High-level personnel at Dimerco Express USA Corp. repeatedly and overtly expressed an intention to hire only white salespeople. The company also rescinded Kenny Faulk’s employment offer after Dimerco’s president discovered that Faulk is black. Faulk has a criminal record—including a misdemeanor conviction following reduction of the charge from aggravated assault—but so does a white man Dimerco hired shortly after rescinding Faulk’s offer. Faulk sued for racial discrimination in violation of 42 U.S.C. § 1981, and a jury awarded him $90,000 for lost wages; $300,000 for emotional distress; and $3 million in punitive damages. The district court declined to reduce those awards or to order a new trial, and Dimerco appealed. In an opinion written by Chief Judge Bill Pryor, the Eleventh Circuit affirmed, Faulk v. Dimerco Express USA Corp., ___ F.4th ___, 2026 WL 936026 (11th Cir. April 7, 2026).
Trial evidence about Dimerco’s hiring practices included management-plan proposals to “[h]ir[e] Caucasian Sales & Marketing Manager/VP” and “leverage[e] Caucasian Sales & Marketing Manager,” with the author of those proposals then being promoted to company president; an instruction to a human resources manager that the company would only hire “white Caucasi[a]n[s]” as account executives; an order by Dimerco’s president, who had just received a copy of Faulk’s disorderly conduct charge identifying him as black, to rescind Faulk’s offer of employment as a Dimerco account executive; and an unheeded warning from the company’s compliance director that “both you and the company are guilty of discrimination and if we ever get a legal complaint, these emails will result in a guilty verdict and large damage award.” The evidence also showed that Faulk misrepresented his employment history and failed to mention his arrests, and that Dimerco hired a white man as an account executive, despite his four misdemeanor convictions, shortly after rescinding Faulk’s offer.
Faulk’s lawyer’s conduct at trial, including argument to the jury that Faulk was passing to the jury a “torch” or “mantle” to fight against injustice and “corporate power,” drew multiple warnings and corrective instructions from the district judge. After the jury retired, the district judge told counsel that he had thought about the possibility of a mistrial, but determined that a mistrial was not warranted, and that it was not a close call. Despite counsel’s improper conduct, the district judge determined that “this jury has had a fair view of the evidence.” The district court also excluded under FRE 403 Faulk’s arrest records but permitted a Dimerco representative to testify that Dimerco considered Faulk’s aggravated assault charge (which was later reduced) in making its decision to rescind his employment offer.
On appeal, Dimerco argued, first, that Faulk’s counsel’s misconduct warranted a new trial. The court disagreed, noting that Dimerco would be entitled to a new trial only if counsel’s misconduct “affected [Dimerco’s] ‘substantial rights.’” Given the district court’s corrective instructions and admonishment of counsel in front of the jury, and the rule that the court “always presume[s] that a jury follows its instructions,” Dimerco could not meet this standard.
Nor was Dimerco entitled to a new trial because of the district court’s exclusion of Faulk’s arrest records. The district court determined that the records, purportedly relevant to Faulk’s claimed emotional distress, would be of limited probative value because Faulk’s testimony was limited to his distress following the adverse employment decision (and did not concern “general malaise”). On the other side of the scale, the records were inherently prejudicial. The Eleventh Circuit found no abuse of discretion in the conclusion that the risk of prejudice “substantially outweighed” the reports’ probative value. And any error in excluding the 2014 arrest record for aggravated assault was in any event harmless, because a Dimerco witness was permitted to testify about the company’s consideration of the charge and Faulk did not dispute that he was charged with aggravated assault.
The court also affirmed the jury’s damages awards. A plaintiff’s testimony, standing alone, can support an award for compensatory damages for emotional distress, and the Court of Appeals reviews a district court’s decision not to remit a compensatory damages award under a “highly deferential” standard. Faulk’s testimony supported the award of damages for emotional distress, which was similar to the award affirmed in Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2003), another racial discrimination case. Nor was the jury’s award of punitive damages in an amount equal to 7.69 times the compensatory damages “grossly excessive” as would be required for a violation of the Due Process Clause. Among the several factors to be considered in reviewing a punitive damages award, “[t]he most important,” according to State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), is “the degree of reprehensibility of the defendant’s conduct.” “Dimerco’s conduct was exceedingly reprehensible because it employed a racially discriminatory hiring plan despite repeated warnings that this plan was illegal and with full knowledge that it would harm potential employees.” And the 7.69-to-1 ratio of punitive to compensatory damages was both within the universe of single-digit multipliers that are more likely than higher ones to comport with due process and supported by the reprehensibility of Dimerco’s conduct.