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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wal-Mart, Inc. v. Stewart (11/12/99) sp-5202

Wal-Mart, Inc. v. Stewart (11/12/99) sp-5202

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA

WAL-MART, INC., a foreign     )
corporation, MARK DIVIS,      )    Supreme Court No. S-8259
manager, and RANDY HARDY,     )
employee,                     )    Superior Court No.
                              )    3AN-95-6964 CI 
               Appellants,    )
                              )    
          v.                  )    O P I N I O N  
                              )
ELVIS R. STEWART,             )    [No. 5202 - November 12, 1999]
                              )
               Appellee.      )   
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        Sen K. Tan, Judge.


          Appearances:  Ann S. Brown and Paulette Bea
Hagen, Lane Powell Spears Lubersky LLP, Fairbanks, for Appellants. 
David E. George, Rex Lamont Butler & Associates, and Ken A.
Norsworthy, Edgar Paul Boyko and Associates, Anchorage, for
Appellee.


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.


          COMPTON, Justice.


I.   INTRODUCTION
          Elvis R. Stewart sued Wal-Mart for violating Alaska's
civil rights statute, for invading his common-law right to privacy,
and for negligent and intentional infliction of emotional distress. 
He sought both compensatory and punitive damages.  At the close of
Stewart's case, Wal-Mart moved for a directed verdict.  The court
denied the motion.  The jury returned a verdict in favor of Wal-
Mart on Stewart's civil rights claim, but found for Stewart on his
claims of invasion of privacy and intentional infliction of
emotional distress.  The jury awarded Stewart both compensatory and
punitive damages.  Wal-Mart moved for, and was denied, a judgment
notwithstanding the verdict (JNOV) on the issue of punitive
damages.  Wal-Mart appeals the court's denial of its motions for a
directed verdict and a JNOV.  Wal-Mart also appeals numerous
evidentiary rulings and the court's failure to remove an allegedly
conflicted juror.  We affirm.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          In July 1994 Elvis R. Stewart, an African-American, began
working for the McDonald's restaurant located inside the Wal-Mart
store on Benson Boulevard in Anchorage.  Stewart was hired to work
the grill area; eventually he was moved to the area of the
restaurant where people eat.  Stewart's shift was from 7:30 p.m.
until closing, the time of which varied.  Stewart also worked at
Taco Bell.  Stewart's shift at Taco Bell was from 11:30 a.m. until
7:00 p.m.  In order to work both shifts, Stewart carried a change
of clothes and personal items in a duffel-type bag.  He would
change out of his Taco Bell uniform, and into his McDonald's
uniform, in the Wal-Mart bathroom.  He also took the time between
shifts to freshen up, i.e., wash himself with soap and a washcloth
that he carried in his bag, and brush his teeth.  He used the Wal-
Mart bathroom, instead of the Taco Bell bathroom, because it was
larger and less crowded with customers.
          Wal-Mart had a nation-wide policy of stationing a member
of its management team at its exits to check for receipts of
purchases made by Wal-Mart and McDonald's employees, and to check
for stolen items that might be concealed in their personal bags.
Management conducted the checks before employees left the store at
the end of their shifts.  Randy Hardy, a Wal-Mart assistant
manager, testified that management did not check women's purses,
because women sometimes carry in their purses personal items that
may be embarrassing to them.
          The first few weeks Stewart worked at McDonald's, he
exited the Wal-Mart store at the close of his shift without
incident.  According to Stewart, sometime during his third week of
employment, Hardy stopped Stewart as he was exiting McDonald's at
the end of his shift.  Hardy asked to search Stewart's bag, and
then proceeded to dump the contents of Stewart's bag onto the
counter and look through it.  According to Stewart, this type of
bag search continued until mid-February 1995.  Stewart testified
that he routinely objected to the searches.  On February 15 Stewart
was again searched by Hardy.  Hardy questioned Stewart about some
candy bars in his bag, for which Stewart produced a receipt.  After
Hardy completed the bag search he allowed Stewart to leave.  The
next day Stewart came to McDonald's to speak with Sheila Hay, the
wife of the franchise owner of the McDonald's where Stewart worked.
It was Stewart's day off.  He told Hay that he felt that Hardy was
singling him out for bag searches.  Hay took Stewart to speak with
Mark Divis, the Wal-Mart store manager.  Stewart repeated to Divis
that he felt that Hardy was singling him out for bag searches. 
Divis called Hardy into the office.  Hardy denied singling out
Stewart for searches.  Stewart testified that during the meeting
Hay asked Hardy who else he searched.  Stewart asked Hardy whether
he searched certain people because they were black; Hardy answered
