*

The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0298p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

RICHARD TISDALE,

Plaintiff-Appellee,

v.

FEDERAL EXPRESS CORP.,

Defendant-Appellant.

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No. 03-6605

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 00-01219—Todd J. Campbell, District Judge.

Argued: December 6, 2004

Decided and Filed: July 14, 2005 

Before: MARTIN and MOORE, Circuit Judges; BELL, District Judge.*

_________________

COUNSEL

ARGUED: Jay L. Grytdahl, FEDEX EXPRESS, Memphis, Tennessee, for Appellant. David B.

Lyons, Nashville, Tennessee, for Appellee. ON BRIEF: Jay L. Grytdahl, FEDEX EXPRESS,

Memphis, Tennessee, Jeana M. Littrell, FEDERAL EXPRESS CORPORATION, Memphis,

Tennessee, for Appellant. David B. Lyons, Nashville, Tennessee, for Appellee.

_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. In this case, Defendant-Appellant, Federal

Express Corporation (“FedEx”), appeals a jury verdict in favor of Plaintiff-Appellee, Richard

Tisdale (“Tisdale”) as well as the award of $100,000 in punitive damages. The jury found that

FedEx violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, by

terminating Tisdale in retaliation for his complaints about racially discriminatory management

practices. On appeal, FedEx argues that the district court erred in deciding several issues including:

(1) the denial of its motion to dismiss and/or strike evidence of backpay for discovery abuse; (2) the

denial of its motion for judgment as a matter of law on the grounds that the administrative remedy

was unexhausted; (3) the denial of its motion for a new trial where the clear weight of the evidence

did not support the jury’s verdict; (4) the award of punitive damages; and finally, (5) certain

1
No. 03-6605 Tisdale v. Fed Express Corp. Page 2

1

A pallet is “a small, low, portable platform on which goods are placed for storage or moving, as in a warehouse

or vehicle.” Random House Unabridged Dictionary 1398 (2d ed. 1993).

evidentiary rulings. Upon review of all of FedEx’s arguments, we conclude that the district court

did not err on any of these issues, and thus we AFFIRM the jury verdict in favor of Tisdale and the

grant of punitive damages.

I. BACKGROUND

From 1996 until 2000, Tisdale was employed as a handler and ramp transport driver (“RTD”)

at FedEx’s Nashville distribution station (hereafter “BNART”). During his employment, Tisdale

raised several concerns to management regarding the disparate treatment of its African-American

employees at BNART. Specifically, in 1998, Tisdale, who is African-American, complained to

management that he was not paid for attending a FedEx driver training program, while white

employees were. He also complained to management that African-American employees were being

passed over for promotion and advancement to either dispatcher or office positions. Of the

approximately thirty African-American employees at BNART, none served as managers or

supervisors at this time. In response to the complaints, FedEx sent an investigator from Atlanta to

meet with the African-American employees at BNART to discuss the practices there, but no

substantial changes were made. At the end of 1999, the African-American employees at BNART

boycotted the office Christmas party in protest of what they perceived were management’s

discriminatory practices. Mr. Tim Stuthard (“Stuthard”), the operations manager of BNART, asked

Tisdale why the African-American employees did not attend the party, to which Tisdale responded

“[a] lot of people feel like if they are not going to be able to get some of those office jobs they don’t

want to sit down and have dinner with you.” Joint Appendix (“J.A.”) at 565 (Trial Tr. Vol. I at 237).

On February 3, 2000, Frances Miller (“Miller”), the managing director of Air, Ground, &

Freight Services for the Southcoast District, visited the BNART station and met with all the

employees. Stuthard, the operations manager and direct supervisor of Tisdale, attended the meeting.

Miller asked the assembled employees if there were any issues that they would like to discuss. At

that point, Tisdale stood up at the public gathering and stated he had concerns regarding how

African-Americans were treated at BNART. In response to his statements, Miller suggested that

they talk privately following the meeting.

After the public meeting, Tisdale and another African-American driver, Lovie Hurt (“Hurt”),

met with Miller and discussed their specific concerns. Miller advised Tisdale and Hurt to put their

concerns in writing and promised that FedEx would investigate. On February 13, 2000, a letter, cowritten by Tisdale, and signed by eighteen other employees, was sent to Miller documenting their

allegations of discriminatory treatment at BNART. Two days earlier, however, Tisdale had been

suspended for suspected theft of FedEx property, and he was ultimately terminated.

FedEx’s reasons for terminating Tisdale related to his involvement in the pallet-recycling

program at BNART. While FedEx uses its own customized containers to transport materials, the

company receives large shipments from customers on pallets.1

 When FedEx employees transfer the

packages to a FedEx container, the pallets become waste. Neither FedEx as a company, nor BNART

specifically, had a policy regarding the disposal of the pallets, other than the general policy to

dispose of waste in an environmentally-friendly manner. Instead, as one BNART employee

testified, “the pallets were stacked up on the dock[] [and] thrown into the dumpster.” J.A. at 428

(Trial Tr. Vol. I at 146). In the past, one employee had even gathered the pallets, sold them to a

recycler, and kept the proceeds.

In 1997, Tisdale decided to sell the pallets to a recycler and use the proceeds for an employee

fund to pay for the company Christmas party, picnics, and other employee events. A bank account
No. 03-6605 Tisdale v. Fed Express Corp. Page 3

2

Stuthard later admitted at trial that the numbers which he quoted in his email were inaccurate. J.A. at 500

(Trial Tr. Vol. II at 461). Specifically, FedEx received $1,573.25 for the sale of pallets in the month of January 2000.

J.A. at 880, 885 (FedEx Pallet Account Bank Statement). Moreover, the check to Tisdale for his after-hours collections

was shared with the other FedEx drivers who helped gather non-FedEx pallets in their spare time.

(hereafter “the FedEx pallet account”) was set up in which Tisdale, and three other employees had

check-writing privileges. The only restriction FedEx managers put on the four employees is that

they could not profit from the program, but otherwise Tisdale “was told to do the pallet operation

as [he saw] fit.” J.A. at 601 (Trial Tr. Vol. I at 313). Tisdale would deliver the pallets and receive

a check written out to him, which he would then deposit into the FedEx pallet account. Recognizing

a profitable opportunity for himself, Tisdale collected discarded pallets from various other stores in

the area during his off-hours and sold them to recyclers. Several other FedEx employees helped him

in this endeavor during non-work hours as well. The pallet recyclers would write a single check to

Tisdale, who would then deposit the amount for the FedEx pallets in the FedEx pallet account, and

share the remaining amount with all the drivers who helped him in the after-hours enterprise.

