Wilson v. KTG, Kruger USA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

JOSEPH WILSON, )

)

Plaintiff, )

)

v. ) 16-cv-02508-TMP

)

K.T.G. (USA), INC., )

)

Defendant. )

ORDER DENYING PLAINTIFF’S MOTION FOR NEW TRIAL

Before the court is plaintiff Joseph Wilson’s Motion for

New Trial, filed on December 27, 2018. (ECF No. 107.)

Defendant K.T.G. (USA), Inc. (“K.T.G.”) responded on January 24,

2019. (ECF No. 115.) For the following reasons, the motion is

DENIED.

I. BACKGROUND

On February 7, 2011, Wilson, who is African-American,

started working as a Unitizer/Loader Operator for K.T.G.1 On

February 25, 2013, Anthony Dix, who is also African-American,

became Wilson’s supervisor and remained his supervisor up

through Wilson’s termination. K.T.G. has a Progressive

Discipline Policy in place with escalating punishment for

1A more in-depth discussion of the facts surrounding this case

can be found in this court’s summary judgment order. See Wilson

v. K.T.G. (USA), Inc., No. 2:16-cv-2508, ECF No. 51, 2018 WL

4571604 (W.D. Tenn. Sept. 24, 2018).

employee misconduct: for the first instance of misconduct, the

employee is orally reprimanded; for the second, the employee

receives a written warning; for the third, the employee receives

a final written warning and a suspension; and for the fourth,

the employee is terminated. Dix has the sole discretion to

discipline an employee who is under his supervision for that

employee’s first three acts of misconduct. Dix is therefore

able to suspend an employee without involving anyone from

K.T.G.’s Human Resource department. Utilizing his discretion,

Dix first disciplined Wilson on September 30, 2013, for failing

to clean up a product spill and placing pallets in front of the

area of the spill. On November 5, 2013, Dix disciplined Wilson

for talking on his cell phone at work. After each of these

incidents, Wilson filed internal grievances complaining about

Dix’s “harassing” behavior. For example, on October 22, 2013,

Wilson filed a grievance in which he stated that Dix had been

bullying and harassing him and “has made my job a hostile work

environment” based on “my ethic [sic] age.” (ECF No. 32-3 at

78-79.) On November 6, 2013, Wilson filed a charge of

discrimination with the EEOC, Charge No. 490-2014-00128 (the

“Charge”), in which he alleged as follows:

Since Anthony Dix became my supervisor he consistently

harasses and scrutinizes my work. On October 2, 2013,

I received a write up from Dix. On or about October

29, 2013, I filed a grievance concerning Dix’s

harassing behavior. On November 5, 2013, I received a

written-up [sic] from Dix. I believe I have been

discriminated against because of my race (Black) and

retaliated against in violation of Title VII[.]

(ECF No. 37-4 at 20.)

Sometime in December 2017, Dix suspended Wilson for

allegedly failing to complete a Receiving Report, which loaders,

such as Wilson, were required to complete. Wilson contended

that completing the Receiving Report was not required and that

Dix actually suspended him in retaliation for engaging in

protected activity. Dix’s decision to suspend Wilson was made

without input from or involvement of any other K.T.G. supervisor

or Human Resources’ employee. At the time Dix suspended Wilson,

Dix was aware that Wilson had filed internal grievances;

however, Dix had no knowledge that Wilson had filed the Charge.

Ann Fleck, K.T.G’s Human Resources Manager, had no knowledge of

Wilson’s internal grievances when Dix suspended Wilson. Fleck

did not know that Wilson had filed the internal grievances until

January 2014, which was after Dix suspended Wilson. (ECF No.

111 at 44.) In addition, Fleck did not know that Wilson had

filed the Charge until late December 2013 or early January 2014

(after Dix suspended Wilson).

This case proceeded to a jury trial in November 2018 to

resolve a single issue - whether Dix suspended Wilson in

retaliation for the grievances Wilson filed.2 Prior to trial, on

November 12, 2018, K.T.G. filed a motion in limine seeking to

exclude evidence regarding the Charge. (ECF No. 61.) The next

day, the court held a pretrial conference and when Wilson was

asked about K.T.G.’s motion in limine, he asserted that filing a

response in opposition to the motion was unnecessary because he

did not oppose the motion. The court therefore granted the

unopposed motion. (ECF No. 65.) However, on the morning of

trial Wilson’s position changed. Contrary to his earlier

representation, Wilson argued that while the Charge itself

should not be admitted, evidence referencing the Charge should

be admitted. As one example, Wilson argued that statements

where Wilson references that he filed the Charge, within his

Exhibit 13, should be admitted. (See ECF No. 107-1, Unredacted

Copy of Wilson’s Exhibit 13.) The court disagreed with Wilson

and again ordered that evidence regarding the Charge would not

be admitted. (ECF No. 96.)

