Barber v. Williamson

• Decision Date: 02 July 2001
• Docket Number: Nos. 00-5015,00-5033,s. 00-5015
• Citation: 254 F.3d 1223
• Parties: (10th Cir. 2001) LENARD BARBER, Plaintiff-Appellee and Cross-Appellant, v. T.D. WILLIAMSON, INC., Defendant-Appellant and Cross-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1223

254 F.3d 1223 (10th Cir. 2001)

LENARD BARBER, Plaintiff-Appellee and Cross-Appellant, v.T.D. WILLIAMSON, INC., Defendant-Appellant and Cross-Appellee.

Nos. 00-5015, 00-5033

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 2, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA(D.C.NO. 98-CV-615-J)

David W. Davis, Attorney at Law, Tulsa, Oklahoma, for the Plaintiff-Appellee and Cross-Appellant.

J. Daniel Morgan, Gable & Gotwals, Tulsa, Oklahoma, for the Defendant-Appellant and Cross-Appellee.

Before HENRY and BRISCOE, Circuit Judges, and JENKINS, Senior District Judge.¹

HENRY, Circuit Judge.

Lenard Barber, who is half African American and half Native American, filed suit in state court against his employer T.D. Williamson, Inc.("Williamson"), claiming that the company had discriminated against him in violation of Title VII and Oklahoma public policy.Williamson subsequently had the case removed to federal court, and soon thereafter the district court transferred the case, with the consent of the parties, to a magistrate judge for final disposition.Eventually, the case was tried before a jury but on the Title VII claims only.The jury found for Mr. Barber on the hostile work environment claim but concluded that he failed to prove the discriminatory termination and retaliatory discharge claims.It awarded Mr. Barber nominal damages in the amount of one dollar.Subsequently, the magistrate judge awarded attorney's fees to Mr. Barber and costs to both parties.On appeal, Williamson challenges the award of nominal damages as well as the award of attorney's fees.Mr. Barber cross-appeals on the award of costs.For the reasons set forth below, we affirm in part, vacate in part, and remand.

I.BACKGROUND

At trial, Mr. Barber presented three Title VII claims for the jury's consideration: (1) hostile work environment, (2) discriminatory termination, and (3) retaliatory discharge.Because the focus of this appeal is the hostile work environment claim, we need not recount in detail the facts that gave rise to the latter two claims except to note that Mr. Barber was fired on June 2, 1997, after a co-worker complained that Mr. Barber had violated a safety code.According to Mr. Barber, his termination was discriminatory because a white employee, who had allegedly committed a similar infraction, had not been fired.Mr. Barber also asserted that his discharge was retaliatory because, prior to being fired, he had complained of racial discrimination to management.

As for Mr. Barber's claim of hostile work environment, there was testimony at trial that co-workers referred to him as "nigger" and "watermelon boy"; that a co-worker approached Mr. Barber wearing a hat that resembled a Ku Klux Klan hood; that a co-worker showed Mr. Barber a drawing and told him that it depicted a "nigger" at the bottom of a well with four Ku Klux Klan members looking down; and that one employee said to another that African-American people are in general lazy and uneducated but that Mr. Barber was an exception to "the rule."In addition, there was testimony that Mr. Barber was: placed on extended probation while similarly situated white employees were not; criticized for complaining about a white employee who had stolen his work; threatened by a white employee with a swastika tattoo; chastised for attendance problems even though a white employee's record on attendance was worse²; and denied permission by a white employee to receive a phone call.Finally, there was testimony that Mr. Barber reported some of the incidents to management but that he was reprimanded for having complained and that no or limited action was taken by management.At one point, management did respond by providing a racial diversity training class, but there was evidence that the harassment did not thereafter cease.

II.PROCEDURE

After hearing the evidence, the jury found for Mr. Barber on the hostile work environment claim but concluded that he failed to prove the remaining two claims.It then found that, even though "the law was violated [by Williamson,] . . . [Mr. Barber] suffered no damages," and so awarded nominal damages only in the amount of one dollar.Aplt's App.at 41(verdict form, filed Sept. 23, 1999).