Management at BNART knew that Tisdale and other FedEx drivers were working for the palletrecycling companies after work.

The FedEx pallet program was such a success that Tisdale received an employee award from

Brett Gardner (“Gardner”), BNART’s senior manager, in recognition of his efforts “to plan,

organize, communicate and fund the 1998 ‘Second Annual BNART Christmas Party.’” J.A. at 909

(Memorandum from Gardner to Tisdale (Dec. 5, 1998)). In July 1999, Gardner assumed control of

the FedEx pallet account from the employees, and thereafter received all the checks and invoices

for the FedEx pallets and disbursed all the funds for the employee events. Thus, McKinney Lumber

(“McKinney”), the chief purchaser of the used pallets, wrote checks for the FedEx pallets to Gardner

and wrote checks to Tisdale only for the pallets collected after-hours by him and his fellow drivers.

In January 2000, Stuthard, an operations manager, became Tisdale’s immediate supervisor

and began an investigation into the pallet-recycling program. On February 3, 2000, following his

private meeting with Tisdale and Hurt about racial tensions at the facility, Miller, the regional

managing director, met with the managers of BNART, including Stuthard. At the meeting, Stuthard

informed Miller of his belief that Tisdale was stealing from FedEx by selling used pallets from

BNART and keeping the proceeds for himself. Miller told him to investigate further. On

February 4, 2000, Stuthard visited McKinney and reviewed the checks paid to Tisdale for the pallets.

Two days later, Stuthard sent an email to Jeff Werner, who worked in FedEx’s personnel

department, recounting his findings:

I paid another visit to the location that Tisdale is selling pallets too[sic]. I’m about

to blow you away. For the month of January, Mr. Tisdale has been paid $7,747.50

and Federal Express got $535.25. All the money Tisdale has made was off Federal

Express owned property. What do you think about his nice little operation now?

That’s only $2000.00 per week or $100,000 tax free dollars per year. Keep in mind,

Tisdale has no cost associated with this income. He has been using company owned

vehicles and fuel. He has been paid delivering the pallets. I refuse to believe that

Federal Express can’t prosecute this man for stealing. As I said before, he is bigger

than life itself at this location. I want to bring his little empire down! This is a sad

commentary and complete failure on [sic] management to allow this activity. What

can we do?

J.A. at 1061 (E-mail from Stuthard to Jeff Werner (Feb. 6, 2000)).2

 Stuthard sent the email without

first discussing the situation with Gardner, his supervisor and the person overseeing the FedEx pallet

account. The following day, Miller spoke with Gardner, who told Miller that he believed the FedEx

pallet account was accurate given the number of pallets received at the BNART facility.
No. 03-6605 Tisdale v. Fed Express Corp. Page 4

Nonetheless, that same day, Miller contacted Anita Gay Bynum (“Bynum”), the zone manager with

FedEx’s security division, and asked her to investigate the FedEx pallet account. On February 10,

2000, after speaking to Stuthard and Sam Wrather (“Wrather), the general manager for McKinney,

Bynum interrogated Tisdale following his shift, from 10:00 P.M. to 1:00 A.M. Throughout the

interview, Tisdale stated repeatedly that he believed that he had not confused FedEx pallets with the

pallets he collected during his own time. Despite his denials, Bynum continued to press the issue:

[Bynum]: Is there a possibility that you brought in a load of pallets and they

were confused on these are Fed-Ex pallets or these are your pallets

and maybe they wrote you a check.

[Tisdale]: Not to my knowledge, not to my recollection.

[Bynum]: Maybe you were tired and —

[Tisdale]: Sometimes, sometimes they uh, they don’t know if I’m working for

them or if I done brought it over for Fed-Ex or. I see what you’re

saying, but not to my knowledge I hadn’t —

. . . . [Bynum]: Right, but, I’m saying maybe by possible, some type of accident or

confusion and something you were maybe work out later that, or

maybe you, after. Ya know, because you have to admit you’re a busy

man. Sometimes, I’m sure you wake up in the morning and you

don’t even know what day it is. You’re just trying to figure out what

job am I supposed to go to and what I have to do today, try to sort all

of this through your mind. You grab some pallets, you know that

they have to be taken down there. They write you a check, you

pocket it. . . . They’ve written the check to me and this really should

have been written to Fed-Ex. But you feel like well, if I say

something now they may think that I’m doing something wrong. So

ya know, what do I do? Well, I just don’t say anything. . . .

[Tisdale]: Not to my knowledge. I don’t remember ever having going,

confused, mixed up or anything. Not to say that it hasn’t happened.

[Bynum]: I think you’re taking so many pallets over there, that you’re getting

them confused on what’s Fed-Ex pallets and what’s your pallets.

[Tisdale]: Uh huh.

[Bynum]: Ya see what I’m saying?

[Tisdale]: Yeah. . . . . [Bynum]: I know but, now do you think maybe somehow that there’s a

possibility that they could have got something confused as far as

what you’re turning into them is this your personal pallets or your

Fed-Ex pallets?

[Tisdale]: Ummm, it might be a possibility. But what I’m saying is that I’m not

100% sure that it, that it’s ever happened, I guess is what I’m trying

to say — 

. . . . [Bynum]: Cause I don’t think, Richard, I don’t think that you’re doing anything

intentionally wrong here. Now have there been mistakes made, yeah,

ya know I think as far as you trying to juggle all this different stuff

around that you don’t know who’s pallets you’ve got, ya know at

certain times. Ya know, you take these pallets over there, they

unload them, go, the next day you’re picking up checks. You’re

dropping off more pallets, well no, now these are my pallets, well

wait yesterday, what was them pallets, well ya know yesterday I

think those were my pallets. Ya know what I mean?
No. 03-6605 Tisdale v. Fed Express Corp. Page 5

3

In her testimony at trial, the only documentary evidence Bynum cited that Tisdale received money for FedEx

pallets was a picture of a load of FedEx pallets sold to McKinney on January 26, 2000, and a check written to Tisdale

on January 27, 2000, for $781.25. In his testimony, Stuthard estimated that approximately 200-250 pallets were in the

truck, which means McKinney paid roughly $3.47 per pallet. J.A. at 528-29 (Trial Tr. Vol. III at 562-63). McKinney

typically paid between $0.25 and $3.75 per pallet depending upon the quality. On February 4, 2000, McKinney paid

FedEx $326.25 for 261 pallets, or approximately $1.25 per pallet. J.A. at 1156-57 (McKinney Check and Invoice).

