Townsend v. Lumbermens Mut. Cas. Co.

• Decision Date: 24 June 2002
• Docket Number: No. 00-3055.,00-3055.
• Citation: 294 F.3d 1232
• Parties: John H. TOWNSEND, III, Plaintiff-Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, d/b/a Kemper National Insurance Companies, Defendant-Appellee. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1232

294 F.3d 1232

John H. TOWNSEND, III, Plaintiff-Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, d/b/a Kemper National Insurance Companies, Defendant-Appellee Equal Employment Opportunity Commission, Amicus Curiae.

No. 00-3055.

United States Court of Appeals, Tenth Circuit.

June 24, 2002.

Scott A. McCreight (Steven M. Sprenger and Korey A. Kaul with him on the briefs), of Sprenger & McCreight, L.C., Kansas City, MO, for Plaintiff-Appellant.

Paul R. Garry (Michael I. Leonard with him on the brief), of Meckler Bulger & Tilson, Chicago, IL, for Defendant-Appellee.

Susan L.P. Starr (C. Gregory Stewart, General Counsel, Philip B. Sklover, Associate General Counsel, and Vincent J. Blackwood, Assistant General Counsel with her on the brief), of the Equal Employment Opportunity Commission, Washington, D.C. as Amicus Curiae.

Before BRORBY and HOLLOWAY, Senior Circuit Judges, and HENRY, Circuit Judge.

HOLLOWAY, Senior Circuit Judge.

I

Plaintiff-Appellant John H. Townsend III ("Townsend"), filed an action against his former employer, Defendant-Appellee Lumbermens Mutual Casualty Company, d/b/a Kemper National Insurance Companies ("Kemper"), alleging that he had been demoted and ultimately fired because of his race — African-American — and that he had been retaliated against for complaining of race discrimination, in violation of 42 U.S.C. § 1981 and Title VII. The trial judge granted summary judgment for Kemper as to the retaliation claim. Townsend survived Kemper's motion for summary judgment at the close of discovery as to Townsend's race discrimination claims concerning his demotion and firing. Trial of the case followed. Kemper then moved for judgment as a matter of law at the end of Townsend's case-in-chief and at the close of all evidence. These motions were denied and the case was submitted to the jury, which returned a verdict in favor of Kemper.

On October 22, 1999, Townsend filed a motion for a new trial on the grounds that the district court had erred in refusing to instruct the jury on the issue of pretext, and had improperly allowed Kemper to bolster the credibility of a defense witness by eliciting testimony as to the truthfulness of the supervisor responsible for the decision to demote Townsend, in violation of Federal Rule of Evidence 608(a)(2). The district court, in an opinion reported at 192 F.R.D. 290 (D.Kan.2000), denied the motion for a new trial. Townsend now appeals. In addition to Townsend's and Kemper's arguments, we also have before us an amicus curiae brief filed by the Equal Employment Opportunity Commission ("EEOC") in support of Townsend's position on the pretext instruction issue.

II

Townsend began working for Kemper in January 1986 as a personal lines marketing manager at its Overland Park, Kansas regional office. Townsend contended that after eleven years of employment with numerous merit raises and performance bonuses, as well as a promotion to the pilot position of personal lines unit manager, Kemper suddenly demoted him and then nine months later fired him. According to Townsend, Kemper told the Kansas Human Rights Commission that it demoted Townsend due to "poor performance" and that it subsequently fired him for the same reason. When asked for particulars, Kemper stated that after it demoted Townsend, he "stopped traveling," "became indifferent about his job," "did very little work," and failed to submit, as requested, an action plan on or before October 30, 1997, to improve his performance on his job.

Townsend contends that although he had objectively outperformed Chris Gold (Kemper's other personal lines unit manager), Kemper's regional vice president Robert Priest rated Townsend a 3, lower than Gold's rating of 2.¹ Priest wrote that Gold was eligible for promotion if the opportunity became available, but that Townsend needed more experience before he would be eligible for promotion. In August 1996 Kemper promoted Gold and transferred him to Syracuse, New York. The personal lines unit manager position in the Overland Park office was filled by Linda Tobias, a white female.

Townsend contends that prior to October 1996 he had a professional working relationship with Priest; that at that time Kemper's Vice President, Peter Mooney, began pressuring Priest to improve his region's results; and that as a consequence he began to blame his problems on Townsend, including screaming at him and telling him to "shut up" at a business meeting. Townsend maintains that he was criticized by Priest for purportedly giving favorable treatment to black subordinates. Once, when Priest was upset with his black secretary, he reportedly asked Ms. Tobias, "What is it with these black people? They don't seem to want to work." III Aplt. App. 336. Priest denied making the statement, however. VI Aplt.App. 1236-37.

