Williams v. Fermenta Animal Health Co.

• Decision Date: 03 May 1993
• Docket Number: No. 92-1116,92-1116
• Citation: 984 F.2d 261
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 1164, 60 Empl. Prac. Dec. P 41,992, 61 USLW 2498 Diane WILLIAMS, Appellant, v. FERMENTA ANIMAL HEALTH COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 261

984 F.2d 261

60 Fair Empl.Prac.Cas. (BNA) 1164,

60 Empl. Prac. Dec. P 41,992, 61 USLW 2498

Diane WILLIAMS, Appellant, v. FERMENTA ANIMAL HEALTH COMPANY, Appellee.

No. 92-1116.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1992.

Decided Jan. 27, 1993.

Rehearing and Suggestion for

Rehearing En Banc Denied

May 3, 1993. ^*

John Wray Kurtz, Kansas City, MO, argued, for appellant.

Thomas Bradshaw, Kansas City, MO, argued, for appellee.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Diane Williams sued the Fermenta Animal Health Company (Fermenta) for alleged intentional racial discrimination pursuant to 42 U.S.C. § 2000e et seq. (Title VII), 42 U.S.C. § 1981, and Missouri Revised Statute § 213.055 (1986). Williams claimed that she was constructively discharged from her position as a Technology Assistant at Fermenta because she is black. A jury found in favor of Fermenta, and Williams appeals from the resulting adverse judgment.

Williams raises five arguments on appeal. First, she contends that the district court ¹ committed reversible error by its comments during the presentation of the evidence and closing arguments. Second, Williams contends that the district court erred by excluding evidence of the settlement of a prior discharge lawsuit against a predecessor corporation of Fermenta. Third, Williams challenges the jury instruction stating the necessary elements of her claim. Williams's fourth argument involves a "letter" written by the jury directed to the defendant. Finally, Williams contends that the court erred in giving an Allen ² charge to the jury.

I.

Williams argues that statements made by the district judge constitute reversible error. "While remarks made by a district judge within the hearing of the jury are often necessary, the judge should take care not to give the impression that he or she prefers one litigant over another." Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1330 (8th Cir.1985) (citation omitted). "However, a few improper comments are not necessarily enough to require reversal." Id. (citation omitted). "In order to reverse on grounds of excessive judicial intervention, the record must either disclose actual bias on the part of the trial judge [or] leave the reviewing judge with an abiding impression that the judge's remarks ... projected to the jury an appearance of advocacy or partiality." Czajka v. Black, 901 F.2d 1484, 1486 (8th Cir.1990) (quoting Warner v. Transamerica Ins. Co., 739 F.2d 1347, 1351 (8th Cir.1984) (citations omitted)).

The first specific improper comment alleged by Williams was made by the court in overruling an objection to a question posed by Mr. Bradshaw, counsel for Fermenta, during the direct examination of Marilyn Pummel, Fermenta's Director of Human Resources.

Q. You know there's been some implication in questions that have been asked by Mr Kurtz [counsel for Williams] that Fermenta had no interest in hiring minorities, is that true?

MR. KURTZ: Excuse me. Judge, I object to the characterization on that issue and I think we are going to resolve that otherwise.

THE COURT: Well, I--listen the jury will remember but I don't think there's been any implication by any witness in this case that they--that this company didn't hire minorities and that they weren't interested in hiring minorities. And so we don't need to ask that question.

MR. BRADSHAW: All right. Thank you, Your Honor.

Volume 3, Trial Transcript, at 95 (3 Tr. 95). Williams did not object to the court's response. Therefore, our review is limited to plain error. Harris v. Steelweld Equip. Co., 869 F.2d 396, 402 n. 6 (8th Cir.), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989).

The court's comment on the evidence was not proper. The comment, however, did indicate some deference to the jury's recollection of the evidence. This deference was supported by the jury instructions that repeatedly directed the jury not to consider comments by the court in deliberations because such comments were not intended to suggest any opinion as to any issue in the case. 3 Tr. 153-54, 156. Furthermore, the court's comment quoted above referred to discrimination in hiring and the issue in this case was discriminatory constructive discharge. While this court does not condone such commentary on the evidence, we are not left in this case "with an abiding impression that the judge's remarks ... projected to the jury an appearance of advocacy or partiality" that is sufficient to justify reversal on the basis of plain error.