After the parties presented closing arguments, the court

instructed the jury. During its deliberations, the jury asked

the following question: “For Mr. Wilson’s Grievances to be

protected activities under Title VII, do the grievances have to

allege prohibited discrimination.” (ECF No. 103 at 2.) After

2Wilson raised several other claims that the court dismissed at

the summary judgment stage. (ECF No. 51.)

discussing that question with the parties, the court took a

lengthy recess to consider the parties’ arguments and to review

Sixth Circuit case law. The court then notified the parties

that it would give the jury the following supplemental

instruction:

To come within the protection of Title VII, the

plaintiff must prove that he challenged an employment

practice that he reasonably believed was unlawful.

Title VII does not restrict the manner or means by

which an employee may oppose an unlawful employment

practice. The manner of opposition must be reasonable,

and that opposition must be based on a reasonable and

good faith belief that the opposed practice was

unlawful. In other words, a violation of Title VII’s

retaliation provision can be found whether or not the

challenged practice ultimately is found to be

unlawful. Title VII does not protect an employee if

his opposition is merely a vague charge of

discrimination. Although vague complaints do not

constitute opposition, the law does not require that

the plaintiff’s complaint be lodged with absolute

formality, clarity, or precision.

(ECF No. 104.) The court explained to the parties the bases for

this supplemental instruction:

And, then, second, this supplemental instruction, let

me explain to you what I've done. First of all, I've

taken the first sentence from the protected activity

section of the Yazdian opinion. The only change I made

in Yazdian, it says, "Yazdian must establish," and

that was a summary judgment issue at trial, so I

substituted that by saying that, "The plaintiff must

prove that he challenged an employment practice that

he believed was unlawful."

The second sentence, which Plaintiff asked to include,

says, "Title VII does not restrict the manner or means

by which an employee may oppose an unlawful employment

practice."

The third sentence of Yazdian, I'm not including, the

one that read, "Indeed, a demand that the supervisor

cease his or her harassing conduct constituted

protected activity covered under Title VII."

I think that would be misleading to the jury because

the way it reads, it sounds like I'm telling them what

would be found - what they should find, excuse me, and

that's confusing and misleading and inappropriate as

part of the jury instruction. So that sentence of

Yazdian that begins with the demand that a supervisor

cease, I am not including in the instruction.

The next sentence of my instruction, “The manner of

opposition must be reasonable and that opposition must

be based on a reasonable and good-faith belief that

the opposed practice was unlawful," comes partly from

Yazdian on page 646, and that's actually consistent

with the existing instruction about a good-faith

belief that we have in instruction No. 10, good-faith

belief.

That quote is from - is taken from Yazdian quoting

Johnson, and Johnson – that language - and I have a

copy of the Johnson opinion at the podium if anyone

wants to look at that, but it's taken from the 6th

Circuit opinion in Johnson.

The next two sentences, actually, “The manner of

opposition must be reasonable and the opposition must

be based on a reasonable and good-faith belief that

the opposed practice was unlawful. In other words, a

violation of Title VII's retaliation provision can be

found whether or not the challenge practice ultimately

is found to be unlawful." Again, that's taken from

Johnson.

And the last two sentences, "Title VII does not

protect an employee" - I did leave out the word

"however" to not highlight this sentence, but "Title

VII does not protect an employee if his opposition is

merely a vague charge of discrimination and, although

vague complaints do not constitute opposition, the law

does not require that the plaintiff's complaint be

lodged with absolute formality, clarity, or

precision."

Ms. Collins, do you wish to be heard on this

instruction?

(ECF No. 113 at 26:7-28:18.)

Wilson objected to the last two sentences of the

instruction. The court overruled Wilson’s objection and gave

the jury the above-quoted supplemental instruction. (ECF No.

113 at 28-29.) Ultimately, the jury returned a verdict in

K.T.G.’s favor and the court subsequently entered judgment in

conformity with the verdict. (ECF Nos. 105; 106.) In the

present motion, Wilson argues that a new trial is warranted

because (1) the court improperly excluded evidence regarding the

Charge; and (2) the supplemental jury instruction was erroneous.

(ECF No. 107.)

II. ANALYSIS

After a jury trial, a court may grant a new trial “for any

of the reasons for which new trials have heretofore been granted

in actions at law in the courts of the United States.” Fed. R.

