Skinner v. Total Petroleum, Inc.

• Decision Date: 14 October 1988
• Docket Number: 85-2825,Nos. 85-2807,s. 85-2807
• Citation: 859 F.2d 1439
• Parties: 48 Fair Empl.Prac.Cas. 151, 47 Empl. Prac. Dec. P 38,346, 57 USLW 2254 Dennis SKINNER, Plaintiff-Appellee and Cross-Appellant, v. TOTAL PETROLEUM, INC., a Michigan corporation, Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1439

859 F.2d 1439

48 Fair Empl.Prac.Cas. 151,

47 Empl. Prac. Dec. P 38,346, 57 USLW 2254

Dennis SKINNER, Plaintiff-Appellee and Cross-Appellant, v. TOTAL PETROLEUM, INC., a Michigan corporation Defendant-Appellant and Cross-Appellee.

Nos. 85-2807, 85-2825.

United States Court of Appeals Tenth Circuit.

Oct. 14, 1988.

Louis W. Bullock of Bullock & Bullock, Tulsa, Okl., for plaintiff-appellee and cross-appellant.

David E. Strecker (Katie J. Colopy with him on the brief) of Conner & Winters, Tulsa, Okl., for defendant-appellant and cross-appellee.

Before McKAY, BARRETT and LOGAN, Circuit Judges.

PER CURIAM.

This case involves the termination of the plaintiff, Dennis Skinner, a white male, from employment with the defendant, Total Petroleum, Inc., allegedly in retaliation for Mr. Skinner's assistance with an Equal Employment Opportunity Commission ("EEOC") claim brought by Mr. Skinner's black coworker, Fritz Damberville.

In February, 1980, Mr. Skinner was hired as a cashier for the Vickers Petroleum Company, which was purchased by the defendant, Total Petroleum, Inc., in January, 1981. Mr. Skinner was promoted rapidly and, within three months, he was managing the company's highest volume gasoline station in the Tulsa area. He instituted a training program for his staff and worked many overtime hours, sometimes without pay. By January, 1981, in an intracorporate evaluation, Mr. Skinner's station was rated first in the Tulsa area. The station involved sales resulting in large amounts of cash and the risks of loss by theft or robbery. For this reason, there existed strict policies that provided that bank deposits were to be made twice a day and that keys to the company safes at the station were not to be turned over by the manager to any person not approved by the District Supervisor.

Mr. Skinner's assistant manager at the station was Fritz Damberville. Due to family constraints, Mr. Damberville was unable to work the night shift, which was the assistant manager's customary shift. Having a good working relationship, Mr. Skinner and Mr. Damberville agreed that Damberville would work the day shift and Skinner would work the night shift. No problems resulted from this arrangement, although in mid-February, 1981, Mr. Skinner's supervisor, Mr. Craig, expressed the view that Mr. Skinner should work the day shift so that he would be more "visible" to company officials.

Approximately one week later, without explanation, Mr. Craig told Mr. Skinner that he could fire Mr. Damberville if he wished. A few days thereafter, Mr. Craig again asked Mr. Skinner to fire Mr. Damberville, this time allegedly because of an incident which had occurred a few months before when Mr. Damberville left a deposit under a trash can in the station. Mr. Damberville had not been disciplined for this incident, and Mr. Skinner refused to terminate him without further cause.

In late February, 1981, Mr. Skinner went on a one-week vacation and Mr. Damberville was placed in charge. Mr. Damberville left work because of illness and left Mr. Hathcock, a manager trainee, with the keys and in charge. This had not been cleared with Mr. Craig. It was also learned that Mr. Hathcock, rather than Mr. Damberville, had prepared the morning master reports. Upon his return from vacation, Mr. Skinner was informed by Mr. Craig that Mr. Damberville had been fired for the incidents above-related and the earlier incident involving the deposit left under the trash can. Mr. Skinner informed Mr. Craig that he had advised Mr. Damberville to leave the keys with Mr. Hathcock.

Mr. Skinner believed that Mr. Damberville's termination was unjustified, and in the following week, he told Mr. Craig that he was prepared to provide Mr. Damberville with a written statement to support Mr. Damberville's EEOC claim against the company, unless Skinner was able to satisfactorily resolve the situation prior to taking a second one-week vacation (which was approved by his supervisor). Mr. Skinner intended to speak with Mr. Nelson, the District Manager, about the matter but did not do so because Mr. Nelson was not in his office when Mr. Skinner called.