There is no evidence in the record that a second collection of FedEx pallets was taken to McKinney after the January

26th load. Tisdale argued at trial that the February 4th check was for the January 26th delivery, which had not been

unloaded until then.

[Tisdale]: Yes ma’am.

[Bynum]: And I think that’s probably what’s happening here . . . I just, ya

know, I just feel like, that with everything that you’ve told us, that,

ya know you’re trying to be helpful, you’re trying to be as honest as

you possibly can and trying to recall as much as you can to, ya know,

that if there has been mistakes made, we’re gonna clear them up now.

Ya know, I think that you need to get a hold of, ya know you’re

gonna have to slow down, you’re not a young man.

[Tisdale]: Uh huh.

J.A. at 104-07 (Bynum Interview Tr.). Finally, after several hours, when asked to estimate how

many FedEx loads could have been mistakenly registered as his own, Tisdale stated “[m]aybe about

three loads” but clarified that he was “just taking a wild guess at what, ya know, at what could have

transpired.” J.A. at 110 (Bynum Interview Tr.). Following the interview, Bynum wrote out a

statement, which Tisdale signed, stating that McKinney had paid him for FedEx pallets “maybe 3

or 4 times.” J.A. at 1137 (Employee Statement at 11). She also wrote an investigative memo to

management which stated that Tisdale admitted to stealing three or four loads and omitted any

indication that it might have been a mistake.3

 Bynum admitted at trial that during the interview she

“just needed [Tisdale] to admit that he had taken the pallets and he had stole[n] them and failed to

turn in the money.” J.A. at 386 (Trial Tr. Vol. III at 723). She also testified that she did not discuss

with Gardner the specifics of the FedEx pallet account, but just asked him for general background

information.

On February 21, 2000, Stuthard terminated Tisdale’s employment on the grounds of theft

of company property. No investigation was ever undertaken with respect to the other FedEx drivers

who had collected pallets for McKinney. Tisdale filed a grievance through FedEx’s Guaranteed Fair

Treatment Procedure, claiming that he was terminated because of race. Ultimately, FedEx

management upheld the termination. Tisdale then filed a charge with the EEOC, which issued him

a right-to-sue notification. On December 12, 2000, Tisdale filed suit against FedEx in the United

States District Court for the Middle District of Tennessee alleging a violation of his rights under

Title VII. Following a contentious discovery period and a three-day trial, the jury found FedEx

guilty of retaliation in violation of Title VII, and awarded Tisdale $100,000 in punitive damages.

The district court also awarded Tisdale backpay in the amount of $15,000, which was stipulated to

by the parties. FedEx appeals from the verdict and the award of punitive damages on several

grounds.

II. ANALYSIS

A. Discovery Sanctions

The first issue which FedEx raises in its appeal is that the district court erred in denying its

motion to dismiss and/or strike evidence of backpay because of Tisdale’s abuse of the discovery

process. Upon review, we conclude that the district court did not abuse its discretion in denying

FedEx’s motion on the grounds that Tisdale failed to supplement his interrogatory responses.
No. 03-6605 Tisdale v. Fed Express Corp. Page 6

Pursuant to Federal Rule of Civil Procedure 26(e)(2), “[a] party is under a duty seasonably

to amend a prior response to an interrogatory, request for production, or request for admission if the

party learns that the response is in some material respect incomplete or incorrect.” Fed. R. Civ. P.

26(e)(2). Failure to do so results in the party being unable to use the undisclosed information at trial

as well as “other appropriate sanctions” that the district court may impose. Fed. R. Civ. P. 37(c)(1).

“We review a district court’s decision regarding Rule 37 sanctions for abuse of discretion.” Toth

v. Grand Trunk R.R., 306 F.3d 335, 343 (6th Cir. 2002). We have stated that “[a]n abuse of

discretion occurs when (1) the district court’s decision is based on an erroneous conclusion of law,

(2) the district court’s findings are clearly erroneous, or (3) the district court’s decision is clearly

unreasonable, arbitrary or fanciful.” Id. (internal quotation omitted). Moreover, factors which

should be considered in determining whether the district court abused its discretion include

“prejudice resulting from the discovery abuse, whether the noncooperating party was warned that

violations would result in sanctions, and whether the court considered less drastic sanctions.” Id.

In this case, FedEx argues that Tisdale provided false responses and omitted information

from his responses to its discovery requests regarding his post-termination employment. Reviewing

FedEx’s motion prior to trial, the district court agreed with FedEx in part and therefore dismissed

Tisdale’s claim for front pay. In its appeal to this court, FedEx contends that the district court

should have dismissed the entire retaliation claim or the backpay claim in light of Tisdale’s

discovery abuse. Specifically, FedEx argues that Tisdale failed to provide information about his

employment at a numbers house, work he did for a moving company, and his side business of

repairing shoes. FedEx also claims that Tisdale omitted the names of several employers to whom

he applied for jobs. Upon review of the record, we conclude that FedEx’s argument is without

merit.

First, the record reveals that Tisdale took significant steps to try to comply with FedEx’s

extensive discovery requests. See J.A. at 301-03. (Notice of correspondence from Tisdale to FedEx

regarding discovery responses). In a letter dated July 9, 2002, Tisdale provided a list of all his

current and potential employers, including those that FedEx cites in its brief as omitted. J.A. at 273

(Letter from David B. Lyons to Mary Jane Palmer (July 11, 2002)). Tisdale also provided his tax

information from 2001 and 2002 as well as signed releases enabling FedEx to discover any records

relating to his employment held by his employers. Tisdale’s inability to comply fully with FedEx’s

request is largely a result of the fact that his post-termination economic livelihood consisted of

sporadic employment with several different employers supplemented by many informal, discrete

jobs, such as fixing co-workers’ shoes or helping to load a moving truck. The absence of

information provided to FedEx is a result of the non-existence of such information. Thus, we

conclude that the record does not reveal that Tisdale intentionally withheld any information from

FedEx.

Moreover, there is no evidence in the record that the absence of the requested information

in any way prejudiced FedEx in this case. Recognizing the ambiguous and uncertain nature of

Tisdale’s post-termination employment, the district court dismissed Tisdale’s front-pay claim. The

district court’s sanction was an appropriate remedy for the absence of information FedEx sought.

The district court concluded, however, that FedEx had sufficient knowledge of Tisdale’s

employment activities such that it could thoroughly cross-examine him on the issue of backpay.

Indeed, FedEx challenged Tisdale at trial about several of his post-termination jobs including those

about which it claims full information was withheld. See J.A. at 618-24 (Trial Tr. Vol. I at 378-83,

386).

