Dillard ignores the long-established principle that "[w]hen a jury verdict is challenged on appeal, . . . review is limited to determining whether the record ­ viewed in the light most favorable to the prevailing party ­ contains substantial evidence to support the jury's decision." Comcoa, Inc. v. NEC Tels., Inc., 931 F.2d 655, 663 (10th Cir. 1991). Instead, it portrays the facts in the light most favorable to the losing party ­ Dillard ­ and ignores or misstates essential facts. Contrary to Dillard's assertion, this case is not just about "a brief encounter between a single Dillard security officer and two black shoppers." Dill.Br. at 4. Instead, it is about the sorry history of Dillard's long-standing, comprehensive practice of targeting African-American shoppers for surveillance and searches at its Oak Park Mall store (the "Store"), in Overland Park, Kansas.

The Dillard Store has a long history of targeting African-American shoppers for surveillance and of improperly accusing African-Americans of shoplifting merchandise. Two Dillard security officers, Michael Imber ("Imber") and David Cole ("Cole"), both commissioned Overland Park police officers, resigned their employment with Dillard either wholly or partly because of the Store's mistreatment of African-Americans. Dill.App. at 713-15 (Imber); 745-46 (Cole).

Dillard security guards often referred to African-American customers as Code 3s (females) and Code 4s (males). Id. at 717. For example, if two African-American females entered the Store, one security officer might radio another to advise, "We have a couple of code 3's coming in the south door." Dill.App. at 717. No such coding was used for Caucasian customers. Id. at 765-66. This practice started as early as 1986 and continued, consistently, until well after this suit was filed. Id. at 711, 717.

African-American customers were frequently, and sometimes routinely, placed under surveillance by Dillard employees almost immediately after entering the Store and for no reason other than the fact that they were African-American. Id. at 745-46, 750-51, 765-66, 974-75. As one Dillard guard related, he repeatedly asked Dillard employees what the African-American customers were doing to merit surveillance, to which they would respond with comments like, "They're walking through the store." Id. at 745-46. One African-American guard was, himself, reported by a salesperson as a subject for surveillance when he was working in plain clothes in the Dillard Store. Id. at 975.

Hampton also presented substantial statistical evidence of Dillard's history of misconduct. Dillard maintains an "Incident Log" (the "Log"). Id. at 362-85 (Pf's Ex. 3); 844. Pursuant to Store policy, all security incidents, including suspected shoplifting, are to be reported in the Log. Id. at 939; App.Ex. at 1 (Pf's Ex. 2A); Dill.App. at 938 (admitted). The Log recorded in graphic detail how Dillard security routinely placed its African-American customers under surveillance as long as they were in the Store. See Dill.App. at 347 n. 12 (the "water-torture method of proof . . . redounded to [Hampton's] benefit . . .."). The Log spanned the period from March, 1995 through May, 1996. Id. at 373, 385.

Although Dillard admitted there is no proper business purpose for recording customers' races (id. at 964, 967-68), the Log identified the vast majority of customers under surveillance by race and sex, and nothing else. Id. at 362-85 (Pf's Ex. 3). From Dirks' Log-related testimony, "the jury learned the astoundingly innocuous nature of conduct which Dillard's viewed as 'suspicious' when committed by minority shoppers", e.g., "two black females walking around with a list of some kind." Dill.App. at 347 n. 12. Accordingly, the jury reasonably concluded that an African-American shopper is likely to be the target of race-based surveillance and harassment by security personnel at the Store, and Caucasians are not. Dillard conducted surveillance on African-Americans for no reason. As Detective Sergeant Imber, a white, 14-year veteran, testified, the Store targets and preys upon its African-American shoppers. Id. at 710-11; 721.

At least three Dillard security officers put Store management on notice of the mistreatment of African-American shoppers.⁽¹⁾ Due to the inappropriate treatment of African-American customers, one officer volunteered to provide training for Store employees. Id. at 768. This request was refused by Dillard. Id. at 768. Dillard does no diversity training at the Store. Id. at 768-69. Indeed, the Store's manager did not know what cultural diversity training is. Id. at 963.

Hampton and Cooper, who are African-American, went shopping with four small children at the Dillard Store on April 5, 1996, unaware that this Dillard's targeted African-American customers. Dill.App. at 611, 627-28. After shopping about an hour, Hampton bought infantwear for her nephew, also unaware that she and Cooper had been under surveillance by part-time security guard Tom Wilson for virtually the entire time they were in the Store. Id. at 613, 628. When Hampton made the purchase, the clerk handed her two coupons, redeemable for small bottles of cologne in the Store's fragrance department. Id. at 613, 615, 628. The clerk told Hampton that the bottles of cologne were given to her because she had made purchases at Dillard that day. Id. at 613, 619, 628. During the hour they had been in the Store, the women had talked to clerks and walked through the Store's fragrance department. Id. at 627-29. No Dillard employee offered either woman a coupon for cologne before Hampton paid for the infantwear. Id. at 613, 628.

Hampton and Cooper went directly to the perfume counter to redeem the coupons, intending thereafter to buy a dress. Id. at 627; 629-30. Hampton handed the coupons to Betty Chouteau, the sales person at the perfume counter. Id. at 629-30. Before Chouteau could hand Hampton the cologne, Wilson, wearing plain clothes, approached the women and accused them of stealing merchandise. Id. at 629-30. When Wilson accosted Hampton, Chouteau walked away without giving Hampton her cologne (id. at 629-30) because she felt uncomfortable and "like it was an embarrassing situation for" Hampton and Cooper. Id. at 624. Although Hampton had given her coupons to Chouteau, she never received the cologne. Id. at 630.

The district court submitted two special interrogatories to the jury after the trial's first phase. The first asked:

Do you find by a preponderance of the evidence that plaintiff was entitled to a free cologne sample as a benefit or privilege of her purchase on April 5th, 1996?

Dill.App. at 147, 690-91. The second inquired:

Do you find by a preponderance of the evidence that defendant intentionally interfered with plaintiff's ability to receive a free cologne sample?

Id. at 147, 691. The jury answered "Yes" to both interrogatories. Id. at 147, 691.

While at the Store, Hampton and Cooper did nothing suspicious or that would draw attention to themselves as potential shoplifters. Dill.App. at 802, 807, 826, 828. The jury concluded that they had been under surveillance, stopped, and searched because of their race. Indeed, Dillard violated its own procedures when it accused Hampton and Cooper. No Dillard employee saw either woman conceal any item known to be Dillard merchandise. Id. at 1032, 1090-92. No Dillard employee did a count of merchandise either before the women entered the dressing room or after they came out. Id. at 1092.

When Wilson approached Hampton and Cooper and accused them of stealing, he was abrasive and condescending. Id. at 806-08, 822-23, 830-32. When Hampton complained, Wilson threatened to call the police and have her forcibly removed. Id. at 806, 830. Although Wilson claimed he believed Cooper had hidden Dillard merchandise in her jacket, he never asked to see inside the jacket. Id. at 808, 1022. Instead, he demanded to see the bag containing Hampton's purchases. Id. at 1021-22. After taking the bag, Wilson dumped the contents onto the perfume counter. Id. at 830. He compared the receipt to the merchandise and, finding it all had been paid for, shoved the merchandise at Hampton without returning it to the bag or apologizing. Id. at 830, 832.

Wilson's mistreatment of Hampton was extremely humiliating and embarrassing for her. Id. at 832. Having been publicly accused of shoplifting in her children's presence (id. at 829, 832), Hampton was so distraught she was unable to drive and had to call her husband and have him take her and their children home. Id. at 833. She had to find a ride home for the friend of her daughter who had accompanied them and explain the incident to the friend's mother. Id. at 833. Hampton was brought to tears by Dillard's misconduct and was so upset she could not write out a complaint on her own. Id. at 843.

Dillard's misconduct has changed Hampton's shopping habits. She no longer takes her children along when shopping because she fears again being unjustly accused. She cannot bear the thought of her children witnessing that again. Id. at 834. She has been unable to return to Dillard's Store. Id. at 834. Hampton's daughter had frequent nightmares after the incident and Hampton repeatedly has had to explain to her that no guard at any store will hurt Hampton. Id. at 834.

