Delph v. Dr. Pepper Bottling Co. of Paragould, Inc.

130 F.3d 349, 1997 U.S. App. LEXIS 34098, 72 Empl. Prac. Dec. (CCH) 45,079, 75 Fair Empl. Prac. Cas. (BNA) 886
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 5, 1997
Docket96-3909, 97-1160
StatusPublished
Cited by73 cases

This text of 130 F.3d 349 (Delph v. Dr. Pepper Bottling Co. of Paragould, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 1997 U.S. App. LEXIS 34098, 72 Empl. Prac. Dec. (CCH) 45,079, 75 Fair Empl. Prac. Cas. (BNA) 886 (8th Cir. 1997).

Opinion

BOWMAN, Circuit Judge.

Dr. Pepper Bottling Company of Para-gould (Arkansas), Inc., appeals from the judgment of the District Court rendered after a bench trial holding the company liable for maintaining a racially hostile work environment that resulted in the constructive discharge of Tommy Delph. The court awarded Delph $24,800 in back pay; $150,000 *352 in compensatory damages; and $50,000 in punitive damages. Dr. Pepper separately appeals the award to Delph of attorney fees in the amount of $88,800. We have consolidated the two cases and now affirm, except insofar as we reduce the amount of the compensatory damages award.

I.

We first recount the facts of the case, taking the evidence presented at the two-day trial in the light most favorable to the judgment. See Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir.1996). Delph, a black man, went to work for Dr. Pepper’s Poplar Bluff, Missouri, facility on May 4, 1990. He was hired as a part-time truck loader by Tom Orosz, branch sales manager, who was responsible for running the Poplar Bluff operation. Within two months, Delph was made the merchandiser at the Wal-Mart store, one of the branch’s largest accounts. Soon after that he was promoted to a position as route salesman, a full-time position that involved visiting customers on a fixed route (including the Wal-Mart store), selling soft drinks, delivering the product to the stores, and stocking the shelves. He was also expected to call on potential new customers. Effective June 15, 1992, Delph terminated his employment with Dr. Pepper.

Delph was the only black person working at the Poplar Bluff facility during his tenure with Dr. Pepper. He presented testimony at trial of several incidents that had serious racial overtones. He testified that Orosz and Terry Anspaeh, Delph’s route supervisor for a time, had told Delph on two or three occasions that he should not be found in Fisk, Missouri, after dark because no blacks worked there. The implication was that Delph should be frightened to find himself in such a situation. In keeping with that theme, Orosz also spoke with Delph about taking him deer hunting in Hardy, Arkansas, where “they would have a field day” with him because no blacks lived there. Trial Transcript at 39. In the winter before Delph quit Dr. Pepper, Orosz told Delph that he (Orosz) had been asked to join the Ku Klux Klan and “[t]hat he [Orosz] didn’t want to tell the guy that he had one working for him, a black guy.” Id. Orosz also told Delph that not many “black guys” had jobs like Delph’s, and because he was black he should work harder. Id. at 68.

According to the testimony, there was also a steady barrage of racial name-calling at the facility. Although the time when some of the incidents took place could not be pinpointed, Delph testified that they occurred right up until the time he terminated his employment with Dr. Pepper. There was evidence that Orosz called Delph “black boy” rather than using his name at sales meetings and in the presence of Delph’s co-workers, and otherwise on a regular basis. Anspaeh also used racial epithets when talking to and referring to Delph, including “nigger,” “black boy,” “token black boy,” and “my little black boy.” Id. at 33,187. Delph described in particular one occasion when Anspaeh was directing Delph as Delph was backing up his truck at a customer’s store. Anspaeh told Delph “to bring your ass, nigger, bring your ass.” Id. at 33. Anspaeh regularly used the phrase “bring your ass, nigger” to Delph, often in the presence of Delph’s colleagues, until An-spach was fired in April 1991. There also was testimony from Delph’s coworkers that they, too, used racial slurs and told racial jokes in the office and the warehouse, in the presence of Delph. Orosz and Anspaeh often were present as well, and said nothing about the offensive talk. Customers of Dr. Pepper also testified that they heard both Orosz and Anspaeh use racial epithets when referring to Delph.

There was evidence regarding several incidents involving Delph and his employer that do not have racial overtones, but that Delph nevertheless claims were evidence of racial animus on the part of Dr. Pepper. The court agreed that some of these episodes were discriminatory, but specifically found that others were not.

One incident that Delph found particularly distressing involved the destruction of company property. Dr. Pepper route salesmen were given computers and printers to use in their jobs. Pursuant to a written, two-year-old policy, Delph acknowledged when he was issued the equipment that he would be expected to pay to replace the units if they *353 were lost, or to pay $50 if his computer or printer would not work because of employee abuse or neglect. Delph accidentally backed over his printer with his truck in August 1990 and destroyed it. He was required to pay more than $900 for a replacement, 2 with twenty dollars per week withheld from his paycheck until the debt was paid. After Delph was told of the fine, he appealed to the company’s main office in Paragould and claimed the action was racially motivated. The assessment was sustained. The court concluded that this action on the part of Dr. Pepper was racially motivated because similarly situated white employees were not treated so harshly. The “similarly situated” white employees, however, had not destroyed their computers or printers, but had negligently damaged company vehicles, which were insured. (The computers and printers were not insured.) These employees were not required to pay anything to repair the vehicles, notwithstanding that collision insurance coverage on the vehicles likely carried a deductible, an out-of-pocket expense to the company.

On another occasion, in October 1990, Delph received a “write-up” (a formal written warning) from Anspach concerning an inadequately stocked vending machine on Delph’s route and insufficient supplies of soft drinks at Wal-Mart at the beginning of a weekend, with a notation that Delph needed to improve his attitude. The court found that it was not only unfair criticism but also was racially motivated, “[g]iven the other evidence about Mr. Anspaeh’s clear racial animus.” Transcript of Findings of Fact and Conclusions of Law at 20.

Then in March 1991, Delph received a three-day suspension for insubordinate behavior when dealing with Orosz. On the day in question, Delph had returned to the warehouse without making his afternoon stop at Wal-Mart. (He ordinarily made two stops at the store each day because it was such a high-volume account — one first thing in the morning and again last thing in the afternoon.) Delph was having vehicle trouble, and had planned to service the account in his personal vehicle that evening. But Orosz stopped in at Wal-Mart in the afternoon and called Delph at the warehouse when he saw that the account had not been serviced. As Delph tried to explain why he had not been to the store, Orosz suspended him and Delph hung up on Orosz. When Orosz called back, Delph refused to speak to him. (Orosz claims it was only then that Delph was suspended for three days.) Delph filed a grievance with the main office.

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130 F.3d 349, 1997 U.S. App. LEXIS 34098, 72 Empl. Prac. Dec. (CCH) 45,079, 75 Fair Empl. Prac. Cas. (BNA) 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delph-v-dr-pepper-bottling-co-of-paragould-inc-ca8-1997.