902 F.2d 630 (8th Cir. 1990), 88-2769, Hicks v. Brown Group, Inc.

Docket Nº:88-2769, 88-2817.
Citation:902 F.2d 630
Party Name:Kenneth G. HICKS, Appellee/cross-appellant, v. BROWN GROUP, INC., d/b/a Brown Shoe Company, Inc., Appellant/cross-appellee.
Case Date:April 16, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 630

902 F.2d 630 (8th Cir. 1990)

Kenneth G. HICKS, Appellee/cross-appellant,

v.

BROWN GROUP, INC., d/b/a Brown Shoe Company, Inc.,

Appellant/cross-appellee.

Nos. 88-2769, 88-2817.

United States Court of Appeals, Eighth Circuit

April 16, 1990

Submitted Sept. 13, 1989.

Rehearing and Rehearing En Banc Denied June 4, 1990.

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Thomas M. Hanna, St. Louis, Mo., for appellant/cross-appellee.

Michael J. Hoare, St. Louis, Mo., for appellee/cross-appellant.

Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and FAGG, Circuit Judge.

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McMILLIAN, Circuit Judge.

Brown Group, Inc., d/b/a Brown Shoe Company, Inc. (Brown Group), appeals from a final judgment entered by the United States District Court 1 for the Eastern District of Missouri upon a jury verdict finding that it violated 42 U.S.C. Sec. 1981 (1982) (Section 1981), by discharging Kenneth G. Hicks (Hicks) on the basis of his race. The jury found that Hicks was entitled to no actual damages, but awarded him $10,000 in punitive damages on the ground that Brown Group's action was willful. The district court modified the actual damages to $1.00 and awarded Hicks attorneys' fees and costs. On appeal, Brown Group raises four major issues for reversal: (1) the judgment cannot stand because discriminatory discharge is not cognizable under Section 1981; (2) the district court erred in denying its motion for a judgment notwithstanding the verdict (JNOV) because the jury's finding of discrimination was clearly erroneous and not supported by sufficient evidence; (3) the district court erred in submitting jury instructions and special interrogatories which permitted the jury to find a Section 1981 violation without proof of intentional discrimination; and (4) the district court erred in denying its motion for a JNOV on the punitive damages award. Brown Group also claims that the punitive damage award was not supported by sufficient evidence. On cross-appeal, Hicks alleges that the district court erred in denying his post-trial motion for reinstatement and related equitable relief after he had successfully proven that he would not have been discharged except for his race. For the reasons discussed below, we affirm the judgment of the district court.

I. Facts

Brown Group is a New York corporation engaged in the business of manufacturing and selling shoes. 2 In the early 1970s, Brown Group owned and operated approximately 35 manufacturing plants located in Missouri, Illinois, Tennessee, Kentucky and Arkansas. Until the early 1980s, Brown Group's warehouse facilities and raw materials terminals were located in St. Louis. Because of declining sales caused by foreign competition, Brown Group was forced to gradually close ten of its northernmost factories by 1982.

In 1982, Brown Group relocated its raw materials terminal from St. Louis to Benton, Missouri (Benton terminal) in order to better service its southern factories. 3 Because of delivery delays and operational problems at the Benton terminal, Brown Group decided to hire CMR Parcel Service, an outside trucking company, to presort raw materials and take over some of the delivery routes. As a result, the amount of work at the Benton terminal decreased significantly. Brown Group decided that the loss of work required a reduction of force at the Benton terminal. Neil Page, Brown Group's assistant director of distribution, directed Rich Williams, the Benton terminal superintendent, to decrease the number of hourly union employees by five, from 17 to 12, and reduce the supervisory staff by one, from three to two. Page gave Williams no guidelines concerning who should be terminated or what factors should be considered in making the decision. This action arises from Brown Group's decision to terminate Hicks, a 51-year-old white male supervisor, and retain Alvin Chester, a 36-year-old black male supervisor. 4

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Hicks started working for Brown Group in February 1948 as a 16-year-old. He worked for Brown Group for 34 years, until he was discharged at age 51 in 1982. Hicks began working as an order clerk in the finished goods warehouse, and held that position for 25 years. On December 4, 1972, Hicks was promoted to a foreman position at the Gustine Avenue warehouse in St. Louis. While at Gustine Avenue, Hicks supervised every department in the warehouse, overseeing the filling and packing of finished good orders. Between late 1977 and May 1980, Hicks held the evening utility foreman position at the Gustine Avenue warehouse, where he filled in for 15 to 20 other foremen who were absent from work because of illness, vacation, or personal reasons. During this period, Hicks obtained experience supervising the manufacturing or raw materials dock. In May 1980, the Gustine Avenue warehouse closed, and the raw materials dock was moved to the Chouteau Avenue warehouse in St. Louis.

