Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fulmore v. M & M Transport Services, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

April 29, 2014

CARL S. FULMORE, Plaintiff,



This matter is before the Court on Defendant M&M Transport Services, Inc.'s ("M&M Transport") Motion for Judgment as a Matter of Law (Dkt. 153) and Motion for New Trial (De Novo) or Remittitur under Rule 59 (Dkt. 155). Following a trial held on August 5 through August 6, 2013, on Plaintiff Carl S. Fulmore's ("Mr. Fulmore") claims of hostile work environment and violation of the Indiana Wage Claims Statute, a jury found in Mr. Fulmore's favor and entered a verdict for both compensatory and punitive damages. Finding that the jury had a legally sufficient evidentiary basis to find for Mr. Fulmore on his hostile work environment claim, the Court DENIES M&M Transport's Motion for Judgment as a Matter of Law (Dkt. 153). The Court further finds that the record does not support granting a new trial, but the compensatory and punitive damages awarded Mr. Fulmore were excessive. Therefore, M&M Transport's Motion for New Trial or Remittitur (Dkt. 155) is DENIED as to a new trial but GRANTED as to remittitur.


M&M Transport is a nationwide transportation provider for some of the largest retail, manufacturing, distribution and logistics companies in the United States and does business in Indianapolis, Indiana. Nationwide, it employs approximately 400 employees; however, the Indianapolis location employs approximately 135 employees of which approximately 120 are drivers. Mr. Fulmore was employed as an over-the-road truck driver with M&M Transport in its Indianapolis location from December 2006 until he was terminated in February 2010. The dispute in this matter arises from Mr. Fulmore's claims against his former employer that he was subjected to discrimination and harassment on the basis of his race under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §1981 and a claim for unpaid wages. Originally, Mr. Fulmore filed a five-count complaint against M&M Transport, alleging claims of intentional race discrimination, race retaliation, workers' compensation retaliation, violations of the Family Medical Leave Act ("FMLA"), the Indiana Wage Payment Statute, and the Indiana Wage Claims Statute. The Court granted M&M Transport's Partial Motion for Summary Judgment on Mr. Fulmore's claims for race retaliation, discriminatory termination, workers' compensation retaliation under the FMLA, and violation of the Indiana Wage Payment Statute. See Dkt. 62.

The parties went to trial on the hostile work environment claim and for violation of the Indiana Wage Claims Statute. At the close of Mr. Fulmore's case, M&M Transport moved orally for judgment as a matter of law and the Court denied the motion. Following deliberations, the jury returned a verdict in favor of Mr. Fulmore for $400, 000.00 in compensatory damages, $2, 850, 000.00 in punitive damages, and $113.00 for damages pursuant to the Indiana Wage Claims Statute. On August 6, 2013, the Court entered judgment. Thereafter, M&M Transport filed, and the Court granted, a Stay of Execution of the Judgment and Approval of supersedeas bonds in the amount of $3, 500, 000.00. See Dkt. 151. M&M Transport now seeks relief from the verdict under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law, and Rule 59 for a new trial, or alternatively for remittitur of the damages award.


A. Rule 50(b) Motion

Rule 50(a)(2) of the Federal Rules of Civil Procedure provides: "A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and the facts that entitle the movant to the judgment." If a Rule 50(a) motion made at the close of all the evidence is not granted, the movant may renew the motion no later than 28 days after the entry of judgment. Fed.R.Civ.P. 50(b). "Rule 50 of the Federal Rules of Civil Procedure allows a district court to enter judgment against a party who has been fully heard on an issue during a jury trial if a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.'" Passananti v. Cook Cnty., 689 F.3d 655, 659 (7th Cir. 2012) (quoting Fed.R.Civ.P. 50(a)). When deciding a Rule 50 motion, the court will construe the evidence strictly in favor of the party who prevailed before the jury and will examine the evidence only to determine whether the jury's verdict could reasonably be based on that evidence. Id. The court does not make credibility determinations or weigh the evidence. Id. Although the court reviews the entire record, the court will disregard all evidence favorable to the moving party that the jury was not required to believe. Id.

