Graham v. Bristol Hospice Holdings

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ELIZABETH GRAHAM,
Plaintiff,
v.
BRISTOL HOSPICE HOLDINGS, INC.,
Defendant.
MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
RENEWED MOTION FOR JUDGMENT
AS A MATTER OF LAW AND
GRANTING IN PART DEFENDANT’S
MOTION TO REDUCE DAMAGES
AWARD
Case No. 2:21-cv-00754
District Judge Ted Stewart
Magistrate Judge Dustin B. Pead
This matter comes before the Court on Defendant’s Renewed Motion for Judgment as a
Matter of Law or to Reduce Damages Award.1 For the reasons discussed below, the Court will
deny the Renewed Motion and grant the Motion to Reduce Damages Award in part.
I. BACKGROUND
Plaintiff, Elizabeth Graham, sued Defendant, Bristol Hospice Holdings, Inc. (“Bristol”),
for retaliation under Title VII. At the time her employment was terminated, Plaintiff was
working full time as a Human Resources (“HR”) benefits generalist at Bristol. During her
employment, Plaintiff reported to Debra Wertz, the Executive Vice President of HR.
At trial, Plaintiff argued that Bristol terminated her employment after she complained
about discrimination in the workplace and that it did so because she engaged in protected
activity. Defendant argued that Plaintiff was fired for non-retaliatory reasons: because she did
1 Docket No. 97.
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not follow instructions, failed to complete a training, and falsely represented that she completed
the training.
At the conclusion of Plaintiff’s case-in-chief, Bristol moved for judgment as a matter of
law pursuant to Federal Rule of Civil Procedure 50(a) on the basis that Plaintiff failed to present
sufficient evidence such that a reasonable jury could find that it terminated Plaintiff because of
her protected activity. Bristol also argued that Plaintiff did not present sufficient evidence to
support a claim for punitive damages, but if the Court determined that she did, the Court should
instruct the jury on the Kolstad defense. The Court denied the Motion.2 The jury returned a
verdict in favor of Plaintiff and awarded $75,000.00 in compensatory damages and
$5,000,000.00 in punitive damages.
After trial, Defendant filed the present Renewed Motion for Judgment as a Matter or Law
or to Reduce Damages Award. Having fully reviewed the parties’ briefing and finding that oral
argument would not be materially helpful,3 the Court now rules on the Motions.
II. DISCUSSION
A. Renewed Motion for Judgment as a Matter of Law
Under Federal Rule of Civil Procedure 50(a)(1), a court may grant a motion for judgment
as a matter of law when “a party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the
party on that issue.”4 In considering such a motion, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility determinations or
2 Docket No. 89.
3 See DUCivR 7-1(g).
4 Fed. R. Civ. P. 50(a)(1).
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weigh the evidence.”5 “Credibility determinations, the weighing of evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.”6 Thus, “a motion
for a judgment as a matter of law is cautiously and sparingly granted,”7 and “is improper unless
the evidence so overwhelmingly favors the moving party as to permit no other rational
conclusion.”8
A party that has made a motion for judgment as a matter of law under Rule 50(a) prior to
a jury verdict, may renew that motion under Rule 50(b) after judgment is rendered. However,
“the renewed motion’s scope is restricted to issues developed in the initial [Rule 50(a)] motion.”9
Defendant renews its previous argument that the Court should grant judgment as a matter
of law in its favor because Plaintiff failed to present sufficient evidence to support but for
causation10 and failed to present sufficient evidence to support a punitive damages award.11
At trial, Plaintiff brought a retaliation claim against Defendant. To prove retaliation
Plaintiff must prove (1) she engaged in protected activity under federal law by complaining
5 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
6 Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986); Liberty Mut. Fire Ins. Co. v.
Woolman, 913 F.3d 977, 983 (10th Cir. 2019) (“All reasonable inferences are drawn in favor of
the nonmoving party and th[e] court does not make credibility determinations or weigh the
evidence.”) (internal quotation marks and citation omitted).