In sum, we conclude the district court’s sanction of striking the front-pay claim was an

appropriate response to Tisdale’s failure to respond fully to FedEx’s discovery requests.

Accordingly, we hold that the district court did not abuse its discretion in denying FedEx’s motion

to dismiss the complaint in its entirety and/or strike evidence of backpay as a discovery sanction.
No. 03-6605 Tisdale v. Fed Express Corp. Page 7

4

Tisdale argues in his brief that we should not consider FedEx’s appeal from the ruling on the motion for

judgment as a matter of law under Rule 50(a) made at the close of all the evidence. Indeed, we have held that where an

appellant has made “a Rule 50(a) motion at the close of evidence that was . . . denied, lost in front of a jury, then renewed

its arguments in a rejected Rule 50(b) motion after entry of judgment, we will review only the denial of the Rule 50(b)

motion.” K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 174 (6th Cir. 1996). Though FedEx refers to this argument

in its brief as an appeal of the denial of its motion for judgment as a matter of law, it is unclear whether FedEx is

referring to its Rule 50(a) or Rule 50(b) motion. The distinction is irrelevant, however, because FedEx made the same

argument in both motions. See J.A. at 331 (Dist. Ct. Order). Accordingly, we assume that FedEx is appealing the ruling

on the renewed motion for judgment as a matter of law, rather than the earlier Rule 50(a) decision.

B. Renewed Motion for Judgment as a Matter of Law

The second issue which FedEx raises on appeal is that it is entitled to judgment as a matter

of law because Tisdale’s EEOC complaint failed to include a retaliation claim.4

 Upon review, we

conclude that the district court did not err in denying FedEx’s renewed motion for judgment as a

matter of law.

We review a district court’s denial of “a renewed motion for judgment as a matter of law de

novo.” Barnes v. City of Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005). Judgment as a matter of law

is appropriate when “viewing the evidence in the light most favorable to the non-moving party, there

is no genuine issue of material fact for the jury, and reasonable minds could come to but one

conclusion in favor of the moving party.” Noble v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th Cir.

2004) (internal quotation omitted). In this case, FedEx argues that it is entitled to judgment as a

matter of law because Tisdale failed to check the box on the EEOC form marked “retaliation.” As

a result, FedEx argues that Tisdale failed to exhaust his administrative remedies, and therefore his

retaliation claim should have been dismissed. Though it is undisputed that the retaliation box was

unchecked, we conclude that FedEx’s argument is without merit.

We have stated that “if a plaintiff did not first present a claim to the Equal Employment

Opportunit[y] Commission, that claim may not be brought before the federal courts on appeal.”

Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir. 1992). In the case of a retaliation claim not

included in an EEOC charge, we have held that “retaliation claims based on conduct that occurred

before the filing of the EEOC charge must be included in that charge.” Strouss v. Mich. Dep’t of

Corr., 250 F.3d 336, 342 (6th Cir. 2001); accord Abeita v. TransAm. Mailings, Inc., 159 F.3d 246,

254 (6th Cir. 1998); Ang v. Procter & Gamble Co., 932 F.2d 540, 547 (6th Cir. 1991). We have

cautioned, however, that an EEOC charge “filed by lay complainants” should be “liberally

construed,” Haithcock, 958 F.2d at 675, because they “are unschooled in the technicalities of the law

and proceed without counsel.” Ang, 932 F.2d at 546. Actions in federal court “should not be

restricted by the failure of a complainant to attach the correct legal conclusion to the EEOC claim,

conform to procedural technicalities, or include the exact wording which might be required in a

judicial pleading.” Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir.

1998) (internal quotation omitted). Thus, where the claimant is unrepresented, a “broader reading

of the charge . . . is compelled.” Duggins v. Steak ’N Shake, Inc., 195 F.3d 828, 832 (6th Cir. 1999).

In such cases, we have stated that “[t]he judicial complaint must be limited to the scope of the EEOC

investigation reasonably expected to grow out of the charge of discrimination.” Ang, 932 F.2d at

545 (internal quotation omitted). Therefore, “where facts related with respect to the charged claim

would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded

from bringing suit on that claim.” Davis, 157 F.3d at 463.

In applying this principle, we have found jurisdiction over a Title VII retaliation claim even

though the complainant failed to check the retaliation box on the EEOC form. In Duggins, the

plaintiff “related facts to the EEOC which would have prompted an investigation into retaliation.”

195 F.3d at 832. We stated that “[w]here the plaintiff alleged facts to the EEOC which clearly

included retaliation allegations . . . and where that plaintiff was not represented by legal counsel in
No. 03-6605 Tisdale v. Fed Express Corp. Page 8

writing her one-page EEOC charge, such a plaintiff should not be precluded from bringing a

retaliation claim in the complaint.” Id. at 833. We also noted that “retaliation naturally grows out

of any underlying substantive discrimination charge, making a retaliation claim forseeable to [the]

defendants.” Id.

Applying these principles to Tisdale’s case, we conclude that the district court did not err

in denying FedEx’s renewed motion for judgment as a matter of law. While it is true that Tisdale

failed to check the retaliation box on his EEOC charge, at the time he completed the EEOC charge,

he was not represented by an attorney and did not know what the word “retaliation” meant. J.A. at

615 (Trial Tr. Vol. I at 374), 630 (Trial Tr. Vol. I at 405). Moreover, Tisdale testified that he did

not prepare the charge himself, but instead recounted his story to a clerk in the EEOC office, who

prepared it for him. The charge also contains several factual errors, which Tisdale explained that

he did not catch because of his dyslexia. J.A. at 629-30 (Trial Tr. Vol. I at 404-05). In light of these

circumstances, we decline to penalize Tisdale for failing to reach the correct legal conclusion on the

EEOC charge.

While it is unclear from the record what precisely Tisdale related to the EEOC, both his

discrimination claim and his retaliation claim contain the same common core of operative facts —

specifically, that he was terminated after complaining about the treatment of African-American

employees in a public meeting. Tisdale has not alleged any other separate acts of racial

discrimination which led to his termination. Thus, because we must draw all reasonable inferences

in favor of Tisdale, we can infer that he told the EEOC that he had complained to management about

the treatment of African-American employees at BNART. The charge states that Tisdale was

terminated from FedEx for selling pallets, but that he believed that he was discriminated against

because of his race. By stating that he was discharged and that he believed race played a role

coupled with the inference that he told the EEOC that he had complained about the treatment of

African-American employees at BNART, a seasoned EEOC investigator would be naturally

prompted to investigate the uncharged retaliation claim despite the procedural shortcomings in the

formal charge. Thus, we hold that the retaliation claim could reasonably be expected to grow out

of the charge of discrimination, and therefore, the district court did not err in denying FedEx

judgment as a matter of law.