B. Rule 59 Motion

Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure provides: "The court may, on motion, grant a new trial on all or some of the issues-and to any party-as follows: after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." "A court may only order a new trial if the jury's verdict is against the manifest weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party." Marcus & Millhap Inv. Servs. v. Sekulovski, 639 F.3d 301, 313 (7th Cir. 2011) (quoting Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th Cir. 2010)). "A verdict will be set aside as contrary to the manifest weight of the evidence only if no rational jury' could have rendered the verdict." Moore ex rel. Estate of Grady v. Tuelja, 546 F.3d 423, 427 (7th Cir. 2008) (citation omitted).

C. Compensatory and Punitive Damages

"[C]ompensatory and punitive damages, although usually awarded at the same time by the same decisionmaker, serve different purposes." State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). Compensatory damages redress a concrete loss suffered by a plaintiff as a result of a defendant's wrongful conduct. Id. Punitive damages, in contrast, "are aimed at deterrence and retribution." Id. "The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor." Id.

When reviewing compensatory damages awards, the court considers "(1) whether the award is monstrously excessive'; (2) whether there is no rational connection between the award and the evidence; and (3) whether the award is comparable to those in similar cases." Marion Cnty. Coroner's Office v. EEOC, 612 F.3d 924, 930-31 (7th Cir. 2010). Punitive damages may be awarded when the defendant is found to have engaged in discriminatory practices with malice or with reckless indifference. 42 U.S.C. § 1981a(b)(1). See, e.g., Gile v. United Airlines, Inc. 213 F.3d 365 (7th Cir. 2000); Slane v. Mariah Boats, Inc., 164 F.3d 1065 (7th Cir. 1999). When reviewing punitive awards, the Supreme Court instructs the court to consider: (1) the degree of reprehensibility of the conduct; (2) the disparity between actual harm and the punitive award; and (3) a comparison of the award to the civil penalties authorized or imposed in comparable cases. State Farm, 538 U.S. at 418.


M&M Transport seeks three remedies in the alternative. First, it seeks judgment as a matter of law under Rule 50(b). Second, it seeks a new trial under Rule 59(a). Third, it seeks a remittitur of the damages awarded to Mr. Fulmore. The Court will address each requested remedy in turn.

A. Motion for Judgment as a Matter of Law

Under the plain language of the rule, a Rule 50(b) motion may not be considered unless a preverdict motion for judgment as a matter of law was made under Rule 50(a). It is also the rule that issues that were not adequately preserved in a Rule 50(a) motion made at the close of evidence may not be included in a Rule 50(b) motion. Laborers' Pension Fund v. A & C Envtl., Inc., 301 F.3d 768, 777 (7th Cir. 2002). As an initial matter, Mr. Fulmore contends that M&M Transport failed to preserve a Rule 50(b) motion when it made its Rule 50(a) motion at the close of trial. Particularly, he argues that M&M Transport's Rule 50(a) motion did not discuss the elements of a hostile work environment claim, so it cannot now raise these elements in its Rule 50(b) motion. The Court disagrees with this overly restrictive view of Rule 50(b)'s preservation requirement. At the close of Mr. Fulmore's case, M&M Transport orally moved for judgment as a matter of law. Specifically, M&M Transport argued that Mr. Fulmore's evidence came "nowhere near the standard that courts look for in terms of establishing a hostile and abusive workplace." Dkt. 136 at 63. M&M Transport asserted that the evidence thus far had not established the existence of a hostile work environment, thereby implicitly invoking the elements of a hostile work environment claim.

