Thorne v. Welk Investment Inc.

• Decision Date: 16 September 1999
• Docket Number: 98-4048,No. 98-3928,98-3928
• Citation: 197 F.3d 1205
• Parties: (8th Cir. 1999) ROSEANN THORNE, PLAINTIFF - APPELLEE, v. WELK INVESTMENT, INC.; WILLIAM WELK; MARCIA PAUL, DEFENDANTS - APPELLANTS, CHOICE HOTEL INTERNATIONAL, INC. DEFENDANT. ROSEANN THORNE, PLAINTIFF - APPELLANT, v. WELK INVESTMENT, INC.; WILLIAM WELK; MARCIA PAUL; CHOICE HOTEL INTERNATIONAL, INC., DEFENDANTS - APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1205

197 F.3d 1205 (8th Cir. 1999)

ROSEANN THORNE, PLAINTIFF - APPELLEE, v. WELK INVESTMENT, INC.; WILLIAM WELK; MARCIA PAUL, DEFENDANTS - APPELLANTS, CHOICE HOTEL INTERNATIONAL, INC. DEFENDANT.

ROSEANN THORNE, PLAINTIFF - APPELLANT, v. WELK INVESTMENT, INC.; WILLIAM WELK; MARCIA PAUL; CHOICE HOTEL INTERNATIONAL, INC., DEFENDANTS - APPELLEES.

No. 98-3928, 98-4048

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 16, 1999

Filed: November 22, 1999

Rehearing and Rehearing En Banc

Denied Jan. 6, 2000

Appeal from the United States District Court for the Western District of Missouri

[Copyrighted Material Omitted] Before Fagg, Beam, Circuit Judges, and Bogue,¹ District Judge.

Bogue, District Judge.

Roseann Thorne worked as a desk clerk and manager of a Comfort Inn hotel in Nevada, Missouri. The hotel is owned by Welk Investment, Inc., which in turn is a franchisee of Choice Hotel International, Inc. Believing that she was a victim of sexual harassment on the job, Thorne brought this case against the Defendants under Title VII, 42 U.S.C. § 2000e et seq. and the Missouri Human Rights Act (MHRA). Mo. Rev. Stat. ch. 213. The district court² dismissed franchisor Choice Hotel because it found that Choice Hotel was not Thorne's employer, and dismissed Thorne's state law tort claims on the ground that they were preempted by Missouri Workers' Compensation Law. Following a trial, the jury returned a verdict in favor of Thorne. Acting on post-trial motions, the court reduced the jury's award in several respects and made an award of attorneys' fees to the Plaintiff. Both sides appeal.

I. BACKGROUND

We recount the facts of this case by presenting the evidence submitted at trial in a light most favorable to the judgment. Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 351 (8 th Cir. 1997). Thorne was hired as a desk clerk at a Nevada, Missouri Comfort Inn in May 1995. Within three months, William Welk, the hotel's owner, invited Thorne to dinner to discuss a promotion to manager. Welk also offered her a car and payment of her mortgage. Thorne declined these offers, but accepted the job of manager, though it was obvious to her that Welk's interest in her was more than strictly professional.

Through the end of 1995 and into 1996, Thorne's suspicions were confirmed by a number of sexually suggestive comments and actions initiated by Welk. A representative sample will suffice: Welk tried to kiss Thorne; Welk called her on his car phone to ask if she was "horny;" Welk asked her to "get naked" in a jacuzzi; Welk grabbed her breasts in his hotel room; and when Welk confronted Thorne about maintenance issues at the Comfort Inn, he told her that she could have it "easy" like his girlfriend and sometime employee Marcia Paul, or she could have it "the hard way."

William Welk and Marcia Paul had a long-standing relationship which was at the same time professional and intimate. In November 1995, Thorne had an uncomfortable dinner with Paul and Welk where references were made about Welk's sexual relationships with some of his employees. A few days later, Paul told Thorne that there were three ways her employment could be terminated - stealing, lying, and "f--ing Bill Welk."

Around the same time, Becky Watkins visited the Nevada Comfort Inn and met Thorne. Watkins was one of Welk's employees from Arkansas. Watkins had been told by Jeannie Phillips, a Welk manager, that Thorne and Welk had an ongoing sexual relationship. Paul told Watkins that she would fire Thorne if this were true. When Watkins reminded Paul that employees could not be terminated for this reason, Paul responded that she would use the "dirty motel" excuse to justify her actions.

In January 1996, Choice Hotel performed a review of its Nevada Comfort Inn franchisee. The reviewer, Greg Scott, noted Thorne's helpfulness and gave the hotel a good housekeeping score. Thorne reported that she was being sexually harassed on the job. Scott told her to contact the EEOC or William Welk. The following month, Thorne filed her charge of discrimination with the EEOC.

When Paul learned of Thorne's EEOC filing, she begged Thorne to remove her name from the charge. Paul explained that she could fire Thorne if she had three performance write-ups. In March, Paul called Thorne and told her that she could either accept a demotion to desk clerk or be terminated. At a meeting the next day, Paul presented Thorne with three performance write-ups. Paul told her that she wanted to tape record her voluntarily agreeing to a demotion. Distraught, Thorne acquiesced.

