Browning v. President Riverboat Casino-Missouri, Inc.

Citation139 F.3d 631
Decision Date20 March 1998
Docket NumberNos. 97-1075,INC,97-3828 and 97-3830,CASINO-MISSOUR,s. 97-1075
Parties76 Fair Empl.Prac.Cas. (BNA) 795, 73 Empl. Prac. Dec. P 45,277, 40 Fed.R.Serv.3d 483 Lee BROWNING, Appellee, v. PRESIDENT RIVERBOAT, Appellant. Lee BROWNING, Appellee, Cross-Appellant, v. PRESIDENT RIVERBOAT, Appellant, Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

David F. Yates, St. Louis, MO, argued (Patricia L. Cohen and Carrie L. Schierer, St. Louis, MO, on the brief), for Appellant.

John D. Lynn, St. Louis, MO, argued, for Appellee.

Before McMILLIAN, ROSS and MURPHY, Circuit Judges.

ROSS, Circuit Judge.

President Riverboat Casino-Missouri, Inc. (Riverboat) appeals from a judgment entered in the district court following a jury verdict finding that Riverboat discharged Lee Browning from employment as a security office manager because he was white, in violation of 42 U.S.C. § 1981, Title VII and the Missouri Human Rights Act (MHRA). Riverboat now appeals from the court's findings of liability and damages. In a subsequently filed appeal and cross appeal, now consolidated with the present case, both parties contest the amount of attorney's fees awarded by the district court. For the reasons set forth below, we affirm the finding of liability and reverse in part and affirm in part the findings of damages. We affirm the conclusions with respect to attorney's fees.

I.

Browning was 54 years old at the time he was terminated from his employment with Riverboat. He was one of three security managers who worked for Riverboat; the other two security managers, Moody and Holloway, as well as Willie Taylor, the director of security and Browning's immediate supervisor, were black. The security department was responsible for safeguarding Riverboat's property along the Mississippi riverfront in St. Louis, including the riverboats the Admiral and the Robert E. Lee. On December 10, 1993, Browning was hired by Taylor to work for Riverboat as a security manager, while Browning's two counterparts, Moody and Holloway, were hired on November 18, 1993. Browning testified that although Taylor told him during the pre-employment interview that the three security managers would decide who would be assigned to the day, evening or night shifts, by the time Browning reported to work he was informed that he had been assigned the undesirable night or "graveyard" shift, while Holloway would be on the day shift and Moody would be on the evening shift. When Browning reminded Taylor that he had promised to let the security managers work out the shift assignments among themselves, Taylor replied, "that's the way it is, if you don't like it you can quit."

Browning also produced evidence for the purpose of showing that Taylor treated him unfavorably as compared to the two black security managers. For example, Browning alleged that Taylor allowed Holloway to leave work early on occasion, while Browning was denied the same request. Taylor criticized Browning for keeping a "messy desk," while according to Naomi Purchase, Taylor's secretary, Browning's desk was "much neater" than Holloway's desk which was "extremely messy." Holloway was never reprimanded for having a messy desk. On another occasion, Taylor allegedly instructed Ms. Purchase, who had previously provided typing services for all three security managers, not to do any more typing for Browning, while Taylor allowed her to continue to provide typing for Moody and Holloway. Further, at some point during Browning's brief employment with Riverboat, Naomi Purchase saw Browning come out of Taylor's office looking "mad" after a meeting with Taylor. She asked Taylor if everything was okay, to which Taylor responded, "that white boy better learn who he's messing with, he better get his act together." Browning was terminated after only sixty-seven days of employment and was replaced by a white woman.