Likewise, the Seventh Circuit has held that a failure to expressly state all grounds or expressly state a sufficient argument when the motion is presented at the close of the evidence will not result in waiver if previously presented arguments-in an earlier Rule 50(a) motion, in trial briefs, in motions in limine, on summary judgment, or otherwise-have made the moving party's position clear for the court and opposing party. Laborers' Pension Fund, 301 F.3d at 777-78; Petit v. City of Chi., 239 F.Supp.2d 761, 767 (N.D. Ill. 2002). Here, M&M Transport made its position clear during trial, in prior arguments, and in pleadings. In addition to arguments made during trial, prior to trial the parties extensively litigated the impact of the summary judgment ruling on the admissibility of evidence related to Mr. Fulmore's discipline and termination. Further, the parties litigated these issues in motions in limine and made relevant arguments during settlement of jury instructions. Based on these circumstances, the Court will address the Rule 50(b) motion on the merits.

To establish a hostile work environment claim, a plaintiff must establish the following: (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. Porter v. Erie Foods Int'l, Inc., 576 F.3d 629, 634 (7th Cir. 2009). M&M Transport contends that Mr. Fulmore failed to satisfy the final two elements of a hostile work environment claim, specifically: that the harassment he experienced was so severe or pervasive that it altered the conditions of his work environment by creating a hostile or abusive situation, and that there is a basis for employer liability.

1. Severity of Harassment

First, to determine whether workplace harassment was sufficiently severe or pervasive to be actionable, courts look at "all of the circumstances, including the frequency of the discriminatory conduct, how offensive a reasonable person would deem it to be, whether it is physically threatening or humiliating conduct as opposed to verbal abuse, whether it unreasonably interferes with an employee's work performance, and whether it was directed at the victim." Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863, 868 (7th Cir. 2013). Second, an employer "may be found liable for a hostile work environment created by an employee who was not the plaintiff's supervisor only where the plaintiff proves that the employer has been negligent either in discovering or remedying the harassment." Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004) (internal quotation marks omitted). M&M Transport contends that at trial, Mr. Fulmore testified he was subjected to three categories of harassing conduct: (1) discriminatory discipline; (2) discriminatory distribution of route assignments; and (3) racially offensive comments and jokes.

a. Discriminatory Discipline and Distribution of Route Assignments

M&M Transport contends that Mr. Fulmore improperly presented evidence about his discipline. However, on the first day of trial, the Court found that Mr. Fulmore could present evidence concerning the totality of the workplace conditions, because harassment is not limited to statements but can include conduct, such as discriminatory route assignments or discipline. M&M Transport further argues that Mr. Fulmore presented no evidence that the discipline he received was racially motivated, aside from Mr. Fulmore's and witness Tony Webster's perception that African-American drivers received harsher punishment than white drivers. Additionally, M&M Transport contends that Mr. Fulmore's evidence that he received inferior routes based on race is supported only by Mr. Fulmore's perception and not actual knowledge. The evidence at trial on route assignments came from Mr. Fulmore and Tonya Alvarez ("Ms. Alvarez"). Mr. Fulmore testified that once Dave Raney ("Mr. Raney") became a dispatcher, he began receiving less palletized routes, and that less senior white employers were given these routes. As evidence of racial animus, Mr. Fulmore testified that he overheard Mr. Raney comment: "These niggers always complain about everything. You can't please them no matter what you do." Additionally, Ms. Alvarez, a white employee who worked in the office, testified that she observed that Mr. Raney kept preferred routes in a drawer and saved them for white employees. The jury heard evidence from Norman Brennan ("Mr. Brennan"), the senior logistics manager at M&M Transport and Mr. Fulmore's supervisor. Although Mr. Brennan testified that around this same time, there were material changes made to the way routes were assigned that did not involve race, the Court must disregard any evidence favorable to the moving party that the jury was not required to believe. The jury was not required to believe Mr. Brennan that the cause for Mr. Fulmore receiving fewer palletized routes was the change to the assignment system. That aside, there was some evidence before the jury that African-American drivers received less desirable route distributions.

With respect to discriminatory discipline, the Court agrees with M&M Transport that there was not sufficient evidence on which a reasonable jury could have relied to support a verdict of a hostile work environment on this claim. There was no evidence of racial animus relating to Mr. Fulmore's discipline. Without evidence that Mr. Fulmore's supervisors who disciplined him did so ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.