C. Motion for a New Trial

The next issue which FedEx raises on appeal is that it should be entitled to a new trial

because the jury verdict was against the clear weight of the evidence. Upon review, we conclude

the district court did not err in denying FedEx’s motion for a new trial.

“We review the denial of a motion for a new trial under an abuse of discretion standard.”

United States, ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 450 (6th

Cir. 2005) (internal quotation omitted). Where the motion for a new trial is on the grounds that the

jury verdict was against the clear weight of the evidence, we have explained that:

A court may set aside a verdict and grant a new trial when it is of the opinion that the

verdict is against the clear weight of the evidence; however, new trials are not to be

granted on the grounds that the verdict was against the weight of the evidence unless

that verdict was unreasonable. Thus, if a reasonable juror could reach the challenged

verdict, a new trial is improper.

Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 820-21 (6th Cir. 2000) (internal

quotations omitted).

In this case, FedEx argues that its motion for a new trial should have been granted because

the clear weight of the evidence does not support a finding of retaliation. Specifically, FedEx argues
No. 03-6605 Tisdale v. Fed Express Corp. Page 9

that Tisdale could not satisfy the second and fourth prongs of the prima facie case for retaliation:

knowledge by the decision-maker and a causal connection between the protected activity and the

adverse employment action. We have explained, however, that “[w]hen reviewing the facts of a

discrimination claim after there has been a full trial on the merits, we must focus on the ultimate

question of discrimination rather than on whether a plaintiff made out a prima facie case.” Barnes

v. City of Cincinnati, 401 F.3d at 736. “That is, the sole remaining issue [is] discrimination vel non.”

Noble, 391 F.3d at 721 (internal quotations omitted). Thus, “we cannot simply hold that the

plaintiff’s failure to provide evidence of an essential element of her prima facie case is dispositive

here. Rather, we must look to the ultimate question — whether the plaintiff has proven that her

discharge was intentionally discriminatory.” Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d

595, 599 (6th Cir. 2001). In making that determination, however, “whether the plaintiff has in fact

presented evidence supporting each element of her prima facie case is material to the determination

of whether she has demonstrated that the employer’s articulated reason for the discharge is not

credible.” Id. at 600.

“The ultimate question in every employment discrimination case involving a claim of

disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). “‘[The plaintiff] may succeed in this

[i.e., in persuading the court that she has been the victim of intentional discrimination] either directly

by persuading the court that a discriminatory reason more likely motivated the employer or

indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993) (quoting Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981)) (alteration in original). “With respect to the indirect method of

proof, which is what is involved in this case, the Supreme Court has said that ‘[i]t is not enough . . .

to dis believe the employer; the factfinder must believe the plaintiff’s explanation of intentional

discrimination.’” Noble, 391 F.3d at 721 (quoting St. Mary’s Honor Ctr., 509 U.S. at 519). We

have stated that a plaintiff can establish that an employer’s reason is not credible by demonstrating

“either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not

actually motivate his discharge, or (3) that they were insufficient to motivate discharge.” Manzer

v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (internal quotation omitted).

Applying these principles to this case, we conclude Tisdale has demonstrated sufficient

evidence by which a reasonable jury could find that FedEx’s reason for his termination was not

credible under any of the three Manzer factors. First, a reasonable juror could find that FedEx’s

reason for firing Tisdale, theft of company property, had no basis in fact. FedEx does not cite any

evidence in the record to prove that Tisdale actually kept any money generated from the sale of

FedEx pallets. Gardner, the senior manager at BNART and the person who oversaw the FedEx

pallet account, told Miller he did not believe that there was a discrepancy. Bynum, FedEx’s chief

investigator, never spoke to Gardner about the details of the FedEx pallet account or ever attempted

to reconcile the account balance with the checks from McKinney to determine if any were missing.

Instead, Bynum testified at trial that her goal was to get Tisdale to admit that he stole FedEx pallets.

Relying on manipulative interrogation techniques, Bynum finally coerced Tisdale into admitting that

a mistake may have occurred. Bynum reported to her supervisors however that Tisdale admitted that

he intentionally stole company property three or four times, which became the basis for his

termination.

Second, a reasonable juror could find that FedEx’s proffered reason did not actually motivate

Tisdale’s discharge. Tisdale had run the pallet-recycling program since 1997 without any

complaints from management and even received an employee recognition award for his efforts.

Following Tisdale’s public statements about how African-Americans were treated at BNART and

his private meeting with Miller, the regional managing director, a formal investigation into the pallet

program was begun at Miller’s behest three days later, and Tisdale was suspended four days after

that. Prior to Tisdale’s creation of the pallet-recycling program, FedEx characterized the pallets as
No. 03-6605 Tisdale v. Fed Express Corp. Page 10

waste and discarded them in a dumpster; yet according to FedEx, the pallets were company property

sufficient to support termination of Tisdale for theft. No other employee, including one who kept

the proceeds from the sale of FedEx pallets for himself, was ever investigated by FedEx.

Third, a reasonable juror could find that FedEx’s proffered reason was insufficient to

motivate Tisdale’s discharge. Despite the ambiguity of its policy regarding pallets and the absence

of any clear evidence of wrongdoing, FedEx chose to terminate Tisdale rather than impose a lesser

sanction such as a suspension or probation. No other employee connected with the pallet-recycling

program was ever investigated, not even the one who sold the pallets for his personal profit.

In addition to disbelieving FedEx’s proffered reason for Tisdale’s termination, a reasonable

jury could also believe Tisdale’s explanation of intentional discrimination. Tisdale had a long

history of speaking out about discriminatory practices at FedEx. He repeatedly complained about

the lack of career opportunities for African-American employees and even organized a boycott of

the office Christmas party. The pallet investigation was started days after his public comments

about discriminatory practices at BNART, and he was terminated shortly thereafter. It is also clear

from the manner in which the investigation was conducted that FedEx management was targeting

Tisdale.

In sum, we conclude that given all the evidence in this case, a reasonable juror could find

that FedEx’s purported reason for Tisdale’s termination was not based in fact, did not actually

motivate the discharge, and was insufficient to warrant termination anyway. Moreover, we conclude

that a reasonable juror could believe Tisdale’s explanation of intentional discrimination.

Accordingly, we hold the district court did not err (nor did it abuse its discretion) in denying

FedEx’s motion for a new trial.