A week later, Williamson moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) on three grounds: (1) Mr. Barber had not presented sufficient evidence for his hostile work environment claim; (2) Mr. Barber had not timely filed his Title VII claims; and (3) nominal damages cannot be granted under Title VII.The magistrate judge ruled against Williamson on all three issues.Subsequently, Mr. Barber moved for an award of attorney's fees, which the magistrate judge granted.Several weeks later, the magistrate judge determined the actual amount of attorney's fees to be awarded and, after calculating that number, addressed the issue of costs.Both Mr. Barber and Williamson had requested costs, and the magistrate judge decided that "an award of costs to both . . . [was] appropriate."Aplt's App.at 94(magistrate judge order, filed Jan. 21, 2000).Williamson thereafter filed a notice of appeal, challenging both the nominal damages award and the award of attorney's fees.Mr. Barber cross-appeals on the issue of costs.

III.WILLIAMSON'S APPEAL,NO. 00-5015

In his brief, Mr. Barber initially argued that Williamson's appeal was not timely filed.Subsequently, Mr. Barber filed a motion with this court, asking that his objection to the timeliness of the appeal be dismissed.We grant Mr. Barber's motion and therefore proceed to the merits of the appeal.

A.Nominal Damages Under Title VII

1.Availability of Nominal Damages

Williamson argues first that the magistrate judge erred in permitting the jury to award nominal damages because, under Title VII, nominal damages cannot be granted.The company points out that, prior to the Civil Rights Act of 1991, it was clear that nominal damages could not be awarded under Title VII.SeeGriffith v. State of Colo. Div. of Youth Serv., 17 F.3d 1323, 1327(10th Cir.1994)(discussingTitle VII prior to its amendment in 1991; holding that "nominal damages are compensatory in nature and since Title VII provides for equitable, not legal relief, nominal damages must not be awarded under Title VII").It then concedes that the Civil Rights Act of 1991 made legal remedies available but contends that these remedies were limited to "certain specified types of compensatory and punitive damages."Aplt's Br.at 14.

As a preliminary matter, we note that the verdict form provided to the jury contained the following entry under "Compensatory Damages": "If you find that the law was violated but that Plaintiff suffered no damages, you may award a nominal amount of $1."Aplt's App.at 41(verdict form, filed Sept. 23, 1999).If Williamson believed that nominal damages were not appropriate under Title VII, it should have objected to this instruction before it was tendered to the jury.SeeFed. R. Civ. P. 51("No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.").According to Williamson, it did, seeAplt's Reply Br.at 5("It is the distinct recollection of Counsel for [Williamson] that an objection on the record was made at the conference on instructions."), but nothing in the record before us demonstrates such.See10th Cir. R. 28.2(c)(3)(b)(noting that "[b]riefs must cite the precise reference in the record where a required objection was made and ruled on, if the appeal is based on . . . the giving of or refusal to give a particular jury instruction");10th Cir. R. 10.1(a)("The appellant must provide all portions of the transcript necessary to give the court a complete and accurate record of the proceedings related to the issues on appeal.").Because, so far as the record indicates, Williamson made no objection to the jury instruction, we simply review for plain error.SeeGiron v. Corrections Corp. of Am., 191 F.3d 1281, 1289(10th Cir.1999).

Williamson suggests, however, that even if it did fail to object to the jury instruction it raised the issue of nominal damages later in its motion for judgment as a matter of law, and so a de novo standard of review is warranted.SeeThompson v. United States, 223 F.3d 1206, 1212(10th Cir.2000)(noting that a de novo standard of review applies to the denial of a motion for judgment as a matter of law).While we recognize Williamson's Rule 50(b) motion, we are not satisfied that it served to preserve the issue of nominal damages for de novo appellate review.City of St. Louis v. Praprotnik, 485 U.S. 112(1988), on which Williamson relies, is not availing because, in that case, the petitioner successfully preserved the issue by raising it in two motions filed before the jury retired to deliberate, not after.Seeid. at 119-20(noting that the petitioner's failure to object to the jury instruction was not problematic because the petitioner had raised the issue in a motion for summary judgment and in a motion for directed verdict).More to the point is F.D.I.C. v. Noel, 177 F.3d 911(10th Cir.1999), in which this court held that, "when a litigant fails to raise an issue below in a timely fashion and the court below does not address the merits of the issue, the litigant has not preserved the issue for appellate review."Id. at 915.

Because plain error is the applicable standard of review and not de novo, "[w]e will only reverse . . . in an exceptional circumstance one where the error was patently plainly erroneous and prejudicial,"Giron, 191 F.3d at 1289(internal quotation marks omitted), and "fundamental injustice" would otherwise occur.Cadena v. Pacesetter Corp., 224 F.3d 1203, 1211 n.6(10th Cir.2000).We conclude that...