7 Weese v. Schukman, 98 F.3d 542, 547 (10th Cir. 1996).
8 Shaw v. AAA Eng’g & Drafting Inc., 213 F.3d 519, 529 (10th Cir. 2000); In re: Cox
Enters., Inc., 871 F.3d 1093, 1096 (10th Cir. 2017) (reiterating that under Rule 50, “judgment as
a matter of law is appropriate only if the evidence points but one way and is susceptible to no
reasonable inferences which may support the nonmoving party’s position”) (internal quotation
marks and citations omitted).
9 Michael Found., Inc. v. Urantia Found., 61 F. App’x 538, 544 (10th Cir. 2003).
10 Docket No. 97, at 3.
11 Id. at 5–6.
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about discrimination in the workplace; (2) Defendant subjected Plaintiff to adverse employment
action; and (3) the adverse action was taken because of her protected activity.12
Defendant argues that Plaintiff failed to present sufficient evidence of causation such that
a reasonable jury could find for Plaintiff on the issue. Defendant asserts that “all of the evidence
present[ed] leads to one conclusion: Debra Wertz terminated Graham’s employment for a
legitimate, nonretaliatory reason, not in retaliation for engaging in protected conduct.”13 It cites
to Faith Myers’ testimony that Plaintiff did not train her and Ms. Wertz’s testimony that she
terminated Plaintiff for “failure to train Myers and then lying about whether she did so.”14
While there was, as Defendant asserts, evidence presented at trial that Ms. Wertz
terminated Plaintiff for non-retaliatory reasons, there was also evidence presented to support that
the reasons given for terminating her were pretextual as previously chronicled in the Court’s
Memorandum Decision and Order Denying Defendant’s Rule 50 Motion for Judgment as a
Matter of Law.15
Viewing the evidence presented at trial in the light most favorable to Plaintiff, the Court
finds that a reasonable jury could conclude that Plaintiff’s participation in protected activity was
the but for cause of her termination. Plaintiff presented sufficient evidence from which a
reasonable jury could conclude that Defendant’s stated reasons for terminating Plaintiff were
pretextual and that the real reason Plaintiff was terminated was because she engaged in protected
activity.
12 Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1234 (10th Cir. 2000).
13 Docket No. 97, at 3.
14 Id. at 4.
15 Docket No. 89, at 3–4.
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Defendant also argues there was no direct evidence of retaliatory intent and the
circumstantial evidence was not enough to show retaliation. As discussed in the Court’s prior
Order, there was sufficient evidence from which a reasonable jury could conclude that the
reasons stated by Bristol were pretextual and Plaintiff was terminated because of her protected
activity and it is improper for the Court to weigh the evidence on a Rule 50 Motion.16
Accordingly, the Court will deny the Renewed Motion as to the retaliation claim.
Next, Defendant renews its Motion as to Plaintiff’s claim for punitive damages.
Defendant argues that Plaintiff did not present sufficient evidence of malice or reckless
indifference because the evidence did not support that Ms. Wertz or Bristol were aware that their
actions would violate federal law.17
“A Title VII plaintiff is entitled to punitive damages if his employer engaged in
discriminatory practices ‘with malice or reckless indifference to [her] federally protected
rights’”18 “‘Malice’ or ‘reckless indifference’ require proof the employer acted ‘in the face of a
perceived risk that its actions would violate federal law.’”19 Accordingly, in this context, these
terms do not refer to “the egregiousness of the employer’s conduct, but rather to the employer’s
knowledge that it may be acting in violation of federal law.”20
The Tenth Circuit has held that punitive damages may proceed where (1) “a reasonable
jury could find that [the plaintiff’s] termination was illegal retaliation against her federally
16 Anderson, 477 U.S. at 255; Liberty Mut. Fire Ins. Co., 913 F.3d at 983.
17 Docket No. 97, at 6.
18 Zisumbo v. Ogden Reg’l Med. Ctr., 801 F.3d 1185, 1201 (10th Cir. 2015) (quoting 42
U.S.C § 1981a(b)(1)).
19 Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1261, 1269 (10th Cir. 2000);
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535–36 (1999)).