yes.  Divis promptly ended the meeting and conferred with Hay
outside the presence of Hardy and Stewart. 
          On February 23 Stewart wrote a letter to Divis commending
him on his "efforts with enforcing Wal-Mart [p]olicy, as it is in
regards to the checking of All bags . . . ." But after he had
written the letter, Stewart testified that things "drifted back to
the same old way that -- people started being singled out."
     B.   Proceedings
          In August 1995 Stewart sued Wal-Mart, Divis, and Hardy
(hereinafter Wal-Mart, unless specifically referring to Hardy's
searches), alleging that: (1) the bag searches, conducted solely on
the basis of his race, violated rights protected by
AS 18.80.220(a); [Fn. 1] (2) the searches of his bag and person
negligently [Fn. 2] and intentionally inflicted emotional distress
upon him; and (3) the searches violated his common-law right to
privacy guaranteed by article I, section 23 of the Alaska
Constitution. Stewart sought compensatory and punitive damages.  
          Prior to trial, Wal-Mart filed a Motion in Limine seeking
to exclude "inadmissible evidence of supposed 'prior discriminatory
acts' committed by the defendants." Wal-Mart argued that
"[e]vidence that Randy Hardy and Mark Divis committed prior
discriminatory acts does not make it more probable that they
searched Stewart's bags on account of race." Furthermore, Wal-Mart
argued that evidence of prior discriminatory acts would be
inadmissible under Alaska Evidence Rule 404 because it was
character evidence.  Stewart opposed Wal-Mart's Motion in Limine;
he also filed a motion to compel Wal-Mart to produce Hardy's
personnel file.  The trial court granted Wal-Mart's Motion in
Limine in part.  The court set out three guidelines that Stewart
would be required to meet before the court would admit evidence
that pertained to a prior discriminatory act.  Those guidelines
were: (1) "The evidence must pertain to the issues of race"; (2)
"The evidence must pertain to specific instances of conduct by
Randy Hardy, Mark Divis or other supervisory employees of Wal-Mart
within the scope of their employment, and directed at employees and
customers of Wal-Mart"; and (3) "The evidence must pertain to the
mid-town Wal-Mart store in question." In regard to Hardy's
personnel file, the court held that it did not find anything
discoverable in it.  The court did, however, allow Stewart to
impeach Hardy with information from the personnel file that
contradicted Hardy's deposition testimony.
          At the close of Stewart's case-in-chief, Wal-Mart moved
for a directed verdict on all counts.  The court promptly denied
the motion, except insofar as it pertained to the issue of punitive
damages, which it took under advisement.  The next day, the court
stated:  "I took the issue of directed verdict on punitive damages
under advisement . . . .  Having considered it, I'm going to allow
the instruction to go to the jury.  I'm going to deny the directed
verdict." The court commented that Stewart "clears the hurdle of
clear and convincing, but not by much."
          The jury returned a verdict in favor of Wal-Mart on
Stewart's civil rights claim.  However, it did conclude that
Stewart had proved by a preponderance of the evidence that Wal-Mart
intentionally inflicted emotional distress on him, and that it had
invaded his privacy.  Lastly, the jury concluded that Stewart had
proved by clear and convincing evidence that Wal-Mart's conduct
warranted punitive damages because it had been "the result of
malicious or hostile feelings toward plaintiff Stewart, or was
undertaken with reckless indifference to his interests or rights
and was outrageous." The jury awarded Stewart $7,800 in
compensatory damages and $50,000 in punitive damages.  After the
special verdict form was read in open court, the jury was polled
and discharged.  After the jury had been discharged, Wal-Mart moved
for a JNOV with regard to punitive damages.  The court denied Wal-
Mart's motion. 
          Wal-Mart appeals the trial court's denial of its motions
for a directed verdict and a JNOV, numerous evidentiary rulings,
and the court's failure to excuse an allegedly conflicted juror. 
III. DISCUSSION
     A.   Standard of Review
          When reviewing denial of a motion for a directed verdict
or a JNOV, we will not "weigh conflicting evidence or judge the
credibility of the witnesses."[Fn. 3]  Rather, we will "determine
whether the evidence, when viewed in the light most favorable to
the non-moving party, is such that reasonable [persons] could not
differ in their judgment."[Fn. 4]  Our test is objective.  If
there is any room for diversity of opinion, the question is one for
the jury.  "We thus must examine the evidence presented at trial to
determine if the jury's finding . . . is supported by the evidence
when viewed in the light most favorable to [Stewart]."[Fn. 5] 
          We review "the trial court's decision[s] on admissibility
of evidence under the abuse of discretion standard."[Fn. 6]
     B.   The Trial Court's Decision that Wal-Mart Was Not Entitled
to a Directed Verdict on Any Count Was Correct.
     
