Dunlap-McCuller v. Riese Organization

• Decision Date: 25 November 1992
• Docket Number: Nos. 3,D,DUNLAP-M,16,s. 3
• Citation: 980 F.2d 153
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 606, 60 Empl. Prac. Dec. P 41,919, 24 Fed.R.Serv.3d 52 JamescCULLER, Plaintiff-Appellant, v. The RIESE ORGANIZATION; Mannu Sohi; Robert Gladstone; Gary Chielmewski, Defendants-Appellees. ockets 91-7676, 91-9292.
• Court: U.S. Court of Appeals — Second Circuit

Page 153

980 F.2d 153

60 Fair Empl.Prac.Cas. (BNA) 606,

60 Empl. Prac. Dec. P 41,919, 24 Fed.R.Serv.3d 52

James DUNLAP-McCULLER, Plaintiff-Appellant, v. The RIESE ORGANIZATION; Mannu Sohi; Robert Gladstone;

Gary Chielmewski, Defendants-Appellees.

Nos. 3, 16, Dockets 91-7676, 91-9292.

United States Court of Appeals,

Second Circuit.

Argued Sept. 17, 1992.

Decided Nov. 25, 1992.

James Dunlap-McCuller, pro se.

Richard L. Steer, New York City (Larry Hutcher, John Harris, Davidoff & Malito, of counsel), for defendants-appellees.

Before: MINER, ALTIMARI, and WALKER, Circuit Judges.

ALTIMARI, Circuit Judge:

Plaintiff-appellant James Dunlap-McCuller appeals a judgment of the United States District Court for the Southern District of New York (John S. Martin, Jr., Judge ), following a second jury trial on his claims of discrimination and retaliatory discharge. On appeal, Dunlap-McCuller also challenges the district court's grant of a motion made by defendant-appellee, the Riese Organization ("Riese"), for a new trial. At both trials Dunlap-McCuller was represented by counsel, however, he is now proceeding pro se.

At the conclusion of the first trial, the jury returned a verdict for Dunlap-McCuller, finding that he had been unlawfully discriminated against on account of his race, in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 et seq., and that he had also been unlawfully discriminated against because of his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. (1988). The jury awarded Dunlap-McCuller damages in the amount of $134,000 for these two claims. In addition, the jury found that Dunlap-McCuller had been terminated in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission and New York State's Division of Human Rights, in violation of Title VII and 42 U.S.C. § 1981, and awarded Dunlap-McCuller $75,000 in damages for this claim.

Riese moved for judgment notwithstanding the verdict, pursuant to Fed.R.Civ.P. 50(b), and in the alternative for a new trial, pursuant to Fed.R.Civ.P. 59(a). The district court denied Riese's motion for judgment n.o.v. but granted the motion for a new trial, finding that the jury's verdict was clearly against the weight of the evidence.

After a second trial, the jury returned a verdict for Dunlap-McCuller on the retaliation claim alone, and awarded him $1,500 in damages. The district court entered judgment accordingly. Pursuant to 42 U.S.C. § 1988, Dunlap-McCuller moved for the recovery of $64,937.50 in attorneys' fees. Reasoning that Dunlap-McCuller had only On appeal, Dunlap-McCuller first contends that the district court abused its discretion in granting Riese's motion for a new trial. Appellant also maintains that the district court abused its discretion and committed reversible error during the course of the second trial by admitting into evidence the transcripts of telephonic depositions taken the previous day of witnesses not listed in the pre-trial order. Finally, Dunlap-McCuller argues that the district court committed clear error in calculating the award of attorneys' fees.

recovered approximately 2% of what he had sought in damages, Judge Martin determined that the fees should be limited to $1,000, representing 2% of what the court deemed an appropriate full fee had Dunlap-McCuller succeeded on all of his claims.

For the reasons set forth below, we affirm, in part, and vacate and remand, in part, with instructions to hold a new trial limited to the issue of damages for retaliatory discharge. In addition, the district court's award of attorneys' fees is vacated and remanded with instructions that following the new trial the district court set adequate attorneys fees in a manner consistent with this opinion.

BACKGROUND

On June 8, 1987, Dunlap-McCuller, a black male in his fifties, filed a complaint under the ADEA and Title VII charging Riese, his former employer, with discrimination based on age and race. Dunlap-McCuller's complaint also charged Riese with discharging him in retaliation for having filed a charge of discrimination with the Equal Employment Opportunity Commission and New York State's Division of Human Rights.