20 Deters, 202 F.3d at 1269.
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protected rights for reporting sexual harassment,”21 and (2) the retaliatory actions were taken “in
the face of a perceived risk that such actions would violate federal law.”22
In Flitton v. Primary Residential Mortgage,23 the Tenth Circuit reversed a district court’s
decision not to instruct the jury on punitive damages. The court concluded that a reasonable jury
could find that gender discrimination and/or retaliation motivated the CEO’s decision to
terminate plaintiff.24 The court further concluded that because the CEO testified that he had
received human resource law training and was knowledgeable about civil rights in the workplace
this “could lead a reasonable juror to conclude that [the CEO] acted in the face of a perceived
risk that his actions would violate Title VII.”25 In another Tenth Circuit case, the court
determined that where there was testimony that the company trained its employees “concerning
Title VII’s prohibitions against harassment and retaliation,” and that it was “mandatory,” “[a]
reasonable jury could have concluded that at least one managerial agent . . . was aware of the
relevant federal prohibitions and nevertheless retaliated against [the plaintiff and] the jury could
reasonably have found [the company] vicariously liable [for] punitive damages.”26
Defendant argues that Wertz and Bristol were not aware that their actions would violate
federal law. However, Ms. Wertz testified that she received her Master’s degree in HR
management and was well-versed in employment laws, including Title VII, through her work in
human resources. She also testified that, as Vice President, she had oversight of discipline of
21 McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1137–38 (10th Cir. 2006).
22 Id. at 1138.
23 238 F. App’x 410 (10th Cir. 2007).
24 Id. at 420.
25 Id.
26 McInnis, 458 F.3d at 1138.
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employees and made sure that Bristol’s policies and the law were followed. Based on this
testimony, the Tenth Circuit’s guidance, and the Court’s conclusion above that a reasonable jury
could conclude that retaliation was the but for cause of Plaintiff’s termination in violation of
federal law, a reasonable jury could conclude that Ms. Wertz’s actions were taken in the face of a
perceived risk that these actions would violate federal law. Therefore, there is sufficient evidence
to support a claim for punitive damages. Accordingly, the Court will deny the Renewed Motion
as to punitive damages.
B. Motion for New Trial
Rule 59(a)(1)(A) provides that a new trial may be granted “after a jury trial, for any
reason for which a new trial has heretofore been granted in an action at law in federal court.”27
“A new trial may be appropriate where the jury verdict is against the weight of the evidence, the
damages are excessive, a party was prejudiced by erroneous evidentiary rulings, or the trial was
not fair to the moving party.”28 Defendant asserts two bases for the Court to order a new trial: (1)
the excessiveness of the punitive damages award; and (2) the Court’s decision not to instruct the
jury on the Kolstad defense.
1. 	Punitive damages award
Defendant argues that the punitive damages award should be reduced or in the
alternative, that a new trial is warranted. Defendant asserts that the disparity between the jury’s
award of $75,000.00 in compensatory damages and its $5,000,000.00 punitive award “in this
27 Fed. R. Civ. P. 59(a)(1)(A).
28 Megadyne Med. Prods., Inc. v. Aspen Labs., Inc., 864 F. Supp. 1099, 1102 (D. Utah
1994).
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run-of-the-mill retaliation case reflects the jury’s prejudice or bias,” which “impaired its ability
to objectively and fairly find the facts.”29
“A new trial on damages is appropriate if an award is ‘so excessive . . . as to shock the
judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or
other improper cause invaded the trial.’”30 “Such bias, prejudice or passion can be inferred from
excessiveness.”31 “However, a verdict will not be set aside on this basis unless it is so plainly
excessive as to suggest that it was a product of such passion or prejudice on the part of the
jury.”32“[A] remittitur may be appropriate if the error affects the amount of damages awarded
without affecting the finding of liability.”33 “It is well settled that mere excessiveness in the
amount of an award may be cured by a remittitur, whereas excessiveness which results from jury
passion and prejudice may not be so cured. In that case, a new trial is required.”34
While the punitive damages award of $5,000,000.00 is excessive based upon the facts as
they were presented at trial and as compared to the noneconomic damages award, the Court does
not find that the verdict was the result of the jury’s passion or prejudice such “that the
determination of liability is tainted.”35 Aside from the amount of the punitive damages award,
Defendant does not point to any evidence that would suggest that the jury’s bias, passion, or