Townsend claims that in 1996 he again had better objective results than Gold, and that in recognition of these accomplishments he was awarded a $6,000 discretionary bonus, paid in April 1997. However, unlike in previous years, he did not receive an annual performance review. Kemper claims that in 1996 Townsend's performance continued to deteriorate in that he experienced significant loss ratio problems, failed to increase sales in his territory, failed to take steps to ensure that rates in the states within his territory were being increased to remain in line with losses he was experiencing in those states, failed to show up on time for scheduled meetings, failed to submit reports in a timely manner, and failed to complete and sign his expense reports on a regular basis. In addition, Kemper contends that a number of Townsend's employees experienced significant performance deficiencies that Townsend either did not address or did not address in an appropriate and timely fashion. Finally, Kemper maintains that Townsend had difficulties interacting with certain independent insurance agencies in his territory that sold Kemper products, including most significantly an instance when Townsend organized and led a disastrous meeting attended by St. Louis agencies' representatives who became extremely angry toward Townsend and Kemper.

On January 22, 1997, Priest informed Townsend that his performance as a personal lines unit manager was deficient, and requested an "action plan," which Townsend provided on January 24. On February 7, 1997, Priest met with Townsend and (contrary to Kemper's personnel policies) gave him no chance to improve but rather informed Townsend that he could either resign or be demoted to the position of marketing support specialist, a non-management position. Townsend accepted the marketing specialist position. Townsend was replaced as personal lines unit manager by Maureen O'Connor, a white female.

As a marketing support specialist, Townsend provided support for Tobias and O'Connor. Townsend contends that from February 10, 1997 until September 11, 1997, neither Priest, Tobias, nor O'Connor raised any issue concerning his performance, and Tobias testified that Townsend displayed a positive attitude and that he never failed to meet her expectations. Likewise, Priest testified that Townsend was performing adequately, and O'Connor said that she had not reported or documented any complaints about him.

Townsend contends that he maintained an active travel schedule throughout this period. To show his extensive travel, he introduced into evidence a compilation of expense reports covering his tenure as marketing support specialist. Moreover, O'Connor, who had assisted in preparing Kemper's written position statement to the Kansas Human Rights Commission (claiming that Townsend has stopped traveling after his demotion), testified that that claim was false:

Q: Ma'am, in your opinion was the factual statement he stopped traveling true or false?

A: It is a false statement.

VI Aplt.App. 1385.

On August 31, 1997, Priest retired and was replaced by O'Connor. On September 5, 1997, O'Connor issued a memorandum directing Townsend to report to Tobias. On September 18, O'Connor gave Townsend a memorandum dated September 11, 1997, informing him that his performance as marketing support specialist was deficient, and downgrading his performance rating to 4 (probation). She directed Townsend to provide an action plan no later than October 30, 1997. O'Connor did not consult with either Priest or Tobias before taking these actions. Kemper maintains that O'Connor's dissatisfaction with Townsend stemmed from her personal observation of his performance during the five months that she was a unit manager. Brief of Defendant-Appellee at 26, citing VI Aplt.App. 1293-1304.

On the Monday following receipt of O'Connor's September 11, 1997 memorandum, Townsend met with Tobias, his supervisor, to discuss his ideas for the action plan. He sent her an e-mail outlining his action plan, which Tobias testified she found satisfactory. Kemper contends that at the time Townsend met with Tobias, Tobias had already been removed from her job. Moreover, Kemper contends that the e-mail was not an action plan. Brief of Defendant-Appellee at 33, citing IV Aplt. App. 785.

On September 29, 1997, Tobias resigned from Kemper, leaving Townsend without a supervisor. On October 8, 1997, O'Connor sent Townsend a memorandum asking why she had not received the action plan, although it was not due until October 30, and scheduling a meeting on October 20. At this meeting (rescheduled for October 23), Townsend gave O'Connor a memorandum, together with the action plan outline that Tobias had previously approved, along with other materials previously requested by O'Connor. Kemper contends that although the e-mail was only an outline, Townsend told O'Connor in his memo that it was his action plan. Brief of Defendant-Appellee at 34, citing I Aplt.App. 98-99, III Aplt.App. 567, IV Aplt.App. 780-81. On October 29, 1997, O'Connor informed Townsend that his action plan was not sufficient, but did not offer suggestions on...