D. Punitive Damages

FedEx challenges the award of punitive damages on several grounds. After reviewing the

merits of each of FedEx’s arguments, we conclude that the district court did not err in refusing to

set aside the award of punitive damages.

1. Sufficiency of the Evidence

FedEx first argues that the district court erred by failing to grant its Rule 50(b) motion on

the issue of punitive damages because the award was against the clear weight of the evidence. As

we stated above, we review a district court’s denial of “a renewed motion for judgment as a matter

of law de novo.” Barnes, 401 F.3d at 736. We have explained that:

In a federal question case, the standard of review for a Rule 50 motion based on

sufficiency of the evidence is identical to that used by the district court. The

evidence should not be weighed, and the credibility of the witnesses should not be

questioned. The judgment of this court should not be substituted for that of the jury;

instead, the evidence should be viewed in the light most favorable to the party

against whom the motion is made, and that party given the benefit of all reasonable

inferences. The motion should be granted, and the district court reversed, only if

reasonable minds could not come to a conclusion other than one favoring the

movant.

Williams v. Nashville Network, 132 F.3d 1123, 1130-31 (6th Cir. 1997). In its brief to this court,

FedEx argues that even if its actions against Tisdale were retaliatory, no reasonable juror could find

that those actions could be imputed to FedEx. We find this argument to be unpersuasive.
No. 03-6605 Tisdale v. Fed Express Corp. Page 11

Punitive damages are available in a Title VII claim where the plaintiff can demonstrate by

a preponderance of the evidence that the employer “engaged in a discriminatory practice . . . with

malice or with reckless indifference to the federally protected rights of an aggrieved individual.”

42 U.S.C. § 1981a(b)(1). The Supreme Court has noted that the statutory language indicates

Congressional intent “to narrow the class of cases for which punitive awards are available to a subset

of those involving intentional discrimination.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535

(1999). The Court reasoned that “an employer must at least discriminate in the face of a perceived

risk that its actions will violate federal law to be liable in punitive damages.” Id. at 536. Punitive

damages liability does not arise where “the employer may simply be unaware of the relevant federal

prohibition,” believes the discrimination is lawful, or “reasonably believe[s]” that the

“discrimination satisfies a bona fide occupational qualification defense.” Id. at 536-37. Thus, an

employer may be held vicariously liable for punitive damages “for the intentionally discriminatory

conduct of its employee, where the employee served the employer in a managerial capacity,

committed the intentional discrimination at issue while acting in the scope of employment, and the

employer did not engage in good-faith efforts to comply with Title VII.” Lowery v. Circuit City

Stores, Inc., 206 F.3d 431, 442 (4th Cir.) (interpreting the Kolstad opinion), cert. denied, 531 U.S.

822 (2000).

First, FedEx argues that all of its employees involved in Tisdale’s termination are middle

management and therefore, liability cannot be imputed to FedEx. The mere fact that FedEx is a

large, global corporation with a multi-layered management structure is insufficient by itself to shield

it from liability under Title VII. In Kolstad, the Supreme Court stated that whether an employee

serves in a “managerial capacity” is determined by “the type of authority that the employer has given

to the employee, the amount of discretion that the employee has in what is done and how it is

accomplished.” 527 U.S. at 543 (internal quotation omitted). The “employee must be important,”

but not necessarily “top management, officers, or directors, to be acting in a managerial capacity.”

Id. (internal quotation omitted). We, along with several other courts of appeals, have held that nonsenior management employees can serve in a managerial capacity. See Jeffries v. Wal-Mart Stores,

Inc., No. 99-4150, 2001 WL 845486, at *10 (6th Cir. July 20, 2001) (holding that Wal-Mart store

managers, a district manager, and a regional manager served in a managerial capacity so as to

impute punitive damages liability onto the corporation as a whole); Lowrey, 206 F.3d at 444

(holding that a department manager who supervised nine other employees, had the authority to hire

new persons, and had discretion to organize the department, could constitute an employee in a

managerial capacity); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1247 (10th Cir. 1999)

(applying Kolstad to find that both an assistant store manager, who had the authority to suspend

subordinates and make hiring and firing recommendations, and the store manager, whose

responsibilities included the operation of the store and making hiring and firing decisions, held

managerial positions for purposes of vicarious liability in the punitive damages context). In this

case, the initial investigation was conducted by Stuthard, the operations manager at BNART, who

had the authority to suspend and terminate employees. Moreover, Miller, whose authority is to

supervise all of FedEx’s operations in the district, instigated the security investigation against

Tisdale. Miller gave tacit approval to the actions taken by Bynum and Stuthard, and concurred in

the decision to terminate Tisdale. Given their significant authority and discretion, a reasonable juror

could find that Stuthard and Miller served FedEx in a managerial capacity for purposes of vicarious

liability in the punitive damages context.

FedEx’s second argument is that even if the actors could be found to have served in a

managerial capacity, the decisions cannot be imputed to FedEx because they are contrary to the

company’s good-faith efforts to comply with the law. The Supreme Court, in Kolstad, stated that

“an employer may not be vicariously liable for the discriminatory employment decisions of

managerial agents where these decisions are contrary to the employer’s good faith efforts to comply

with Title VII.” 527 U.S. at 545 (internal quotation omitted). We have suggested in dicta that the

mere existence of a written anti-discrimination policy alone does not shield the company from
No. 03-6605 Tisdale v. Fed Express Corp. Page 12

punitive damages. EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 514, 521 n.5 (6th Cir. 2001).

Other courts of appeals have explicitly held that an anti-discrimination policy by itself does not

shield an employer from liability. As the Fourth Circuit has stated, “[w]hile an employer’s

institution of a written policy against race discrimination may go a long way toward dispelling any

claim about the employer’s reckless or malicious state of mind with respect to racial minorities, such

a policy is not automatically a bar to the imposition of punitive damages.” Lowery, 206 F.3d at 446

(emphasis added). See also Wal-Mart Stores, Inc., 187 F.3d at 1248 (holding that a written antidiscrimination policy alone is not enough). The Fourth Circuit has explained that an employer’s

written policy does not shield it from liability where there is sufficient evidence which “called into

question” the sincerity of the employer’s commitment to abide by it. Lowery, 206 F.3d at 446.

Similarly, the Tenth Circuit held that a company policy did not shield an employer from liability

where there was evidence that the employees were never trained about the policy or were even

aware of it. Wal-Mart Stores, Inc., 187 F.3d at 1248-49.

