Brown v. Kinney Shoe Corp.

• Decision Date: 15 January 2001
• Docket Number: X-P,No. 99-50493,99-50493
• Citation: 237 F.3d 556
• Parties: (5th Cir. 2001) LLOYD BROWN, Plaintiff - Appellee-Cross-Appellant, v. KINNEY SHOE CORP., doing business as Foot Locker, doing business as ASF/Foot Locker, doing business as Champs Sports, doing business as Lady Foot Locker, doing business as Susie's, doing business as Athleticress, Defendant - Appellant-Cross-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 556

237 F.3d 556 (5th Cir. 2001)

LLOYD BROWN, Plaintiff - Appellee-Cross-Appellant, v. KINNEY SHOE CORP., doing business as Foot Locker, doing business as ASF/Foot Locker, doing business as Champs Sports, doing business as Lady Foot Locker, doing business as Susie's, doing business as Athletic X-Press, Defendant - Appellant-Cross-Appellee.

No. 99-50493

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 15, 2001

[Copyrighted Material Omitted] Appeals from the United States District Court for the Western District of Texas.

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal presents a challenge to various aspects of a jury trial that resulted in a finding of intentional racial discrimination in violation of Title VII. The plaintiff, Lloyd Brown, brought this Title VII action against his former employer, Kinney Shoes, d/b/a Foot Locker, ("Foot Locker"). He alleged racial discrimination based on Foot Locker's failure to promote him to a managerial position in a "non-ethnic store." Ultimately, the jury found Foot Locker liable and awarded Brown $69,493 in past and future wages, $21,500 in mental anguish damages, and $250,000 in punitive damages, plus costs and attorney's fees. The district court entered a judgment in favor of Brown, but reduced his damages by $1160 to meet the statutory cap. On appeal, Foot Locker seeks review of (1) the district court's failure to conduct a Batson inquiry, (2) a number of evidentiary rulings, and (3) the sufficiency of the evidence to support the jury's verdict. Brown seeks review of the district court's rulings on damages, attorney's fees, and a jury instruction on spoliation.¹ We reject Foot Locker's Batson and evidentiary claims. We also conclude that the evidence is sufficient to support Brown's failure to promote claim. The evidence is not sufficient, however, to support his claim for constructive discharge. While upholding liability for the failure to promote claim, we remand for a new trial on damages, including compensatory, emotional, and punitive damages.

I

A

Lloyd Brown, who is black, worked for Foot Locker from February 1989 to December 1995. He began his management career with Foot Locker in October 1990 in the Killeen Mall store. Soon after assuming a management position, Brown perceived and was told by other black managers that black managers were not hired to manage "non-ethnic stores," and, further, that the managers of "non-ethnic stores" were more often promoted to district manager positions.² Additionally, Brown testified that he began to notice that the black managers were subject to harsher reviews and audits than were white managers.

In 1993, following Brown's request to be transferred to a "non-ethnic store," he was promoted to manager of the Town Center Mall store in Fort Worth, Texas. The Town Center Mall store, however, like the Killeen Mall store, was an "ethnic store." The sales volume of the Town Center Mall store was $1.1 million for the year before Brown's arrival. Although conditions at the Town Center Mall store were, concededly, anything but ideal (because of problems with crime, the imposition of a curfew, and store vacancies), the evidence at trial established that Brown had a difficult time managing the store. Sales dropped from $1.1 million to $980,000 in 1993. By 1995, sales had dropped to $577,000 under Brown's management. In 1996, however, Brown was able to increase sales to approximately $609,000. In addition to declining sales, Brown also received critical evaluations from Jan Balder, his district supervisor, and from store auditors. The critical evaluations stemmed from Brown's problem with "shrinkage," that is, store inventory unaccounted for.

In early 1995, Brown moved his family from Fort Worth to Austin, Texas, so that they would be closer to his wife's mother. Sometime after moving his family to Austin, Brown applied for a transfer to one of Foot Locker's two new stores under construction in Austin. Both of these stores were categorized as non-ethnic stores.