The second comment occurred during closing arguments. Fermenta's counsel objected to counsel for Williams's characterization of the evidence in his closing argument. The court responded as follows:

THE COURT: Wait a minute. Now, the jury, you've heard the evidence and you weigh the evidence and you make a decision about that and this is just argument. What they say--I had to say this, but what they say doesn't amount to a hill of beans. It's you, you've heard the argument. You decide on the evidence. So go ahead.

3 Tr. 180. Williams contends that the district judge's disparaging remark regarding the attorneys' arguments was improper. We agree. What lawyers have to say in final argument is very important. Taken in context, however, the judge's comment appears to have been intended to mean simply that the jurors, and not the attorneys, are solely responsible for determining the facts. The judge's comment referred to the attorneys for both parties and therefore did not indicate partiality or bias. Again, Williams did not object to this statement by the district court judge. We find that the comment does not constitute reversible plain error.

Williams also complains about two other statements by the trial judge. Because one of the statements was made out of the presence of the jury and the other after the jury had returned its verdict, the plaintiff suffered no prejudice. Harris, 869 F.2d at 401 (citing Coast-to-Coast Stores, Inc. v. Womack-Bowers, Inc., 818 F.2d 1398, 1401-02 (8th Cir.1987)).

II.

Williams next argues that the district court erred by excluding evidence of the settlement of a prior discrimination lawsuit against a predecessor corporation of Fermenta. Mamie Mitchell testified that she lost her job with S.D.S. Biotech Corporation because her position was eliminated when the corporation was restructured and split into three new companies, one of which was Fermenta. 2 Tr. 90-100, 103-13. She further testified that she was not hired to fill the similar position within Fermenta, but instead Fermenta hired a younger, white male. Id. Based on these events, Mitchell testified that she filed a complaint with the EEOC alleging race and sex discrimination. 2 Tr. 95-99, 107-09. The EEOC report was admitted into evidence. 2 Tr. 95. Mitchell testified that the claim eventually was filed in court and trial commenced. 2 Tr. 98-99. The complaint was admitted into evidence and identified both S.D.S. Biotech Corporation and Fermenta Animal Health Company as named defendants. Williams requested that the information regarding the settlement of the case should also be admitted, arguing that the evidence was relevant, constituted an admission, and was necessary to identify the appellee as a prior defendant. The district court rejected Williams's arguments and denied the request. 3 Tr. 123-24. We agree with the district court's ruling and find no abuse of discretion. See Fed.R.Evid. 408.

III.

Williams next contests the district court's jury instruction outlining the necessary elements of her racial discrimination claim. The court gave the following definition of the second element:

And, second, plaintiff's race was a determining factor in defendant's actions.... Race was a "determining factor" only if defendant would not have acted toward plaintiff but for plaintiff's race; it does not require that race was the only reason for the decision made by the defendant.

3 Tr. 154-55.

Williams, however, had requested that the second element be defined as follows:

Second, plaintiff's race was a motivating factor in defendant's actions.

"Race was a motivating factor" only if defendant would not have acted toward plaintiff as it did but for plaintiff's race; it does not require that race was the only reason for the actions taken by defendant.

. . . . .

However, even if you find that both of the above elements have been proven, your verdict must be for defendant if defendant proves by the preponderance of the evidence, that it would have acted toward plaintiff as it did regardless of her race.

Williams objected at trial that her proffered instruction was not used. 3 Tr. 149.

On appeal, Williams contends that her mixed motive instruction should have been given. Because the instruction given by the court stated that plaintiff must prove that race was "a determining factor" and did not state that "determining factor" means "sole factor," it became "indistinguishable from [an instruction for] a mixed-motive claim." Foster v. University of Ark., 938 F.2d 111, 115 (8th Cir.1991). "If race is only a determining factor, there can be others--and then, by definition, the case involves mixed motives." Id. Furthermore, although the words "motivating factor" were not used, the definition of the words "determining factor" in the court's instruction was the same as the definition of the "motivating factor" in Williams' proffered instruction. Therefore, the instruction given was for all practical purposes a mixed motive instruction, and Williams has no cause for complaint with respect to the instruction.

IV.

The fourth issue stems from Fermenta's closing argument.

MR. BRADSHAW: ... If in your deliberations you look at the evidence and you see a glaring defect in the way people are handled, in the way someone's job is explained to them and you didn't like the way it happened, sit down--and I'm sincere about this....