Berry v. Stevinson Chevrolet, s. 93-1031

• Decision Date: 19 January 1996
• Docket Number: 93-1055,93-1072,93-1127 and 93-1354,Nos. 93-1031,s. 93-1031
• Citation: 74 F.3d 980
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 1320, 67 Empl. Prac. Dec. P 43,851, 64 USLW 2512 Charles H. BERRY, Jerald S. Reynolds, and Jesse L. Carter, Jr. Plaintiffs-Appellees/Cross-Appellants, v. STEVINSON CHEVROLET, a Colorado corporation; Stevinson Toyota, a Colorado corporation; Stevinson Toyota East, Inc., doing business as Mark Toyota, a Colorado corporation; and Charles Stevinson, individually, Defendants-Appellants/Cross-Appellees, and Reggi Bonino, individually, Defendant. The Lawyers' Committee for Civil Rights; The Colorado Hispanic Bar Association; Equal Employment Opportunity Commission, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 980

74 F.3d 980

69 Fair Empl.Prac.Cas. (BNA) 1320,

67 Empl. Prac. Dec. P 43,851, 64 USLW 2512

Charles H. BERRY, Jerald S. Reynolds, and Jesse L. Carter Jr. Plaintiffs-Appellees/Cross-Appellants, v. STEVINSON CHEVROLET, a Colorado corporation; Stevinson Toyota, a Colorado corporation; Stevinson Toyota East Inc., doing business as Mark Toyota, a Colorado corporation and Charles Stevinson, individually Defendants-Appellants/Cross-Appellees, and Reggi Bonino, individually, Defendant. The Lawyers' Committee for Civil Rights; The Colorado Hispanic Bar Association; Equal Employment Opportunity Commission, Amici Curiae.

Nos. 93-1031, 93-1055, 93-1072, 93-1127 and 93-1354.

United States Court of Appeals, Tenth Circuit.

Jan. 19, 1996.

Lynn D. Feiger (Darold W. Killmer, Gilbert M. Roman, and John A. Culver with her on the briefs) of Feiger, Collison & Killmer, P.C., Denver, Colorado, for Plaintiffs-Appellees/Cross-Appellants.

John M. Husband of Holland & Hart (Gregory A. Eurich and Brian M. Mumaugh of Holland & Hart, and Thomas S. Nichols of Davis, Graham & Stubbs, with him on the briefs), Denver, Colorado, for Defendants-Appellants/Cross-Appellees.

Paul D. Ramshaw, Attorney (James R. Neely, Jr., General Counsel, Gwendolyn Young Reams, Associate General Counsel, and Vincent J. Blackwood, Assistant General Counsel, with him on the brief), U.S. Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae EEOC.

Brian E. Bates of Antonio Bates Bernard Haenel, Professional Corporation, Denver, Colorado; and Richard T. Seymour and Sharon R. Vinick of Lawyers' Committee for Civil Rights Under Law, submitted a brief for Amicus Curiae Lawyers' Committee.

Roberto L. Corrada, Assistant Professor of Law, University of Denver College of Law, Denver, Colorado, submitted a brief for Amicus Curiae The Colorado Hispanic Bar Association.

Before SEYMOUR, Chief Judge, HENRY, Circuit Judge, and COOK, ^* District Judge.

SEYMOUR, Chief Judge.

Jesse L. Carter, Jr., Charles H. Berry, and Jerald S. Reynolds, who are African Americans, filed this action under 42 U.S.C. Sec. 2000e-5 (Title VII) and 42 U.S.C. Sec. 1981 against several auto dealerships owned and principally managed by defendant Charles Stevinson. All plaintiffs alleged discriminatory discharge under Title VII. In addition, Mr. Berry alleged a failure to promote claim under 42 U.S.C. Sec. 1981, and Mr. Reynolds brought a retaliation claim under Title VII. After a bench trial, the district court concluded that defendants were liable for back pay to Mr. Berry under Title VII and section 1981. The court also held defendants liable for compensatory damages to Mr. Reynolds for unlawful retaliation. The court rejected Mr. Reynolds' Title VII claim on the basis of race discrimination, and rejected Mr. Carter's Title VII claim as time-barred. It granted plaintiffs attorney's fees pursuant to 42 U.S.C. Sec. 1988 and 42 U.S.C. Sec. 2000e-5. See Berry v. Stevinson Chevrolet, 804 F.Supp. 121 (D.Colo.1992).

Defendants appeal the court's holding with respect to Mr. Reynolds' claim, and the award of attorney's fees. In the cross-appeal, all plaintiffs contend that the 1991 Civil Rights Act's provisions for damages and a jury trial should apply retroactively to this case. Mr. Reynolds also asserts that the court abused its discretion in denying his post-trial motion to conform to the evidence and in dismissing his state law claims. We affirm in part and reverse in part.

I.

A.

Mr. Carter was originally employed at Toyota West. He was transferred to Mark Toyota in 1985 and discharged in July 1987. He filed an EEOC race discrimination charge that month. Although the EEOC mailed his right to sue notice in June 1988, the post office returned the unclaimed notice after three delivery attempts. Almost two years later, Mr. Carter joined Mr. Berry and Mr. Reynolds in filing this action.

