Ways v. City of Lincoln

• Decision Date: 03 April 1989
• Docket Number: Nos. 88-2081,88-2214,s. 88-2081
• Citation: 871 F.2d 750
• Parties: 49 Fair Empl.Prac.Cas. 865, 49 Empl. Prac. Dec. P 38,908, 57 USLW 2643 John WAYS, Sr., Appellee, v. CITY OF LINCOLN; City of Lincoln Police Department; Dean Leitner, City of Lincoln Chief of Police, Appellants, Arthur Bandars; John Hewitt. John WAYS, Sr., Appellant, v. CITY OF LINCOLN; City of Lincoln Police Department; Dean Leitner, City of Lincoln Chief of Police, Appellees, Arthur Bandars; John Hewitt.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 750

871 F.2d 750

49 Fair Empl.Prac.Cas. 865,

49 Empl. Prac. Dec. P 38,908, 57 USLW 2643

John WAYS, Sr., Appellee, v. CITY OF LINCOLN; City of Lincoln Police Department; Dean

Leitner, City of Lincoln Chief of Police, Appellants,

Arthur Bandars; John Hewitt.

John WAYS, Sr., Appellant, v. CITY OF LINCOLN; City of Lincoln Police Department; Dean

Leitner, City of Lincoln Chief of Police, Appellees,

Arthur Bandars; John Hewitt.

Nos. 88-2081, 88-2214.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1988.

Decided April 3, 1989.

John C. McQuinn, Lincoln, Neb., for appellants.

Beverly Evans Grenier, Lincoln, Neb., for appellee.

Before BOWMAN and MAGILL, Circuit Judges, and BATTEY, ^* District Judge.

MAGILL, Circuit Judge.

The City of Lincoln, et al. appeal, and Officer John S. Ways cross-appeals, from a final judgment entered in Ways' favor in the United States District Court for the District of Nebraska. In a dual action, Ways, who is of black and American Indian descent, claimed that by permitting numerous offensive racial incidents to occur in the City of Lincoln Police Department (LPD) over the course of his sixteen-year career, his employers and supervisors violated 42 U.S.C. Sec. 1983 and 42 U.S.C. Sec. 2000e, et seq. (Title VII). The defendants in the district court were the City of Lincoln, the LPD, and, in their official capacities, Chief of Police B. Dean Leitner Police Captain John Hewitt, and Police Sargeant Arthur Bandars. ¹

In the district court, Ways brought two co-equal actions against all of the defendants. His Sec. 1983 claim was tried by the jury, and his Title VII action was tried by the court. Ways made identical claims in both actions, and presented identical evidence to the jury and the court simultaneously.

Ways' claims were that (1) his employers and supervisors (the City of Lincoln, the LPD, Police Chief Leitner, Captain Hewitt and Sargeant Bandars) permitted the continuing existence of a racially hostile work environment, and (2) black and American Indian employees consequently suffered disparate treatment in the form of racial discrimination.

On March 3, 1988, the jury returned its verdict in the Sec. 1983 action. It found for Ways and assessed actual damages in the amount of $35,000 against the LPD. The City of Lincoln, Police Chief Leitner, Captain Hewitt and Sargeant Bandars were included on the verdict form as defendants potentially liable for damages, but the jury did not find them liable. Thus, the jury exonerated the City of Lincoln and all three individual defendants sued in their official capacities as LPD supervisors.

Ways also prevailed on the Title VII claim. In the Title VII bench trial, the court made independent findings concerning the sufficiency of the evidence of racial discrimination that Ways presented, and held that Ways had established the existence of a hostile work environment. The court initially entered judgment against the City, the LPD, and Chief Leitner, who are the appellants in the instant action. The court also assessed $35,000 in damages and granted Ways' requests for attorney fees (calculated by a standard hourly billable rate and including a ten percent enhancement ²) and equitable relief (a formal declaration that Ways' civil rights had been violated and an order giving the LPD thirty days to formulate a scheme to eliminate the hostile work environment). Initially, the court held both the City and the LPD liable for damages, in spite of the jury verdict exonerating the City in the Sec. 1983 trial.

The defendants filed new trial motions in both the Sec. 1983 and Title VII actions, claiming (respectively) that the jury verdict was inconsistent and that the court's finding of a hostile work environment was based on insufficient evidence. In an order denying the motion, the court amended the judgment sua sponte, assessing liability for damages against the LPD only. Upon realizing that under Nebraska state law the LPD may not exist as a legal entity separate from the City, Ways moved for judgment n.o.v., or, in the alternative, a new trial, asking the court to reinstate its initial judgment holding the City and the LPD jointly and severally liable. This was denied.

