* The Honorable Milton I. Shadur, Senior United State s District Judge

for the Northern District of Illinois, sitting by d esignation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRANFORD DODOO, Plaintiff-Appellee,

v. SEAGATE TECHNOLOGY, INC., a Delaware corporation, Defendant-Appellant. No. 99-6352

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CV-98-1421-C)
Gary C. Pierson (Sam R. Fulkerson, Scott A. Briggs, with him on the briefs) of McAfee & Taft, Oklahoma City, Oklahoma, for Defenda nt-Appellant. Emmanuel E. Edem of Norman, Edem, McNaughton & Wall ace, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before BALDOCKand McWILLIAMS , Circuit Judges, and SHADUR , District Judge. *

SHADUR , District Judge.-2-

Branford Dodoo (“Dodoo”) sued Seagate Technology, I nc. (“Seagate”), charging that Seagate’s denial of his applications for promotion to no fewer than nine different jobs during 1997 stemmed from severa l types of discrimination-- discrimination based on his age, race and national origin--in violation of state and federal law. Before trial the district court gran ted summary judgment for Seagate on a host of Dodoo’s claims: on all those arising under the Oklahoma AntiDiscrimination Act, on all federal claims based on two of the promotion decisions and on Dodoo’s Age Discrimination in Employment Act(“ADEA”) claims based on three other promotion turndowns. Dodoo’s surviving claims were tried before a jury. After a six day trial, the jury found in Seagate’s favor as to all remaining c laims relating to five of the seven surviving promotion decisions, but as to the other two it returned a verdict in Dodoo’s favor, finding that Seagate had discrimi nated against Dodoo on the basis of his age in violation of ADEA and his race in violation of Title VII by failing to promote him to the “Program Manager” and “Product Line Manager” positions. Seagate appeals those last two determinations, argu ing that it is entitled to judgment as a matter of law because there was insuf ficient evidence to support (1) the jury’s findings of intentional age and race discrimination, (2) the damages awards and (3) the finding that Seagate willfully v iolated ADEA. Seagate also-3-

contends that it is entitled to a new trial because (1) the testimony of Dodoo’s former supervisor Dr. Randy Clark (“Clark”) was imp roperly admitted at trial, (2) the concurrent trial of all of Dodoo’s claims c reated an impermissible “aggregation bias” and (3) the district court rejec ted one of Seagate’s proposed jury instructions and erred in several of its otherinstructions--those relating to the elements of a prima facie case, to pretext and to p unitive damages. We have jurisdiction pursuant to 28 U.S.C. §1291. Finding no error in the rulings or judgment of the district court, we affir m. Background Seagate designs, manufactures and markets hard disc drives for computer systems. In 1997 Dodoo, who has an MBA degree in ad dition to his extensive engineering experience, had been with Seagate for 1 6 years and was then employed at its Oklahoma City facility as a Staff Application Engineer, a grade 31 position. Dodoo is African American and was 46 years old during the relevant time period. In May 1997 Dodoo applied for a promotion to a rece ntly vacated Program Manager position. Decisionmaker Jay Watson (“Watso n”) selected David Koelsch (“Koelsch”), a 30-year old white male, to f ill the position. Watson testified that he did so because he considered Koel sch to be a future “star” at Seagate, too valuable to lose to a job offer from h is old company. At the time he-4-

was promoted, Koelsch held a grade 28 position and had been with Seagate for approximately two months. When Watson selected Koe lsch he downgraded the Program Manager position from grade 32 to grade 30, saving the company $15,000 per year in salary. Seagate’s Employee Handbook contained promotion gui delines stating that employees such as Koelsch were not eligible for pro motion during their first year of employment. Thus Watson had to obtain approval from Human Resource Manager Lee Johnson (“Johnson”) to promote Koelsch. There was conflicting evidence as to whether Watson was aware that Dodoo had applied for the Product Manager position. Dodoo testified (and the jury was of course entitled to credit) that Watson had told him that he was the leading candidate for the position. Watson testifi ed to the contrary: that he did not know that Dodoo had applied for the position wh en he made his decision, and that he never reviewed the applicant file compiled by the Human Resources Department. As for the Product Line Manager position, that was a newly created spot that was posted for applications on June 17, 1997, just two days after an opening in position 97E0618 (“position 618") had been poste d. Less than a month later (on July 15) an opening in position 97E0715 (“posit ion 715") was also posted. Dodoo put in an application for each of the three p ositions.-5-