In June 1980 Hicks was assigned to supervise the evening shift on the raw materials dock at the Chouteau Avenue warehouse. When Hicks began working this new position, he was briefly trained by Alvin Chester, who held the evening supervisor position at the Chouteau Avenue warehouse prior to Hicks' arrival. 5 After Hicks was trained, Chester was assigned to supervise the day shift. When the Chouteau Avenue warehouse closed, Hicks was assigned to supervise the evening shift at the Benton terminal. Chester, who began working at the Benton terminal about a month and a half before Hicks, 6 briefly trained Hicks and again transferred to the day shift when Hicks took over the evening shift. 7

In July 1968 Chester began working on the raw materials dock as an hourly union employee at Brown Group's Gravois Avenue manufacturing plant in St. Louis. He was promoted to dock foreman in January 1973, 8 where he supervised four or five employees. When the Gravois Avenue plant closed in 1975, Chester was transferred to the Gustine Avenue warehouse, where he supervised between eight and ten employees on the raw materials dock. When the Gustine Avenue warehouse closed in 1980, Chester was assigned to the Chouteau Avenue warehouse, where he supervised operations on the raw materials dock until the facility closed in April 1982. Chester was transferred to the Benton terminal in April 1982. 9

Rich Williams, the Benton terminal superintendent, made the decision to terminate Hicks and retain Chester. At the time he was terminated, Hicks had worked for Brown Group for more than 34 years, the last nine and a half years as a supervisor. At the time Chester was retained, he had 14 years service for Brown Group, and about the same supervisory experience as Hicks. 10 Williams testified that he decided to retain Chester because Chester was better qualified to supervise the raw material operation at the Benton terminal. Hicks claimed that Chester was retained because he was black, and that he (Hicks) was terminated in violation of a company policy

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to make employment decisions based on seniority.

Williams notified his supervisor, Neil Page, that he had decided to terminate Hicks, and Page agreed with the decision. On June 28, 1982, Hicks was summoned to Brown Group's corporate offices for a meeting with Page and Williams. Page informed Hicks that he was chosen to be terminated as a result of the changes in operation at the Benton terminal. Page told Hicks that Chester was being retained because he had more experience on the raw materials dock, knew more about the Benton terminal operation, and was better able to handle the job.

After his June 28, 1982 meeting with Page and Williams in Clayton, Hicks returned that same afternoon to the Benton terminal to gather his personal belongings and say good-bye to his co-workers on the night shift. While he was at the terminal, Hicks asked Williams whether he had been terminated because he was white and Chester was black. Hicks testified that although Williams heard and understood his question, Williams did not deny that race was a consideration, instead replying "Ken, you said that, not me." Hicks did not understand this response, so he asked Williams a second time whether race made a difference. Hicks testified that Williams looked at him with a side smirk, and said, "Again, you said that, not me." 11 After Hicks' termination, Williams transferred Chester to the evening shift, and Page ordered that Chester be given a $25.00 raise. Brown Group did not hire another supervisor to replace Hicks.

Hicks exhausted his administrative remedies and filed suit in federal district court, alleging that Brown Group's decision to discharge him violated Section 1981 and the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 (1982 & Supp. V 1987). The case was tried before a jury on October 3-5, 1988. The jury rejected Hicks' age discrimination claim, 12 Special Interrogatories Nos. 1-3, but found that Brown Group had intentionally discriminated against Hicks on the basis of his race "in that his race was a discernible or motivating factor in his termination from employment," Special Interrogatory No. 7. The jury also found that Brown Group "intentionally discriminated against ... Hicks on account of his race in that his race was a determining factor in his termination from employment," Special Interrogatory No. 5. The jury found that Hicks was entitled to no compensatory damages, but awarded him $10,000 in punitive damages after finding that Brown Group "acted out of evil motive or intent, or acted with callous indifference to [Hicks'] federally protected rights," Special Interrogatory No. 8. Finally, in response to Special Interrogatory No. 10, the jury found that Brown Group would have terminated Hicks even if his race or age had "not been a discernible or motivating factor or a determining factor in the decision to terminate."...

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