For reversal, the City of Lincoln, the LPD, and Police Chief Leitner contend that the district court erred when it denied their motions for a new trial because (1) the jury verdict in the Sec. 1983 action is inconsistent in that it exonerates the City while assessing damages solely against the LPD; and (2) the evidence Ways offered in the Title VII bench trial was insufficient to establish a hostile work environment. The City also argues that by enhancing the attorney fees by ten percent, the court abused its discretion. Ways cross-appeals, arguing (1) that the court should have granted his motion for a judgment n.o.v. reinstating its original judgment (which assessed damages against the City and the LPD), and (2) that there was no abuse of discretion in the attorney fees enhancement.

We conclude that the court did not err in its conclusions that the evidence offered in the Title VII action was sufficient under Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1984); that the jury verdict in the Sec. 1983 action was not inconsistent; and that the original Title VII judgment should not be reinstated. However, the enhancement of Ways' attorney fees was clearly erroneous. Consequently, we affirm in part and reverse in part.

I. SUFFICIENCY OF THE EVIDENCE

The first issue before us today is whether the district court, in the Title VII bench trial, erred in finding that Ways produced sufficient evidence to establish his claims that he was subjected to a hostile work environment and disparate treatment as a consequence of the racial antagonism he encountered at the LPD. In order to assess the district court's finding, let us first review some of the facts giving rise to Ways' claims.

John Ways began his career as a Lincoln, Nebraska police officer in May of 1971. From the beginning of his career, Ways has endured racial slurs and other offensive racially-oriented incidents in the workplace. In the Title VII bench trial, the district court found that Ways was personally the object of some of the incidents. For example, during his training, "an officer * * * watching Ways practice artificial respiration on a C.P.R. doll called out that Ways had better enjoy it because it was the nearest he would get to a white woman." Ways v. City of Lincoln, et al., 705 F.Supp. 1420, 1421 (D.Neb.1988). More often, Ways was subjected to jokes, comments and actions derogatory to blacks and American Indians in general. These included a pornographic cartoon depicting an American Indian man in a degrading scenario, a xeroxed form entitled "Nigger Application for Employment," and a multiple-choice "Black Intelligence Test." Ways offered these items as evidence, stating that they had been circulated in the LPD offices.

The district court also found in the Title VII action that "[f]rom time to time racially offensive cartoons appeared on bulletin boards in the police headquarters and substations. Racial jokes about blacks and American Indians were voiced in various places, but most often in lineup and in the locker room." Id.

Ways first complained about racial antagonism in the LPD in July of 1983. He sent a memorandum to Chief of Police Leitner, indicating that racial slurs in the department's offices were an "ongoing problem" occurring "all the time." He later sent Leitner a second memorandum protesting a specific incident: the defacement of a poster featuring three black players from the University of Nebraska football team. Leitner asked some of his subordinates if there were racial problems in the LPD. They assured him that there were none. Leitner also informed three command officers that racial incidents would not be tolerated and that they were subject to disciplinary action. However, he did not order an investigation to determine who was responsible for the defacement of the poster.

In response to the complaints submitted by Ways, Leitner initiated a "sensitivity training program," which consisted primarily of a three-part videotape dealing generally with people's perceptions of themselves and others. All officers and supervisors were required to view the tape, which, although approved by Ways, did not deal specifically with the problem Ways had complained of: frequent offensive racial incidents occurring in the LPD offices. The sensitivity training program was reinforced with a lecture by an attorney, who discussed affirmative action with LPD employees.

After the conclusion of the sensitivity training program, Ways was not satisfied that the hostile office environment had been eradicated or significantly improved. In October 1985, he filed charges of discrimination against the City and the LPD with the Nebraska Equal Opportunity Commission. The Commission found reasonable cause in Ways' allegations and he was subsequently issued a Right to Sue letter. Ways then filed his complaint in the United States District Court for the District of Nebraska on January 6, 1987.

In the Title VII bench trial, the court found that the greater weight of the evidence indicated that Ways suffered from a racially hostile work environment at the LPD. Ways v. City of Lincoln, et al., 705 F.Supp. at 1421. Appellants contend that this finding was clearly erroneous. Since we conclude that the finding of a racially hostile work environment at the LPD was not clearly erroneous, we affirm the district court's denial of the LPD's new trial motion in the Title VII action.

A district court's finding of unlawful discrimination is a finding of fact. Therefore, it is reversible on appeal only if the appellate court concludes that the finding is clearly erroneous under Rule 52(a) of the Federal Rules of Civil Procedure. ³ Pullman-Standard v. Swint, 456 U.S....