The district court found that the notice was mailed to Mr. Carter by certified mail and that he failed to receive it as a result of his own neglect and inattention. Because a plaintiff must bring a Title VII claim within ninety days of receipt of the right to sue notice, the district court concluded that Mr. Carter's action was time-barred. On appeal, Mr. Carter contends that the 1991 Civil Rights Act provision for a jury trial applies retroactively and that a jury should therefore have decided whether he filed his claim in a timely manner.

B.

Mr. Berry, a used car salesperson at Stevinson Chevrolet (Chevrolet West), quit his job after eleven years of employment and filed a Title VII constructive discharge suit on the basis of race discrimination. He presented significant evidence that the management at Chevrolet West consistently made derogatory racial comments to him and ultimately failed to promote him to a management position for race-charged reasons. The district court found that the management at Chevrolet West engaged in discriminatory conduct which produced working conditions that a reasonable person would consider intolerable. It further found that although Mr. Berry expressed his desire for a promotion and was qualified to receive one, the management at Chevrolet West refused to promote him because of race and instead gave the promotion to less qualified white individuals. Applying the framework set out in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the district court concluded that Chevrolet West had constructively discharged Mr. Berry on the basis of race in violation of Title VII. The court also concluded that because Mr. Berry's promotion to sales manager would have created a new contract, Chevrolet West violated 42 U.S.C. Sec. 1981. Finally, the court concluded that Mr. Stevinson was not personally liable on Mr. Berry's Title VII claim. The court awarded Mr. Berry $72,822 in back pay. On appeal, defendants contest only the attorney's fees awarded Mr. Berry.

C.

Mr. Reynolds was new car sales manager at defendant Stevinson Toyota (Toyota West). While Mr. Reynolds was employed as sales manager, Toyota West was notified that it had earned a sales bonus from Toyota Motor Sales, U.S.A., Inc. (Toyota). Toyota West allocated $1000 to Steve Szekula and $500 to Dennis Swan, both of whom were sales managers at Toyota West. Mr. Szekula and Mr. Swan quit their jobs in April 1989, before the dealership received the resulting bonus checks. Mr. Stevinson, the owner of the dealership, noted on their personnel files that neither should be rehired.

After Mr. Szekula left Toyota West, he pestered Mr. Reynolds about whether the bonus check had arrived. Mr. Reynolds then withdrew funds from his personal savings to cover both Mr. Szekula's and Mr. Swan's bonuses. On May 3, 1989, he gave Mr. Szekula the cash equivalent of both bonuses and asked Mr. Szekula to deliver Mr. Swan's bonus to him. The next day, the bonus checks arrived from Toyota. Mr. Reynolds believed "that he had implied authority to negotiate the checks for Szekula and Swan," Berry, 804 F.Supp. at 129, and asked a secretary at Toyota West to endorse the checks in Mr. Szekula's and Mr. Swan's respective names. Mr. Reynolds then cashed the checks and paid himself back for the cash he had given to Mr. Szekula and Mr. Swan.

Toyota West terminated Mr. Reynolds in August 1989, after which he began work at Douglas Toyota. In February 1990, Mr. Reynolds met Mr. Szekula for lunch to discuss Mr. Szekula's possible employment with Douglas Toyota. During lunch, Mr. Reynolds told Mr. Szekula that he was contemplating filing an EEOC race discrimination complaint against Toyota West. Mr. Szekula interviewed at Douglas Toyota and accepted a job there. Nonetheless, he interviewed for a new position at Toyota West shortly thereafter. Although the general sales manager at Toyota West told Mr. Szekula during the interview that no jobs were available, Mr. Szekula soon received instructions to contact Mr. Stevinson at home. Contrary to usual hiring practice, Mr. Stevinson did not discuss compensation or other terms of employment. Mr. Stevinson offered Mr. Szekula a management position at Toyota West despite having flagged his file with a "not for rehire" notation. Although Mr. Stevinson denied discussing Mr. Reynolds' EEOC complaint during his interaction with Mr. Szekula, the district court found Mr. Stevinson's testimony unbelievable and concluded that Mr. Szekula discussed the impending EEOC action both with Mr. Stevinson and the general sales manager. Id. at 130.

After Mr. Szekula returned to work at Toyota West, Mr. Stevinson informed the general sales manager that Mr. Szekula had received an IRS Form 1099 concerning his bonus and that Mr. Szekula had not received the money. Mr. Szekula then ordered a copy of his bonus check from Toyota's national distributor and met with an investigator from the Jefferson County Sheriff's Office to complain of forgery. The investigator learned that a secretary at Toyota West had signed Mr. Szekula's name to the bonus check. Based on a complaint by Mr. Szekula, the Jefferson County District Attorney filed criminal charges of theft and forgery against Mr. Reynolds. Pursuant to regular practice, the bank at which Mr. Reynolds deposited the bonus checks filed a civil action against him. Mr. Reynolds was acquitted on the criminal charges.

Mr. Reynolds filed a two-pronged Title VII claim, alleging that Toyota West discriminated against him on the basis of race and that it unlawfully retaliated against him for filing a complaint with the EEOC. The district court rejected his discriminatory discharge claim, finding that the sole reason for his termination was his unsatisfactory performance. Mr. Reynolds does not appeal this holding.

The district court concluded, however, that Toyota West had violated Title VII's anti-retaliation provision, 42 U.S.C. Sec. 2000e-3(a), and awarded Mr. Reynolds damages. The court found it "more probable than not that Stevinson...