Bryant was the prevailing party at trial and
that the hours expended by Bryant’s counsel were reasonable. Instead, it argues only
that the district court erroneously accepted the lodestar rate of $350 per hour based
solely on Bryant’s counsel’s representation that he had been awarded fees at this rate
in similar recent cases. Jeffrey Sand argues that the district court should have
demanded a sworn affidavit attesting that this was his counsel’s “normal” hourly rate.
The law imposes no such requirement. Bryant’s counsel averred that his
requested rate was “reasonable and commensurate” with his qualifications and
extensive experience. He supported that statement by providing a list of recent fee
awards he had obtained, including one from only a few months prior in which the
same district court had concluded his $350 rate was reasonable. Jeffrey Sand has
produced no evidence undermining the reasonableness of the rate. The district
court’s decision to accept the rate as reasonable, in light of its own experience and
knowledge, was not an abuse of discretion.

Outcome: Accordingly, we affirm the judgment of the district court.

Plaintiff's Experts:

Defendant's Experts:


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