Finley v. Empiregas, Inc. of Potosi, 91-3099

• Decision Date: 11 September 1992
• Docket Number: No. 91-3099,91-3099
• Citation: 975 F.2d 467
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 941, 59 Empl. Prac. Dec. P 41,752 Sherri FINLEY, Appellee, v. EMPIREGAS, INC. OF POTOSI, a Delaware Corp., and Empire Gas Corporation, a Missouri Corporation, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 467

975 F.2d 467

61 Fair Empl.Prac.Cas. (BNA) 941,

59 Empl. Prac. Dec. P 41,752

Sherri FINLEY, Appellee, v. EMPIREGAS, INC. OF POTOSI, a Delaware Corp., and Empire Gas Corporation, a Missouri Corporation, Appellants.

No. 91-3099.

United States Court of Appeals Eighth Circuit.

Submitted April 13, 1992.

Decided Sept. 11, 1992.

Steven G. Emerson, Kansas City, Mo., argued (Thomas H. Davis, on the brief), for appellants.

George Owens Suggs, St. Louis, Mo., argued, for appellee.

Before McMILLIAN and BOWMAN, Circuit Judges, and EISELE, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Empiregas, Inc. of Potosi (EIP) and Empire Gas Corp. (EGC) (together "defendants") appeal from a final order entered in the United States District Court ¹ for the Eastern District of Missouri, in favor of Sherri L. Finley, upon a jury verdict, finding that defendants violated the Missouri Human Rights Act, Mo.Rev.Stat. § 213.010 et seq. (1986), and, upon a bench trial, finding that defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Finley v. Empiregas, Inc., No. 90-1022-C-5 (E.D.Mo. July 25, 1991). Finley was awarded $4,250.00 in actual damages and $125,000.00 in punitive damages. The jury and the district court found in favor of defendants on their counterclaims for fraud in connection with Finley's purchase of propane at a discounted employee price, for conversion of an Atlanta heater, and for conversion of a company Operations and Policy Manual and awarded defendants $401.00 in actual damages and $20,000.00 in punitive damages. Id. For reversal, defendants argue that (1) there was no evidence to support the jury's punitive damages award and that the award was excessive and (2) there was insufficient evidence to support the finding of liability for failure to promote. Finley did not appeal. Following the briefing in this appeal, defendants filed a motion to strike the jury award for lack of subject matter jurisdiction. For the reasons discussed below, we deny defendants' motion and affirm the judgment of the district court.

BACKGROUND

EIP, a retail distributor of propane gas and related products and services, is one of over 300 wholly-owned subsidiaries of EGC. Finley was employed as Office Manager at EIP from March 1984 to January 1990.

When Finley first began working at EIP, the Retail Manager at that location was Jack Brewer, and there were two drivers. By November 1988, there were three drivers. The drivers' duties included delivering gas, gas tanks and appliances, installations and service. As Officer Manager, Finley's duties included bookkeeping, managing credit accounts, scheduling the driver routes and deliveries, and clerical duties.

The Retail Manager, Jack Brewer, developed health problems and, by the late fall of 1988, was physically unable to come to work. For the last two years of Brewer's employment as Retail Manager, Brewer never performed any service work or physical labor. By the spring of 1989, EGC had begun looking for a new Retail Manager for the Potosi store. During this time, Finley expressed her interest in the Retail In July 1989, Jay Ridgeway replaced Stahlman as the Regional Manager overseeing EIP. The following month, August 1989, Poole was terminated as EIP Retail Manager. When Ridgeway told Finley that Poole was going to be fired, Finley again requested the position of Retail Manager. According to Finley, she was again told by Ridgeway that she could not have the job because she was a woman. Ridgeway interviewed three men for the position. Finley was not interviewed. Ridgeway hired Ken Harris. Finley trained Harris for the job.

                Manager position at EIP on several occasions.   The EGC Regional Manager who had authority over EIP was Paul Stahlman.   Finley testified that Stahlman wanted her to look for Brewer's replacement and also told her that she could not have the job because she was a woman.   Finley also testified that she then spoke to Stahlman's supervisor, Robert Wooldridge, a Vice-President of EGC, who said that EGC was phasing out women managers.   Keith Poole was eventually hired as Retail Manager in May 1989.   Finley trained Poole for the position
                

On October 25, 1989, Finley tape-recorded a conversation she had with Ridgeway at the Potosi store in which they discussed the fact that she was not considered for the position of Retail Manager. A portion of the tape was played for the jury, and Ridgeway stated, among other things:

You have the ability, you have the initiative and the drive.