The first store, the Lakeline Mall store, was projected as a $900,000 volume store. At trial, there was conflicting testimony regarding why Brown was not offered a managerial position at the Lakeline Mall Store. District Manager Balder testified that Brown was denied a transfer to this store because it would have constituted a promotion, when he was not promotable given the drop in sales to just over $600,000 at the Town Center Mall store. Instead, Foot Locker promoted Mike Zoiber, a white male, who, Foot Locker argued at trial, was more qualified based on his work evaluations. Brown offered testimony, which the jury apparently believed, demonstrating that Zoiber was less qualified based on the fact that he had only one year's experience as a manager at a "rookie" store, a store smaller than Brown's Town Center Mall store. Additionally, in response to Foot Locker's assertion that he was not promotable, Brown testified that after he was denied the Lakeline Mall job he was offered a managerial position at a Fort Worth Outlet Mall store, a store with a sales volume of $1.4 million to $1.6 million. The Fort Worth Outlet Mall store had an "ethnic store" classification. To support this testimony, Brown offered the testimony of the manager of the Outlet Mall store, Joe Maldonado, who stated that when Balder offered him the job she indicated that he (Maldonado) was the second choice for the job in that Brown had already declined the offer. Balder denies having offered a managerial position at the Outlet Mall to Brown. The jury, however, was entitled to reject her testimony, and apparently did.

The second store, the Barton Creek Square Mall store, was a $400,000 to $500,000 volume store. Foot Locker offered evidence establishing that Brown was denied a transfer to this store because it was classified as a "rookie" store for entry level managers only. Ultimately, Martin Rhoads, a Hispanic male manager with no previous management experience, was hired by Foot Locker to manage the store.

By November 1995, Brown had become frustrated by his inability to secure a promotion or even a transfer to a "non-ethnic store." Consequently, he filed a race discrimination charge with the EEOC. While the charge was pending, in early 1996, a new district manager was assigned to Brown's region, and Brown again expressed to his new manager his desire to be transferred/promoted to a "non-ethnic store." The manager told Brown that he would have to prove himself. Because of this conversation, and Foot Locker's continual refusal to transfer/promote him, Brown resigned from Foot Locker.

B

On November 26, 1997, Brown filed this Title VII action against Foot Locker alleging intentional race discrimination.³ Following a somewhat lengthy trial, the jury returned a verdict for Brown finding intentional race discrimination and awarding him $340,000 in damages.⁴ Additionally, the court awarded Brown costs and attorney's fees in the amount of $148,339.44.

Foot Locker moved to set aside the verdict under Federal Rule of Civil Procedure 50, and the court denied its request. Foot Locker then filed this appeal. Foot Locker seeks review of: (1) the district court's failure to conduct a Batson inquiry following its timely objection to Brown's use of all of his peremptory strikes on white jurors; (2) the grant of one of Brown's Batson challenges; (3) the denial of Foot Locker's motion for judgment on the issue of intentional discrimination; (4) the denial of Foot Locker's motion for judgment on the issue of constructive discharge; (5) a series of evidentiary rulings centering on the refusal of the court to allow Foot Locker to offer testimony regarding its use of merchandising codes, and the reasons why Brown was not promoted; (6) the entry of judgment for punitive damages in the absence of any evidence of malice or reckless disregard; and (7) the entry of judgment for damages for emotional distress in the absence of any evidence of particular injuries suffered by Brown.

Brown cross-appeals. He seeks review of the district court's reduction of punitive damages and denial of supplemental attorney's fees. If the case is reversed or remanded, Brown also seeks review of the district court's denial of his requested jury instruction on spoliation.

II

Foot Locker challenges both the district court's refusal to conduct a full Batson inquiry in response to its challenge of Brown's peremptory strikes, and the court's decision to sustain Brown's Batson challenge to Foot Locker's peremptory strike of a black juror.

A

We first address Foot Locker's claim that the district court failed to fulfill its duty to conduct a Batson inquiry. The law is now well settled: "A party to a civil suit can challenge another party's use of a peremptory strike that excludes a prospective juror on the basis of that juror's race." Greater Plains Equipment, Inc. v. Koch Gathering Systems, Inc., 45 F.3d 962, 964 (5th Cir. 1995)(citing Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991); Batson v. Kentucky, 476 U.S. 79 (1986)). In Batson, the Supreme Court held that equal protection principles prohibit a prospective juror from being peremptorily challenged on the basis of his or her race. See Batson, 476 U.S. at 86-87 (stating that by denying a person participation in jury service on account of race, the offending party "unconstitutionally discriminated against the excluded juror"). The Batson Court reasoned that while it is clear that "[a]n individual juror does not have a right to sit on any particular petit jury,. . . he or she does possess the right not to be excluded from one on account of race." United States v. Huey, 76 F.3d 638, 640 (5th Cir. 1996)(citing Batson, 476 U.S. at 87).

We have developed a three-step process for evaluating Batson challenges:

First, the complaining party must make a prima facie showing that opposing counsel has exercised a peremptory challenge...