The jury answered special interrogatories regarding whether Dillard had violated Hampton's rights under § 1981. Responding affirmatively to, "Do you find by a preponderance of the evidence, in accordance with Instruction No. 18, that plaintiff's race was a motivating factor in defendant's conduct on April 5, 1996?" the jury awarded $56,000 in actual damages and $1,100,000 in punitive damages. Id. at 160, 161, 1208-09.

The jury verdict on Hampton's § 1981 claim properly withstood post-trial motions. The term "make and enforce contracts", expanded to include the "making, performance, . . . and enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship", brought Dillard's intentional interference with Hampton's right to enjoy the benefits and privilege of a contractual relationship within § 1981's reach. There was sufficient competent evidence to support the jury's reasonable conclusion that Dillard's interference was because Hampton is African-American. There were no erroneous or sufficiently prejudicial rulings warranting new trial and some alleged instructional and evidentiary error was not preserved. The actual and punitive damages are supported by evidence, are consistent with prior awards, and do not violate Dillard's rights. The verdict and district court order on post trial motions should be affirmed.

However, the district court erroneously granted summary judgment on Cooper's claims. Statutorily required broad construction of § 1981's terms and expansive application of § 1981 to effectuate Congress' intent demand that Cooper's § 1981 claim be submitted to a jury. With regard to both the § 1981 and false imprisonment claims, the district court improperly made credibility and intent determinations inappropriate on summary judgment. Summary judgment should be reversed and Cooper's claims remanded for trial.

Foreword

Careful reading of the sixty-nine cases Dillard cites suggests quantity rather than quality. Dillard often mischaracterizes holdings or is otherwise misleading and has reshaped language and holdings to fit its arguments.⁽²⁾ Often, the cases are distinguishable. More insidiously, Dillard lifts language from cases and uses it inaccurately in ways only discoverable upon a careful reading of the case. Price v. City of Charlotte, N.C., 93 F.3d 1241 (4th Cir. 1996), devotes pages to analyzing cases from all circuits regarding the emotional distress evidence necessary to support damage awards. Dillard quoted an introductory sentence from one section of that analysis as though it were the court's holding.⁽³⁾

I. THE DISTRICT COURT PROPERLY DENIED DILLARD'S JAML MOTION

A. Standard of Review

This Court reviews de novo the denial of Dillard's Rule 50(b) motion for judgment as a matter of law. Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir.), cert. denied, 516 U.S. 817 (1995). Denial of a motion for new trial is reviewed for abuse of discretion. F.D.I.C. v. United Pacific Ins. Co., 20 F.3d 1070, 1079 (10th Cir. 1994).

B. The District Court Correctly Denied Post-Trial Relief

Hampton was required to prove that Dillard intentionally interfered with her right to enjoy the benefits and privileges of a contractual relationship because of race. There was ample evidence, especially when viewed in the light most favorable to Hampton and the jury's verdicts, from which the jury could conclude that the coupon was bestowed on Hampton as a result of her purchase (supra at 7), that Dillard intentionally interfered with her enjoyment of the benefits conferred (id.), and that the interference was motivated by race (see, e.g., supra at 3-6, 8). Moreover, the district court's conclusions of law were correct.

C. The Coupon Constituted a Contract Interest Under § 1981

The plain language, legislative history, and judicial interpretations of § 1981 support the district court's conclusion that the coupon was a contract interest warranting the protection of 42 U.S.C. § 1981.⁽⁴⁾ Section 1981 secures to African-Americans the same right to make and enforce contracts as is enjoyed by white citizens. Portions of the Civil Rights Act of 1991 ("1991 CRA" or "1991 Act")⁽⁵⁾ amended § 1981 to expand the law as interpreted in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), to provide that the term "make and enforce contracts" "includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." § 1981(b); Rivers v. Roadway Express, Inc., 511 U.S. 298, 308 (1994). The 1991 Act's legislative history establishes that by including enjoyment of the benefits, privileges, terms, and conditions of the contractual relationship, Congress' intent in amending the statute was to overrule Patterson and "to codify Runyon v. McCrary, 427 U.S. 160 (1976)," as well as to expand the scope of the statutes the 1991 CRA amended. H.R. Rep. No. 40-(II), 102 Cong. 1st Sess. 1991, 1991 WL 87020 (hereinafter H.R. Rep. No. 40-(II)); Rivers, 511 U.S. at 308. Rivers characterizes the 1991 CRA's effect as one "not only of increasing liability but also of establishing a new standard of conduct." Id. at 304.

The legislative history also recognizes § 1981 as a "critically important tool used to strike down racially discriminatory practices in a broad variety of contexts" and details the "disastrous" impact of Patterson. H.R. Rep. No. 40-(II). With regard to § 1981's scope, the history demonstrates that the "new subsection" defining "make and enforce contracts" is intended "to bar all racial discrimination in contracts" and use of the word "includes" is indicium of intent that the list "is illustrative and not exhaustive," and, in the context of employment discrimination, "would include . . . harassment . . .."⁽⁶⁾ Id. It would be inconsistent with the intent that the statute's scope be broad to limit to the employment context contemplation of harassment as statutorily prohibited conduct, and, indeed, the Supreme Court held § 1981 applies to all aspects of all contracts, not just employment contracts. Rivers, 511 U.S. at 304.⁽⁷⁾

Codifying Runyon has implications for courts applying § 1981 concerning the broad sweep of the act and the power of Congress to determine that scope. In Runyon, invoking Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)⁽⁸⁾, the Supreme Court held that § 1981 prohibited private, commercially-operated, nonsectarian schools from denying admission to prospective students because they were African-American (McCrary) and Hispanic (Gonzalez). The schools advertised to the general public, but when the children applied (Gonzalez) or phoned to inquire whether the schools were integrated (both Gonzalez and McCrary), they were told they could not be accommodated and that only Caucasian students were accepted. Notably, neither McCrary nor Gonzalez actually had a contract with the schools. Their parents merely "sought to enter into contractual relationships" under which the "schools would have received payments" and the "prospective students" would have received instruction. But, neither school offered services on an equal basis to white and nonwhite students. Id. at 172-73. Liability was found on a private actor's public offering of a contractual relationship and denial of that relationship on the basis of race. Given the 1991 CRA's expansion of § 1981 to protect enjoyment of the benefits, privileges, terms and conditions of a contractual relationship, Dillard's race-based interference with the right to redeem the coupon falls well within the statute's prohibition.

Further, in "codifying Runyon" in the 1991 CRA, Congress imbued the newly-amended § 1981 with the legislative history and construction of the 1866 Act that Runyon adopts from Jones. The 1991 CRA's codification of the principle of construction requiring a broad reading of remedial statutes such as the civil rights laws and the "codification of Runyon" thus find meaning in the legislative history described in Jones.

Runyon reiterates, with particular regard to § 1981, that it is within Congress' power to determine what slavery's badges and incidents are and to translate that determination into effective legislation. Runyon, 427 U.S. at 170. That is exactly what Congress did in enacting the 1991 CRA. Congress determined that eradication of the last vestiges of slavery required codification of Runyon's broad interpretation ­ that no crabbed notions of what behavior the statute is intended to prohibit may apply ­ and the "make and enforce contracts" provision required an expanded definition to assure that same result.

Taken together, the amended statute's plain language, its legislative history, the legislative history of its historical antecedents, and the holdings of Runyon, Jones, and Rivers, leave no doubt that a broad range of contracts and contract interests and a broad spectrum of conduct ­ such as interfering with redemption of the coupon ­ fall within the proscription of the statute.

D. Dillard Intentionally Interfered with a Contractual Relationship on the Basis of Race

In arguing it did not interfere with a contractual relationship, Dillard forgets the jury decided as a matter of fact that the cologne was conferred upon Hampton as a benefit or privilege of her purchase. Dill.Br. at 13. Dillard does not argue a view of the evidence that comports with the standard requiring that any ambiguity be resolved in Hampton's favor. Similarly, the contention that there was no race-based interference fails to take into account substantial evidence of intentional discrimination against African-Americans as recounted by the district court in overruling Dillard's post-trial JAML motion. Dill.App. at 335-36.

