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Court upholds jury verdict in favor of employee in excess of $400,000.

Abuan v. Level 3 Communications, Inc., 353 F.3d 1158 (10th Cir. December 30, 2003) - This is an ADEA and Title VII action alleging age and national origin discrimination as well as retaliation. John Abuan, who is of Hispanic and Filipino heritage and who was over fifty years of age at the time of the events in question, was hired as the team leader and project manager directing development of the NetExpert network management system. His initial salary was $100,000 a year. At trial, there was evidence that Abuan completed the NetExpert project on time and that his performance was exemplary. A few months later  Abuan was moved to a lower position and he was told that the move was unrelated to job performance. Eventually, Abuan made an internal complaint of discrimination. After his complaint, there was evidence that the company was retaliating against him. Abuan brought this lawsuit and at trial the jury found in his favor on the ADEA and retaliation claims. He was awarded $300,000 in back pay, $5 million in compensatory damages and $5 million in punitive damages. Post-trial, the district court reduced the back pay award to $56,252.25. It remitted the award of liquidated damages under the ADEA to the same amount. It applied the $300,000 cap on punitive and compensatory damages. The result was a total award of $412,504.50. Shortly after the trial, Abuan was laid off and he asked the district court for an award of front pay. The district court awarded front pay for two years in the amount of the $245,160. On appeal, the company contests the sufficiency of the evidence and the Tenth Circuit holds that the evidence is sufficient to support the jury verdict. Next, the company contests as duplicative the award of punitive damages under Title VII and the award of liquidated damages under the ADEA. The Court rejects this argument because even if the awards were duplicative,  Abuan was still entitled to an award of $300,000 under Title VII for compensatory damages alone. Next, the company contests an evidentiary ruling allowing the admissibility of a statement made by a high corporate officer who was Abuan's immediate supervisor. The statement was to the effect that the reason that this corporate officer was resigning was based in large part on the company's treatment of Abuan. The Tenth Circuit holds that the statement was admissible under Rule 801(d)(2)(D). Next, the company contests the failure of the district court to give certain jury instructions. The Court reviews the company's arguments under the "plain error" rule and finds none. Next, the company asserts that a reversal of the jury verdict is required based upon improper closing arguments by Abuan's counsel. The Court finds no ground for reversal. Moreover, the company has not demonstrated "substantial injustice", a showing mandated by its failure to make a timely objection. Next, with respect to the issue of front pay, the company argues that Abuan is not entitled to front pay as a matter of law because he rejected a post-trial offer of a position and because he was subsequently laid off for non discriminatory reasons. The Tenth Circuit rejects these arguments because it was reasonable for Abuan to reject the employment offer based upon the hostility shown towards him and he would not have been laid off if he had never been demoted in the first place. On cross-appeal, Abuan argues that the district court erred by basing his front pay award on his current salary as opposed to basing the award on what his salary would have been had he never been subjected to discrimination and retaliation. The Tenth Circuit agrees and reverses and remands. Finally, the company seeks dissolution of the district court's order enjoining it from retaliating against any witness who testified at trial. There was evidence at trial that the testimony transcripts of company employees were going to be reviewed by the company's CEO. Based upon that testimony, the district court entered a restraining order to prevent the company from taking action against any witnesses. The district court refused to dissolve the restraining order after the trial. The Tenth Circuit finds no abuse of discretion. Click here to see actual case.