          At the close of Stewart's case-in-chief, Wal-Mart moved
for a directed verdict on all counts.  Each was denied.  
          1.   Invasion of privacy
          We have recognized that all persons are entitled to the
common-law "right to be free from harassment and constant intrusion
into one's daily affairs."[Fn. 7]  This common-law right is
delineated in the Restatement, whose approach we adopted in our
Luedtke opinion. [Fn. 8]  Section 652B states:
          One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another or his private
affairs or concerns, is subject to liability to the other for
invasion of his privacy, if the intrusion would be highly offensive
to a reasonable person.

In Luedtke we stated that "courts have construed 'offensive
intrusion' to require either an unreasonable manner of intrusion,
or intrusion for an unwarranted purpose."[Fn. 9]
          Consistent with Luedtke, the trial court instructed the
jury that
          [i]n order to recover, plaintiff must prove by
a preponderance of the evidence that:
     
               (1)  One or more defendants
intentionally intruded upon the solitude, seclusion or private
affairs or concerns of plaintiff Stewart; and

               (2)  A reasonable person would find
this a highly offensive intrusion.

The trial court defined "offensive intrusion"as this court did in
Luedtke.  The court further instructed the jury that any search to
which Stewart had voluntarily consented could not be considered an
offensive intrusion.    
          Wal-Mart argues that "Stewart cannot sustain a claim that
mere searches of his bags were an actionable intrusion absent an
independent illegal motive[,] especially as his attorney
acknowledged that Wal-Mart had a legal right to undertake the
searches." Wal-Mart cites no support for this assertion.  In fact,
in light of Luedtke and Section 652B, Wal-Mart's argument is simply
incorrect as a matter of law.  As Luedtke made clear, the jury
could conclude that the bag searches had been done either for an
unlawful reason or in an unreasonable manner. [Fn. 10]  Wal-Mart's
argument that Stewart must prove an independent illegal motive on
Wal-Mart's part in order to prove that it invaded his privacy is
not well taken.  
          Wal-Mart also argues that it was improperly denied a
directed verdict on the invasion of privacy claim because the
jury's special verdict form showed that it did not find that Wal-
Mart had violated Stewart's civil rights.  This argument lacks
merit.  At the time that Wal-Mart moved for a directed verdict, the
only question before the court was whether a reasonable juror could
conclude that Wal-Mart had invaded Stewart's privacy, either
because they searched him in an unreasonable manner or because they
searched him for an unlawful reason, i.e., because he was an
African-American.  The jury's ultimate rejection of Stewart's civil
rights claim is irrelevant to whether the superior court should
have directed a verdict on Stewart's invasion of privacy claim. 
          Our review of the record discloses sufficient evidence
that would allow reasonable minds to conclude that Wal-Mart
searched Stewart's bag in an unreasonable manner or for an unlawful
reason.  
               a.   Unreasonable manner
          Stewart presented witnesses who testified to the manner
in which Hardy searched Stewart's bag.  The following are examples
of this evidence:
          (1)  Stewart testified that Hardy told him to
"empty out [his] pockets, all -- everything, all that was in [his]
pockets."
 
          (2)  Stewart testified that Hardy "snatched"
his bag off of his shoulder.
  
          (3)  Stewart testified that Hardy aggressively
dumped everything out of his bag onto the counter.
  
          (4)  Mary Ann Dias testified that she saw
Hardy take "everything out of [Stewart's] bag and la[y] it on the
counter.  Opened it up and took everything out, and then put
everything back."

          (5)  Sylvester Dogan testified that Stewart
would "be called over, empty all his pockets, empty all his bags,
and -- and I guess his contents would be observed and what have
you."
 
          (6)  In her video-taped deposition, Kelly Koch
testified that "[Stewart] would place his bag on the counter.  And
then they would ask him to unzip and take whatever was inside, out
so they could see inside.  And then [Stewart] would unzip the top
component, and take out whatever was in it.  And then they would go
ahead and direct him to any other pockets that were in his bag."
  
          Based on this type of evidence, reasonable jurors could
find that Hardy intentionally intruded upon the solitude or private
affairs or concerns of Stewart and that a reasonable person would
find this a highly offensive intrusion, concluding that the
searches were done in an unreasonable manner.
               b.   Unlawful reason
          Ample evidence was presented that also would permit
reasonable jurors to find that Hardy searched Stewart's bag for an
unlawful reason, i.e., because he is an African-American.  The
following are examples of this evidence:
          (1)  Stewart testified that he "interjected,
               sprung open a question [to Hardy], so you
search us because we're black.  And [he] recall[ed] [Mr. Hardy]
saying yes."

          (2)  Mary Ann Dias testified that, prior to
Stewart's complaint, she never saw any Caucasian McDonald's
employees get their backpacks searched.
  
          (3)  In her video-taped deposition, Kelly Koch
testified that "I observed that on a normal basis, [Stewart] was
being searched almost every evening, and on occasion, certain other
minorities were being searched also." She also stated that she
never saw Caucasians having their personal bags searched.
 
          (4)  Travis Witcher testified that "So the
next day I guess they searched everybody or a majority of the
blacks, just -- they just searched -- searched them.  There were no
-- no white associates that day got searched." He also testified
that Hardy asked him to open his jacket and patted him down, while
Hardy did not search the bag of a white associate who was walking
out with Witcher.
 
          (5)  Melissa Cates testified that while she
worked at the Wal-Mart McDonald's for thirteen months and was only
searched three times, a Native American co-worker and acquaintance
of hers was stopped and searched many times.

          While Hardy testified that his search of Stewart was not
motivated by the fact that Stewart was an African-American, a
reasonable juror could have found Hardy's testimony not credible. 
Based on this type of evidence, reasonable jurors could find that
Hardy searched Stewart for an unlawful reason, i.e., solely on the
basis of his race.
               c.   Consent
          Wal-Mart argues that consent is a defense to an invasion
of privacy claim, and that a reasonable juror could not have
concluded that the searches of Stewart's bag were anything but
consensual.  Wal-Mart also asserts that "the evidence showed that
Stewart consented to the searches by continuing to carry his bag,
because the jury found that Stewart's bag was not searched for the
illegal motive of racial basis." Wal-Mart's final point is that
"where a legal bag search procedure is in effect, consent is
implied." 
          Stewart argues that his search was not consensual, either
because of mistake or duress, and that evidence to that effect was
presented at trial.  Specifically, Stewart notes that he testified
that the first time he was searched he "mistakenly thought that
perhaps he was being searched because someone had mistaken him for
a shoplifter." Furthermore, Stewart argues that he testified that,
at least for the first few searches, he "mistakenly believed that
the searches were possibly part of a random nondiscriminatory
pattern of searches." Additionally, Stewart asserts that he did
not consent to the searches because he was under duress.  The
duress, Stewart argues, was two-fold; first, he was under duress
because he believed that if he did not allow the searches to occur
it was "likely that others present . . . would have believed that
he might be a thief,"; and second, he believed that "if he did not
allow himself to be searched that he would be fired and/or that the
police would be called."
          Reasonable jurors could find that Stewart did not consent
to the searches.  Not only was there evidence presented that could
lead reasonable jurors to conclude that Stewart was mistaken or
under duress when he "consented"to the searches, but, as the
superior court noted, there was also evidence presented that
Stewart never in fact consented.  The superior court stated:  "On
the issue of consent, again there is evidence on both sides that
Mr. Stewart essentially voiced his dissent numerous times when he
was being searched." Specifically, Stewart did not consent to
Hardy's vigorous and overly-thorough searches.  
          The following are examples of this evidence: 
          (1)  Stewart testified that the first time he
was searched he "was thinking [that the reason he was stopped was]
race,  and [he] was also thinking perhaps there was a mistake
somewhere, perhaps someone had described somebody that looked like
[him], maybe [they] thought [he] was someone that was stealing from
the store."