Cases cited by Dillard are unavailing. They either apply the discredited Patterson standard (and Dillard necessarily invites this Court to ignore the 1991 Act, its legislative history, and Rivers), are distinguishable on their facts, or both. Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262 (10th Cir. 1989) was decided by this Court in the wake of Patterson and before the adoption of the 1991 Act. While correct when decided, Phelps was no longer good authority when it was adopted as the basis for the holding in Morris v. Office Max, 89 F.3d 411, 414-15 (7th Cir. 1996) that alleged prospective contractual relations were insufficient to state claims under § 1981.

Not only is Morris wrongly decided, it decides a different question and, thus, is distinguishable. Unlike here, where the jury found the purchase conferred a benefit on Hampton with which, when she was trying to redeem that benefit, Dillard interfered, the Seventh Circuit was not presented with an argument that Morris' purchase of telephone message pads conferred any benefit that was somehow denied him. Nor was there any evidence in Morris of the racially discriminatory patterns and practice heard by the Hampton jury.

Bellows v. Amoco Oil Co., 118 F.3d 268 (5th Cir. 1997), has no application, either. The jury's determinations that the coupon was a benefit of purchase, and that Dillard interfered with Hampton's enjoyment of the coupon, undermine Dillard's argument that "Hampton failed to present any evidence Dillard's interfered" or "that the relationship between" Hampton and Dillard was changed, modified, altered, terminated, or otherwise affected." Dill.Br. at 13-14. In Bellows, the jury did not find interference by Amoco with PICI's contracts⁽⁹⁾, so Bellows' derivative third party interference claim, which claimed no violation of his contract rights or rights to contract differing from PICI's claimed violations, failed. Hampton's claim was for her own injuries.⁽¹⁰⁾

Lewis v. J.C. Penney, 948 F.Supp. 367 (D.Del. 1996), is also distinguishable. Although it recognized the 1991 CRA and acknowledged Rivers, there is no indication that court was asked to consider the legislative history nor was it reminded of the breadth of the holdings in Jones, Runyon, and cases decided before Patterson. There is no indication the court observed the 1991 Act's prescription to construe the statute broadly or recognized Congress' intention "that when the statutory terms in civil rights law are susceptible to alternative interpretations, the courts are to select the construction which most effectively advances the underlying congressional purpose of that law." H.R. Rep. No. 40-(II). As explained, supra, at 15-19, if nothing else, the 1991 Act made certain Congress' underlying purpose is to expand applications of the Act, not to reject expansive interpretations as the Lewis court did. Lewis also failed to allege or provide evidence of a discriminatory policy or practice key to the Hampton verdict. Finally, the Seventh Circuit's mistaken reliance on Phelps in Morris was adopted by the Lewis court; since Morris is flawed, the persuasive value of Lewis is further weakened.⁽¹¹⁾

As the district court observed, after trial on the merits, the overarching issue is whether Hampton adduced sufficient evidence to warrant the jury's determination that Dillard intentionally discriminated against her on the basis of her race. The district court painstakingly chronicled the quantum and quality of the evidence supporting the verdict, particularly emphasizing Hampton's credibility. Dill.App. at 350. Denial of judgment as a matter of law on Hampton's § 1981 claim must be affirmed.

II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON COOPER'S § 1981 CLAIM

A. Standard of Review

A grant of summary judgment is afforded de novo review. Reynolds v. School District No. 1, Denver, Colo., 69 F.3d 1523, 1531 (10th Cir. 1995). Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This Court construes the record and all reasonable inferences in the light most favorable to the party opposing summary judgment. Id.

Summary judgment where the relative merit of each party's case depends significantly on credibility is inappropriate. Kastner v. Blue Cross & Blue Shield of Kansas, Inc., 894 P.2d 909 (Kan.App. 1995). "A civil rights plaintiff may withstand a motion for summary judgment and is entitled to present his claim to the fact finder if plaintiff establishes a prima facie case and presents evidence that defendant's proffered non-discriminatory reason was pretextual ­ i.e., unworthy of belief." Randle v. City of Aurora, 69 F.3d 441, 452-53 n. 17 (10th Cir. 1995). Moreover, summary judgment is not ordinarily appropriate for settling issues of intent or motivation, present here. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994).

B. Granting Summary Judgment on the Broader Theories and Limiting the § 1981 Claim to the Coupon Theory was Error

The discussions, supra at 14, 19, demonstrate not only why the court correctly denied Dillard's post-trial JAML motion but also why it was error to limit Cooper to the coupon theory, and to hold she could not go to the jury on that basis. Indeed, the district court's rejection of the "broader theories" is rooted in the same erroneous analysis Dillard advocates this Court adopt.

In rejecting the contention that race-based interference with shopping ­ racial harassment ­ constituted an offer to contract on discriminatory terms actionable under § 1981, the district court relied on Morris, which had wrongly applied the Patterson-based analysis in Phelps, to require that there be an actual loss of a contract interest. This, of course, does not square with Runyon. On the alternative theory that freedom from racially discriminatory security practices is a benefit, privilege, or condition of a merchant's implied offer to the public, the district court agreed with the incorrectly decided Lewis case (Dill.App. at 100) and the court's analysis suffers the same flaw: the court failed to construe both § 1981 and the 1991 CRA to advance the underlying Congressional purposes of, inter alia, expanding § 1981's application, negating Patterson, and "codifying Runyon." While acknowledging the amendment and the demise of Patterson, the district court still decided the issue with the crabbed Patterson construction and failed, just as the Lewis court failed, to give the full effect to Congress' intent.

C. Cooper's Claim Under the Coupon Theory

By giving both women coupons for redemption, the Dillard salesclerk determined their eligibility to receive coupons contemporaneously with the purchase. The determination was based on the clerk's perceptions of the circumstances. Once Cooper received a coupon from the clerk, the benefit of the purchase (subsequently found by the jury) accrued directly to her. A direct obligation or promise was created by Dillard, owed to the bearer ­ Cooper ­ to receive cologne upon presentation of the coupon. Cooper had an independent right to receive cologne in exchange for her own coupon and her redemption of the coupon was interfered with by Wilson. The district court should have allowed the jury to answer the same questions for Cooper that it permitted the jury to resolve for Hampton.⁽¹²⁾

Alternatively, Cooper was a third party beneficiary of the contract between Hampton and Dillard. Cooper was to benefit from the purchase of the clothing and from the redemption of the coupons. Even though she did not pay for the items herself, they were for her infant ­ i.e., for her benefit. Whether one is a third party beneficiary turns on the intent of the parties to the contract. O'Connor v. R.F. Lafferty & Co., 965 F.2d 893, 901 (10th Cir. 1992). There is no dispute regarding the parties' intent; the clothing purchase was for Cooper's benefit and the coupons were benefits of that purchase for which both Cooper and Hampton were deemed eligible. The district court should have acted in accord with Congress' intent to expand the remedial scope of § 1981 and should have permitted the jury to decide Cooper's § 1981 claim.

III. THE DISTRICT COURT IMPROPERLY RESOLVED CREDIBILITY AND INTENT ISSUES IN GRANTING SUMMARY JUDGMENT

A. § 1981

In granting summary judgment, the district court decided critical credibility issues that were for the jury. The credibility of Wilson is the focal point of Cooper's race discrimination claim. Cooper alleged Dillard illegally stopped her and interfered with her contractual rights to make purchases because of her skin color. The crux of Cooper's case is Wilson's discriminatory animus. The jury should have decided what Wilson's motivations were and whether Wilson was telling the truth about what happened.⁽¹³⁾ These are fact questions for a jury, especially since the jury is best suited to resolve them after hearing and observing the live testimony of Wilson and other witnesses at trial. Intent ­ what was in Wilson mind ­ is not readily capable of ascertainment by reading affidavits.