Dodoo interviewed with Buck Cole (“Cole”) for posit ion 618 (the first of the three spots that had opened up) on June 18. Du ring that interview Dodoo agreed to Cole’s proposal that he instead take the Product Line Manager position that had just been posted. So another applicant wa s selected for position 618 on July 16. Cole also told Dodoo that he need not int erview for position 715 because of his pending promotion to the Product Line Manage r position. Cole signed the latter promotion of Dodoo on July 3, and Human Reso urces approved it on July 31. Then Cole filled position 715 with anothe r candidate on September 15. On December 12, with the other two positions having become unavailable, Dodoo received a letter from Human Resources statin g that the Product Line Manager position for which he was selected had beenwithdrawn. Vice-President of High Performance Product Line Management Don Kel ly (“Kelly”) testified that his reason for canceling the position was that Seag ate was “not hiring anybody” at that time because it was in the course of losing $6 00 million in business, constituting 45% of its sales, and because the new Product Line Manager position would have added unbudgeted overhead. By contrast, Human Resource Manager Johnson believed that only the Product Line Managerposition was “frozen.” In any event, the Product Line Manager position was ne ver filled. At stated earlier, at trial the jury returned verdi cts in favor of Dodoo on his ADEA and Title VII claims based on Seagate’s failur e to promote him to the-6-

Program Manager and Product Line Manager positions. As to the first set of claims, the jury awarded Dodoo $15,000 in back pay, $50,000 in emotional distress damages and $250,000 in punitive damages. As to the second, the jury awarded Dodoo $12,000 in back pay, $75,000 in emoti onal distress damages and $400,000 in punitive damages. And as to both posit ions, the jury also found that Seagate had willfully violated ADEA. Following the jury verdict, the parties agreed thatbecause the two positions were successive chronologically, the backpay damage s for the Product Line Manager position should be eliminated as duplicativ e, so that Dodoo should be awarded only the $15,000 in back pay for the Progra m Manager position. In accordance with the jury’s finding of Seagate’s wil lful violation of ADEA, the parties further agreed that the $15,000 backpay awa rd should be doubled to $30,000. In lieu of front pay, the parties also ag reed that Dodoo should be promoted to a Grade 32 position within 30 days. Fi nally, pursuant to the cap on compensatory and punitive damages imposed by 42 U.S .C. §1981(a), the district court ordered that Dodoo could recover no more than$300,000 in compensatory and punitive damages for the entire lawsuit. Promotion to Program Manager As to Seagate’s assertion of entitlement to judgment as a matter of law on Dodoo’s claims related to the Program Manager posit ion, such cases as Beck v.-7-

Northern Natural Gas Co. , 170 F.3d 1018, 1021 (10th Cir. 1999) teach that “[w]hen a jury verdict is challenged on appeal, ourreview is limited to determining whether that verdict is supported by su bstantial evidence when the record is viewed in the light most favorable to the prevailing party.” We may not substitute our judgment for that of the jury or usu rp the jury’s exclusive functions of appraising credibility, determining the weight t o be given to the testimony, drawing inferences from the facts established, reso lving conflicts in the evidence and reaching ultimate conclusions of fact (United P hosphorus, Ltd. v. Midland Fumigant, Inc. , 205 F.3d 1219, 1226 (10th Cir. 2000) and cases ci ted there). Seagate insists that Dodoo produced insufficient ev idence from which the jury could conclude that Seagate’s assertedly lawfu l reasons for its decision to promote Koelsch rather than Dodoo were pretextual. But given the conflicting testimony over whether Watson was aware that Dodoo had applied for the position when he decided to hire Koelsch, the jury was entitled to credit Dodoo’s version. Moreover, because Dodoo had 16 years’ exp erience as against Koelsch’s two months with Seagate when Dodoo applied for the promotion, the jury could reasonably infer that Dodoo was more qualified for the position and disbelieve Watson’s explanation that Koelsch was a “key employ ee” who he feared would leave Seagate to work for a competitor. And the st atements in Seagate’s Handbook that employees such as Koelsch could not b e promoted until they had-8-