Mr. Skinner was told by his supervisor, Mr. Craig, however, that he was being considered for a promotion, but that he was not "showing good company loyalty." Mr. Skinner departed Friday, March 13, 1981, for vacation, and upon his return he learned that he, too, had been fired. The company's stated reason for terminating Mr. Skinner was because he had failed to make a bank deposit on the shift that he had worked before leaving on vacation, in violation of company policy.

On November 23, 1982, Mr. Skinner filed a complaint against Total Petroleum, Inc., alleging violations of 42 U.S.C. Sec. 1981 (1982) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-3(a) (1982), ¹ and seeking reinstatement, backpay, lost benefits, punitive and compensatory damages, and attorney's fees. Mr. Skinner demanded a jury on his Sec. 1981 claim. Trial commenced on February 19, 1985. Skinner's Sec. 1981 claim was tried to a jury, while his Title VII claim was simultaneously tried to the court. On February 25, 1985, following several hours of deliberation and shortly after informing the court that it was unable to reach a unanimous decision, the jury returned a general verdict in favor of Mr. Skinner, awarding actual or nominal damages in the amount of $3,945.48 and no punitive damages. Neither party requested special interrogatories on any of the issues in this case. At oral argument, counsel for Mr. Skinner volunteered that any ambiguity in the jury's general verdict should be construed against the plaintiff who has the obligation to submit special interrogatories for jury completion. Mr. Skinner thereafter moved to set aside the verdict or for new trial, on the grounds that the damage award was unreasonably low and the product of jury compromise. The court denied this motion in a minute order dated November 1, 1985.

On July 22, 1985, the court entered judgment for Mr. Skinner on his Title VII claim, awarding him damages for backpay and lost benefits in the amount of $40,251.43. The court later awarded Mr. Skinner attorney's fees in the amount of $51,818.75 and costs in the amount of $1,997.32. Total Petroleum moved to alter or amend the court's Title VII judgment; this motion was also denied in the November 1 minute order.

Both Mr. Skinner and Total Petroleum now appeal to this court on various grounds. Mr. Skinner contends that the district court erroneously denied his motion to set aside the verdict or for new trial, because the jury's verdict on the Sec. 1981 claim was grossly inadequate, unsupported by the evidence, and the result of jury compromise. Total Petroleum, on the other hand, argues that the jury's damage award was supported by the evidence and appeals the district court's judgment in favor of Mr. Skinner on the Title VII claim, on the grounds that Mr. Skinner failed to meet his burden of proof and that the district court was bound by the jury's determination of damages. It also contests the district court's denial of its motion to dismiss plaintiff's Title VII claim, contending that the claim was not timely filed, and plaintiff's Sec. 1981 claim, contending that an action for retaliatory termination is not encompassed by that section. ² For the reasons outlined below, we affirm in part and reverse in part and remand this case to the district court. ³

I. Disparate Damage Awards Under Sec. 1981 and Title VII

We first address the issue raised by the parties' appeals of the two disparate damage awards in this case. Mr. Skinner contends that the district court should have set aside the jury's verdict because the damages awarded were unconscionably low and the result of jury compromise. Total Petroleum, on the other hand, argues that the jury's award was reasonable and supported by the evidence and, moreover, that the district court was bound by this amount and could not separately award Mr. Skinner damages under Title VII. Because we conclude that the district court's disposition of this case was constitutionally infirm, we reverse the district court's denial of plaintiff's motion for new trial following the jury verdict on the Sec. 1981 claim, its judgment under Title VII, and its award of attorney's fees to the plaintiff.

The starting point for our analysis of this issue is the Seventh Amendment. This amendment provides, "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." U.S. Const.Amend. VII. The Seventh Amendment protects a party's right to a jury trial by ensuring that factual determinations made by a jury are not thereafter set aside by the court, except as permitted under the common law. "The only modes known to the common law to re-examine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable; or the award of a venire fascias de novo [new trial], by an appellate court, for some error of law which intervened in the proceedings." Parsons v. Bedford, Breedlove & Robeson, 28 U.S. (3 Pet.) 433, 446, 7 L.Ed. 732 (1830); see also, Thorn v. Browne, 257 F. 519, 527 (8th Cir.), cert. denied, 250 U.S. 645, 39 S.Ct. 494, 63 L.Ed. 1187 (1919). Thus, under the Seventh Amendment, the court may not substitute its judgment of the facts for that of the jury; it may only grant a new trial if it concludes that the jury's verdict was so against the weight of the evidence as to be unsupportable.

The strictures of the Seventh Amendment are particularly applicable in a case where, due to the presence of both equitable and legal issues, trial is both to the jury and to the court. In such a situation, when a case involves both a jury trial and a bench trial, any essential factual issues which are central to both must be first tried to the jury, so that the litigants' ...