          (2)  Stewart testified that he "believed that
at that particular time had [he] complained -- complained about
[the searches], that they would have thought [he] was probably
trying to make waves, [he] was probably trying to undermine their
system, and that probably [he] would be terminated." He further
testified that at that time he could not afford to lose his job.

          (3)  Stewart testified that "[a]s [he] was
protesting the searches, Mr. Hardy said to [him] shut up, I'm not
going to argue with you; as long as I'm working, I'm going to
search you every night."
 
Whether consent is implied when a store has a legal bag search
policy is irrelevant.  Even were we to conclude that a consent is
implied when a legal bag search procedure is in effect, Stewart's
suit was premised on the notion that he was not searched pursuant
to Wal-Mart's legal bag search policy.  Rather, Stewart
successfully argued at trial that the searches of his bag invaded
his privacy because they were done for an unlawful purpose or in an
unreasonable manner.
          2.   Intentional infliction of emotional distress
          "This court has applied the approach set forth in the
Restatement (Second) of Torts to intentional infliction of
emotional distress (IIED) claims."[Fn. 11]  The elements necessary
for establishing a prima facie case of IIED are: "(1) the conduct
is extreme and outrageous, (2) the conduct is intentional or
reckless, (3) the conduct causes emotional distress, and (4) the
distress is severe."[Fn. 12]  "If reasonable jurors could differ
as to whether the evidence adduced at trial would satisfy these
elements, the superior court is required to submit the IIED claim
to the jury."[Fn. 13]  But before submitting the IIED claim to the
jury the court must first make the threshold determination of
"whether the severity of the emotional distress and the conduct of
the offending party warrant an instruction on [IIED]."[Fn. 14] 
This court will overturn the court's threshold determination only
if there has been an abuse of discretion. [Fn. 15]
          At trial, the court held that "[w]ith respect to the
emotional distress claim there is clearly conduct and there's
clearly evidence of conduct that can go to the jury for them to
determine whether it was extreme and outrageous."
          On appeal Wal-Mart argues that "[t]he evidence at the
close of Stewart's case on whether defendant's conduct was
outrageous . . . was insufficient on the emotional distress claim."
[Fn. 16]  In support of its assertion, Wal-Mart cites to this
court's decision in Cameron v. Beard. [Fn. 17]  Wal-Mart claims
that in Beard "the defendant sexually abused a minor child while a
guest in her parents's home." This, Wal-Mart argues, "is an
example of the level of wrongful conduct which is outrageous enough
to sustain an intentional infliction of emotional distress claim in
Alaska." Wal-Mart incorrectly recites both the facts and the
holding of Beard.  While Beard addressed claims of IIED, the facts
surrounding the claim involved an employee's claims of harassment
and forced retirement. [Fn. 18]  In Beard this court concluded that
activities such as threats and "behind the scenes efforts to
collect evidence of disruptive activity by [the employee]"were
"sufficiently outrageous to permit recovery for IIED."[Fn. 19]  
Thus, Beard is potentially germane to the resolution of this case
-- Wal-Mart's behavior was comparably outrageous to the Beard
employer's threats and efforts to collect evidence against an
employee.  
          This court's decision in Beard, may, however, be relevant
to this case for other reasons.  In Beard, this court held that an
employee who "did nothing more than what her job required her to do
-- supervise and evaluate Beard's performance. . . . regardless of
her motive"could not be liable for IIED. [Fn. 20]  At first glance
it appears that Beard dictates that this court conclude that it was
an abuse of discretion for the superior court to submit the
question of IIED to the jury, if Hardy was simply fulfilling his
job of assistant manager by searching Stewart's bag, regardless of
his racial motives.  Such a reading of Beard, however, would be
over-broad.  While Hardy may have been authorized to conduct
searches because he was a Wal-Mart assistant manager, Stewart
alleges that Hardy singled him out and searched him vigorously
every night because Stewart is African-American.  Such constant,
vigorous searches cannot be considered to be "nothing more than
what [Hardy's] job required [him] to do."[Fn. 21] 
          We conclude that it was not an abuse of discretion for
the superior court to make the threshold determination, based on
the evidence presented, that Hardy's conduct was sufficiently
outrageous, and Stewart's emotional distress was sufficiently
severe, to submit the IIED claim to the jury.  The following are
examples of this evidence:
          (1)  Stewart testified that Hardy admitted
that the reason he searched the people that he did was because they
were African-Americans.
 
          (2)  Stewart testified that he was told to
empty his pockets, and that Hardy grabbed his duffel bag off of his
shoulder.

          (3)  Numerous witnesses testified that Stewart
and other people of color were searched very often, while
Caucasians were either allowed to exit the store without being
searched or were searched much less frequently. 

          (4)  Stewart testified that the searches "made
me feel very dehumanized as an individual, made me feel just
totally distraught, totally down, and just affected me so
emotionally . . . . I would say sometime during the course of my
employment, employees have come into McDonald's and asked me are
you stealing, and I would have to defend my reputation and say no."
 
          (5)  Stewart testified that "[a]s [he] was
protesting the searches, Mr. Hardy said to [him] shut up, I'm not
going to argue with you; as long as I'm working, I'm going to
search you every night."
  
          (6)  Stewart testified that "after these
searches went on, [he] started getting [severe] headaches"and that
he was experiencing pain throughout his body, which he was told by
his doctor was being caused by severe stress.
  
          (7)  Mary Ann Dias testified that Stewart
acted annoyed, upset and very embarrassed when Hardy searched him.
 
