Barbour v. Merrill, 93-7223

• Citation: 48 F.3d 1270,310 U.S. App. D.C. 419
• Decision Date: 16 May 1995
• Docket Number: No. 93-7219,No. 93-7223,93-7223,93-7219
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 369, 68 Fair Empl.Prac.Cas. (BNA) 126, 310 U.S.App.D.C. 419, 31 Fed.R.Serv.3d 403 Martin W. BARBOUR, Plaintiff-Appellee, v. Mark H. MERRILL, Individually and as Vice President, Support Services; Medlantic Management Corporation, Defendants-Appellants, Gregory J. Walling, Defendant-Appellee. and Consolidated Case
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1270

48 F.3d 1270

67 Fair Empl.Prac.Cas. (BNA) 369,

68 Fair Empl.Prac.Cas. (BNA) 126,

310 U.S.App.D.C. 419, 31 Fed.R.Serv.3d 403

Martin W. BARBOUR, Plaintiff-Appellee, v. Mark H. MERRILL, Individually and as Vice President, Support Services; Medlantic Management Corporation Defendants-Appellants Gregory J. Walling, Defendant-Appellee and Consolidated Case No. 93-7223.

No. 93-7219.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 12, 1995.

Decided March 10, 1995.

Order Denying Suggestion for Rehearing En Banc May 16, 1995.

Henry Morris, Jr., argued the cause, for appellants. With him on the briefs was Michael L. Stevens.

Martin W. Barbour, argued the cause and filed the brief, pro se.

Before EDWARDS, Chief Judge, BUCKLEY and TATEL, Circuit Judges.

TATEL, Circuit Judge:

A jury awarded plaintiff Martin Barbour compensatory and punitive damages after finding that defendants Medlantic Management Corporation and Mark Merrill had violated his rights under 42 U.S.C. Sec. 1981 (Supp. V 1993) by refusing to hire him as Medlantic's Director of Corporate Materials Management because he is African-American. On the basis of the jury verdict the district court awarded Barbour back pay. Merrill and Medlantic appeal the district court's denial of their post-trial motion for judgment as a matter of law. Barbour cross-appeals the district court's calculation of back pay, as well as its refusal to award him either front pay or prejudgment interest on the back-pay award. Barbour also appeals the district court's grant of summary judgment in favor of a third defendant, the head of the search firm Medlantic used. We affirm the district court in all respects except its decision to deny Barbour front pay and prejudgment interest, which we remand for reconsideration.

I.

Medlantic provides centralized management services for a multi-hospital system in the Washington, D.C. area. In January 1989, Medlantic began searching for a new Director of its department of Corporate Materials Management, to be responsible for organizing and directing Medlantic's purchasing, warehousing, distribution and other supply-related services on behalf of its hospitals. Mark Merrill, Medlantic's Vice President for Support Services, supervised the candidate search. He prepared a job description, advertised the vacancy in trade publications, and solicited applications through professional acquaintances and informal channels. The job description stated that Medlantic was seeking someone with "multi-corporate" experience, a "minimum of ten years progressive responsibility in large scale operations," and either an MBA or five years' experience plus a BA.

At the time of the search, Barbour was the Director of Materials Management for the Columbia Hospital for Women, one of four hospitals then in the Medlantic system. He also was serving as a member of Medlantic's Purchasing Council, a committee Merrill had created to coordinate the acquisition and use of resources by all of the hospitals in the Medlantic system. Barbour had come to Columbia Hospital approximately two years earlier, after retiring from a twenty-five-year career as an army officer. He held an MBA, and while in the army he had gained extensive experience as a supply coordinator and materials manager in a variety of multi-hospital and other large health services organizations. Upon learning of the Medlantic vacancy, Barbour informed Merrill of his interest in the Director's position and wrote a confirming letter.

From among sixty to seventy applicants, Merrill conducted formal interviews of six, including Barbour. Four of these candidates--Barbour, another applicant from within the Medlantic system who was serving as Medlantic's interim Director of Corporate Materials Management, and two applicants from outside the Medlantic system--then advanced to a second round of interviews with a panel of Medlantic employees. In May 1989, Medlantic offered the position to one of the outsiders, Craig Shoup, a white candidate with no BA but with extensive management experience in a multi-hospital setting and who Merrill testified was a "superstar" and "by far the most qualified candidate." Shoup declined the offer.

