UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD P. SHAW,

Plaintiff-Appellee,

v.

THE TITAN CORPORATION,

No. 96-2143

Defendant-Appellant,

and

JACK EDDLEMON,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Robert E. Payne, District Judge.

(CA-96-324)

Argued: July 7, 1997

Decided: May 18, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and

Joseph F. ANDERSON, Jr., United States District Judge

for the District of South Carolina,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: K. Stewart Evans, Jr., MCGUIRE, WOODS, BATTLE &

BOOTHE, L.L.P., Washington, D.C., for Appellant. John Michael
Bredehoft, CHARLSON & BREDEHOFT, P.C., Reston, Virginia, for

Appellee. ON BRIEF: Kelly Marie Boehringer, MCGUIRE,

WOODS, BATTLE & BOOTHE, L.L.P., Washington, D.C.; John

Joseph Michels, Jr., MCGUIRE, WOODS, BATTLE & BOOTHE,

L.L.P., McLean, Virginia, for Appellant. Elaine C. Bredehoft,

CHARLSON & BREDEHOFT, P.C., Reston, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Donald P. Shaw brought a wrongful termination action against his

former employer, Titan Corporation, in the Circuit Court of Fairfax

County, Virginia. Shaw alleged that he was fired because of his race,

gender, and age in violation of the public policy embodied in the Virginia Human Rights Act. See Va. Code Ann.§§ 2.1-714 to 725

(Michie 1995 & Supp. 1997). The case was removed to federal district court on the basis of diversity of citizenship, and tried before a

jury on June 3-7, 1996. The jury returned a verdict for Shaw, awarding $65,000 in compensatory damages and $400,000 in punitive

damages.1

Titan then filed a motion for judgment as a matter of law and a

motion for a new trial pursuant to Rules 50(b) and 59 of the Federal

Rules of Civil Procedure. Titan argued: (1) that because it had introduced evidence and argument for the proposition that Shaw was discharged pursuant to a legitimate reduction in its workforce, the

district court erred in refusing to give the jury any of Titan's proposed

causation instructions;2 (2) that the public policy of Virginia (on

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1 By consent of the parties, the punitive damages award was reduced

to $350,000 in compliance with the Virginia statutory limit on punitive

damages. See Va. Code Ann. § 8.01-38.1 (Michie 1992).

2 Titan had presented, in the alternative, "but-for-causation" instructions (stating that the jury could find Titan liable for damages only if it

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which the claim for wrongful discharge was premised) does not permit punitive damages for discriminatory conduct in the workplace;

(3) that the district court admitted prejudicial evidence; and (4) that

the district court erred when it ruled that the punitive damages award

was not excessive. The district court denied Titan's post-trial motions.

Titan now appeals. For the reasons stated herein, we affirm.

I.

Shaw began working at Titan, a government consulting firm, in

1987. In early 1994, Titan determined that it would have to reduce its

workforce to remain profitable. Accordingly, it began evaluating

employees and identifying those that could be terminated. Several

employees expressed concern that the reduction-in-force appeared to

be targeting women and minority employees. Titan formed a committee to administer the reduction-in-force. The committee noted Titan's

status under prior "conciliation agreements" with the federal Office of

Federal Contract Compliance and Programs (OFCCP), which in

auditing the company had found significant under-representation of

women and minorities. One member told the committee"that any layoff action would be subject to meeting a requirement that you did not

lay off a disproportionate number of minorities or females." (J.A. at

87-88.)

During the course of committee meetings, the fact that a disproportionate number of women and minorities were being targeted for termination was discussed. As the reduction-in-force proceeded, Ed

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found that Shaw would not have been discharged but for illicit discrimination, and that, conversely, the jury could not find Titan liable if it

found that the company would have included Shaw in its reduction in

force even in the absence of any consideration that it may have given to

his race, sex, age, or any combination of these factors), "sole-cause"

instructions (stating that the jury could not find Titan liable unless it

found that illicit discrimination was the sole cause of Shaw's discharge),

and "mixed-motive" instructions (closely tracking the burden-shifting

framework followed by the federal courts in Title VII cases where the

employee alleges wrongful discrimination and the employer alleges a

legitimate business motivation).

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Knauf, the president of Titan's east coast operation, asked a committee member "if the mix changed, what the impact of that change

would be. For example, if we had another white male in the mix, what

would be the numbers or our representation?" (J.A. at 664.) Subsequently, a memorandum was prepared which analyzed the impact of

"identify[ing] a `sacrificial lamb'" white male, and concluded, "our

representation [of women and minorities] is so low that we still have

disparity. . . . [W]e are `damned if we do and damned if we don't.'"