          (8)  Stewart's psychiatrist, Dr. Alberts,
testified that, after the initial interview with Stewart, he found
him to be "seriously depressed, [and] very anxious."
 
          (9)  Dr. Alberts testified that his
"diagnostic impression was that [Stewart] was def -- definitely
suffering from post[-]traumatic stresses or -- with symptoms of
depression and anxiety."
  
     C.   The Trial Court's Decision that Wal-Mart Was Not Entitled
to a Directed Verdict or a JNOV on the Punitive Damages Claim Was
Correct.

          Wal-Mart moved for a directed verdict on the punitive
damages claim after the close of Stewart's case-in-chief.
Additionally, after the jury returned its verdict in favor of
Stewart on two of his claims, and found Wal-Mart liable for $50,000
in punitive damages, Wal-Mart moved the court for a JNOV on the
punitive damages claim.  The court denied both of Wal-Mart's
motions.
          "Punitive damages may not be awarded in an action,
whether in tort, contract, or otherwise, unless supported by clear
and convincing evidence."[Fn. 22]  "To support a claim for
punitive damages, 'the plaintiff must prove by clear and convincing
evidence that the defendant's conduct was outrageous, such as acts
done with malice, bad motive, or reckless indifference to the
interests of another.'"[Fn. 23]  We have stated that a showing of
malice is not required; however, Stewart must establish that Wal-
Mart's conduct "amounted to reckless indifference to the rights of
others, and conscious action in deliberate disregard of [those
rights]."[Fn. 24]  In Chizmar we stated that "[i]t is well-
established that where there is no evidence that gives rise to an
inference of actual malice or conduct sufficiently outrageous to be
deemed equivalent to actual malice, the trial court need not, and
indeed should not, submit the issue of punitive damages to the
jury."[Fn. 25]  We will not overrule the superior court's
threshold determination absent an abuse of discretion. [Fn. 26]
          Wal-Mart argues that the jury improperly awarded Stewart
punitive damages for three reasons: (1) Judge Tan's statement that
the evidence presented "clears the hurdle of clear and convincing,
but not by much,"defies logic because evidence cannot barely be
clear and convincing; (2) no reasonable juror "could have inferred
from the small amount of opinion evidence which was offered, the
outrageousness and reckless conduct that is necessary to support an
award of punitive damages in Alaska"; and (3) because the jury
ultimately rejected Stewart's racial discrimination claim,
"Stewart's evidence of that motive failed to support a punitive
damage[s] claim."
          1.   Directed verdict

          Wal-Mart states that "[i]t defies logic and is a
contradiction in terms that evidence can rise to a 'clear and
convincing' standard 'but not by much.'" The court's decision to
submit the issue of punitive damages to the jury, Wal-Mart
contends, is therefore erroneous.  Wal-Mart cites no authority for
its proposition.  Wal-Mart appears to be arguing that the Chizmar
requirement means that the court needed to be clearly convinced
that Stewart was entitled to punitive damages before submitting the
question to the jury.  That argument is simply incorrect.  In
making its threshold determination, the superior court needed to
determine whether the evidence presented during Stewart's case-in-
chief could give rise to an "inference of actual malice or conduct
sufficiently outrageous to be deemed equivalent to actual malice."
[Fn. 27]  If the superior court so concludes, it should submit the
question to the jury.  It does not "defy logic"for the superior
court to have concluded that the evidence presented by Stewart
rises, albeit barely, to a level that would allow a reasonable
juror to infer that Wal-Mart acted with actual malice or that its
conduct was sufficiently outrageous to be considered equivalent to
actual malice.
          Based on the evidence outlined in Parts III.B.1 and 2, we
conclude that it was not an abuse of discretion for the superior
court to submit the question of punitive damages to the jury. 
Specifically, a reasonable juror could have concluded that Hardy's
actions, including conducting racially motivated searches which he
did in an aggressive manner, and which continued even after he
became aware that he was upsetting Stewart, were sufficiently
outrageous to be considered the equivalent of malice. 
          2.   JNOV

          Wal-Mart argues that the superior court erred when it
denied its motion for a JNOV because no reasonable juror could have
concluded that Wal-Mart acted with malice or that it acted
sufficiently outrageously for its conduct to be considered the
equivalent of malice.  The main thrust of Wal-Mart's argument is as
follows: "The jury rejected Stewart's race claim.  Absent wrongful
conduct based on race, this court need look no further than
Stewart's case-in-chief to find that the evidence was not
sufficient to support an award of punitive damages on any other
conduct." Wal-Mart also argues that "[t]he uncorroborated opinion
testimony of a plaintiff is not enough evidence to rise to the
clear and convincing standard for punitive damages." Wal-Mart
cites no authority for this proposition.   
          While Wal-Mart's argument that the jury's ultimate
rejection of Stewart's civil rights claim proves that the jury
rejected his race claim is not nonsensical at the JNOV stage, it is
incorrect.  The jury did not reject Stewart's race claim.  Rather,
the jury concluded, based on the special verdict form, that Wal-
Mart did not refuse, withhold, or deny Stewart any of Wal-Mart's
advantages or privileges.  By first finding that Wal-Mart had not
denied Stewart an advantage or privilege, the jury never reached
the question whether the denial was because of his race.  The jury,
therefore, need not have conclusively rejected Stewart's claim that
the searches were motivated by his race in order to have reached
its verdict.
          Wal-Mart argues that the court's denial of its motion for
a JNOV was in error on other grounds, all of which can similarly be
rejected.  Wal-Mart asserts that "[m]uch of Stewart's case
consisted of his attorney questioning Wal-Mart management about
whether or not they could have done a more thorough investigation
of Stewart's February 16 complaint of racial harassment." Evidence
of failure to properly investigate Stewart's claim, Wal-Mart
argues, was scant and clearly not sufficient to justify a punitive
damages award.  While Stewart did ask Wal-Mart management questions
regarding its investigation of Stewart's claim of racial
discrimination, such questions were not central to Stewart's
argument regarding the outrageousness of Wal-Mart's actions. 
Rather, most of Stewart's witnesses, including Stewart himself,
testified about how the searches were conducted, who was searched,
and why the people were searched.  Stewart's assertions that Wal-
Mart management did nothing to investigate his claims of racial
discrimination were merely one aspect of the entire case.
          We conclude that reasonable jurors could find that Wal-
Mart's acts were sufficiently outrageous to warrant a grant of
punitive damages.  "We will overturn an award of punitive damages
only if consideration of the record as a whole leaves us with a
firm conviction of error and the need to intervene to prevent a
miscarriage of justice."[Fn. 28]  The testimony set out in Parts
III.B.1 and 2 could have been considered by reasonable jurors in
concluding that Wal-Mart's "conduct . . . was the result of
malicious or hostile feelings towards . . . Stewart, or was
undertaken with reckless indifference to his interest or rights and
was outrageous."
     D.   The Jury Instructions Were Not Plainly Erroneous.