Cooper presented evidence on summary judgment which, if heard by a jury, would raise substantial doubt as to Wilson's credibility. In awarding significant damages to Hampton, the jury made the credibility determinations in her favor. The verdict demonstrates, and the district court noted that, the jury did not believe Wilson. Dill.App. at 350-51, 351 n. 13.

The discriminatory intent determination here did not turn solely on Wilson's credibility. The Hampton jury heard and saw abundant evidence of other racially discriminatory practices and procedures suffered by African-American shoppers, known to and acquiesced in by Dillard management, establishing discriminatory intent.

Cooper adduced enough admissible evidence to raise genuine doubt as to the legitimacy of Dillard's reasons for stopping her and summary judgment was inappropriate.

B. False Imprisonment

False imprisonment is an intentional tort. "[A]ll that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts which he fears to disregard." Thompson v. General Finance Co. , 468 P.2d 269, 280 (1970). The actors' intent is elemental in a false imprisonment claim. This alone should have precluded granting summary judgment. The issue of credibility was critical to the grant of summary judgment on false imprisonment.

The district court granted summary judgment on the basis of Wilson's deposition testimony that Cooper was "looking toward the ceiling and looking around, which he interpreted as checking to see if someone was watching." Dill.App. at 96. Cooper and Hampton disputed this as merely Wilson's attempt at covering up his discriminatory stop ­ i.e., as pretext.⁽¹⁴⁾ Cooper rebutted this factual contention by testifying that she had continued shopping during her entire time at Dillard. Supp.App. at 156, 223. By implication, Cooper did not engage in the types of acts Wilson attributes to suspicious behavior. The mere fact that Cooper was African-American made her shopping activity suspicious to Wilson. In deciding that Cooper was not entitled to trial of her false imprisonment claim, the court made the credibility determination that Wilson was testifying truthfully when he stated that Cooper had engaged in suspicious behavior. Wilson's testimony needed to be tested by the jury ­ the evidence viewed in the light most favorable to Cooper is that all she did was shop. To conclude that summary judgment was warranted, the court failed to draw all reasonable inferences in favor of the nonmoving party, Cooper, and instead, chose to believe Wilson on this critical issue. This determination should have been left to the jury.

In granting summary judgment on the false imprisonment claim, the court also found there was no unlawful restraint.⁽¹⁵⁾ Dill.App. at 102. But, whether one believes she has been restrained is a question of intent. Based on Wilson's actions and words, Cooper believed she could not leave. Supp.App. at 225. This was a fact issue. On this issue, it is not Wilson's intent, but rather, how Cooper then perceived her situation that must be examined. Cooper provided evidence that she believed she was restrained (Supp.App. at 225), and when viewing the evidence in the light most favorable to Cooper, the grant of summary judgment on this issue was error.

IV. THE INSTRUCTIONS PROPERLY STATED THE LAW, FOCUSED THE JURY'S INQUIRY ON HAMPTON'S CLAIM, AND FAIRLY GUIDED THE JURY

Refusal to give a requested jury instruction is reviewed for abuse of discretion. However, whether the court's instructions, considered as a whole, properly state the law and focus the jury on the relevant inquiry is subject to de novo review. York v. American Tel. and Tel. Co., 95 F.3d 948, 953 (10th Cir. 1996). Instructional error must be timely preserved for appellate review. The only errors the district court was requested to consider as to instructions given were whether Instructions 10 and 17 confused the jury, whether Instruction 17 was misleading and prejudicial, (Dill.App. at 189), and whether Instruction 18 misstated the law and was misleading or confusing. Id. at 195-96. The error charged in the giving of Instruction 19 (Dill.Br. at 21) appears neither in the transcript nor in the new trial motion. Accordingly, it is not preserved.

A. The Instructions Focused the Jury on the Evidence Legally Relevant to the Coupon Theory

Instruction 17 contained no misstatements of the law and, as it plainly indicates, its inclusion in the Phase II package was merely to describe the parties' claims, as the district court rightly observed. Dill.App. at 150; 350; 1214. It fairly indicated that Dillard denied Hampton's "allegations" and specifically stated that claims were not to be considered as evidence. Id. at 150. It was not the verdict directing instruction and did not misdirect the jury's inquiry, especially when read in conjunction with the verdict director, Instruction 18 (id. at 151), and the special verdict form (id. at 160) imparting the questions for the jury. Given Instruction 18's correct exposition of the law, and the narrow question posed by the Phase II special verdict form, Instruction 17 neither misstated the law nor misdirected the jury's inquiry, either solely or when read in conjunction with the instructions as a whole. There is no error, and, if there is, it was not prejudicial to Dillard.

B. Phase II Instructions Were Not Misleading and Properly Stated the Burden of Proof

Instructions 17 and 18, read in combination, did not mislead the jury regarding Hampton's burden of proof. Nothing in Instruction 17 explicitly directs the jury not to consider Dillard's conduct in preventing Hampton from redeeming the coupon. Instruction 17 properly informs the jury that Hampton's burden was to prove "by a preponderance of the evidence that her claims are more probably true than not true."

The jury was not focused on the wrong conduct by Instruction 17 because Instruction 18 provided the jury with guidance regarding what conduct was to be considered. Not only did it indicate that the jury had already determined Wilson had interfered with Hampton's redemption of the coupon, it required the jury to "find that race . . . motivated Officer Wilson to interfere with plaintiff's redemption of the cologne sample."

Instruction 18 properly instructed the jury that Hampton had to "prove that her race was a motivating factor" and, defined "a motivating factor" as meaning "that 'but for' its unlawful motive, defendant would not have denied plaintiff the right to enjoy the benefits and privileges of her purchase."

The instructions, considered as a whole, provided a correct statement of the law and an ample understanding of the issues and legal standards. Allen v. Minnstar, 97 F.3d 1365, 1368 (10th Cir. 1996). The instructions were not erroneous and, in any event, were not sufficiently prejudicial as to warrant reversal.

C. No Error Was Preserved Regarding Instruction 19 and the Instruction Was Not Erroneous

This alleged error is not preserved for appellate review. There is no objection on the record whatsoever relating to Instruction 19. Dill.App. at 1177-84; 1212-15. Dillard's post-trial motion is devoid of any mention of the damages instruction, nor, in objecting to Instruction 17, is there a specific objection that the jury could be misled in assessing damages. The Court should not consider this issue, or at least, should review only for plain error. Under Fed. R. Civ. P. 51, "[n]o party may assign as error the giving or failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." Id., quoted in Unit Drilling Co. v. Enron Oil &Gas Co., 108 F.3d 1186, 1190 (10th Cir. 1997) (emphasis added). Where an instructional issue is not properly preserved, the court reviews for plain error, necessitating a finding that the instructions were "patently plainly erroneous and prejudicial" for reversal. Id.

But, Instruction 19 is not vague. The instruction allows consideration of damages only after a liability decision favoring the plaintiff. Since the verdict director properly directs the jury's consideration of what conduct gives rise to damages, there is no risk that the damages award is based on the "wrong" claim. Instruction 19 also limits the award to money damages suffered by Hampton as a result of Dillard's unlawful conduct.

Dillard stretches Silkwood v. Kerr-McGee Corp., 769 F.2d 1451 (10th Cir. 1985), too far. As in Silkwood, what Dillard really complains of is admission of evidence that was damaging, but which was properly admitted to help the jury resolve credibility and intent issues. Here, where the evidence is properly admitted on material issues, adopting Dillard's advocated evidentiary bar would severely prejudice Hampton's ability to prove intentional discrimination ­ a key element of her liability case. Besides, and this is another reason the point is not preserved, Dillard does not explain that the remedy prescribed by Silkwood is a limiting instruction which Dillard failed to request.

D. Dillard's Probable Cause and Summary Judgment Instructions Were Properly Refused

Dillard misapplies the rule, misinterprets the district court's decision, and misstates the law in contending the district court should have instructed the jury on the substance of the Merchant's Defense⁽¹⁶⁾, and that, in considering whether the Merchant's Defense defeated Hampton's false imprisonment claim, the court found that Wilson had probable cause.

