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Brian Stimson of The Skanner
Published: 12 November 2008

Attorneys for four African American men who were awarded a multimillion dollar racial discrimination suit in August were back in court Monday – this time on the defense.
Asbury Automotive is appealing the court's original ruling, saying the $19.5 million judgment against them was excessive. They are also asking the court for a new trial, because they claim pre-trial publicity tainted the decision and that the jury wasn't given proper instruction to find the owners of the dealership liable.
An attorney for Asbury, the former owners of Thomason Toyota of Gladstone, the dealership where a variety of racial epithets and harassment took place in 2005, told Judge Garr King that the original judgment of $19.5 million dollars is excessive and doesn't compare to other racial harassment suits.
"The average verdict for emotional distress is $62,000," Defense Attorney Stephen Rickles said.
The plaintiffs – Marcus Arnold, Carlos Barfield, Jahaeel Hardy and Kent Paul – were awarded about $2 million each after a jury decided they had been subjected to a hostile work environment that included jokes about using the back door, racial epithets and other racist remarks by managers and fellow salespeople.
Gene Hallman, attorney for the plaintiffs, said the case was decided by a jury from a variety of educations and backgrounds. Keith Dozier, co-counsel for the plaintiff, said it is notable that it was an all-White jury, and the defense is only raising these objections now that the jury didn't come back with a verdict favorable to the defense. None of these issues were objected to during the trial.
"We asked the jury to view this case through the viewpoint of an African American male," Hallman said. "(To see what it's like) to have a job only because it's illegal to fire you and not because your work is valued."
Defending the amount of the suit, Hallman said many racial harassment suits never make it to a jury trial and are settled out of court – making a comparison to settled claims incomparable. This case should not be compared to other cases in their substance either, Hallman said, countering a claim by Rickles that because the men did not seek professional psychiatric counseling for the harassment, they didn't experience the same level of damage experienced in other harassment cases. Hallman said testimony from family members of all four plaintiffs illustrated the negative effects it had on both their personal lives and work performance – marital difficulties, depression, social isolation, impact on job performance, loss of appetite, trouble sleeping and adverse relations with their children, among others.
Rickles is also asking the judge for a new trial based on two arguments: that the jury was improperly influenced by a single news report that aired before jury selection was made final, and that jurors were not given proper instruction on how to find the defendants liable for the damages.
Judge King declined to hear further arguments about whether the jury was influenced by news reports. The plaintiffs say the only jurors to admit to having watched the program were dismissed and no other jurors indicated they had seen the news piece. The defense made no objection about the allegedly tainted jury during the trial.
Rickles also claims jurors were improperly instructed on how to judge liability by the company when the court did not include the "Kolstad" instruction among the jury instructions. The Kolstad instruction, among others, had been requested by both the plaintiff and defense to be included in the jury instructions. The Kolstad instruction, says Rickles, would direct jurors to find liability on the part of the company only if managers took absolutely no steps to punish racist remarks by employees and took "reasonable care to prevent it."
"There's no evidence that anyone brought a complaint of racial discrimination that they didn't deal with," Rickles said.
But Hallman denies this notion, saying that many complaints were met with indifference or feigned and forced apologies. One employee was fired, only to be hired across the street at a dealership also owned by Asbury. Company managers even asked the plaintiffs if they would be averse to rehiring that employee. They were.
The record also shows that the general manager directed employees to make any complaints of racial harassment to his office, instead of the company's human resources department, a neutral party. The general manager at the time was a self-described "redneck" who said he would "put a bullet in the head" of people who disagreed with him, according to the plaintiffs.
No objections were made during the trial to the absence of the "Kolstad" instruction – many other instructions, requested by both sides of the case, were also not included in the final jury instructions made by the court.
Judge Garr King is expected to rule on this matter in the coming months. Depending on his ruling, an appeal could be made by either the plaintiffs or the defendants to the 9th Circuit Court of Appeals.

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