Civ. P. 59(a)(1)(A). “A new trial is appropriate when the jury

reaches a ‘seriously erroneous result as evidenced by (1) the

verdict being against the [clear] weight of the evidence; (2)

the damages being excessive; or (3) the trial being unfair to

the moving party in some fashion, i.e., the proceedings being

influenced by prejudice or bias.’” Cummins v. BIC USA, Inc.,

727 F.3d 506, 509–10 (6th Cir. 2013) (quoting Static Control

Components, Inc. v. Lexmark Int'l, Inc., 697 F.3d 387, 414 (6th

Cir. 2012)). Furthermore, “a motion for a new trial will not be

granted unless the moving party suffered prejudice.” Tompkin v.

Philip Morris USA, Inc., 362 F.3d 882, 891 (6th Cir. 2004). “The

burden of showing harmful prejudice rests on the party seeking

the new trial.” Simmons v. Napier, 626 F. App'x 129, 132 (6th

Cir. 2015) (quoting Tobin v. Astra Pharm. Prods., Inc., 993 F.2d

528, 541 (6th Cir. 1993)). The Sixth Circuit has explained that

“the governing principle in the district court's consideration

of a motion for a new trial is whether, in the judgment of the

trial judge, such course is required in order to prevent an

injustice[.]” Park W. Galleries, Inc. v. Hochman, 692 F.3d 539,

544 (6th Cir. 2012) (quoting Davis v. Jellico Cmty. Hosp. Inc.,

912 F.2d 129, 133 (6th Cir. 1990)). The party seeking a new

trial thus bears “a heavy burden.” Miller v. Am. President

Lines, Ltd., 989 F.2d 1450, 1466 (6th Cir. 1993).

A. Wilson’s Exhibit 13 – Reference to the EEOC Charge

Relevant evidence is generally admissible. Fed. R. Evid.

402. “Evidence is relevant if: (a) it has any tendency to make

a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the

action.” Fed. R. Evid. 401(a-b). However, relevant evidence is

excludable “if its probative value is substantially outweighed

by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Fed. R.

Evid. 403. “[I]f 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.” Tompkin, 362 F.3d at 891 (quoting Morales v.

Am. Honda Motor Co., Inc., 151 F.3d 500, 514 (6th Cir. 1998));

Decker v. GE Healthcare Inc., 770 F.3d 378, 391 (6th Cir. 2014)

(“An erroneous evidentiary ruling amounts to reversible error,

justifying a new trial, only if it was not harmless; that is,

only if it affected the outcome of the trial.” (internal

citation and quotation omitted)). “To demonstrate prejudice

stemming from evidentiary error, it is not sufficient merely to

show that the district court made a mistake in admitting or

excluding certain evidence.” Simmons, 626 F. App’x at 132.

Wilson argues that he is entitled to a new trial because

“the blanket exclusion of any reference to Plaintiff’s protected

conduct with the EEOC likely swayed the jury.” (ECF No. 107 at

5.) Specifically, Wilson contends that the court improperly

redacted his Exhibit 13 by removing statements stating that he

“filed a charge of racial discrimination with the EEOC.” (Id.

at 4.) On November 12, 2018, K.T.G. filed a motion to exclude

Wilson’s Charge and any references to the Charge. (ECF No. 61.)

The next day, the court held a pretrial conference. At this

conference, Wilson was asked about K.T.G.’s motion seeking to

exclude evidence regarding the Charge. Wilson asserted that it

was unnecessary for him to respond to the motion because he did

not oppose the motion. Accordingly, the court orally granted

K.T.G.’s motion. (ECF No. 65.) On the morning of trial,

however, Wilson attempted to relitigate this issue. After

hearing further arguments, the court again ruled that evidence

regarding the Charge, including references to the Charge made

within Wilson’s Exhibit 13, would be excluded, and subsequently

entered a written order to that effect. (ECF No. 96; ECF No.

114 at 32-34.)

Assuming, arguendo, that Wilson has not waived his

objection to the court’s evidentiary ruling, see K.C. ex rel.

Calaway v. Schucker, No. 02-2715-STA, 2013 WL 5972192, at *4

(W.D. Tenn. Nov. 8, 2013), Wilson’s argument fails on the

merits. The only issue at trial was whether Dix suspended

Wilson in retaliation for filing grievances. As this court

previously stated:

[E]vidence relating to the November 6, 2013 EEOC

Charge is irrelevant to the present retaliation claim.