These circumstances are different than those contemplated by Rule 56(d). Dillard achieved full summary judgment on the false imprisonment claims and so there was no point in instructing the jury about the probable cause finding ­ it could easily have injected unnecessary confusion. The false imprisonment claims being wholly foreclosed, there was no obligation to instruct the jury on the earlier ruling. Moreover, Dillard's summary judgment motion did not address the coupon theory on which Hampton went to trial, so there were no facts established to be specified and read to the jury regarding that claim. Dill.App. at 101. Hampton's § 1981 claim was distinct from the false imprisonment claim and requires proof of different elements.

Dillard's claimed instructional error is based on flawed legal analysis and the rejected argument that the probable cause finding allowing application of the Merchant's Defense to obtain summary judgment on the false imprisonment claim is dispositive of Hampton's § 1981 claim; i.e., that if Wilson had probable cause to stop Hampton, that probable cause could not be pretext for discrimination. But, the district court correctly apprehended that probable cause may be pretext

when only minority shoplifting suspects are detained while their majority counterparts tend freely to shoplifting business. It further ignores the fact that probable cause, which implicates an objective inquiry, and lack of discriminatory intent, which is an inherently subjective topic of inquiry, are not fungible concepts. Probable cause does not mean lack of discriminatory intent any more than lack of probable cause means racially-based animus.

Dill.App. at 333-34.⁽¹⁷⁾

Since the instructions as a whole properly stated the law governing Hampton's claim and focused the jury's inquiry on the relevant evidence ­ and giving the proffered and refused instructions would have misstated the law and confused the issue before the jury ­ it was not an abuse of discretion to refuse Dillard's proffered instructions on the Merchant's Defense and the court's summary judgment findings.

V. DILLARD HAS NOT ALLEGED EVIDENTIARY ERROR WARRANTING A NEW TRIAL

"An error in either admitting or excluding evidence does not justify the setting aside of a verdict or the granting of a new trial unless the error affected the substantial right of the parties." Herndon v. Seven Bar Flying Service, Inc., 716 F.2d 1322, 1326 (10th Cir. 1983). All relevant evidence is admissible, unless provided otherwise. Fed. R. Evid. 402. "[E]vidence is 'relevant' if it has any tendency to make the existence of a fact more or less probable than it would be without the evidence." Id. at 1328 (emphasis added).

Dillard contends reversal is required because the jury must have relied on improperly admitted evidence. Dillard acknowledges review is for abuse of discretion. Dill.Br. at 27. But, while this is the standard when error is properly preserved, in many instances, the errors Dillard now charges were not preserved and, if considered at all, should be reviewed only for plain error. U. S. v. McDonald, 933 F.2d 1519, 1524 (10th Cir. 1991).

This was a case of intentional race discrimination. In deciding what evidence was admitted properly, this Court should consider that Hampton's ability to prove discrimination indirectly and by circumstantial evidence must not be crippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance or excessive mistrust of juries. Estes v. Dick Smith Ford, 855 F.2d 1097 (8th Cir. 1988) (quoting Riordan v. Kempiner, 831 F.2d 690 (7th Cir. 1987)).

A. Relevant Evidence Was Properly Admitted and Dillard Was Not Prejudiced

The admission of evidence of Dillard's racially discriminatory surveillance and loss prevention practice is not reversible error. The admission of this, and other evidence, revealed the racist and stereotypical attitudes acquiesced in and fostered by Dillard management to the detriment of African-American shoppers. The evidence revealed highly offensive conduct. For example, all an African-American shopper had to do to arouse the suspicion of Dillard security officers was enter the Store. See supra at 4-6. Dillard now argues that this and other evidence should have been excluded, but its real complaint is that, throughout trial, Hampton repeatedly exposed Dillard and its racially discriminatory policies and practices.

1. Circumstantial Evidence of Discriminatory Intent Was Properly Admitted

Dillard alleges error in allowing rebuttal from Imber that Darryl Hayes, one of Wilson's trainers, had used racial epithets when referring to African-American shoppers. Dill.App. at 1173-74. Dillard argues this testimony was unfairly prejudicial but did not timely object to it. While Dillard objected to the anticipated rebuttal testimony in a colloquy with the court before Imber testified, there was no objection when the testimony was being elicited.⁽¹⁸⁾ Dill.App. at 1171-75. When counsel fails to timely object to testimony, that objection is waived and can only be reviewed for plain error. McDonald, 933 F.2d at 1524. There is no plain error here.

Moreover, Dillard offered Hays' testimony on Wilson not being racist and injected the racial attitudes issue. Hampton was properly allowed to test the character of the person that interjected these notions:

. . . where race discrimination is the issue, the introduction of alleged racist remarks is not to be unexpected. The possibility that a jury might be so inflamed by the contents of the remarks so as to decide the case based on passion needs to be balanced against the fact that such remarks are potent evidence of attitude and environment.

White v. Honeywell, Inc., 141 F.3d 1270, 1276 (8th Cir. 1998).

Dillard introduced the character evidence from Hayes that Wilson was not a racist and Hampton responded with highly probative evidence that Hayes was known to Imber as a racist. This evidence was correctly admitted as relevant to show the discriminatory animus of an officer who trained Wilson. Tolerance of racial slurs is clearly admissible and relevant circumstantial evidence that the treatment Hampton received was more probably than not because of her race.

2. Past Discriminatory Surveillance Practices Show Pattern and Practice and Discriminatory Intent

Dillard argues that security officers' testimony concerning their experiences with racism at the Store was too remote in time, and thus, wrongly admitted. Dillard claims a continuing objection to this testimony. But the cited objection may not have preserved this issue for review. U.S. v. McVeigh, 153 F.3d 1166, 1200-01 (10th Cir. 1998). "A party may not rely on a continuing objection lodged on one evidentiary ground to argue a different ground for exclusion on appeal" (id. at 1201), but that is what Dillard attempts. At trial, Dillard counsel stated her continuing objection: "Then I make a continuing objection to the opinion testimony about racism by these officers." Dill.App. at 713 (emphasis added). Although Dillard may have preserved for review the issue of the content of the officers' testimony, it is clear the only basis for review can be that the proffered testimony is inadmissible opinion testimony. Dillard now argues that some of the testimony was too remote, but remoteness was not preserved. In any event, the testimony elicited was not about specific instances that may have been too remote in time, so there was no prejudice to Dillard.

3. Statistical Evidence Is Relevant to Show Discriminatory Pattern and Practice

Throughout the period between May, 1995 and May, 1996, during which the Incident Log recorded activity, there was continuity of management at the Store. Several Dillard employees testified concerning the Log. Dillard guard Barry Martens explained the various codes used in the Incident Logs and History of Arrest, e.g., "unf" meant unfounded. Operations Manager Dirks testified, inter alia, that the Log was a communication tool for officers to use showing where and what time activity occurred and that she read about all incidents and used the log in writing employment reviews. Dill.App. at 928-29.

The statistical evidence of Log activities and arrests showed that African-Americans were much more likely to be subjects of attention of security personnel than whites. This evidence supports the inference that her race was a motivating factor in Dillard's treatment of Hampton.

4. Lay Witness Testimony Based on Personal Knowledge Is Relevant and Admissible

Dillard argues it is entitled to a new trial because Hampton introduced evidence that Dillard or Wilson "are 'racist'". Dill.Br. at 33. The first example is testimony from Imber that, based on his "interaction with Dillard's security, familiarity with Dillard's based on experience with Oak Park Mall specifically any time after April of 1994," he perceived Dillard to target and prey on African-American shoppers. Dill.App. at 721. Again, while Dillard claims to have objected to this as conclusory opinion testimony (Dill.Br. at 33, citing Dill.App. at 713⁽¹⁹⁾, 807⁽²⁰⁾), the record shows no objection at all to the question eliciting this response. Dill.App. at 721. Further, the testimony was not Imber's opinion, but his perception based on personal knowledge and observation of the treatment African-Americans received from Dillard. At no time did Imber testify that Dillard or Wilson were "racist".

