Timmons v. City of Tucson

• Citation: 171 Ariz. 350,830 P.2d 871
• Decision Date: 24 December 1991
• Docket Number: No. 2,CA-CV,2
• Parties: , 63 Fair Empl.Prac.Cas. (BNA) 11 Karla TIMMONS, Plaintiff/Appellee/Cross-Appellant, v. CITY OF TUCSON, a municipality; Cressworth Lander and Linda Lander, husband and wife, Defendants/Appellants/Cross-Appellees. 90-0303.
• Court: Court of Appeals of Arizona

Page 871

830 P.2d 871

171 Ariz. 350, 63 Fair Empl.Prac.Cas. (BNA) 11

Karla TIMMONS, Plaintiff/Appellee/Cross-Appellant, v. CITY OF TUCSON, a municipality; Cressworth Lander and Linda Lander, husband and wife, Defendants/Appellants/Cross-Appellees.

No. 2 CA-CV 90-0303.

Court of Appeals of Arizona Division 2, Department B.

Dec. 24, 1991.

Review Denied June 16, 1992. ^*

[171 Ariz. 352] Stompoly & Stroud, P.C. by Don Awerkamp and Mary Judge Ryan, Tucson, for plaintiff, appellee, cross-appellant.

Gabroy, Rollman & Bosse, P.C. by John Gabroy and Ronna L. Fickbohm, Tucson, for defendants, appellants, cross-appellees.

OPINION

FERNANDEZ, Presiding Judge.

After a jury trial, appellee Karla Timmons was awarded $200,000 in compensatory damages against the City of Tucson and Cressworth Lander, director of the City's Department of Community Services (collectively referred to as the City), in her reverse discrimination lawsuit. She was also awarded $15,000 in punitive damages against the Landers only. The court subsequently awarded Timmons attorney's fees of $71,666.66. Both parties have appealed. We agree that reversible error occurred and remand for a new trial.

Cressworth Lander has been the director of the Department of Community Services for the City of Tucson since the department was formed in 1987. The department has 134 full-time employees and is charged with providing housing for low-income residents. Its duties include owning and operating rental units, subsidizing rents, and rehabilitating or replacing housing units, assisting in relocating residents and businesses, and providing physical improvements such as streets, sidewalks, and sewage facilities under a federal grant program. In September 1988, the city began accepting applications for two rehabilitation/relocation specialists II in the Community Conservation and Development Division of the department.

The City's Personnel Department conducted the initial applicant screening by analyzing and rating the information in the applications and by scoring the applicants' answers in a technical board interview. The Personnel Department certified the top eight people as being qualified for the positions. Timmons was ranked third on the list, and Annie Sykes was ranked seventh. Timmons is white, and both Lander and Sykes are black. Two supervisors in the division interviewed the eight people and recommended to the division head, Rudy Gallego, that Timmons be hired. They also ranked Sykes seventh on their list. Gallego agreed with the supervisors, signed the requisition form, and passed it on to Lander. Under the City's civil service rules, a department head has discretion to select any of the candidates certified for the position.

When Lander received the recommendation from Gallego, he asked Gallego to come to his office. Gallego testified that when he walked in, Lander threw the requisition form at him. Gallego then testified as follows:

'I'll be damned,' he says to me, 'if I'm going to hire a white on the face of a black on the list.'

Q. Then what did he tell you to do with the personnel requisition form that is Exhibit 3?

A. He said, 'Take [c]are of the problem. Either you change Annie Sykes' name with--for Karla Timmons'--in other words, put Annie Sykes' name on there and take Karla Timmons' name off--'or there will be no hiring.'

A subsequent meeting was held with Lander, Gallego, and the two division supervisors who had conducted the interviews. One of the supervisors testified that Lander said at that meeting "that he was a director, and he was going to hire whoever the heck he wanted, and that if we did not hire two minorities, that there was going to be no hiring at all." The supervisor also testified that Lander had said, "I'm telling you, if you do not hire Annie Sykes, there is going to be no hiring." The other supervisor testified that Lander had indicated during the meeting that if a black was on a certification list, he or she should be hired. There was also testimony that Lander was uninterested in knowing the reasons why the interviewers had recommended Timmons and that he did not care about the qualifications either of Timmons or the other candidates. In addition, there was evidence that on another occasion, Lander had insisted on hiring an applicant because he was black.

The City presented evidence that Lander was concerned because Gallego and his two supervisors had a pattern of not recommending blacks for positions in their division. There was also evidence that Lander and Gallego were engaged in a personal dispute at the time of trial. In addition, the City produced evidence of the qualifications Sykes possessed for the job.