(J.A. at 1081.)

On March 2, 1994, Shaw's supervisor, Richard Leadbetter, advised

Shaw that he would be terminated the next day. When Shaw asked

why, Leadbetter intimated that the reduction-in-force process had

malfunctioned. The next day Shaw was terminated. Jack Eddlemon,

the Titan officer who terminated Shaw, offered Shaw"a world class

corporate apology for the way [the workforce reduction] was handled

in your case." (J.A. at 325.) He then explained to Shaw that "the company is really vulnerable. . . . [W]e are letting go 10 to 1 women and

minorities and we have to have an ace to throw on the pile." (J.A. at

326.) A Titan employee was told that Shaw was chosen to be the "ace

on the pile" because of his age: "[T]hey are justifying it because he

is the oldest in Jack[ Eddlemon]'s organization." (J.A. at 189.)

Shaw argued at trial that, under the common law of Virginia, he

was wrongfully terminated because of his race, gender, and age, in

violation of the public policy against such discrimination embodied

in the Virginia Human Rights Act. He also argued that punitive damages were appropriate because Titan's conduct, firing him on the

basis of race, gender, and age, was reprehensible. At trial, Titan maintained that Shaw was terminated in the regular course of a reductionin-force.

II.

On appeal, Titan raises four assignments of error arising from the

district court's denial of its Rule 50 and Rule 59 motions. First, the

company argues that the trial court erred when it failed to instruct the

jury on specific theories of causation. Titan argues that the mixedmotive theory of causation was applicable to this action and that the

district court committed reversible error because it did not give a

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mixed-motive instruction. Further, Titan contends that the district

court should have given a specific but-for causation instruction. Titan

also argues that the district court admitted irrelevant and unfairly prejudicial evidence during the course of the trial. Additionally, Titan

asserts that the district court erred in allowing the jury to consider an

award of punitive damages because punitive damages are impermissible as a matter of law under the common law of Virginia in a case

of wrongful termination in violation of public policy. Finally, the

company urges us to reverse the excessive award of punitive damages

because the jury's decision was not supported by the evidence. Titan

asserts that each of these errors provides the basis for judgment as a

matter of law under Rule 50 or for a new trial under Rule 59.

We address these arguments in turn.

A.

Titan raises two arguments presenting novel issues of Virginia law

not addressed by controlling precedents. The parties agree that Virginia law applies to this diversity action. We therefore certified the

following two questions to the Virginia Supreme Court:

1. Whether, under the common law of Virginia, the district court erred in refusing to give the jury an explicit butfor causation, sole-cause, or mixed-motive instruction, and

instead instructing the jury that it could find for Shaw on his

claim of wrongful termination in violation of public policy

if Shaw proved by a preponderance of the evidence,"that

Titan terminated him because of his race, his gender, his

age, or because of a combination of those factors."

2. Whether, under the common law of Virginia, punitive damages may be recovered for wrongful termination in

violation of public policy, where the public policy violated

is embodied in the Virginia Human Rights Act which

expressly prohibits the award of punitive damages.

The Virginia Supreme Court, in its discretion, accepted the certified

questions, and issued its opinion on April 17, 1998.

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In response to the first certified question, the Virginia Supreme

Court stated that the common law of Virginia did not require that the

plaintiff prove that the improper motive was the sole cause for the discharge. The court also held that Virginia common law did not require

that the district court give a specific but-for causation instruction.

Additionally, the court noted that the common law of Virginia has not

embraced the mixed-motive causation standard. Therefore, the first

question was answered in the negative. Based upon the Virginia

Supreme Court's answer to our certified question, it is clear that the

district court did not err in its jury instructions on causation.

The Virginia Supreme Court responded to the second certified

question in the affirmative, noting that Shaw filed his action for

wrongful termination before the 1995 amendments to the Virginia

Human Rights Act, which barred punitive damages, took effect.

Therefore, the action for wrongful termination was governed by the

common law of torts. The Virginia Supreme Court reasoned that

wrongful termination, like any other intentional tort, could support an

award of punitive damages. Because the Virginia Supreme Court

answered this question in the affirmative, the award of punitive damages was not erroneous.

B.

In addition to the two points of law addressed by the Virginia

Supreme Court, Titan raises two additional arguments before us.