Cooper testified that she believed that Wilson stopped them because they were African-American. Dill.App. at 807, 823. Dillard similarly argues that it objected to this testimony as conclusory opinion testimony. Again, the record does not reflect a timely objection to this testimony. The district court correctly observed that Cooper was entitled to explain the basis for an opinion already stated without objection. Id. Dillard has not properly preserved this for review. U. S. v. Norman, 129 F.3d 1099, 1106 (10th Cir. 1997). Even if scrutinized for plain error, the objection raised is unfounded. Cooper testified about her feelings based on her experience with Wilson. Dillard was free to cross-examine Cooper on the basis for her feeling, and did so.

Dillard argues there was improper lay opinion testimony from Hampton and Sondra Samuels. Dillard hints at its failure to timely object to this testimony ("Dillard's did not specifically object . . ..) and rather desperately claims, without supporting authority, that "this repeated admission of lay opinion . . . amounts to plain error." Dill.Br. at 33. As with many evidentiary errors Dillard charges, close scrutiny of the record reveals the flaws in the alleged error.⁽²¹⁾ Dillard failed to make the necessary objections during trial as required. Admission of this testimony can be only for plain error. McDonald, 933 F.2d at 1524.

5. Falsification of Police Report Relevant to Wilson's Credibility

Dillard next argues it is entitled to a new trial based on cross-examination of Wilson concerning a 1977 suspension for falsely reporting an injury as on-the-job when the injury had occurred off-duty. Dillard argues that because this is remote in time the evidence should have been excluded. Admitting this evidence as relevant, the district court noted that in 1995, Wilson was also involved in the "exact same type of behavior" as in the 1977 incident. Dill.App. at 462. Under Fed. R. Evid. 608, specific instances of past misconduct are admissible as tending to demonstrate a witness's character for truthfulness and are properly explored in cross-examination. It is discretionary with the trial court whether this evidence is admissible and there is no recency requirement:

The Committee amended the Rule to emphasize the discretionary power of the court in permitting such testimony [specific instances of misconduct] and deleted the reference to remoteness in time . . ..

Fed.R.Evid. 608, Advisory Committee Notes, 1974 Enactment.

The evidence was admitted because in 1995, very close to the April, 1996, Hampton-Cooper stop, Wilson had engaged in the same type of deceptive behavior. Further, Dillard counsel had ample opportunity to have Wilson explain his conduct. Dill.App. at 638-639. The jury heard the evidence and was properly allowed to determine this credibility issue. U.S. v. Olivo, 80 F.3d 1466, 1471 (10th Cir. 1996). B. The District Court Properly Excluded Irrelevant Evidence

Dillard argues that failure to admit Hampton's written statement concerning the illegal stop, taken with the other evidentiary errors, has denied it a fair trial. This argument is without merit and has not been preserved. Dillard started to offer the entire statement as an admission against interest, but without objection by Hampton, the court asked Dillard counsel what particular facts in the statement were admissions. Dill.App. at 835-836. Without making an offer of proof, Dillard's counsel then volunteered to highlight specific facts through cross-examination. Given no objection from Hampton, and neither a full proffer before the court's interruption nor an offer of proof thereafter, there was no error, and if there was, it was not preserved. If Dillard is entitled to review of this issue, the conclusion must be that exclusion of this evidence was more than adequately remedied by cross-examination of Hampton, during which portions of the statement were freely read to the jury.

VI. THE DAMAGES AWARDS ARE SUPPORTED BY THE EVIDENCE AND ARE CONSISTENT WITH PRIOR AWARDS

A. The Compensatory Damage Award Was Supported by the Evidence

1. Dillard's Argument That There Was No Evidence of Causation Is Unfounded and Has Been Waived

Dillard argues Hampton failed to offer evidence at trial that Dillard's misconduct caused her damages. Dillard never raised this causation argument below and, accordingly, it is waived for purposes of appeal. Malandris v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152, 1172 (10th Cir. 1981).

2. The Evidence Supported the Actual Damage Award

Dillard cannot dispute that the district court properly instructed the jury on compensatory damages. Indeed, with Dillard's consent, the jury answered a special interrogatory which restricted the award to damages resulting from Dillard's unlawful conduct. Dill.App. at 143. Jurors, of course, are strongly presumed to have followed the court's instructions. Shannon v. United States, 512 U.S. 573, 585 (1994). Dillard does not rebut this presumption, instead arguing the damage award was against the weight of evidence, warranting a new trial, or that it shocks judicial conscience, warranting remittitur. Both of these arguments fail.

Denial of a new trial motion on grounds the verdict was excessive is reviewed for abuse of discretion. Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). Although in extreme cases, damages awards may be reversed, appellate courts must give "the benefit of every doubt to the judgment of the trial judge." Id. at 435. As the trial court recognized, a new trial on damages may not be awarded "unless the verdict was 'clearly, decidedly, or overwhelmingly' against the weight of the evidence." Dill.App. at 350 (citing May v. Interstate Moving & Storage Co., 739 F.2d 521, 525 (10th Cir. 1984)).

Dillard claims Hampton could not have suffered damage because she was never accused of any misconduct and that her injuries came solely as a result of Dillard's stop and search of Cooper. Dill.Br. at 39-40 and 39 n. 6. This assertion was never made below and cannot be raised for the first time here. This claim is also contrary to the evidence. Wilson accused Hampton of stealing. Dill.App. at 629-30, 830-31. Dillard's repeated representation that the bag Wilson searched belonged to Cooper is similarly disingenuous. Dill.Br. at 38, 39. The bag belonged to Hampton and contained only the items she had purchased. Dill.App. at 831.

Hampton's damages from Dillard's unlawful conduct were substantial:

Plaintiff gave eloquent and emotionally moving testimony that Wilson disgraced and humiliated her, in front of her children, that she was too emotionally distraught to drive, and that she had to call her husband for a ride home. Immediately after the incident she was crying and she was so upset that she could not write out a customer comment card . . .. She testified that "I don't feel my life will ever be the same."

Id. at 353 (citing id. at 832-34). Additionally, Hampton no longer takes along her children when shopping, fearing that she will be unjustly accused again, and cannot bear the thought of her children witnessing a repeat experience. Id. at 834. She has been unable to return to Dillard's Store. Id. at 834. Hampton's daughter had frequent nightmares and Hampton has repeatedly had to explain to her that no guard at any store is going to hurt Hampton. Id. at 834. Dillard's treatment of Hampton made her feel subhuman. Id. at 825. The testimony of Chouteau (id. at 624) and Cooper (id. at 808) corroborate Hampton's testimony.

The jury could find these damages resulted from Dillard's unlawful interference with Hampton's contractual relationship. Since the instruction given was proper, the district court was correct in upholding the verdict. Id. at 834.⁽²²⁾

Dillard relies on Koopman v. Water District No. 1, 41 F.3d 1417 (10th Cir. 1994). The Koopman jury found Koopman was fired without due process, but also found that his employer had just cause and would have fired him even if he had been heard. Id. at 1419. There was no evidence that the due process violation, rather than the termination, had caused Koopman damages, and the emotional harm issue was properly withheld from the jury. Hampton, however, established damages from Dillard's unconstitutional conduct. She was, because of her race, falsely accused of stealing in her children's presence. Dillard offered no alternative source of the harm suffered, and the jury reasonably found that the harm was caused by Dillard's racially discriminatory interference with Hampton's contractual relationship.

Dillard's reliance on Merriweather v. Family Dollar Stores, 103 F.3d 576 (7th Cir. 1996), is similarly misplaced. Merriweather held a plaintiff cannot be required to prove which emotional harm damages are attributable to defendant's misconduct, as opposed to other sources:

[W]e reject the . . . argument that Merriweather was required to quantify how much of her distress was due to her firing, or even establish that most of her distress stemmed from the firing. We are not convinced that psychological injuries are readily amenable to such quantification, and forcing such a burden of proof upon a plaintiff would make compensatory damages nigh unto impossible to recover.

Id. at 581.