worked at Seagate for at least one year, so that Ko elsch’s promotion was highly irregular, could reasonably be viewed as bolstering that determination. In sum, there is clearly substantial evidence of pr etext on Seagate’s part, in turn supporting the jury’s determination that the r eal reasons behind Seagate’s actions in denying Dodoo the Program Manager promot ion were race and age discrimination. That aspect of the jury’s verdict must be affirmed. Promotion to Product Line Manager Seagate focuses differently on Dodoo’s claim of int entional race and age discrimination in its withdrawal of the Product Lin e Manager position. On that score Seagate argues that Dodoo failed to establish a prima facie case because that position was never filled. Even if it loses i n that respect, Seagate contends there is insufficient evidence to show pretext in S eagate’s proffered explanation that the position was withdrawn because of a hiring freeze generated by business losses. As an initial matter, we note that the familiar McD onnell -Douglas pingpong analysis is unnecessary at trial: Instead the ultimate test is whether plaintiff has produced enough creditable evidence to persuade the trier of fact that defendant acted with discriminatory intent and thatsuch intent caused plaintiff’s injury (Stewart v. Adolph Coors Co. , 217 F.3d 1285, 1288 (10 thCir. 2000); Furr v. Seagate Tech., Inc. , 82 F.3d 980, 985 (10th Cir. 1996)). Hence we pro ceed-9-

directly to that inquiry, rather than addressing th e intermediate issue of whether Dodoo established a prima facie case at trial. First Seagate argues that Dodoo offered no evidence to controvert its assertion that the newly created Program Line Manag er position was withdrawn because of a hiring freeze. But Dodoo showed that during the same time frame six others were promoted within the Product Line Management department in Oklahoma City and that a substantial number of posi tions were filled in Seagate’s Minneapolis and Moorepark, California facilities. And to underscore that contrast, Human Resource Manager Johnson testified that the Product Line Manager position was the only job affected by the c laimed hiring freeze. By way of explanation, Seagate points to the Produc t Line Manager job as a new unbudgeted position, while the other jobs actua lly filled were existing budgeted positions. But Dodoo produced not only th e just-mentioned testimony that the authorized Product Line Manager post was t he only one affected by the so-called hiring freeze but also evidence that job freezes and promotions were never tied together. All of that, when augmented b y the fact that the post was withdrawn only after the other two positions to whi ch Dodoo could have been promoted were filled, suffices for a reasonable jury inference that Seagate’s explanation was unworthy of credence and hence thatDodoo’s promised promotion was withdrawn for discriminatory reasons. Accordingly this other-10-

aspect of the jury verdict must also be affirmed. Testimony of Dr. Randy Clark Next Seagate argues that it was reversible error to allow the testimony of Dodoo’s former supervisor Clark because he had no i nvolvement in any challenged decision, nor did any decisionmaker relyon Clark’s input in making a challenged decision. Because that objection was in terposed at trial, we review the district court’s ruling to allow Clark’s testimony under an abuse of discretion standard (Acrey v. American Sheep Indus. Ass’n , 981 F.2d 1569, 1575 (10th Cir. 1992)). We will not overturn the trial court unles s it has made “an arbitrary, capricious, whimsical, or manifestly unreasonable j udgment” (Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co. , 170 F.3d 985, 992 (10th Cir. 1999)). Clark testified both to the content of Dodoo’s perf ormance appraisals that he had filled out and to Dodoo’s being the top appl ications engineer for Seagate’s Oklahoma City facility. Seagate urges that testimo ny was both irrelevant and unfairly prejudicial because none of Clark’s apprai sals was used by any of the decisionmakers for the challenged decisions. But t hat misses the point that Clark’s testimony was relevant to whether Dodoo was qualified for the positions for which he applied. Finally, Clark testified to the organizational structure of Seagate, information helpful to the trier of fact i n understanding the case. In sum, Clark’s testimony was clearly relevant, and the trial judge was-11-