....

And the energy. You have all that. You really do. But you have the disadvantage, too, of being a woman.

....

... The first thing that would have happened to me if I'd have went to Paul [Lindsey] and Bob [Wooldridge] and said, "I'm going to make Sherri [Finley] manager," I'd have gotten the damndest ass-eating you ever had in your life. "Now you know God-damn good and well we can't do that, Jay.... You've been around long enough and you're smart enough to know that, that you can't do that. Now you know you can't. And how many times have we told you we're trying to phase out women managers?"

In the same conversation, Finley also asked Ridgeway whether he thought she or Ken Harris was better qualified for the Retail Manager position. He said, "You probably would have been better in the management end of it than Kenny is."

Finley also introduced into evidence at trial defendants' Operational Policy Manual which refers to Retail Managers with the exclusive use of male pronouns, but refers to Office Managers almost exclusively with the use of female pronouns.

Finley was not experienced with installing, servicing, or repairing propane gas systems and had no mechanical or technical training in propane gas systems and operations. She also admitted that she was unfamiliar with certain safety manuals, Pamphlet 54 and Pamphlet 58, both of which are mentioned in EGC's job description for Retail Manager, as set forth in the Operational Policy Manual. Poole and Harris were relatively better trained and more knowledgeable in the technical aspects of the work than Finley. At trial, defendants claimed that Finley's lack of technical training and knowledge was the reason she was not considered for the Retail Manager position each time and that she was told it was because she was a woman to avoid pointing out her lack of qualifications. As to the various other conversations in which Finley claims she was told that she could not be Retail Manager because she was a woman, defendants' former and current employees denied having such conversations with Finley.

Both sides note that only thirteen of the over 300 EGC retail stores have female Retail Managers. It is unclear from the facts, however, whether any of those thirteen women were hired during or since the time period that Finley was pursuing the Retail Manager position at EIP.

Finley filed charges of gender discrimination against defendants with the EEOC and the Missouri Commission on Human Rights. She was subsequently fired in January 1990. After obtaining a Notice of Defendants counterclaimed against Finley alleging that she fraudulently obtained unearned commissions, abused their employee discount rates, and converted company property, including a heater and an Operational Policy Manual.

Right to Sue from both agencies, she filed this action in federal district court alleging: (1) violations of Title VII, including employment discrimination, retaliatory discharge, and sexual harassment creating a hostile work environment ² and (2) violations of the Missouri Human Rights Act, including employment discrimination, retaliatory discharge, and willful discrimination entitling her to punitive damages.

The district court tried the state law claims to a jury and took the Title VII claims under advisement pending the outcome of the jury trial. The jury found that defendants had discriminated against Finley on the basis of gender in their failure to twice promote her to the Retail Manager position and awarded her $4,250.00 in compensatory damages and $125,000.00 in punitive damages. The jury found no retaliatory discharge, thus resolving that claim in defendants' favor. The jury also found that Finley was liable to defendants for fraud and conversion, in the amount of $401.00 in compensatory damages and $20,000.00 in punitive damages. Defendants unsuccessfully brought a motion for JNOV. The district court then conformed its findings on the Title VII claims to match the jury's findings under the state law claims; thus, the award of damages remained the same. Defendants appealed.

After the briefing in this appeal was completed, on March 12, 1992, defendants filed a motion to strike the jury award for lack of subject matter jurisdiction claiming that the state law claims should not have been tried to a jury. On the same day, we ordered that this motion would be considered with the underlying direct appeal. Finley v. Empiregas, Inc., No. 91-3099 (8th Cir. Mar. 12, 1992) (order).

DISCUSSION

Motion to Strike Jury Award

Defendants argue that the jury award on Count II under the Missouri Human Rights Act should be vacated because the district court improperly tried the state claims to a jury. This is the first time defendants have made this argument and no such argument was made before the district court. Defendants argue that because the state claims should not have been tried to a jury, the district court had no subject matter jurisdiction, thereby giving this court the authority to strike the jury award.

On February 28, 1992, the Missouri Court of Appeals in State ex rel. Tolbert v. Sweeney, 828 S.W.2d 929, 930-32 (Mo.Ct.App.1992) (Tolbert ), ruled that § 213.111 of the Missouri Human Rights Act does not provide for a trial by jury. See also Pickett v. Emerson Elec. Co., 830 S.W.2d 459 (Mo.Ct.App.1992). But see Stewart v. Yellow Freight Sys., Inc., 702 F.Supp. 230 (E.D.Mo.1988). Even if this court were to...