Timmons introduced evidence that at the time of the 1980 census, 3.7% of the general population of Tucson was black. At the time the position was filled, 4.6% of the employees of the City of Tucson were black. In the department Lander headed, 13.3% of the employees were black.

After Sykes was selected for the position, Timmons filed a complaint with the City's affirmative action office, charging that the city had refused to hire her because of her race. After an investigation conducted by the director of personnel, the city's equal employment opportunity officer, a representative of the city attorney's office, and an assistant city manager, it was determined that the selection was proper. Sykes was then hired for the position.

Timmons then filed this lawsuit, charging Lander and the City with employment discrimination on the basis of race pursuant to the employment discrimination section of the Arizona Civil Rights Act, A.R.S. §§ 41-1461 through 41-1465, and with violating Timmons's right to make contracts because of her race pursuant to 42 U.S.C. § 1981. She sought only monetary damages and did not ask to be hired for the next available position.

The City contends on appeal that the trial court erred in 1) instructing the jury on an affirmative defense that it had not raised, 2) refusing to give two of the City's requested instructions, 3) submitting the issue of punitive damages to the jury, 4) instructing the jury on mitigation of damages, 5) commingling the federal and state claims and instructing the jury on the remedies available under each claim, 6) submitting equitable claims to the jury, 7) admitting evidence on Lander's subsequent retaliation against Gallego, 8) improperly calculating the award of attorney's fees, and 9) denying the City's motion for new trial or judgment notwithstanding the verdict. The City also contends that the verdict was not justified by the evidence and was contrary to law.

Timmons has cross-appealed, also contending that the court erred in calculating the attorney's fee award. In addition, she contends that the court improperly dismissed her § 1981 claim against the city denied her prejudgment interest, and denied an item of taxable costs.

COMMINGLING OF STATE AND FEDERAL CLAIMS

Timmons pursued two claims in this case, a state claim under the Arizona Civil Rights Act and a federal claim under 42 U.S.C. § 1981. The state claim was against both the City of Tucson and the Landers, while the federal claim was against the Landers only. The state statutes are modeled after the federal employment discrimination laws, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. As a result, Title VII case law is persuasive in interpreting the Arizona statute. Higdon v. Evergreen International Airlines, 138 Ariz. 163, 673 P.2d 907 (1983).

Only equitable relief is available under both Title VII and the Arizona act. Our statute provides:

If the court finds that the defendant has intentionally engaged in ... an unlawful employment practice alleged in the complaint, the court may enjoin the defendant from engaging in such unlawful employment practice and order such affirmative action as may be appropriate. Affirmative action may include, but is not limited to, reinstatement or hiring of employees with or without back pay payable by the employer ... or any other equitable relief as the court deems appropriate.

A.R.S. § 41-1481(G) (emphasis added). The federal statute is similarly worded. 42 U.S.C. § 2000e-5(g). Both statutes provide for the recovery of back pay, a remedy that has been held to be equitable in nature. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).

Both statutes also permit the recovery of front pay as equitable relief. Edwards v. Occidental Chemical Corp., 892 F.2d 1442 (9th Cir.1990); James v. Stockham Valves & Fittings Co., 559 F.2d 310 (5th Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Front pay is a monetary award designed to provide the salary differential a claimant would have received if he or she had been hired for the position. Edwards, supra.

It is clear, however, that monetary damages for items such as emotional distress and mental anguish are not available in statutory employment discrimination cases. Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456 (7th Cir.1990); Bennett v. Corroon & Black Corp., 845 F.2d 104 (5th Cir.1988), cert. denied, 489 U.S. 1020, 109 S.Ct. 1140, 103 L.Ed.2d 201 (1989); Muldrew v. Anheuser-Busch, Inc., 728 F.2d 989 (8th Cir.1984); Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982); Shah v. Mt. Zion Hospital & Medical Center, 642 F.2d 268 (9th Cir.1981); Bundy v. Jackson, 641 F.2d 934 (D.C.Cir.1981); DeGrace v. Rumsfeld, 614 F.2d 796 (1st Cir.1980); Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192 (6th Cir.1978), cert. denied, 441 U.S. 932, 99 S.Ct. 2053, 60 L.Ed.2d 660 (1979); Pearson v. Western Electric Co., 542 F.2d 1150 (10th Cir.1976); see also Richerson v. Jones, 551 F.2d 918 (3d Cir.1977).

Nothing Timmons has cited to us convinces us that the law is otherwise. Contrary to her contention, the Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), ruled only that the claimant...