entirely justified in finding that its probative va lue outweighed any prejudicial effect on Seagate. It cannot be said that the admi ssion of that testimony was an abuse of discretion. “Aggregation Bias ” Seagate attempts to draw upon the statistical pheno menon known as “aggregation bias” to challenge both Dodoo’s advanc ement of multiple claims at trial and, relatedly, the trial court’s refusal to submit one of Seagate’s requested jury instructions. Aggregation bias is a phenomeno n that may occur when individual events are considered as a group--when there is insufficient similarity between those events to imply that the fact they al l came out the same way was other than aleatory, but when a factfinder nonethel ess attributes one cause to all of the events based on a cumulative impression, rat her than separately determining the cause of each event. Seagate did not object at trial to Dodoo’s alleged “aggregation strategy.” That being so, United States v. Ivy , 83 F.3d 1266, 1287 (10th Cir. 1996) (citations, internal quotation marks and punctuatio n marks omitted) states the test: The failure to object to the introduction of eviden ce is deemed a waiver of the objection absent plain error. A plai n error is one that is obvious or seriously affects the fairness, integrity, or public reputation of judicial proceedings. Accord, McEwen v. City of Norman , 926 F.2d 1539, 1545 (10 thCir. 1991) and cases cited there.-12-

In this instance Seagate complains of the trial cou rt’s permitting Dodoo to introduce evidence as to all seven of Seagate’s cha llenged promotion decisions at one trial. As Seagate R. Br. 9 would have it, “whe n multiple claims are brought in a single lawsuit there is an inherent danger that the jury will simply conclude that unlawful discrimination existed based on multi ple adverse decisions, even when evidence of causation and unlawful intent is l acking.” But any challenge to Dodoo’s joinder of all of his claims against Seagate in one trial can scarcely equate to an assertion of pl ain error: It is of course the common and preferred method of litigation in the fe deral courts for obvious reasons of judicial economy--particularly where, as here, the joined claims share common issues of law and fact (see Fed. R. Civ. P. 18(a)). Moreover, Seagate’s position reflects an impermissible distrust of the jury system. Here the jury instructions and the verdict form required the juryto make separate findings for each claim under each challenged promotion decision . Indeed, the proof of the pudding was in the eating: Seagate prevailed on al l claims related to five of the seven challenged decisions, while Dodoo won on the other two--providing the best possible proof that the jury considered each c laim separately. Seagate nonetheless contends it is entitled to a ne w trial because the trial court refused its proffered instruction on aggregat ion bias. We review a district court’s refusal to give a requested jury instructio n under an abuse of discretion-13-

standard (Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1509 (10th Cir. 1997)). Here Seagate’s proposed instruction was extraordinarily prolix and, from a substantive point of view, was properly viewed as simply cumulative of the already-given instructions that called for the jury to consider e ach claim separately. Other Jury Instructions Seagate advances three other objections to the dist rict court’s jury instructions. In that regard “[w]e review de novo. ..the question of whether the instructions, taken as a whole, properly conveyed t he applicable law and focused the jury on the relevant inquiry” (Suiter v. Mitche ll Motor Coach Sales, Inc. , 151 F.3d 1275, 1285 (10th Cir. 1998)). First Seagate objects to the jury instruction as to the fourth element of a prima facie discrimination case. To be sure, the typical articulation of such elements where preferential treatment is at issue i s (1) that plaintiff is a member of a protected class, (2) that he was qualified forthe position sought, (3) that he was rejected and (4) that the position was filled b y someone who was not a member of the protected class (Thomas , 111 F.3d at 1510). But that formulation obviously does not fit all of Dodoo’s claims now atissue, and Furnco Constr. Corp. v. Waters , 438 U.S. 567, 577 (1978) typifies the many cases that counsel “[t]he method suggested in McDonnell Douglas for pursuing this inquiry, however, was never intended to be rigid, mechanized , or ritualistic.”-14-