Applying these principles to this case, we are not persuaded that a reasonable juror could

only conclude that FedEx engaged in good-faith efforts to comply with Title VII. Though FedEx

has placed much evidence in the record in support of its anti-discrimination policies, Tisdale also

presented evidence of a number of inconsistent practices at the BNART station, which calls into

question FedEx’s sincerity to abide by its own written policies. Tisdale testified at trial that he had

been complaining about the disparate treatment of African-American employees from 1997 through

2000, and that FedEx made little effort to change. Despite FedEx’s professed commitment to

diversity, Tisdale explained that there were no African-American managers, supervisors, or office

staff at the BNART station during the time he worked there. Several African-American employees

testified that they believed that when office jobs became available, African-Americans were passed

over in favor of white employees. To protest what they believed were management’s discriminatory

practices, the African-American employees at BNART boycotted the 1999 Christmas Party.

Eighteen African-American employees signed a letter to Miller outlining the perceived racial

discrimination at BNART. At trial, FedEx’s operations managers conceded that there were racial

tensions at BNART during those years. FedEx’s own internal documents admit “[s]everal incidents

of poor management practices” at the BNART station which “foster[ed] the mistrust of management

and [led] to the deterioration of morale.” J.A. at 1114 (Memorandum from Miller to Lana Luster

2 (Mar. 23, 2000)). Whether the allegations made by the African-American employees concerning

discriminatory treatment were proven true is not the focus of our inquiry, but instead we must decide

whether reasonable minds could not come to any conclusion other than the one favoring FedEx. In

this case, we conclude that in light of all the evidence presented by Tisdale, a reasonable jury could

find that FedEx did not engage in good-faith efforts to treat its minority employees fairly as required

by the law.

Moreover, despite FedEx’s written policy against retaliation, a reasonable jury could find

that FedEx ignored its own policies and terminated Tisdale because he voiced concerns about

management’s discriminatory practices. Though FedEx has established the Guaranteed Fair

Treatment Procedure (“GFTP”) to ensure against retaliatory terminations, the evidence in the record

reveals that the administrative review of Tisdale’s termination amounted to little more than a rubberstamp approval of Bynum’s dubious investigation. Shannon Brown (“Brown”), a FedEx regional

vice president, participated in the second step of the GFTP process with regard to Tisdale’s

termination and testified at trial that he did not conduct an independent investigation of his own but

rather relied on the reports from Bynum and Miller. Specifically, Brown testified that he relied on

Bynum’s report which stated that Tisdale admitted to intentionally keeping money from the sale of

FedEx pallets three or four times. Tisdale wrote a letter to Brown specifically stating that “at NO

time did I fail to turn in FedEx monies, nor did I say I sold pallets and I was confused when selling

the pallets.” J.A. at 934 (Letter from Tisdale to Brown 2 (July 7, 2000)). Despite this fact, Brown

never questioned the accuracy of Bynum’s report nor did he even speak to Tisdale or Gardner prior
No. 03-6605 Tisdale v. Fed Express Corp. Page 13

to deciding to uphold the termination. Thus, we conclude that in light of all the evidence presented,

a reasonable juror could find that FedEx did not engage in good-faith efforts to comply with the law.

2. Due Process

Finally, FedEx challenges the $100,000 punitive damages award as unconstitutional under

the Due Process Clause of the Fifth Amendment. We find this argument to be unpersuasive as well.

We “apply a de novo standard of review when passing on district courts’ determinations of

the constitutionality of punitive damages awards.” Cooper Indus., Inc. v. Leatherman Tool Group,

Inc., 532 U.S. 424, 436 (2001). FedEx’s sole argument is that because Tisdale failed to recover any

compensatory damages, the award of punitive damages is unconstitutionally excessive pursuant to

the Supreme Court’s holding in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). While

we have held that punitive damages are available in a Title VII suit even if only nominal damages

were awarded, Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 672 (6th Cir. 2003) (en banc),

we have never addressed the issue of punitive damages awarded in the absence of compensatory

damages. Every court of appeals which has addressed the issue has upheld the punitive damages

awards. See, e.g., Corti v. Storage Tech. Corp., 304 F.3d 336, 341-42 (4th Cir. 2002); EEOC v.

W&O, Inc., 213 F.3d 600, 615 (11th Cir. 2000); Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359

(2d Cir. 2001); Provencher v. CVS Pharmacy, 145 F.3d 5, 12 (1st Cir. 1998); Timm v. Progressive

Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir. 1998). The common-law purpose of requiring

compensatory damages as a precondition to allowing punitive awards is to ensure a limitation on

the amount which a jury could award “where the wrongs are insubstantial.” Cush-Crawford, 271

F.3d at 358. We agree with our sister circuits that this rationale does not hold in the Title VII

context, and thus a precondition of compensatory damages is unwarranted.

First, we note that “[n]othing in the plain language of § 1981a conditions an award of

punitive damages on an underlying award of compensatory damages.” Hennessy v. Penril

Datacomm Networks, Inc., 69 F.3d 1344, 1352 (7th Cir. 1995). Moreover, as the Seventh Circuit

reasoned, “the familiar tort mantra that [p]unitive damages may not be assessed in the absence of

compensatory damages,” does not apply in the Title VII context because “the most obvious

economic damages in a wrongful discharge case” is backpay, which is statutorily excluded from

compensatory damages under Title VII. Id. (internal quotation omitted); 42 U.S.C. § 1981a(b)(2).

Backpay was statutorily excluded from compensatory damages “to prevent double recovery, as Title

VII already provided for back pay; the exclusion was not the result of viewing a back pay award as

fundamentally distinct from compensatory damages.” Provencher, 145 F.3d at 11. Thus,

conditioning punitive damages on an award of compensatory damages excludes plaintiffs who may

have been grievously wronged. Because backpay awards under Title VII serve a similar purpose

as compensatory damages awards under the common law, courts have held they may be considered

in determining the appropriate size of a punitive damages award. W&O, Inc., 213 F.3d at 615;

Hennessy, 69 F.3d at 1352. Moreover, the statutory caps on punitive damages, 42 U.S.C.

§ 1981a(b)(3), ensure against limitless awards in cases of insubstantial harm. As a result, two courts

of appeals have upheld punitive damages awards even in the absence of both compensatory damages

and backpay. Cush-Crawford, 271 F.3d at 359; Timm, 137 F.3d at 1010.

In sum, we agree with the reasoning of our sister circuits and conclude that there is no reason

to condition punitive damages on the award of actual or nominal compensatory damages. In this

case, the punitive damages award is $100,000, less than seven times the backpay award and onethird of the maximum which Congress determined to be reasonable for a company of FedEx’s size.