On April 1, 1996, Thorne telephoned Paul and told her that she was ill and would not be in to work. Thorne's psychologist provided a work release. As her two week medical leave was about to expire, Thorne inquired as to when she would be placed back on the work schedule. Thorne soon learned that she no longer worked at the hotel. Paul had hired a replacement within a week of April 1.

II. DISCUSSION

A. Admissibility Issues

The Defendants challenge the admissibility of four separate items: the existence of an Arkansas defamation suit brought by Welk against Becky Watkins and Sandra Bullock; the testimony of Becky Watkins relating to this lawsuit; testimony regarding Welk's sexual relationships with other women; and reputation testimony regarding Welk's propensity for truthfulness. We have reviewed each item and find no reversible error in the court's rulings.

In a similar vein, the Defendants contend that the jury's verdict was based on passion and prejudice, and that the trial court therefore abused its discretion when it denied their motion for a new trial. Defendants claim that the improper jury verdict is evidenced by the excessive damage awards. It was the trial court's admission of the above discussed "inflammatory" evidence which created the "incendiary" environment in which the jury's verdict was rendered, they argue.

When a punitive damage award is the result of passion and prejudice, a new trial is usually required and remittitur is an inappropriate remedy. Hale v. Firestone Tire & Rubber Co., 820 F.2d 928, 936 (8 th Cir. 1987). Remittitur is often inadequate in this situation because the passion and prejudice may have affected the jury's decision on the question of liability, as well as damages. 11 Charles A. Wright, et al., Federal Practice & Procedure § 2815 (2 nd ed. 1995). This is the exception to the general rule, however, that "[t]he final determination of whether a new trial or remittitur is appropriate . . . is committed to the sound discretion of the trial court." Id. Our review of the trial transcripts leads us to reject, as the district court did, Defendants' assertion that improper evidence and questioning "poisoned" the verdict.

Defendants also cite Triple R Indus., Inc. v. Century Lubricating Oils, Inc., 912 F.2d 234, 239 (8 th Cir. 1990) for the proposition that a plaintiff's consent is required before a court will authorize remittitur. See also Hale, 820 F.2d at 936; Everett v. S.H. Parks & Associates, Inc., 697 F.2d 250, 253 (8 th Cir. 1983). In this case, the trial Judge ordered remittitur without Plaintiff's waiver of her right to a new trial. That fact does not entitle Defendants to a new trial, however. Nonconsensual remittitur implicates the Plaintiff's Seventh Amendment jury right, not the Defendants' who lack standing to raise the issue. See Morgan v. Woessner, 997 F.2d 1244, 1258 (9 th Cir. 1993), cert. dismissed, 510 U.S. 1033 (1993). We consider Plaintiff's arguments concerning the trial court's order of remittitur separately below.

B. Welk's and Choice Hotel's Status as an Employer

Next, Defendants argue that the trial court erred in concluding that Welk was personally Plaintiff's employer. Instead, Defendants claim, Thorne was actually employed by Welk Investment, Inc. In a related issue, the trial court granted summary judgment in Choice Hotel's favor on the ground that Choice Hotel, as franchisor, was not Thorne's employer. The Plaintiff appeals this determination. We, however, see no error of law or fact in either Conclusion.

C. Retaliation

To establish a prima facie case of retaliation, a plaintiff must show participation in a protected activity, subsequent adverse action by the employer, and a causal connection between the two. 42 U.S.C. §2000e-3(a); Evans v. Kansas City, Mo. Sch. Dist., 65 F.3d 98, 100 (8 th Cir. 1995). Defendants claim that no reasonable jury could have concluded that a causal link was established between Thorne's demotion and termination and her filing the EEOC charge of sexual discrimination. Instead, Defendants point to evidence of Thorne's poor performance and work related misconduct as the cause of her demotion and ultimate termination. Defendants' claim of error is that the district court should have granted their motion for judgment as a matter of law on this claim.

For a court to grant judgment as a matter of law, "[t]he evidence must point unswervingly to only one reasonable Conclusion." Gardner v. Buerger, 82 F.3d 248, 251 (8 th Cir. 1996), citing Johnson v. Cowell Steel Structures, Inc., 991 F.2d 474, 478 (8 th Cir. 1993). Where, as here, a jury has been presented with conflicting testimony, we will not ordinarily disturb the verdict on appeal. See Kim v. Nash Finch Co., 123 F.3d 1046, 1061 (8 th Cir. 1997). "The evidence in this case presented inconsistent inferences to the jury, and the resolution of this conflicting evidence was a matter for the jury to resolve." Id. at 1061-62. Accordingly, there was no error in the district court's order denying Defendants' motion for judgment as a matter of law on Plaintiff's claim of retaliation.

D. Damages

The jury awarded Thorne $220,000 in actual damages, $200,000 of which was designated for pain and suffering, and $725,000 in punitive damages on her Title VII and MHRA claims. The court reduced the jury's award and entered a judgment for $135,000 in...