Williams v. KETV Television, Inc.

• Decision Date: 10 August 1994
• Docket Number: No. 92-3178,92-3178
• Citation: 26 F.3d 1439
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 1645, 65 Empl. Prac. Dec. P 43,183 Karen E. WILLIAMS, Plaintiff-Appellant, v. KETV TELEVISION, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1439

26 F.3d 1439

65 Fair Empl.Prac.Cas. (BNA) 1645,

65 Empl. Prac. Dec. P 43,183

Karen E. WILLIAMS, Plaintiff-Appellant, v. KETV TELEVISION, INC., Defendant-Appellee.

No. 92-3178.

United States Court of Appeals Eighth Circuit.

Submitted May 10, 1993.

Decided June 15, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Aug. 10, 1994. ^*

Carole McMahon-Boies, Lincoln, NE, argued, for appellant.

Allen Daubman, Omaha, NE, argued, for appellee.

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

LOKEN, Circuit Judge.

In this action, Karen E. Williams, an African-American part-time production assistant for KETV Television, Inc., claims that KETV violated 42 U.S.C. Sec. 1981 and Title VII when it filled two full-time positions with whites in 1986 and 1988. The district court ¹ submitted the Sec. 1981 refusal-to-hire claims to a jury. The jury initially returned a verdict for KETV on the 1986 claim and a verdict for Williams on the 1988 claim. After the court rejected the verdict in favor of Williams as internally inconsistent, the jury returned a new verdict on that claim in favor of KETV. The court then ruled against Williams on her Title VII claims. Williams appeals, alleging numerous trial errors. We affirm.

I. Background.

Williams began work for KETV in 1979 and was promoted to part-time production assistant in 1981. In 1986, she applied for a full-time position. When the job went to a white KETV employee who had less seniority, Williams filed a race discrimination complaint with the E.E.O.C. In 1988, another full-time production position opened up. Williams applied but was not considered. That position ultimately was filled by an outside white applicant. After receiving a right-to-sue letter from the E.E.O.C., Williams commenced this action, alleging that she was denied the 1986 and 1988 positions on account of her race and sex, and further alleging that KETV engaged in race-based retaliation, including refusing to consider her for the 1988 position, on account of her E.E.O.C. complaint.

At trial, Williams introduced evidence that she was qualified for the 1986 position and had more seniority than the white female who got the job; that her co-workers regularly discriminated against blacks; ² that KETV managers cut back her hours, stopped giving her favorable assignments, and filled her personnel file with negative comments after her complaint to the E.E.O.C.; and that she was not even considered for the full-time position in 1988 despite seven years of competent performance as a part-time production assistant.

KETV's evidence tended to show that Williams was denied the 1986 position because the white female applicant was better qualified; that her co-workers were not racially biased; that the ultimate decision-makers had given the 1986 decision extra consideration to make sure it was not racially motivated; ³ that more comments were placed in her personnel file beginning in 1987 because Williams requested more formal evaluations, not because she had filed an E.E.O.C. complaint; and that she was not considered for the 1988 position because the station concluded that, if possible, it would hire someone from the outside with greater expertise in graphics. We conclude from our review of the trial record that this conflicting evidence was sufficient to support jury verdicts in favor of either party on the Sec. 1981 refusal-to-hire claims.

After three days of deliberation, the jury returned verdicts finding no race discrimination when KETV failed to hire Williams for the 1986 position, but finding in Williams's favor on her claim that race was a determining factor when KETV denied her the 1988 position. The problem arose with the damages portion of the jury's verdict on the 1988 claim. First, the jury awarded Williams no actual damages (lost wages and benefits), despite the fact that the court included in its instructions the parties' stipulation that Williams would have earned $39,700 more in salary and $5,800 more in benefits as a full-time production assistant. However, the jury then awarded Williams $10,000 compensatory damages, $35,000 punitive damages, and $1 nominal damages.

The district court concluded that the verdict on the 1988 claim was internally inconsistent, primarily because the jury found in Williams's favor but awarded her no actual damages. After discussing this question with counsel for both parties, the district court resubmitted the 1988 claim to the jury with a new verdict form and reread the portions of its instructions pertaining to that claim. The jury returned shortly thereafter with a verdict in KETV's favor on the 1988 claim. The court subsequently found in favor of KETV on Williams's Title VII claims.