Rather than offer the position to Barbour or any of the other remaining candidates, Medlantic hired defendant Gregory Walling, founder and head of an executive search firm, to conduct a new search. When Barbour asked Merrill why Medlantic had not offered the position to him after Shoup declined, Merrill explained that he did not find Barbour qualified and that Medlantic was seeking someone, like Shoup, with significant experience in a multi-hospital setting in the private sector. Barbour told Merrill that he doubted private sector experience was a genuine requirement, given that he had advanced to the final round of interviews of the first search. Merrill asked Walling to consider Barbour again in the second search. Walling interviewed Barbour, but did not rank Barbour among the top candidates he recommended to Medlantic. According to his written evaluation, he concluded that "Martin [Barbour] has the functional knowledge and capabilities to undertake this position. However, he does not have the multi-system private sector experience that we are ideally seeking." Merrill interviewed three of Walling's top candidates and hired one of them, Terry Rich. Rich is white.

Upon learning that Medlantic had hired Rich, Barbour filed suit, charging Medlantic and Merrill with unlawful employment discrimination in violation of 42 U.S.C. Sec. 1981 and seeking both damages and equitable relief. He subsequently amended his complaint to include Walling as a defendant, adding a charge that Walling conspired with Medlantic and Merrill to violate Barbour's civil rights, in violation of 42 U.S.C. Sec. 1985(3) (1988). The district court granted summary judgment in Walling's favor on the section 1985 claim, but denied the remaining defendants' motion for summary judgment on the section 1981 claim.

Barbour tried his claims for compensatory and punitive damages to a jury and his claims for equitable relief to the court. The jury found that defendants had unlawfully discriminated, awarding Barbour $2,500 in compensatory damages for his emotional suffering and humiliation and $25,000 in punitive damages. The district court denied defendants' motion for judgment as a matter of law. Based on the jury's finding of unlawful discrimination, the district court awarded Barbour back pay of approximately $84,000, calculated from June 1, 1989, the date the court determined Barbour would have commenced employment had Medlantic hired him after Shoup declined the offer, to June 18, 1992, the date of the verdict. The court denied prejudgment interest, and also refused to award front pay. This appeal and cross-appeal followed.

II.

We first dispose of Barbour's several procedural challenges to defendants' appeal. His argument that defendants' notice of appeal does not meet the jurisdictional requirements of Federal Rule of Appellate Procedure 3(c) because it identifies only the district court's final judgment as the subject of the appeal, without also specifying each of the district court's previous interlocutory orders at issue, has already been rejected. Barbour v. Merrill, No. 93-7219, slip. op. at 1 (D.C.Cir. Mar. 18, 1994).

Equally without merit are his claims that defendants' notice of appeal is invalid because the body of the notice fails to name "Medlantic Management Corporation" as a party to the appeal, instead naming its corporate parent, "Medlantic Healthcare Group," and because defendants' appellate counsel, Michael Stevens, entered his notice of appearance on behalf of Medlantic Healthcare Group, rather than Medlantic Management Corporation. As of November 12, 1993, when defendants filed their notice of appeal, the relevant language of Rule 3(c) provided only that a notice of appeal "shall specify the party or parties taking the appeal" and that "[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal." Fed.R.App.P. 3(c) (1993). Barbour relies on the Supreme Court's interpretation of this rule in Torres v. Oakland Scavenger Co. for the proposition that because the requirements of Rule 3(c) are mandatory and jurisdictional, "failure to name a party in a notice of appeal ... constitutes a failure of that party to appeal." 487 U.S. 312, 314, 108 S.Ct. 2405, 2407, 101 L.Ed.2d 285 (1988). As Torres explains, "[t]he specificity requirement of Rule 3(c) is met only by some designation that gives fair notice [both to the opposition and to the court] of the specific individual or entity seeking to appeal." Id. at 318, 108 S.Ct. at 2409. However, in order to reduce the litigation spawned by Torres, the Supreme Court subsequently amended Rule 3(c), effective December 1, 1993, to provide that an appeal will not be dismissed for "failure to name a party whose intent to appeal is otherwise clear from the notice" and to permit "an attorney representing more than one party" to describe those parties with terms such as "the defendants." Fed.R.App.P. 3(c) (1994); see id., Advisory Committee's note to 1993 amendment. The amended rule also provides that a notice of appeal may identify the appellants "in either the caption or the body of the notice." Fed.R.App.P. 3(c). The Supreme Court instructed us to apply this new version of the rule retroactively "insofar as just and practicable." Order of April 22, 1993, Relating to the Amendments to the Federal Rules of Appellate Procedure, 113 S.Ct. 819 (1993).

We conclude that it is both "just and practicable" to apply the current version of Rule 3(c). At the same time, we note that under either the old or new version, the notice of appeal left no doubt that Medlantic was an appellant. The caption named "Medlantic Management Corporation" as a defendant, and the body of the notice twice employed the plural usage "defendant...