See Fed. R. Evid. 402. The court has previously ruled

that, based on the record submitted with the summary

judgment briefing, no reasonable juror could find that

either Wilson’s supervisor or K.T.G.’s Human Resources

Manager knew about the November 6, 2018 EEOC Charge

prior to the suspension. Because the court has already

determined that, as a matter of law, the EEOC Charge

was not a basis for the alleged retaliation, the EEOC

Charge is irrelevant to determining whether K.T.G.

unlawfully retaliated against Wilson.

Second, to the extent that evidence regarding the EEOC

Charge is relevant, any probative value is

substantially outweighed by the risk of undue

prejudice, confusing the issue, misleading the jury,

or needlessly presenting cumulative evidence. See Fed.

R. Evid. 403. The EEOC Charge referred to two prior

written disciplinary notices that Wilson received, and

asserted that K.T.G. discriminated against Wilson on

the basis of race. Evidence regarding the disciplinary

notices and grievances Wilson filed in response is

otherwise admissible, so introducing additional

evidence in the form of the EEOC Charge is needlessly

cumulative. Furthermore, allowing references to the

EEOC Charge presents a significant threat of confusing

the issue, misleading the jury, and subjecting K.T.G.

to undue prejudice.

(ECF No. 96 at 2-3.) Wilson has again failed to provide the

court with any basis to disturb the above order excluding

references to the Charge. Moreover, even if the court were to

conclude that it erroneously excluded evidence regarding the

Charge, a new trial would not be warranted. Wilson has not

established that a verdict would have been returned in his favor

if Exhibit 13 would have been admitted in its entirety. For

these reasons, Wilson is not entitled to a new trial on these

grounds.

B. Supplemental Jury Instruction #24 – Protected Activity

Federal Rule of Civil Procedure 51(d) recognizes that a

litigant may object to a proposed jury instruction he or she

finds erroneous and object if a court fails to give an

instruction he or she requested. The rule provides:

(1) Assigning Error. A party may assign as error:

(A) an error in an instruction actually given, if

that party properly objected; or

(B) a failure to give an instruction, if that

party properly requested it and - unless the court

rejected the request in a definitive ruling on the

record - also properly objected.

Fed. R. Civ. P. 51(d)(1)(A-B). “The Court considers jury

instructions as a whole ‘to determine whether they fairly and

adequately submitted the issues and applicable law to the

jury.’” Cone v. Hankook Tire Co., No. 14-1122, 2017 WL 3611756,

at *2 (W.D. Tenn. Aug. 22, 2017) (quoting Nolan v. Memphis City

Schs., 589 F.3d 257, 264 (6th Cir. 2009)); Pivnick v. White,

Getgey & Meyer Co., 552 F.3d 479, 488 (6th Cir. 2009) (“Our

inquiry into jury instructions is limited to whether, taken as a

whole, the instructions adequately inform the jury of the

relevant considerations and provide the jury with a sound basis

in law with which to reach a conclusion.” (quoting United

States v. Wells, 211 F.3d 988, 1002 (6th Cir. 2000))). “A party

is not entitled to a new trial based upon alleged deficiencies

in the jury instructions unless the instructions, taken as a

whole, are misleading or give an inadequate understanding of the

law.” Tannenbaum v. Fed. Ins. Co., 608 F. App’x 316, 319 (6th

Cir. 2015) (quoting Arban v. West Publ’g Corp., 345 F.3d 390,

404 (6th Cir. 2003)). “[A] trial court is given broad

discretion in wording its jury instructions and will not be

reversed as long as the charge correctly states the substance of

the law.” Mengelkamp v. Lake Metro. Hous. Auth., 549 F. App’x

323, 331 (6th Cir. 2013) (quoting United States v. L'Hoste, 609

F.2d 796, 805 (5th Cir. 1980)).

Wilson argues that a new trial is warranted because the

court’s supplemental jury instruction was erroneous. (ECF No.

107 at 5-6.) During its deliberations, the jury asked whether

Wilson’s grievances must allege prohibited discrimination to

qualify as protected activity under Title VII. (ECF No. 103 at

2.) Wilson initially requested that the court simply answer the

question “no.” (ECF No. 113 at 6:19-6:24.) Subsequently,

utilizing the Sixth Circuit’s decisions in Yazdian v. ConMed

Endoscopic Techs., Inc., 793 F.3d 634 (6th Cir. 2015) and

E.E.O.C. v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015),

Wilson asked that the jury be instructed as follows:

Title VII does not restrict the manner or means by

which and employee may oppose and unlawful employment

practice. . . . Indeed, a demand that a supervisor

cease his or her harassing conduct constitutes

protected activity covered by Title VII.