Dillard's argument for remittitur is similarly meritless. "[A]bsent an award 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, the jury's determination of the damages is considered inviolate." Malandris, 703 F.2d at 1168. Moreover, "[a] trial judge should not order a remittitur or a new trial when the size of the verdict turns upon conflicting evidence and the credibility of witnesses." Palmer v. City of Monticello, 31 F.3d 1499, 1508 (10th Cir. 1994).

The district court correctly concluded the jury's actual damages award does not shock the conscience, and, since the jury's decision involved questions of fact and credibility of witnesses, remittitur would be improper.

B. The Punitive Damages Award Did Not Violate Dillard's Rights

Relying on BMW of North America v. Gore, 517 U.S. 599 (1996) (BMW), Dillard claims the jury's punitive damages award violated its substantive due process rights under the Fifth Amendment of the United States Constitution, but this argument is based on a misreading of BMW and other caselaw. All appropriate procedural safeguards were in place to assure the punitive damages award here was proper. Dillard cannot dispute that the jury was properly instructed on punitive damages. The district court's review of the punitive damages award accorded Dillard the process due.

"Assuming that fair procedures were followed, a [punitive damages] judgment that is a product of that process is entitled to a strong presumption of validity. Indeed, there are persuasive reasons for suggesting that the presumption should be irrebuttable." TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 457 (1993).⁽²³⁾ Thus, Dillard's argument that the constitutionality of punitive damages merits de novo review on appeal is directly contrary to controlling precedent.

Hampton has discovered only three cases in which punitive damages awards have been held to violate the defendant's substantive due process rights.⁽²⁴⁾ The strong presumption in favor of affirming punitive damage awards can only be overcome where the award is so "grossly excessive" as to violate substantive due process. BMW, 517 U.S. at 568. Substantive due process is violated only where government action is so extreme that it "shocks the conscience." County of Sacramento v Lewis, ___ U.S. ___, 118 S.Ct. 1708, 1716-17 (1998).

In BMW, the automaker was held liable for $4,000 in actual damages for repainting part of a new car, prior to sale, without disclosure to the buyer. The non-disclosure was specifically allowed by statute in 25 states and prohibited in none. Even though the repair did not affect performance or safety, the jury awarded $4,000,000 in punitive damages. The Alabama Supreme Court remitted that award to $2,000,000.

BMW established three guideposts for assessing whether a punitive damages award violates the Fourteenth Amendment. Id. at 574-75. The considerations are:

the degree of reprehensibility of the non-disclosure; the disparity between the harm or potential harm suffered by [plaintiff] and his punitive damages award; and the difference between this remedy and the civil penalties authorized.

Id. The Court also recognized that the guideposts could be overcome where the award is "justified on the ground that it was necessary to deter future misconduct." Id. at 584. See also, id. at 605 (Scalia, J. dissenting).

This Court adopted the BMW guideposts, as well as the deterrence consideration, in OXY, 101 F.3d at 638, 641. Whether considered under the BMW guideposts or the need for deterrence, the punitive damages award here was proper.⁽²⁵⁾

1. Dillard's Misconduct Was Particularly Reprehensible

Reprehensibility is "perhaps the most important indicium" in determining the constitutionality of a punitive damages award. BMW, 517 U.S. at 575. There was no evidence that BMW acted in bad faith or that it committed any affirmative acts of misconduct. Id. at 579-80. Lack of reprehensibility was determinative:

"[b]ecause this case exhibits none of the circumstances ordinarily associated with egregiously improper conduct, we are persuaded that BMW's conduct was not sufficiently reprehensible to warrant imposition of a $2 million exemplary damages award."

Id. at 580.

Dillard's misconduct is at the other end of scale. For years, Dillard targeted its African-American customers for surveillance and searches. African-American shoppers were called Code 3s or Code 4s, and were followed and observed by Dillard employees upon entering the Store for no reason other than their race. Supra at 4-5. The Incident Log reflects that African-Americans are far more likely to be "tailed" or searched than Caucasians. Id.

Dillard, specifically, the Store's management, was repeatedly warned of the discriminatory treatment of African-Americans, but steadfastly refused to do anything about it. Two white guards resigned because of Dillard's racially discriminatory practices. Dill.App. at 710, 714-15, 742-44. Because of his observations of disparate treatment of African-Americans, one guard, Powell, volunteered to provide training to Dillard employees. Dill.App. at 768. Conrad, a white guard, told Store Manager Rodgers and Operations Manager Dirks that Dillard needed to conduct diversity training for its employees because of the mistreatment of minorities. Dill.App. at 750-51.

Rodgers also knew of at least one prior lawsuit in which an African-American woman stopped by Dillard security claimed it was solely because of her race. Dill.App. at 959-60. But, Dillard never provided training to prevent its guards from targeting African-Americans and engaging in racially discriminatory practices. Dill.App. at 768-70. Powell was told by Dirks that the Store did not have time for the training he offered. Dill.App. at 768. Rodgers even testified it was of no significance to him if African-American customers were being stopped by the Store's security more often than its white customers. Dill.App. at 965-66, 968.

This Court views the factual record in the light most favorable to the prevailing party below. Harold Stores, Inc. v. Dillard Dept. Stores, Inc., 82 F.3d 1533, 1546 (10th Cir. 1996). The evidence strongly supports a finding that Dillard had an intentional pattern and practice, known to its management, of violating the rights of African-Americans and intentionally violated Hampton's rights as part of that practice. This is the very type of reprehensible misconduct punitive damages were designed to deter. Evidence that defendant has "repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." BMW at 576-77. Accord, OXY, 101 F.3d at 634. "Some wrongs are more blameworthy than others." BMW, 517 U.S. at 575. It is indisputable that intentional race discrimination, including "coding" minorities and targeting African-Americans for surveillance based solely on their race, is reprehensible conduct warranting the imposition of substantial punitive damages.

Finally, Hampton's damages were not economic. Dillard's intentional discrimination caused her substantial emotional harm. See supra at 9.. Thus, unlike BMW, because this case involved egregious misconduct, the award of punitive damages was not "grossly excessive." See also, McKnight v. Circuit City Stores, Inc., 1997 WL 328638, at * 7 (E.D.Va. March 12, 1997).

Dillard claims its actions were not reprehensible, but rather, were nothing more than "the simple act of stopping customers on suspicion of attempted shoplifting." Dill.Br. at 46. This claim is not borne out by the facts. See supra at 3-10. As the jury found, Dillard intentionally interfered with Hampton's contractual relationship because of her race. Dillard's primary defense was simply not credible, as the district court recognized. Dill.App. at 350, 351.

Dillard also seeks credit for things that it did not do, such as use violence or ugly epithets. Dill.Br. at 45-46. That Dillard did not engage in additional and more reprehensible conduct does not erase the reprehensible acts it did commit. Unless the courts are prepared to hold that ongoing intentional race discrimination, after notice and opportunity to desist, is not reprehensible, this award must be affirmed.

That the confrontation lasted less than five minutes is irrelevant. Many § 1981 violations last only seconds or minutes, cause substantial damages, and are reprehensible. The acts, intentions driving them, and the harm they inflict, not their duration, are what is relevant. Besides, the intentional discrimination in which Hampton was ensnared existed at the Store, unchecked, for years. Accordingly, the punitive damages award here is consistent with BMW.

2. The Ratio of Actual to Punitive Damages Is Not Excessive

Acknowledging that no bright line test controls evaluations of punitive damages awards, Dillard emphasizes language from Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) suggesting that a "ratio of four to one 'might be close to the line'" of impropriety in some cases. Haslip, 499 U.S. at 23-24. But Dillard fails to note the repudiation of this language in TXO, which held that a punitive damages award 526 times greater than actual damages did not violate due process. TXO, 509 U.S. at 462. Similarly, in Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989), a $6,000,000 punitive damages award 117 times greater than the actual damages award was upheld.