Here the jury was told that the fourth element of a ny of Dodoo’s prima facie claims of race and national origin could be e stablished by a determination: that the position (a) remained open to be filled by a nonminority; or (b) was to be filled with plaintiff, but was later withdraw n while substantially similar promotions of nonminorities were not withdr awn. Seagate complains wrongly that such an instruction “effectively directed a verdict for Dodoo by tailoring the fourth element of his pr ima facie cases to fit his specific factual allegations.” That is just a vari ant of Seagate’s wrongheaded argument that simply because the Product Line Manag er position was never filled, Dodoo is foreclosed from recovery on that claim. After all, the laws that bar employment discriminat ion are intended to protect against any type of adverse employment deci sion motivated by a statutorily forbidden discriminatory intent. And t hat principle applies with equal force to (1) such an adverse decision that discrimi natorily favors an employee who is not a member of a protected class over anoth er employee who is and (2) such an adverse decision to break an employment pro mise to a member of a protected class because that person is such a class member--and in that latter respect, one way in which that discriminatory inten t can manifest itself is by eliminating the promised position. If then the jury found (as it plainly could from th e evidence) that the promotion for which Dodoo was approved was canceledbut that no other1 Seagate complains that the district court failed to instruct the jury on

what constituted “substantially similar” promotions . But “substantially similar” is sufficiently clear on its own to permit a jury to apply it sensibly--and moreover, the trial court limited the evidence of other promo tions and job postings to those it found both relevant and not unduly prejudicial o n the issue whether there was a job freeze at the time the Product Line Manager pos ition was cancelled. -15- promotions involving comparable salary increases, d uties and departments were canceled during the same time period, 1 that finding--together with the other elements of Dodoo’s prima facie case--would just as plainly permit the jury to draw the reasonable inference of unlawful discrimin ation. Hence the district court’s instruction was entirely in order. Seagate’s next contention, that the district court’ s instruction on pretext was erroneous, may be disposed of easily. On that score Seagate asserts that the district court erred in telling the jury that evide nce of pretext may include “prior treatment of plaintiff,” an assertion predicated on the premise that the quoted language impermissibly referred to Clark’s testimony. But that just-quoted phrase from the instruction was taken verbatim from our de cision in Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Se rvs. , 165 F.3d 1321, 1328 (10th Cir. 1999) and is neither misleading nor an i ncorrect statement of law (see Suiter , 151 F.3d at 1285, upholding a jury instruction th at adopted language from an earlier Tenth Circuit opinion). When the distri ct court’s instruction on pretext is read as a whole--as we must--it conveys the gove rning law on that subject both properly and clearly.-16-

Seagate finally attacks the instruction on punitive damages. Seagate urges that while the district court’s instruction correct ly stated the standard of misconduct, it failed to include an instruction on the legal basis for imputing liability for such misconduct to Seagate, as assert edly required by Kolstad v. American Dental Ass’n , 527 U.S. 526 (1999) (decided after the jury’s ver dict but before entry of final judgment). Even if this were an appropriate case for retroacti ve application of a newly announced rule of law (a question we need not decid e), Kolstadis inapplicable to the present facts. As Deters v. Equifax Credit Inf ormation Servs. , 202 F.3d 1262, 1271 (10th Cir. 2000) has explained, Kolstadinvolved vicarious liability, so that its agency principles do not bear on the situation here, where punitive damages are imposed on the basis of direct liability. Kols tadsimply has no impact on the instructions given by the district court.

Damages Awards and Finding of Willfulness Seagate lastly argues that it is entitled to judgme nt as a matter of law on damages and on the jury’s finding that it willfully violated ADEA because there was insufficient evidence to support the jury’s det erminations on those issues. As we have already said, our review of jury findings i s limited to determining whether the findings are supported by substantial e vidence (Wulf v. City of Wichita , 883 F.2d 842, 874 (10th Cir. 1989)). As for dama ges issues in-17-