29 Docket No. 97, at 10.
30 Jensen v. W. Jordan City, No. 2:12-CV-736-DAK, 2017 WL 4620983, at *14 (D. Utah
Oct. 13, 2017) (quoting Barnes v. Smith, 305 F.2d 226, 228 (10th Cir. 1962)).
31 Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d 1152, 1168 (10th
Cir. 1981).
32 Id.
33 Osterhout v. Bd. of Cnty. Comm’rs of LeFlore Cnty., 10 F.4th 978, 996 (10th Cir.
2021) (citing Malandris, 703 F.2d at 1168).
34 Mason v. Texaco, Inc., 948 F.2d 1546, 1561 (10th Cir. 1991).
35 Malandris, 703 F.2d at 1168.
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prejudice tainted the jury’s finding of liability. The Court finds that there is not a basis for a
finding that the jury acted on passion or prejudice, and therefore, the award is merely excessive
and the remedy of remittitur is appropriate, which in this case is accomplished by the statutory
cap as discussed below.
2. 	Kolstad defense
Next, Defendant argues that a new trial is necessary because “the jury should have been
permitted to consider the good-faith defense articulated in Kolstad.”36 The Kolstad good-faith
defense prescribes that “in the punitive damages context, an employer may not be vicariously
liable for [violative] decisions where th[o]se decisions are contrary to the employer’s good faith
efforts to comply with Title VII.”37 “A district court may not grant a new trial due to error
“[u]nless justice requires otherwise.”38 “[T]he claimed error [must have] substantially and
adversely affected the party’s rights.”39
Defendant argues that there was “overwhelming evidence of Bristol’s good-faith efforts
to comply with Title VII.”40 While there was evidence that Defendant implemented anti-
retaliation policies, the Kolstad defense “is negated by a showing of direct malice or reckless
indifference to the federally protected rights of [Plaintiff], by [the employee] who was designated
by the company as the final decision-making authority responsible for implementing the
36 Docket No. 102, at 7.
37 Kolstad, 527 U.S. at 545 (internal quotation marks and citation omitted).
38 Fed. R. Civ. P. 61.
39 Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008) (internal
quotation marks and citation omitted).
40 Docket No. 97, at 7.
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company anti-discrimination policy.”41 As discussed above, the evidence introduced at trial
supported that as the Executive Vice President of HR, Ms. Wertz had final decision-making
authority responsible for implementing Bristol’s anti-retaliation policies. It also supported that
Bristol’s CEO, Hyrum Kirton, approved Ms. Wertz’s decision to terminate Ms. Graham.
The Kolstad good-faith exception to punitive damages
rooted in principles of agency law and the remedial purposes of the employment
discrimination statutes, shields employers who make a bona fide effort to institute
nondiscrimination policies, from the prospect of an award of punitive damages,
when despite good faith efforts of the employer to comply with the law,
employment discrimination has nonetheless occurred.42
Generally, “this exception will preclude punitive damages when a corporate defendant’s
nondiscrimination policy has been disregarded or violated by employees not of policy-making
rank.”43
The evidence introduced at trial supported that the decision to terminate Plaintiff was
made by employees of policy-making rank, the Executive Vice President of HR and the CEO,
and as such, the reasons underlying the Kolstad defense do not apply. Therefore, the Court finds
that not instructing the jury on the Kolstad defense was not an error and will deny Defendant’s
Motion on this basis.
41 Deters, 202 F.3d at 1271; see Dodoo v. Seagate Tech, Inc., 235 F.3d 522, 532–32 (10th
Cir. 2000) (concluding the Kolstad doctrine would be inapplicable based upon the plaintiff’s
direct liability theory and the facts of the case, as such the plaintiff would need to show malice or
reckless indifference of the plaintiff’s federal protected rights “on the part of the managers whom
[the defendant] designated to implement the company’s anti-discrimination policy”).