          Stewart sued Wal-Mart on three separate legal theories:
his statutory right to be free from racial discrimination in the
workplace; invasion of privacy; and IIED.  The trial court
instructed the jury that these three claims were independent.  The
court stated that: 
               Plaintiff claims that he suffered damages
when an employee of Wal-Mart searched his person and his bags. . .
.

               The plaintiff's claim is based upon three
separate theories.  These theories are:

                    1)   Violation of civil rights;
                    2)   Intentional infliction  of
                         emotional distress;
                    3)   Invasion of privacy;

               . . . In order to recover, plaintiff must
establish the elements of at least one of these theories by a
preponderance of the evidence.

Both parties agreed to these jury instructions.  Because Wal-Mart
failed to object to the trial court's jury instructions, this court
will review the jury instructions only for plain error.  "Plain
error occurs if a jury instruction creates a high likelihood that
the jury will follow an erroneous theory resulting in a miscarriage
of justice."[Fn. 29]  "[T]he 'ultimate determination in analyzing
plain error in jury instructions is simply whether a correct
instruction would have likely altered the result.'"[Fn. 30]  On
appeal, Wal-Mart argues that "Judge Tan committed plain error by
allowing a special verdict form or instructions which did not make
clear that if Stewart's race claim failed, his invasion of privacy
and intentional infliction of emotion distress claim also failed,
absent sufficient evidence of an unlawful purpose for searching
Stewart's bag." Furthermore, Wal-Mart argues, "because the jury
rejected Stewart's claim of a racial motive for searching Stewart's
bag, the court should not have allowed the jury to find that the
bag searches were highly offensive such that they constituted an
invasion of his privacy or an intentional infliction of emotional
distress." This is because, Wal-Mart claims, "[t]here was simply
no evidence of any 'illegal' intrusion." 
          Wal-Mart also argues that the jury's verdict was
inconsistent and fundamentally flawed.  Wal-Mart failed to raise
its claim that the jury's verdict was inconsistent before the jury
was dismissed; therefore, this court should not entertain Wal-
Mart's argument on appeal. [Fn. 31]  Because Wal-Mart failed to
challenge the consistency of the verdict before the jury was
discharged, it "consequently waived [its] right to challenge the
verdict's consistency."[Fn. 32]
          We are not persuaded that it was reversible error for the
trial court not to instruct the jury that, absent a finding that
Wal-Mart denied Stewart an advantage or privilege, the jury could
not find that Wal-Mart was liable to Stewart for damages resulting
from an unreasonable invasion of privacy or IIED.  
          The court instructed the jury separately as to each of
the three counts.  Instruction No. 10 states:
               In this case, the plaintiff claims that
his civil rights were violated by one or more defendants.  In order
to recover, plaintiff must establish by a preponderance of the
evidence that:

               1)   One or more defendants refused,
withheld, or denied plaintiff any of Wal-Mart's advantages or
privileges, and, 

               2)   One or more defendants did so
because of plaintiff's race or color.
The court further instructed the jury on the necessary requirements
for finding IIED and invasion of privacy.  Wal-Mart does not assert
that the individual instructions for the three separate claims were
plainly erroneous.  Rather, Wal-Mart contends that it was plain
error for the court not to instruct the jury that, absent a finding
that Wal-Mart denied Stewart any of its advantages or privileges
because of his race, the jury could not conclude that Wal-Mart is
liable for IIED or invasion of privacy.
          Wal-Mart's argument is unpersuasive.  Wal-Mart is
seemingly arguing that the jury answering "no"to the question
whether Wal-Mart denied Stewart a right or privilege forecloses the
issue of race as a factor in the bag searches.  Furthermore, Wal-
Mart argues that "the jury was not provided with sufficient
explanation to let it understand that if race was not the motive
for the bag searches then there had to be sufficient evidence of
another illegal motive or method in order to find liability as to
the other causes."
          As discussed above, what Wal-Mart fails to recognize is
that by concluding that Wal-Mart did not deny Stewart a privilege
or advantage, the jury did not necessarily also conclude that race
was not a factor in the bag searches.  Furthermore, even if this
court adopts Wal-Mart's assumption that the jurors concluded that
race was not a factor in the bag searches, the jury would not
thereby be precluded from concluding that Stewart proved his claims
of IIED and invasion of privacy by a preponderance of the evidence. 
The court properly instructed the jury on the elements of IIED and
invasion of privacy; if the jury concluded that race was not a
reason for the bag searches, it could nevertheless conclude that
Wal-Mart was liable for these claims.  As discussed above, there
was evidence presented from which reasonable jurors could conclude
that Stewart had met the necessary requirements for IIED, invasion
of privacy, and punitive damages.
          We conclude that it was not plain error for the superior
court to instruct the jury that the suit consisted of three
separate claims and that the jury could conclude that Wal-Mart was
liable for IIED and invasion of privacy without concluding that
Wal-Mart denied Stewart a right or a privilege.
     E.   None of the Superior Court's Evidentiary Decisions Were
an Abuse of Discretion.