The ten to one ratio of punitive damages to harm this Court held is generally applicable in economic injury cases (OXY, 101 F.3d at 639), does not apply here. First, this is not an economic loss case. This is a case of long-term, invidious race discrimination in which damages are subjective and difficult to ascertain.⁽²⁶⁾ Second, in calculating the ratio, a court is "to consider the magnitude of the potential harm that the defendant's conduct would have caused to its intended victim if the wrongful plan had succeeded, as well as the possible harm to other victims that might have resulted if similar future behavior were not deterred." TXO, 509 U.S. at 459-60; Accord OXY, 101 F.3d at 639-40.⁽²⁷⁾ Given Dillard's proven race discrimination, the jury reasonably could have found that hundreds of African-Americans have been improperly coded, followed, and stopped by Dillard.⁽²⁸⁾ Thus, here, the ratio of punitive damages to the actual and potential damages of past and future victims of Dillard's misconduct is well within constitutional boundaries. Furthermore, given the long history and severity of Dillard's misconduct, even a 20:1 ratio of actual (not potential) to punitive damages does not offend the Constitution. Accordingly, the relationship between actual and punitive damages does not support remittitur here. See also, Deters v. Equifax Info Servs, 981 F.Supp. 1381 (D.Kan. 1997) (jury awarded $5,000 in compensatory and $1,000,000 in punitive damages in hostile environment sexual harassment case; court amended punitive award to bring total damages within statutory cap, finding $295,000 punitive award did not violate substantive due process); Jordan v. Shaw Industries, Inc., 131 F.3d 805 (4th Cir. 1997) (ratios of 101:1 and 488:1 were constitutional); Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996) (ratio of 75,000:1 upheld); Glasscock v. Armstrong, 946 F.2d 630 (5th Cir. 1991) (20:1); Davis v. Merrill, Lynch, et al., 906 F.2d 1206 (8th Cir. 1990) (20:1); Jordan v. Clayton Brokerage Co., 861 F.2d 172 (8th Cir. 1988) (50:1); American Business Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135 (8th Cir. 1986) (250,000:1).

C. The Punitive Damages Award Is Not Inconsistent With Other Available Sanctions

The final BMW guidepost is the comparison between the award and criminal and civil penalties that could be imposed for comparable misconduct. As in OXY, Dillard's misconduct lends itself "to a comparison with statutory penalties." Dillard points to apparently rarely used statutes to support its claim for a low punitive damages award. Dill.Br. at 49 (citing 42 U.S.C. § 2000(a) and K.S.A. § 44-1005(k)). Neither of these provisions allow for any criminal or punitive civil sanctions against violators. Indeed, the former does not allow for the award of any damages.

"The fundamental question [when examining the third factor] is whether [the defendant] had reasonable notice that its [misconduct] could result in such a large punitive damages award." OXY, 101 F.3d at 641. Because there had been a handful of prior substantial awards in similar cases, OXY had sufficient notice that a substantial punitive damages award could be entered against it. Id.

Dillard was certainly on notice that a single act of race discrimination can lead to a substantial award of punitive damages.⁽²⁹⁾ That there is no limit on § 1981 punitive damages awards, in contrast to the statutory caps on Title VII punitive damages,⁽³⁰⁾ demonstrates Congress' intention to give juries discretion to assess large punitive damages awards in § 1981 cases, where the facts warrant. Dillard cannot seriously contend, nor does it argue, that it was unaware that a sustained campaign of intentional race discrimination, carried on in the face of repeated warnings to corporate management can lead to large punitive damages awards.

D. Other Considerations Support Punitive Damages

This Court should also consider the need for deterrence in reviewing a punitive damages award. OXY, 101 F.3d at 641. Here, the need for deterrence strongly supports the jury's award. Dillard has ignored prior extra-judicial efforts to stop its historic mistreatment of African-American customers and continued its misconduct long after this suit was filed. Accordingly, it will take a substantial punitive damages award to change Dillard's future behavior. Having heard the evidence, the jury obviously recognized the need for a significant award. They can not be faulted for having done so.

The wealth of the defendant must also be considered when adjudging a punitive damages award. Id. Dillard is a prosperous corporation with hundreds of stores nationwide, millions of sales per year, and multiple levels of corporate management. Dill.App. at 1138, 1167-68. To affect Dillard's conduct, the award of punitive damages had to be significant.

The cost of litigation to vindicate rights is appropriately considered in justifying punitive damages. O'Gilvie v. International Playtex, Inc., 821 F.2d 1438, 1447 (10th Cir. 1987), cert. denied, 486 U.S. 1032 (1988). Here, Hampton was awarded $141,192.50 in attorneys' fees ($126,680.00) and expenses ($14,512.50). (Hampton v. Dillard Department Stores, Inc., 1998 WL 724045, at * 4, 6 (D. Kan. September 25, 1998)), while Dillard, defending, spent even more. Id. at * 4 n. 6. The substantial cost of this litigation is consistent with the jury's substantial punitive damages award.

The district court's assessment is squarely on point: "The punitive damage award . . ., though large, is not unjustly so. It does not violate substantive due process." Dill.App. at 357.

E. The Punitive Damages Award Did Not Violate Federal Common Law

As Dillard admits, the question of whether a punitive damages award violates federal common law is closely related to whether the award violates due process. Dill.Br. at 45. As with due process, a punitive damages award will not violate federal common law unless it shocks the conscience. Mason v. Texaco, 948 F.2d 1546, 1560 (10th Cir. 1991), cert denied, 504 U.S. 910 (1992).

Dillard contends there was insufficient evidence to support any punitive damages award, but never raised this argument in the district court. Accordingly, it is waived here. Dill.App. at 194-99; see supra at 44. Dillard's argument on the sufficiency of Hampton's evidence to support the punitive damages award also fails.

Although the sufficiency of the evidence is ultimately a legal question, in making that determination, the facts are viewed in the light most favorable to the verdict. See supra at 52. In a § 1981 case, where there is sufficient evidence to support jury submission of the federal civil rights claim, there is also sufficient evidence to submit the punitive damages question. "[R]eckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law, should be sufficient to trigger a jury's consideration of the appropriateness of punitive damages." Smith v. Wade, 461 U.S. 30, 52 (1983).

Where the standard for compensatory liability is as high as or higher than the usual threshold for punitive damages, punitive damages can be submitted with the same factual foundation as compensatory damages. Id. at 53.⁽³¹⁾ Because a finding of a § 1981 violation requires intentional interference with the plaintiff's contractual relationship, where a plaintiff has submitted sufficient evidence to support actual damages under § 1981, as a matter of law, the evidence also supports a verdict for punitive damages.

Some circuits have required a higher standard for the award of punitive damages in civil rights cases. See e.g., Ngo v. Reno Hilton Resort Corp., 145 F.3d 437, 445 (1st Cir. 1998). But this Court recently confirmed that in this Circuit, punitive damages may be awarded where the defendant acts "with malice or with reckless indifference to the federally protected rights of the aggrieved individual." Karnes v. SCI Colorado Funeral Services, Inc., 1998 WL 879214, * 2 (10th Cir. December 17, 1998). Although Karnes was a Title VII case, the Court specifically applied the same standard for punitive damages awards as applies in other civil rights cases, including § 1981 cases. Id. (citing Luciano v. Olsten Corp., 110 F.3d 210, 219-21 (10th Cir. 1997)). Karnes is consistent with, and indeed, mandated by Smith v. Wade.⁽³²⁾

Furthermore, the Hampton jury was instructed that it could only award punitive damages in "exceptional cases" and that, to be awarded punitive damages, Hampton had to prove that Dillard acted with actual malice or a wanton and willful disregard for the rights of others.⁽³³⁾ Dill.App. at 156. Hampton amply satisfied this heightened standard. Accordingly, the punitive damage award was appropriate. Dillard's discriminatory treatment of African-Americans has been sustained, reprehensible, and egregious. See supra at 3-6, 51-52. Accord Kolstad v. American Dental Ass'n, 139 F.3d 958, 965 (D.C. Cir 1998), cert. granted 119 S.Ct. 401 (1998) (punitive damages award proper where defendant "engaged in a pervasive pattern of discriminatory acts.").

The jury reasonably found that Dillard was maliciously and intentionally interfering with the constitutional rights of Hampton as part of the long-standing Store practice of targeting African-American shoppers for surveillance and search practices. Accordingly, there was sufficient evidence to support the award of punitive damages and the judgment below should be affirmed.