particular, Wulf

, id . at 874-75 (internal citation and punctuation mark s omitted) teaches: Additionally, absent an award so excessive or inade quate as to shock the judicial conscience and raise an irresistible i nference that passion, prejudice or another improper cause invade d the trial, the [jury’s] determination of the amount of damages is inviolate. And the adequacy of evidence to support punitive da mages is a question of law reviewed de novo (Fitzgerald v. Mountain States Tel . & Tel. Co. , 68 F.3d 1257, 1262 (10th Cir. 1995)). As to the jury’s award of lost earnings, Seagate ar gues that Dodoo suffered no actual losses, both because the Product Line Man ager job was cancelled and because the Program Manager position was downgradedfrom grade 32 to 30, with its salary reduced to $15,000 less than Dodoo’s. B ut we have already explained that the district court, with the parties’ agreemen t, eliminated the duplicative aspect of a backpay award for both promotions. Bec ause that knocked out any backpay component for the Product Line Manager posi tion, Seagate’s objection to that damage element is rendered moot. As for the remaining backpay award (for Seagate’s f ailure to promote Dodoo to the Program Manager position), the evidenc e sufficed for a jury finding that but for Seagate’s unlawful discrimination the position would not have been downgraded to grade 30 (it will be recalled that do wngrading took place in the context of awarding the position to newcomer Koelsc h, for whom grade 30 was a-18-

step up from grade 28). It was surely reasonable for the jury to infer that if Dodoo had gotten the spot instead, that job would h ave remained at grade 32 (as originally posted), with Dodoo receiving the corres ponding increase in salary. Next Seagate disputes the jury’s award of emotional distress damages. Dodoo testified that he has trouble sleeping and wa kes up with his heart pounding, not knowing where he is. In addition, he testified that he worked very hard to position himself well in America after immi grating to this country, but has felt that he was not recognized for his efforts. A fter having worked for Seagate for 18 years, Dodoo feels it was too late for him t o start his career over with another employer. Dodoo has sought the counsel of his wife, ministers and friends to deal with these issues. All of that evi dence forms a sufficient basis to support the jury’s award of emotional distress dama ges in the amount of $125,000. Third, Seagate challenges the jury’s award of punit ive damages, essentially repeating its argument about the punitive damages i nstruction. But again the Kolstaddoctrine is inapplicable: Because Dodoo sought pu nitive damages under a direct liability theory instead, he needed to sho w malice or reckless indifference to his federally protected rights on the part of th e managers whom Seagate designated to implement the company’s anti-discrimi nation policy (see Deters , 202 F.3d at 1271).-19-

In that respect Dodoo produced evidence that manage r Johnson in Seagate’s Human Resource Department--the department charged w ith enforcing that policy--was guilty of reckless indifference. For o ne thing, after Johnson initially suggested that Dodoo take advantage of Seagate’s jo b posting system, he then approved the promotion of Koelsch over Dodoo in the face of the Seagate Handbook’s prohibition against the promotion of an employee such as Koelsch, who had been in his current position for just two m onths--far less than the one year Handbook requirement. As for the other denied promotion--the Product Line Manager position--when Vice President of Product Line Manag ement Kelly decided to withdraw that job for what the jury found to be unl awful discriminatory reasons, the Human Resources Department sent Dodoo a letter notifying him of the withdrawal. Its knowledge of that withdrawal was c oupled with Johnson’s acknowledgment that he was told the reason was beca use the Product Line Manager position was “frozen” and that he understoo d that no other promotions were “frozen” at that time. Taken together, that e vidence supports a jury finding that Johnson acted at least with reckless indiffere nce to Dodoo’s protected rights, so that punitive damages were warranted. Finally, Seagate contests the jury’s finding that i t willfully violated ADEA. That “willfulness” determination requires a showing that Seagate either knew, or-20-

evinced reckless disregard toward the question whether, its conduct was prohibited by ADEA (Hazen Paper Co. v. Biggins , 507 U.S. 604, 614 (1993), citing Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 126 (1985)). This opinion’s earlier discussion as to punitive damages scotches Seagate’s argument to the contrary. Indeed, the jury was also entitle d to infer from Seagate’s pretextual explanations for its actions that it kne w its conduct was unlawful. Conclusion This opinion has been overly extended because of th e sheer volume of Seagate’s attempted onslaughts on the result below- -but every one has come up empty. We AFFIRM the judgment of the district court and deny Seagate’s alternative requests (1) for judgment as a matter o f law and (2) for a new trial.