Williams raises a number of issues on appeal. We turn first to her claim that the district court erred in rejecting the jury's initial verdict on her 1988 claim. Although this is not the issue Williams emphasized in her brief, we find it the most troubling aspect of this appeal, and its resolution greatly affects our disposition of the other issues.

II. Rejection of the Verdict.

Williams argues that the jury's initial verdict regarding her 1988 claim can be construed so as to be internally consistent and the district court therefore erred in resubmitting that claim to the jury. Because courts must reconcile seemingly inconsistent verdicts, "by exegesis if necessary," to preserve the Seventh Amendment right to jury trial, see Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963), this would be a difficult issue had Williams objected to the district court's resubmission. However, we conclude that this issue was not properly preserved for appeal.

When it received the initial verdict, the district court sent the jury back to the jury room and discussed the verdict at length with counsel. At the outset of that discussion, the court opined that the verdict on the 1988 claim was internally inconsistent, primarily because the jury found in favor of Williams but awarded no actual damages even though the parties had stipulated to substantial lost wages and benefits. The court proposed to resubmit the 1988 claim with a new verdict form and to reread its instructions relating to that claim.

Counsel for Williams's initial response reveals that she accepted the court's opinion that the verdict was internally inconsistent:

Your Honor ... my concern is that the jury will not understand where the inconsistency lies, and I think we need to put particular emphasis on the fact that if you find in favor of the Plaintiff, which they already have, you must award the back pay and benefits. And if all we do is read the instructions and tell them "you did something wrong, folks," maybe they'll think that the Court is directing them that the Defendant should have won....

Counsel urged the court to resubmit the 1988 claim with a supplemental instruction on damages: "I want the jury to understand that what they did wrong is their assessment of damages," she explained. "What they need to be told is that 'you can't find for the Plaintiff and not give her back pay.' That's all they need to be told."

Counsel for KETV likewise agreed that the 1988 claim should be resubmitted but objected to a supplemental damage instruction "because you're, in effect, directing them what to do." After lengthy discussion, the court ruled that it would simply advise the jury that its initial verdict on the 1988 claim was inconsistent, reread its prior instructions regarding that claim, and resubmit the claim with a new verdict form. Neither party objected when the district court embarked upon that course of action. In most circumstances, a party that has "made no specific, relevant objection to the District Court's decision to submit [an] issue to the jury ... has therefore waived appellate review of [that] ruling." Porterco, Inc. v. Igloo Products, Inc., 955 F.2d 1164, 1173 (8th Cir.1992).

If the district court was correct that the initial verdict was internally inconsistent, then the court had discretion to resubmit the 1988 claim to the jury. See the last sentence of Fed.R.Civ.P. 49(b). It is well established, at least in this circuit, that a party waives any objection to an inconsistent verdict if she fails to object to the inconsistency before the jury is discharged. See Parrish v. Luckie, 963 F.2d 201, 207 (8th Cir.1992); Lockard v. Missouri Pac. R.R., 894 F.2d 299, 304 (8th Cir.), cert. denied, 498 U.S. 847, 111 S.Ct. 134, 112 L.Ed.2d 102 (1990), and cases cited. Here, we have the converse situation--Williams failed to object to the district court's decision that the verdict was inconsistent. We agree with the only circuits to consider the issue that Williams has waived her objection to the district court's decision to reject that verdict. As the Second Circuit stated, "once the parties had acquiesced in the resubmission of the interrogatories to the jury, they could no longer complain that the court had erroneously rejected the first verdict." Turchio v. D/S A/S Den Norske Africa, 509 F.2d 101, 106 (2d Cir.1974). Accord Perricone v. Kansas City S. Ry. Co., 704 F.2d 1376, 1380 (5th Cir.1983); Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1156 (5th Cir.1981); Safeway Stores, Inc. v. Dial, 311 F.2d 595, 599 (5th Cir.1963).

To put this issue in practical terms, both parties embraced the district court's decision to reject what appeared to be a compromise verdict. Both opted for a win or a loss, not a tie. Fairness requires that the ultimate loser be held to that choice.

Williams also argues that we should reinstate the initial verdict and add on the stipulated actual damages. This issue was arguably preserved when counsel for Williams asked the district court to take this action before it decided to resubmit the 1988 claim. However, because the initial verdict was ambiguous, the district court did not abuse its discretion in rejecting a proposal...