42 Copley v. BAX Global, Inc., 97 F. Supp. 2d 1164, 1168 (S.D. Fla. 2000) (citing
Kolstad, 527 U.S. at 540–546).
43 Id.
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C. Motion to Reduce Damages
Under 42 U.S.C. § 1981(a)(1), “[i]n action brought . . . under [Title VII] . . . the
complaining party may recover compensatory and punitive damages . . . .” However, the sum of
the damages are subject to statutory caps according to employer size.44 Section 1981a provides
that the sum of the amount of compensatory damages and punitive damages awarded shall not
exceed “in the case of a [defendant] who has more than 500 employees . . . $300,000.00.”45 The
parties agree that Bristol has more than 500 employees and as such, the $300,000.00 cap applies.
Defendant argues that the Court should reduce the punitive damages award because the
award was excessive and constitutionally violated due process. It argues that the Court should
first assess the constitutionality of the original amount awarded instead of the capped amount.
Defendant does not provide a basis for the Court to consider the award before applying the
statutory cap. Absent such a showing, the Court will follow the practice of the Tenth Circuit and
other courts in the circuit and apply the statutory cap before considering Defendant’s
constitutional challenge.46 Defendant asserts that it will “likely be prejudiced by the messaging
of an unwarranted jury verdict of $5,000,000 in punitive damages.”47 It does not provide any
further explanation of this prejudice or how assessing the reasonableness of the award prior to
applying the mandatory statutory cap impacts the messaging of the jury’s award. Beyond being
unsupported, the Court finds that it would be an impractical exercise given the statutory cap
governing Title VII retaliation cases.
44 42 U.S.C. § 1981a(b)(3).
45 Id. § 1981a(b)(3)(D).
46 See Deters, 202 F.3d at 1273; Millazzo v. Universal Traffic Serv., Inc., 289 F. Supp. 2d
1251, 1255 (D. Colo. 2003); Jones v. Rent-A-Center, Inc., 281 F. Supp. 2d 1277, 1279 (D. Kan.
2003).
47 Docket No. 97, at 7 n.2.
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Section 1981a establishes a regime whereby the jury will set the damages, without
reference to the statutory cap. Then, if the damages awarded exceed the relevant
limit, the district court shall reduce the amount so that it conforms with the statutory
cap. The statutory cap is not the limit of the damages spectrum with which the judge
might recalibrate the award given by the jury.48
Accordingly, the Court will apply the cap and reduce the total damages awarded to $300,000.00
before turning to constitutionality.
Applying the mandatory statutory cap of $300,000.00, minus the jury’s $75,000.00
compensatory award, results in a punitive damages award of $225,000.00. This results in a
punitive to compensatory damages ratio of 3:1.
“The Due Process clause prohibits the imposition of grossly excessive punishments on a
tortfeasor.”49 “To satisfy due process, ‘one must receive fair notice both that certain conduct will
subject him to punishment, and the possible severity of the punishment that may be imposed.’”50
The Supreme Court has established “guideposts” or factors by which courts assess the
constitutionality of a punitive damages award. The factors are: (1) the degree of reprehensibility
of the defendant’s conduct; (2) the disparity between the actual harm suffered by the plaintiff and
the punitive damages award; and (3) the difference between the punitive damages award and the
civil penalties authorized or imposed in comparable cases.51
Defendant does not address the $225,000.00 punitive damages award under these
guideposts, only applying them to the original $5,000,000.00 award in its Motion, and failing to
48 Deters, 202 F.3d at 1273 (citing Luciano v. The Olsten Corp., 110 F.3d 210, 221 (2d
Cir. 1997)).
49 White v. Wycoff, No. 13-cv-01761-CMA-MJW, 2016 WL 9632873, at *4 (D. Colo.
June 24, 2016) (citing Jones v. United Parcel Serv., 674 F.3d 1187, 1206–07 (10th Cir. 2012)).