Riverboat presented evidence in an attempt to show that Browning's tenure was marked by consistent lapses in performance. For example, in the early morning hours of January 25, 1994, while working the late night shift, Browning was informed that a power box underneath a metal ramp leading from the levee to the Robert E. Lee was sporadically emitting sparks during heavy thunderstorms. Browning stated that he secured the area by posting a security officer at the site and determined that there was no combustible material in the vicinity. Browning further alleged that he attempted to contact appropriate personnel to deal with the problem, but he only left messages as he was unable to reach anyone. Lee Sorenson, Riverboat's chief engineer, stated that he was unhappy that he had not been notified of the sparking incident immediately. Browning left a report of the sparking incident for Taylor in the log book when he went off duty at 7:00 a.m. Nevertheless, Taylor wrote a memorandum to Browning asking him to submit another report detailing the circumstances "as soon as possible." Browning submitted a handwritten memo the next day, but was criticized for failing to submit a typewritten report.

The jury returned a verdict in favor of Browning, and the court entered judgment upon that verdict. The jury awarded Browning $46,000 in back pay, $50,000 in emotional distress damages, and $50,000 in punitive damages. Thereafter, the trial judge awarded Browning $11,034 in additional back pay and prejudgment interest and two years of front pay totalling approximately $30,000. The trial judge subsequently denied Riverboat's Motion for Judgment as a Matter of Law (JAML) or for a new trial. Riverboat now appeals the denial of the JAML, arguing that the jury should not have been given an instruction under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), and that the evidence was insufficient to support the jury's verdict. On the damages phase, Riverboat argues the court erred in submitting Browning's claims for punitive and emotional distress damages to the jury and in awarding front pay.

II.

Riverboat first contends the district court erred in submitting the Price Waterhouse instruction to the jury and further that the district court erred in denying its motion for JAML because the jury's finding of discrimination was not supported by the evidence. Appellate review of a jury verdict is extremely deferential. The court must consider the evidence in the light most favorable to Browning, assume that all conflicts in the evidence were resolved in favor of Browning, assume as proved all facts that Browning's evidence tended to prove, and give Browning the benefit of all favorable inferences that may reasonably be drawn from the facts proved. Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997). Judgment as a matter of law is proper only when the evidence is such that, without weighing the credibility of the witnesses, there is a complete absence of probative facts to support the verdict. Id. at 845.

Under the mixed motive analysis of Price Waterhouse, as modified by § 107 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(m), an unlawful employment practice is established when an individual demonstrates that an illegitimate criterion was a motivating factor in an adverse employment action, even though other factors also motivated the action. Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 435-36 (8th Cir.1998). The defendant may attempt to limit relief to declaratory judgment, injunctive relief or attorney's fees by showing that it would have made the same employment decision in the absence of discriminatory motive. Id.

"Direct evidence" has been interpreted as "conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude ... sufficient to permit the factfinder to find that that attitude was more likely than not a motivating factor in the employer's decision." Thomas v. First Nat'l Bank, 111 F.3d 64, 66 (8th Cir.1997) (quoting Kriss v. Sprint Communications Co., 58 F.3d 1276, 1282 (8th Cir.1995)). "Not all comments that reflect a discriminatory attitude will support an inference that an illegitimate criterion was a motivating factor in an employment decision." Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir.1993). For example, "direct evidence" does not include "stray remarks in the workplace," "statements by nondecisionmakers," or "statements by decisionmakers unrelated to the decisional process itself." Price Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1805.

Taylor's reference to Browning as "that white boy" in the context of Browning's employment warrants an inference of discriminatory attitude sufficient to permit the factfinder to conclude that race was a motivating factor in the decision to terminate Browning. Such use of a racial slur by a supervisor and the principal decisionmaker in Browning's termination constitutes more than a stray remark in the workplace and directly suggests the existence of bias; no inference is necessary. Compare Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 352 (8th Cir.1997) (recognizing "black boy" as a racial slur.) This comment did not simply evidence an awareness of the employee's gender or race, it reveals "a decidedly negative attitude toward [white] people on the part of [a person] responsible for [the employment decision]." EEOC v. Alton Packaging Corp., 901 F.2d 920, 924 n. 6 (11th Cir.1990); see also Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.1991) (direct evidence of discrimination can include employer's remarks reflecting discriminatory attitude).

Aside from his direct proof of discrimination, Browning presented circumstantial evidence also indicating a discriminatory animus because of his race, including evidence that Browning was treated unfairly as compared to Holloway and...

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