(Id. at 14.) The court ultimately proposed, and later utilized,

the following jury instruction, which was based on language

taken from Sixth Circuit cases:

To come within the protection of Title VII, the

plaintiff must prove that he challenged an employment

practice that he reasonably believed was unlawful.

Title VII does not restrict the manner or means by

which an employee may oppose an unlawful employment

practice. The manner of opposition must be reasonable,

and that opposition must be based on a reasonable and

good faith belief that the opposed practice was

unlawful. In other words, a violation of Title VII’s

retaliation provision can be found whether or not the

challenged practice ultimately is found to be

unlawful. Title VII does not protect an employee if

his opposition is merely a vague charge of

discrimination. Although vague complaints do not

constitute opposition, the law does not require that

the plaintiff’s complaint be lodged with absolute

formality, clarity, or precision.

(ECF No. 104.) Wilson objected to only the last two sentences

of this instruction, and the court overruled the objection.

(ECF No. 113 at 28-29.)

In his motion for a new trial, Wilson again argues that the

last two sentences of the supplemental instruction, which

reference “vague complaints,” are contrary to law. (ECF No. 107

at 6.) Wilson specifically argues that “[w]hile a Court or

attorneys reviewing the statement that a ‘vague complaint does

not constitute opposition’ has the benefit of the context and

explanations provided by the multiple cases that followed

Booker, this jury did not, and to have that statement about

‘vague’ complaints reiterated twice, to a lay person, it is not

difficult to see how they rendered the verdict they did.” (Id.)

The court rejects this argument and finds that Wilson “has not

discharged his heavy burden to show that the Court's

instructions were erroneous or that they misled the jury.”

Cone, 2017 WL 3611756, at *2. Out of the twenty-seven pages of

jury instructions, Wilson only challenges the final two

sentences of the supplemental jury instruction. The court finds

that the jury instructions were proper because “as a whole, they

‘fairly and adequately submitted the issues and applicable law

to the jury.’” Troyer v. T.John.E. Prods., 526 F. App’x 522,

525 (6th Cir. 2013) (quoting Arban, 345 F.3d at 404). Further,

the court finds that the last two sentences of the supplemental

jury instruction, which Wilson challenges, accurately describe

the governing legal standard and neither misled nor confused the

jury.

Wilson argues that the challenged portion of the

supplemental jury instruction comes from the Sixth Circuit’s

decision in Booker v. Brown & Williamson Tobacco, Co., 879 F.2d

1304, 131 (6th Cir. 1989), which has been “clarified and

distinguished by the Sixth Circuit many times since 1989.” (ECF

No. 107 at 5.) While the Sixth Circuit has factually

distinguished Booker in subsequent cases, it has, on numerous

occasions, reaffirmed that “Title VII does not protect an

employee . . . if his opposition is merely a ‘vague charge of

discrimination.’” Yazdian, 793 F.3d at 645. The Sixth Circuit

has also clarified that “[a]lthough vague complaints do not

constitute opposition, ‘Booker does not . . . require that the

plaintiff's complaint be lodged with absolute formality,

clarity, or precision.’” Id. at 645 (quoting Stevens v. Saint

Elizabeth Med. Ctr., Inc., 533 F. App’x 624, 631 (6th Cir.

2013)); see also Mumm v. Charter Twp. of Superior, 727 F. App’x

110, 112-13 (6th Cir. 2018) (“[W]hile a complaint need not be

lodged with absolute formality, clarity, or precision, a vague

charge of discrimination is insufficient to constitute

opposition to an unlawful employment practice.” (internal

citation and quotation omitted)); Braun v. Ultimate Jetcharters,

LLC, 828 F.3d 501, 511 (6th Cir. 2016) (“As UJC notes, however,

a vague charge of discrimination . . . is insufficient to

constitute opposition to an unlawful employment practice. . . .

Still, these holdings do not require that the plaintiff's

complaint be lodged with absolute formality, clarity, or

precision.” (internal citation and quotation omitted)); Stevens,

533 F. App’x at 631 (“We have held, [in Booker,] that a vague

charge of discrimination in an internal letter or memorandum is

insufficient to constitute opposition to an unlawful employment

practice. Booker does not, however, require that the plaintiff's

complaint be lodged with absolute formality, clarity, or

precision.” (internal citation and quotation omitted)). The two

sentences of jury instructions that Wilson now challenges trace

the exact wording used by the Sixth Circuit in those decisions.

Accordingly, the court concludes that the jury instructions were

proper.

III. CONCLUSION

For these reasons, Wilson’s Motion for New Trial is DENIED.

IT IS SO ORDERED.

s/ Tu M. Pham

TU M. PHAM

United States Magistrate Judge

August 6, 2019

Date