          Wal-Mart appeals numerous evidentiary rulings.  It argues
that the superior court made several errors, and that "the combined
effect of those errors should be enough to warrant reversal of
punitive damages in a case such as this where even the judge
admitted that the plaintiff 'barely' met the clear and convincing
standard to withstand a motion for a directed verdict." Wal-Mart
appeals the court's rulings admitting the following evidence: (1)
allowing Stewart to impeach Hardy with information from Hardy's
personnel file, when the court had already ruled that the personnel
file contained no discoverable information; (2) allowing "numerous
incidents of further unrelated 'prior acts' testimony about Hardy";
and (3) allowing in evidence of a prior lawsuit against Wal-Mart
which existed at the time Divis was a store manager.
          Wal-Mart waived most of the evidentiary rulings that it
now appeals because it failed to raise the proper objections during
the trial. [Fn. 33]  First, Wal-Mart conceded that Hardy's
personnel file could be used for impeachment purposes.  The
superior court ruled that there was nothing in the personnel file
that was discoverable.  Stewart clarified that he still wanted to
impeach Hardy with it.  The court agreed that he could do so.  Wal-
Mart did not object. Additionally, when Stewart actually used
information from the personnel file to impeach Hardy, Wal-Mart did
not object.  Second, Wal-Mart stipulated that the court would
instruct the jury that there was a lawsuit filed on February 6,
1995, and that it was served on Wal-Mart's corporation.  Wal-Mart
cannot now appeal the court's permitting Stewart to mention the
prior lawsuit.  On appeal, Wal-Mart attempts to characterize the
discussion surrounding its stipulation as an objection; however, it
defies logic for Wal-Mart to argue that it simultaneously objected
and stipulated to the admission of this evidence.  Third, Wal-Mart
argues that 
          [Travis] Witcher testified about a totally
unrelated incident where Witcher believed Hardy "coached"or
disciplined him when he didn't deserve it.  That incident had
nothing whatever to do with searches or racial matters, so was also
totally irrelevant, and was pure disparagement of Hardy's character
in violation of Evidence Rules 403 and 404.
Wal-Mart did not object to Witcher's testimony at trial, and
therefore has waived any objection on appeal.  Fourth, Wal-Mart
appeals the superior court's admission of Witcher's testimony about
a racially discriminatory comment Witcher overheard Hardy make
about a Native-American man.  Again, Wal-Mart did not object to
Witcher's testimony during the trial.  Lastly, Wal-Mart appeals the
admission of Witcher's testimony about inter-racial marriages. 
Wal-Mart objected at first on hearsay grounds to the way the
testimony was being presented; the court sustained that objection. 
However, Wal-Mart raised no objection to the content of the
testimony once Stewart rephrased the form of the question.
          While Wal-Mart's appeal of the other evidentiary ruling
was raised at trial, the ruling was not an abuse of the court's
discretion.  Wal-Mart argues that allowing Stewart to ask the
following question:  "Does [Hardy] -- when he has his slack time
during work shift does he tend to chit-chat equally with women as
he does with men or does he seem to chit-chat more with the men
than the women?"was an abuse of discretion because the "line of
questioning . . . was an attempt to elicit irrelevant and
prejudicial character evidence." Wal-Mart objected to the question
on relevance grounds.  On appeal, Wal-Mart asserts that the
question was an attempt by Stewart to "infer that Hardy practiced
sex discrimination." Stewart, however, argues that the question
"sought to demonstrate that, as a woman, [the witness] might not
have as complete and as accurate of an insight on Hardy's attitude
as would men co-workers." The record supports Stewart's
characterization of the question.
          Q:   How well do you know Randy Hardy?
          A:   Pretty well.  I worked with him a lot.
          Q:   Do you have any idea what his racial
attitudes are towards black people?

          A:   I've never heard him say, comment or do
anything about it.

          Q:   Uh-huh.  Does he -- when he has his slack
time . . . .
  
          None of the superior court's evidentiary rulings were an
abuse of discretion. 
     F.   The Superior Court Did Not Err When it Failed to Excuse
          a Potentially Conflicted Juror.

          During Stewart's testimony, juror Hostman alerted the
court that he recognized a name (Ben Smith) being discussed by one
of the witnesses.  Hostman stated that Smith, a McDonald's employee
who worked with Stewart, was a "close associate"of his.  Hostman
also said that Smith had complained about some of the McDonald's
management to him.  When asked whether he would have a problem
deciding the case on the evidence presented at trial, he answered
no.  Both Stewart and Wal-Mart asked Hostman a few questions.  The
court decided to keep Hostman on the jury.  Neither Stewart nor
Wal-Mart objected to the court's decision.
          On appeal Wal-Mart attempts to characterize its
questioning of Hostman as an objection.  Wal-Mart states that
"counsel expressed her objection that, 'My concern is that just as
the trial goes on, more and more is going to begin to come to you
and it'll be more difficult for you to separate it.'  The juror
said it would not be a problem for him.  Judge Tan erroneously
decided to keep him on the jury." Wal-Mart's "objection"was
merely part of counsel's questioning of Hostman.  When the court
made the decision to keep Hostman on the jury, Wal-Mart expressed
no objection to the court.  Wal-Mart waived any objection to
Hostman remaining on the jury by failing to challenge the juror at
trial, and cannot now appeal the court's decision. [Fn. 34]  In the
alternative, Wal-Mart argues that it was plain error for the court
not to dismiss Hostman as a juror.  Hostman stated that he would be
able to decide the case based solely on the evidence presented at
trial, that he would not have a problem refraining from discussing
his personal knowledge in the jury room, and that he would not have
a problem keeping separate his personal issues from the issues
presented in this case.  It was not plain error for the court to
allow Hostman to remain on the jury. 
IV.  CONCLUSION
          We conclude that the superior court properly denied Wal-
Mart's motions for a directed verdict and a JNOV.  It did not abuse
its discretion in any of its evidentiary rulings.  Wal-Mart waived
its right to appeal numerous evidentiary rulings and the court's
decision to leave Hostman on the jury.  The jury instructions were
not plain error.  We AFFIRM the judgment of the superior court.