Accordingly, we conclude that the district court did not err in refusing to set aside the punitive

damages award.
No. 03-6605 Tisdale v. Fed Express Corp. Page 14

E. Evidentiary Rulings

FedEx’s final argument on appeal is that during the trial the district court erred with regard

to several evidentiary rulings. Upon review, we conclude that the district court did not abuse its

discretion with regard to most of the evidentiary rulings and the few errors which did occur did not

substantially prejudice FedEx.

We have stated that “[d]ecisions regarding the admission and exclusion of evidence are

within the peculiar province of the district court and are not to be disturbed on appeal absent an

abuse of discretion.” Medshares, 400 F.3d at 439-40 (internal quotation omitted). We have

explained that “the district court’s decision regarding this evidence should remain undisturbed unless

[we are] left with the definite and firm conviction that the district court clearly erred in its judgment

after weighing the relevant factors, improperly applied the correct law, or inappropriately used the

wrong legal standard.” Shanklin v. Norfolk So. Ry. Co., 369 F.3d 978, 988 (6th Cir. 2004).

Moreover, “[e]ven if a mistake has been made regarding the admission or exclusion of evidence, a

new trial will not be granted unless the evidence would have caused a different outcome at trial.”

Morales v. Am. Honda Motor Co., 151 F.3d 500, 514 (6th Cir. 1998). Applying this standard, we

conclude that none of the evidentiary rulings that FedEx cites requires a new trial.

First, FedEx argues that the district court permitted irrelevant testimony from Tisdale and

several of his witnesses regarding claims of race discrimination made by other employees and

FedEx’s failure to respond to them. The district court admitted the evidence as “relevant to Mr.

Tisdale’s advocacy on behalf of others.” J.A. at 455 (Trial Tr. Vol. I at 99). The district court

explained that this case was about “Mr. Tisdale’s complaints, Federal Express’s knowledge of those

complaints and whether his termination was in retaliation for complaints” but cautioned the parties

that “we’re not going to allow any proof as to whether the complaints are meritorious or not.” J.A.

at 456 (Trial Tr. Vol. I at 100). We conclude that the district court’s ruling was not an abuse of

discretion.

Second, FedEx argues that several witnesses testified about events not within their personal

knowledge in violation of Federal Rule of Evidence 602. The pages cited in FedEx’s brief, however,

reveal only one instance when FedEx objected on the grounds of personal knowledge, which was

prior to the witness even testifying. J.A. at 454 (Trial Tr. Vol. I at 98). In response to the objection,

the district court warned Tisdale’s attorney that the witnesses must have personal knowledge about

that to which they are testifying, and instructed FedEx either to contemporaneously object or to

cross-examine the witnesses as to that point. J.A. at 454-55 (Trial Tr. Vol. I at 98-99). Once again,

we conclude the district court’s ruling was not an abuse of discretion and should not be disturbed.

Third, FedEx argues that the district court permitted certain witnesses to read from their

affidavits, rather than using their affidavits for refreshing their recollection. Specifically, Hurt, a

witness for Tisdale, read several answers from his affidavit into evidence, including: that he worked

for Tisdale picking up pallets, that they met at Shoney’s to disperse the money, and that McKinney

wrote the check to Tisdale. J.A. at 416-17 (Trial Tr. Vol. I at 129-30). The record reveals, however,

that all of these facts were testified to by Hurt a few minutes earlier at trial without the aid of his

affidavit. See J.A. at 412-14 (Trial Tr. Vol. I at 125-27). Thus, whatever error resulted was

harmless. When FedEx made the same objection with regards to another witness, Fred McClendon,

the district court properly ruled that the witness could not read the affidavit but must answer

substantive questions. J.A. at 432-33 (Trial Tr. Vol. I 151-52). Furthermore, the district court did

not err in allowing Stuthard to be questioned about checks he had not seen prior to trial. The district

court correctly noted that the checks were in evidence and “[i]f he hasn’t seen them, he can say he

hasn’t seen them.” J.A. at 498 (Trial Tr. Vol. II at 457).
No. 03-6605 Tisdale v. Fed Express Corp. Page 15

Fourth, the district court did err in allowing Tisdale’s counsel to read into the record

deposition testimony from Wrather, the general manager for McKinney, regarding his religious

beliefs. The district court allowed the testimony because “[i]t’s the witness’s statement as to why

he thinks he’s a credible witness.” J.A. at 684 (Trial Tr. Vol. III at 310). Federal Rule of Evidence

610, however, expressly prohibits evidence of religious beliefs “for the purpose of showing that by

reason of their nature the witness’ credibility is impaired or enhanced.” Fed. R. Evid. 610. While

the district court’s ruling was erroneous, the religious testimony went to the tangential issue of

whether Wrather was offended by the accusation that his company, McKinney, was involved in

drugs or money laundering. The ruling had minimal, if any, impact on the jury verdict.

Accordingly, we conclude that the error does not warrant the granting of a new trial.

FedEx’s final few arguments are no more meritorious. FedEx argues the district court made

improper hearsay rulings which prevented it from presenting its case concerning the investigation

into the FedEx pallet account. The record reveals, however, that the district court carefully

permitted as much of FedEx’s evidence as possible that was not for the truth of the matter asserted

but excluded the hearsay testimony. See J.A. at 363, 368, 518, 521 (Trial Tr. Vol. III at 683, 688,

Vol. II at 495, Vol. III at 527). We conclude that the district court’s rulings were not an abuse of

discretion. The district court also excluded the testimony of police officer Milton, who was called

to impeach Tisdale’s testimony that he worked in a deli within the numbers house, rather than as a

clerk taking bets. The district court excluded the testimony under Federal Rules of Evidence 609,

403, and 404, finding that the issue had “marginal relevance to credibility.” Supp. J.A. at 2 (Trial

Tr. Vol. III at 629). We hold that the district court’s ruling on this issue was not an abuse of

discretion. Finally, we conclude the district court did not abuse its discretion by excluding evidence

of Tisdale’s post-termination employment history. FedEx argued that the testimony would show

that Tisdale was disciplined for acceptable conduct issues, such as having a bad attitude, sleeping

on the job, misappropriating company property, and failing to report to work. The district court

correctly ruled that the evidence was more unfairly prejudicial than probative under Federal Rule

of Evidence 403, and was offered to show a propensity for bad acts which is inadmissible under

Federal Rule of Evidence 404(b).

In sum, we conclude that the district court did not abuse its discretion with regard to most

of the evidentiary rulings in this case, and the few errors which did occur did not substantially

prejudice FedEx so as to warrant a new trial.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the jury verdict in favor of Tisdale as well as the

award of $100,000 in punitive damages.