Sims v. KCA, Inc.

• Decision Date: 29 November 1993
• Citation: 28 F.3d 113,1994 WL 266744
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 113

28 F.3d 113

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Judith SIMS, Tamara Mason, Plaintiffs-Appellants, v. KCA, INC.; Charles Puckett; James Wall, Defendants-Appellees and Nancy NANCE, Defendant.

No. 93-2053.

United States Court of Appeals, Tenth Circuit.

June 17, 1994.

Before BRORBY and EBEL, Circuit Judges, and KANE, ^** District Judge.

ORDER AND JUDGMENT ¹

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiffs Judith Sims and Tamara Mason brought this action against defendants KCA Corporation, James Wall, Charles Puckett, and Nancy Nance, claiming intentional race discrimination in employment in violation of 42 U.S.C.1981 and 2000e-16. After the close of plaintiffs' case before a jury, the district court granted defendants' motion for judgment as a matter of law as to defendant Nance on all claims and denied the motion as to defendants Wall, Puckett, and KCA. The jury entered a verdict in favor of the remaining defendants.

Plaintiffs appeal, raising two grounds for their request for reversal: (1)the district court erred in granting Nance judgment as a matter of law at the conclusion of plaintiffs' case; and (2) the district court erred in denying plaintiffs' motion for new trial against all defendants. We affirm.

I. Background

On October 1, 1989, defendant KCA Corporation acquired the government food services contract to manage the two dining halls on Kirtland Air Force Base, New Mexico. Plaintiffs in this case were employees of the previous contract holder, Western States Management. Sims, a Caucasian, had been employed in food service at Kirtland for over ten years and was a shift supervisor for the El Dorado dining hall. Mason, a Caucasian, had been employed by Western States for one and one-half years in a "KP" position in the El Dorado dining hall. Defendant Nance, a Korean, was hired two years after Sims and held the position of shift supervisor for the Thunderbird dining hall.

During the week before the KCA takeover, Kin Cha Anderson, president of KCA, together with defendants Puckett, general manager of KCA, and Wall, contract manager for KCA, arrived at Kirtland to observe the Western States operation, to inventory the equipment, and to generally facilitate the transfer. Wall and Puckett also were authorized to hire the employees necessary to carry out the KCA contract.

All of the employees of Western States were required to apply for reemployment with KCA. Sims and Mason both applied for the same positions they held under the Western States contract. Neither plaintiff was hired. Nance was hired by KCA as a shift supervisor and then promoted to assistant manager. There was conflicting testimony as to when during the course of the KCA takeover Nance assumed these positions.

Plaintiffs contend that they were not hired by KCA because they are Caucasian. They alleged that Nance was biased against Caucasians as evidenced by her alleged discriminatory remarks, and that she influenced the KCA hiring decisions made by Wall and Puckett.

At the close of plaintiffs' case, defendants moved for judgment as a matter of law on the ground that Sims allegedly falsified her application. Appellants' App. Vol. I at 25. Defendants claimed that Sims stated on her application that she graduated from high school when in fact she acquired her diploma by GED. See Appellees' Supp.App. at 1. Defendants claim that, had KCA known about this "falsification," Sims "would have been terminated." Appellants' App. Vol. I at 25. Defendants further argued that plaintiffs failed to testify specifically that they were discriminated against on the basis of their race. Id. at 26-27. Neither of these grounds formed the basis for the district court's decision.

In granting defendants' motion as to Nance, the district court concluded that plaintiffs had not "proved anything against Ms. Nance." Appellants' App. Vol. II(C) at 449-50. As to Wall and Puckett, the court found that "there's enough testimony to keep them in to go to the jury, as there is in the corporation." Id.

The defendants then rested their case without presenting any evidence or testimony. Id. at 450. In a side bar decision, the court restricted counsel from commenting on Nance's alleged discriminatory remarks or her alleged involvement in the hiring process in closing arguments. Id. at 462, 476. Counsel for plaintiffs did not object to this ruling.