First, Titan argues that the district court admitted irrelevant,

inflammatory, and prejudicial evidence that Titan had allegedly discriminated against women and minorities, failed to follow its own

internal policies for reduction in force, and was audited by the

OFCCP. Titan asserts that this evidence had a tendency to inflame the

jury. At trial, however, Titan neglected to contemporaneously object

to the admission of this evidence.

A district court's decision to admit evidence at trial is reviewed

under the abuse of discretion standard. See Martin v. Cavalier Hotel

Corp., 48 F.3d 1343, 1357 (4th Cir. 1995). A district court's denial

of a Rule 59 motion for a new trial is likewise reviewed for abuse of

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discretion. See Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors,

Inc., 99 F.3d 587, 594 (4th Cir. 1996).

We note that "[a] motion for a new trial should not be granted . . .

where the moving party has failed to timely object to the alleged

impropriety giving rise to the motion." Dennis v. General Elec. Corp.,

762 F.2d 365, 367 (4th Cir. 1985). Because Titan failed to object at

the time the "inflammatory" evidence was initially offered, we determine that the district court did not abuse its discretion when it denied

the Rule 59 motion.

Second, Titan argues that the district court erred when it denied

Titan's motion to reduce or set aside the punitive damages award

because that award was not supported by the evidence, was excessive,

and constituted a violation of Titan's due process rights. See BMW of

N. Am., Inc. v. Gore, 116 S. Ct. 1589, 1598-99 (1996).

Appellate review of a district court's "Rule 50 determination . . .

is circumscribed with respect to any facts the jury found, but plenary

with respect to any legal conclusions underlying the verdict." Price

v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996), cert. denied,

117 S. Ct. 1246 (1997). As previously stated, a district court's denial

of a Rule 59 motion is reviewed for abuse of discretion. See Atlas

Food Sys. & Servs., 99 F.3d at 594.

To assess whether Titan's due process rights were violated by this

award of punitive damages, we weigh three factors: (1) the reprehensibility of the conduct, (2) the ratio between compensatory and punitive damages, and (3) the difference between the punitive damages

award and the civil or criminal sanctions available for similar conduct. See BMW, 116 S. Ct. at 1598-99. Titan alleges that an application of these factors here indicates that the award of punitive damages

was not appropriate. We disagree. First, we find that Shaw's discharge on the basis of his age, gender, and race, the grounds upon

which the jury found liability, is reprehensible conduct. Second, the

ratio of compensatory to punitive damages, approximately 1:5, is not

unreasonable. Finally, the third factor's inquiry regarding the relationship between a potential criminal penalty and the punitive damages

award is not applicable in the discriminatory discharge context

because workplace non-discrimination remedies have traditionally

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been a product of the civil justice system. Comparing available civil

remedies, punitive damages are capped under the Virginia Human

Rights Act at $350,000. Shaw's award was reduced after trial to comport with that statutory limitation. Therefore, the punitive damages

award is in line with the available civil remedies. Thus, applying the

factors set forth in BMW, we determine that this award of punitive

damages did not impinge upon Titan's right to due process.

The Supreme Court has also instructed that "a district court sitting

in diversity must apply state law standards to determine whether a

verdict is excessive." Steinke v. Beach Bungee, Inc., 105 F.3d 192,

197 (4th Cir. 1997) (citing Gasperini v. Center for Humanities, 116

S. Ct. 2211, 2224-25 (1996)). Under Virginia law, which controls this

case, the excessiveness of punitive damages turns on an examination

of four factors: (1) "consideration of [the] reasonableness between

the damages sustained and the amount of the award and the measurement of punishment required, [(2)] whether the award will amount to

a double recovery, [(3)] the proportionality between compensatory

and punitive damages, and [(4)] the ability of the defendant to pay."

Poulston v. Rock, 467 S.E.2d 479, 484 (Va. 1996) (citations omitted).

After a thorough review of the factors considered by district court

when it determined that this punitive damages award was reasonable,

we conclude that the district court did not abuse its discretion when

it upheld the jury's award of punitive damages. See Steinke, 105 F.3d

at 197 (holding "that a district court's decision on the question of

remittitur should be reviewed under an abuse of discretion standard").

Finally, an award of punitive damages will only be set aside for

insufficiency of the evidence when "no substantial evidence is presented to support it, it is against the clear weight of the evidence, it is

based upon evidence that is false, or it will result in a miscarriage of

justice." Barber v. Whirlpool Corp., 34 F.3d 1268, 1279 (4th Cir.

1994). Here, substantial evidence on the record adequately supports

the award of punitive damages.

III.

Based upon the foregoing, we affirm the rulings of the district court

in all respects.

AFFIRMED

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