A jury trial was held on January 15 and 16, 1991. At trial Dunlap-McCuller testified that he had applied for a position as a restaurant manager with Riese in June, 1984. Riese owns and operates approximately 275 restaurants in the New York metropolitan area. According to Dunlap-McCuller, despite his qualifications and the availability of a number of managerial positions, he was informed that no such posts were presently vacant. Dunlap-McCuller was instead offered a position as a cashier, which he accepted. Dunlap-McCuller was 54 years old at the time.

Dunlap-McCuller was promoted to the position of night manager in September, 1984. According to Dunlap-McCuller, this position was effectively that of an "assistant manager," and the responsibilities, pay, and opportunities for promotion associated with this position were significantly less than those associated with the position of "day manager." This observation was confirmed during the cross-examination of several Riese employees. According to Dunlap-McCuller, of the approximately forty "day managers" (or general managers) that he had personally met, not one of them was black or over fifty years of age.

Appellant testified that he lodged a complaint to his immediate supervisor, a Mr. Ralph, in the fall of 1985 concerning the treatment of blacks with regard to promotion and staffing. According to Dunlap-McCuller, the next day Mr. Ralph called him a "goddamned nigger" and fired him. Dunlap-McCuller was rehired only after he complained to Mr. Ralph's superior.

Appellant filed a complaint with the Equal Employment Opportunity Commission on May 29, 1986. This complaint was subsequently transferred to the New York State's Division of Human Rights. According to Dunlap-McCuller, employees of Riese began to harass him shortly after he filed this complaint. In particular, he testified that he was transferred to different restaurants between 15 and 20 times in the course of a month, his days off were changed without notice, and the staffing of the restaurants during his shifts as night manager were severely reduced. Dunlap-McCuller contrasted this situation with the circumstances that existed prior to filing his complaint, where, for example, he was transferred three or four times in a six month period in order to serve as a "troubleshooter" at various restaurants owned by Riese.

It is undisputed that Dunlap-McCuller was fired by Riese's Vice President of Operations, Robert Gladstone, on September 28, 1986. According to Dunlap-McCuller, he was replaced by a non-black who was significantly younger. Gladstone could not remember the reason for appellant's termination. However, Riese presented evidence relating to two incidents, which Riese claimed justifiably resulted in Dunlap-McCuller's dismissal.

The first incident allegedly occurred in the middle of May, but was not brought to Dunlap-McCuller's attention until early June--almost immediately after he had filed his complaint. According to the testimony of Riese's Vice President of Operations, Robert Gladstone, Riese discovered a $2000 discrepancy in the amount of deposits made to its bank from the restaurant where Dunlap-McCuller was the night manager. However, Gladstone admitted during cross-examination that he did not have any bank records or receipts to document the missing deposits. While Dunlap-McCuller did sign a statement which recounted his responsibility for the incident, he claims that his signature was coerced by a threat of the loss of his employment.

Riese also introduced evidence concerning a second incident that allegedly took place on July 19, 1986. On this date Dunlap-McCuller was reportedly discovered teaching a clinic to 8 or 10 adolescent girls at the Hayes Coffee Shop, where he was then working. According to the day manager of the Coffee Shop, when he arrived at 7:00 a.m. to start his shift, Dunlap-McCuller was in the midst of instructing these young women. Dunlap-McCuller vigorously denied that this event took place. The fact that Dunlap-McCuller was not fired by the day manager, despite his having the authority to do so, could have been construed by the jury as supporting Dunlap-McCuller's denial.

Additional evidence that the jury may have considered included the fact that of the approximately 40 day managers supervised by Gladstone in 1985/86, he could recall only one person who was black, and that person was also the only one he could recall who was over the age of 50. Finally, Gladstone admitted during cross-examination that Dunlap-McCuller was one of the highest paid night managers, and that employees were paid based on their performance.

At the close of plaintiff's case, and again at the close of all of the evidence, defendant moved for dismissal based upon plaintiff's failure to prove a prima facie case. Both motions were denied. The jury returned a verdict for Dunlap-McCuller, accompanied by interrogatories in which the jury indicated that plaintiff had been discriminated against because of both his age and his race. The jury also found that Dunlap-McCuller had been terminated in retaliation for having filed a charge of discrimination with the Equal Employment Opportunity Commission. The jury awarded damages of $134,000 on appellant's discrimination claims, and $75,000 on his claim of retaliatory discharge.

Riese moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion for a new trial was granted on June 5, 1991. According to Judge Martin, "the Court's view is that the jury's verdict was so clearly against the weight of the evidence that a new trial should be granted." Appellant moved in this Court to stay the district court's order pending appeal....