II. Standard of Review

Federal Rule of Civil Procedure 50(a)(1) ² allows the district court to grant a motion for judgment as a matter of law "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Grant of judgment as a matter of law is appropriate "only if the evidence, viewed in the light most favorable to the nonmoving party, 'points but one way and is susceptible to no reasonable inferences supporting' the nonmoving party." Riggs v. Scrivner, Inc., 927 F.2d 1146, 1149 (10th Cir.) (quoting Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir.1988)), cert. denied, 112 S.Ct. 196 (1991). The court is not permitted to evaluate the credibility of witnesses, weigh the evidence, or determine where the preponderance of evidence lies. Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir.1983). However, because the evidence must be more than a mere scintilla, the court is allowed to evaluate the evidence to the extent of determining whether there is sufficient evidence to support a jury verdict for the plaintiff. Honce v. Vigil, 1 F.3d 1085, 1088 (10th Cir.1993).

"The standard of review of the court's order sustaining the motion for directed verdict under Fed.R.Civ.P. Rule 50 is de novo." Fry v. Board of County Comm'rs, 7 F.3d 936, 938 (10th Cir.1993). This court has concluded that directed verdicts must be granted with caution. Martin, 715 F.2d at 1438. In sum, a directed verdict is appropriate only where "the evidence points all one way." Wylie v. Ford Motor Co., 502 F.2d 1292, 1294 (10th Cir.1974.). In the case of conflicting evidence or insufficient evidence to support a "one-way conclusion," a judgment as a matter of law is inappropriate. Martin, 715 F.2d at 1438.

III. Discussion

"To survive a directed verdict, plaintiff must establish a prima facie case of discrimination." Honce, 1 F.3d at 1089. A plaintiff meets this burden by demonstrating

(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). ³ Once the plaintiff has established a prima facie case, the burden of production shifts to the employer to set forth legitimate, nondiscriminatory reasons for the adverse employment action. McDonnell Douglas Corp., 411 U.S. at 802. Once the employer meets its burden of production, the McDonnell Douglas framework is no longer relevant, and the plaintiff bears the ultimate burden of persuasion that the employer's adverse employment decision was the result of intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2749 (1993).

Although the Supreme Court has not addressed the issue, this court has joined several other circuits in modifying the McDonnell Douglas standard in reverse discrimination cases, to require the plaintiff who seeks to obtain the benefits of the McDonnell Douglas presumption to establish, "in lieu of showing that he belongs to a protected group, ... background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority." Notari v. Denver Water Dep't, 971 F.2d 585, 589 (10th Cir.1992); see also Parker v. Baltimore & Ohio R.R., 652 F.2d 1012, 1017 (D.C.Cir.1981) (plaintiff must establish that background circumstances exist which would support the suspicion that the defendant is the unusual employer who discriminates against the majority).

In Notari, we held that a failure to allege background circumstances which would suggest that defendant had a history of discrimination against a majority does not necessarily defeat a plaintiff's opportunity to prove reverse discrimination. 971 F.2d at 589. In a discrimination action involving a minority, the plaintiff has the additional alternative of providing direct proof of discriminatory intent in lieu of relying on the McDonnell Douglas presumption. Id. Providing the historically advantaged plaintiff with the same alternative, this court held that "[a]n employee who is the victim of intentional [reverse] discrimination ... and who adduces sufficient evidence of that discrimination, should be permitted to proceed beyond the prima facie case stage of litigation." Id. at 590.

A.

At trial, plaintiffs sought to show discriminatory intent in KCA's failure to hire them by presenting testimony that Nance was overheard on several occasions making remarks which would indicate a bias against Caucasian workers, and in particular, a preference for Korean workers. Sims testified that sometime in 1987 or 1988, while she was working under Nance's supervision, she overheard Nance make a...