                            FOOTNOTES


Footnote 1:

     Alaska Statute 18.80.220(a) provides in part:

          (a)  Except as provided in (c) of this section, it
is unlawful for

               (1)  an employer to refuse employment to
a person, or to bar a person from employment, or to discriminate
against a person in compensation or in a term, condition, or
privilege of employment because of the person's race . . . . 


Footnote 2:

     The superior court granted Wal-Mart's motion for summary
judgment on Stewart's claim of negligent infliction of emotional
distress.


Footnote 3:

     City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d
216, 220 (Alaska 1978) (quoting Holiday Inns of Am., Inc. v. Peck,
520 P.2d 87, 92 (Alaska 1974)).    


Footnote 4:

     Id. (quoting Peck, 520 P.2d at 92).


Footnote 5:

     Id. 


Footnote 6:

     Williams v. Utility Equip., Inc., 837 P.2d 1112, 1115 (Alaska
1992) (citation omitted).  


Footnote 7:

     Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1137
(Alaska 1989) (quoting Siggelkow v. State, 731 P.2d 57, 62 (Alaska
1987)). 


Footnote 8:

     See id. (quoting Restatement (Second) of Torts sec. 652B
(1977)).


Footnote 9:

     Luedtke, 768 P.2d at 1137 (citation omitted).  


Footnote 10:

     See Luedtke, 768 P.2d at 1137.


Footnote 11:

     Chizmar v. Mackie, 896 P.2d 196, 208 (Alaska 1995) (citation
omitted).


Footnote 12:

     Id. (quoting Teamsters Local 959 v. Wells, 749 P.2d 349, 357
(Alaska 1988)).     


Footnote 13:

     Id. (citation omitted).


Footnote 14:

     Id. (quoting Teamsters Local 959, 749 P.2d at 357).


Footnote 15:

     See id. at 209 (citation omitted).


Footnote 16:

     Additionally, Wal-Mart makes the same argument regarding its
motion for a directed verdict on the IIED claim as it did in its
appeal of the invasion of privacy claim, i.e., "after the jury
rejected the race motive, Stewart's [IIED] claim failed as a matter
of law." Again, Wal-Mart incorrectly argues that its motion for a
directed verdict was wrongly denied based on the jury's verdict. 
The superior court, at the time Wal-Mart moved for a directed
verdict, needed only to make the threshold determination whether
the severity of Stewart's emotional distress and the outrageousness
of Wal-Mart's conduct warranted submitting the IIED issue to the
jury.  This court will review only that determination for an abuse
of discretion.


Footnote 17:

     864 P.2d 538 (Alaska 1993).


Footnote 18:

     See id. at 543-44.


Footnote 19:

     Id. at 549.


Footnote 20:

     Id. at 550.


Footnote 21:

     Id. 


Footnote 22:

     Former AS 09.17.020 (amended 1997).


Footnote 23:

     Chizmar v. Mackie, 896 P.2d 196, 210 (Alaska 1995) (quoting
Lee Houston & Assocs. v. Racine, 806 P.2d 848, 856 (Alaska 1991)). 


Footnote 24:

     Id. (quoting State v. Haley, 687 P.2d 305, 320 (Alaska 1984))
(alteration in original).


Footnote 25:

     Id. (internal quotation marks omitted) (quoting State Farm
Mut. Auto. Ins. Co. v. Weiford, 831 P.2d 1264, 1266 (Alaska 1992)). 


Footnote 26:

     Id. (citing Bridges v. Alaska Housing Auth., 375 P.2d 696, 702
(Alaska 1962)).


Footnote 27:

     Hayes v. Xerox Corp., 718 P.2d 929, 935 (Alaska 1986)
(citation omitted).  


Footnote 28:

     Johnson & Higgins of Alaska Inc. v. Blomfield, 907 P.2d 1371,
1376 (Alaska 1995) (citation omitted).  


Footnote 29:

     Zok v. State, 903 P.2d 574, 577 (Alaska 1995) (quoting Conam
Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992)
(internal quotation marks omitted)).


Footnote 30:

     Matter of Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993)
(quoting Conam Alaska, 842 P.2d at 153).


Footnote 31:

     See Zok, 903 P.2d at 577 ("We have held that challenges to the
consistency of a verdict must be made prior to the discharge of the
jury.") (citations omitted). 


Footnote 32:

     Id.


Footnote 33:

     See Williams v. Utility Equip., Inc., 837 P.2d 1112,  1116-17
(Alaska 1992) (holding that the party "waived his objections . . .
when he did not make specific objections as the testimony was
presented") (citation omitted). 



Footnote 34:

     See Murray v. Feight, 741 P.2d 1148, 1156-57 (Alaska 1987)
(stating that when no objection is raised at trial, any errors
claimed on appeal must be reviewed only if they constitute plain
error).