50 BSNF Ry. Co. v. U.S. Dep’t of Lab., 816 F.3d 628, 644 (10th Cir. 2016) (quoting
Deters, 202 F.3d at 272).
51 BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574–75 (1996).
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further address the issue in its Reply. Defendant does not appear to argue that the $225,000.00
punitive damages award is constitutionally excessive. Nonetheless, the Court will briefly address
the issue below.
It is important to note that in terms of fair notice, Defendant “certainly had notice that it
could be subject to punitive damages for involvement in discriminatory practices with malice or
reckless indifference to an individual’s federally protected rights, by virtue of the plain language
of Title VII itself.”52
Turning to the first guidepost, the degree of reprehensibility is considered “the most
important indicium of the reasonableness of a punitive damages award.”53 “To determine the
reprehensibility of a defendant [the court should] consider[] whether: the harm caused was
physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless
disregard of the health or safety of others; the target of the conduct had financial vulnerability;
the conduct involved repeated actions or was an insolated incident; and the harm was the result
of intentional malice, trickery or deceit, or more accident.”54
As to the first consideration, Plaintiff testified that when she was fired, she was anxious,
lost confidence, lost weight, and had trouble functioning normally. Further, Ms. Wertz was the
Executive Vice President of HR and testified to her training on Title VII and heavy involvement
in the company’s anti-retaliation and discrimination policies. There was also testimony and
evidence presented at trial that Ms. Wertz terminated Plaintiff’s employment after Plaintiff had
52 Deters, 202 F.3d at 1272.
53 BMW, 517 U.S. at 575.
54 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003).
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withdrawn a Charge of Discrimination against Ms. Wertz and another employee, and Plaintiff
was not permitted to respond to the allegations against her.
It is rational that the jury believed Plaintiff’s testimony and found Defendant’s conduct
sufficiently reprehensible as to be penalized by punitive damages. Further, the Court finds that a
punitive damages award of $225,000.00 is rational given the evidence presented at trial and
Defendant’s notice under Title VII and § 1981a as discussed above.
The Court next looks to the ratio of the punitive damages award to the compensatory
award. There are not bright line rules as to whether a ratio “push[es] the boundaries of due
process requirements.”55 However, the Supreme Court has concluded that “in practice, few
awards exceeding a single digit ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process.”56
In this case, as discussed above, the jury awarded $75,000.00 in noneconomic damages
and after the statutory cap is applied, $225,000.00 in punitive damages remains, which is a 3:1
ratio. The Court does not find this ratio disproportionate.
Defendant suggests it would be appropriate to reduce the punitive damages award to
$75,000.00 or a 1:1 ratio.57 In addressing a punitive damages award capped under § 1981a, the
Tenth Circuit concluded that “only when an award would shock the judicial conscience, and
constitute a denial of justice, for example because it would result in the financial ruin of the
defendant or constitute a disproportionately large percentage of a defendant’s net worth, will [the
court] reduce the award below the statutory cap.”58 There is no evidence that the capped award
55 Jones, 674 F.3d at 1207–08.
56 State Farm Mut. Auto Ins. Co., 538 U.S. at 425.
57 Docket No. 102, at 10.
58 Deters, 202 F.3d at 1273 (internal quotation marks and citations omitted).
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would result in the financial ruin of Bristol or that it constitutes a large percentage of Bristol’s
net worth. Given the facts of the case and the punitive damages award under the cap, the award
also does not otherwise shock the judicial conscience and as such the Court will not further
reduce the punitive damages award.
III. CONCLUSION
It is therefore
ORDERED that Defendant’s Renewed Motion for Judgment as a Matter of Law (Docket
No. 97) is DENIED; it is further
ORDERED that Defendant’s Motion to Reduce Damages Award (Docket No. 97) is
GRANTED IN PART and DENIED IN PART; it is further
ORDERED that the punitive damages award is reduced to $225,000.00.
DATED August 3, 2026.
BY THE COURT:
______________________________________
TED STEWART
United States District Judge
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