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

26 F.3d 1439, 1994 WL 259066

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 10, 1994
• Docket: 92-3178
• Status: Published

Opinions

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. § 1981 and Title VII when it filled two full-time positions with whites in 1986 and 1988. The district court¹ submitted the § 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.

KETVs 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 ra-dally 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 § 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 $89,700 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 that it unilaterally modify the verdict to resolve that ambiguity.⁴

III. Retaliation Issues.

Williams argues that the district court erred in refusing to instruct the jury separately on her § 1981 retaliation claim. Williams proposed an instruction that KETV was liable for retaliation if the jury found that KETV employees had “treat[ed] the plaintiff in a negative manner” as a result of her E.E.O.C. complaint. The district court properly rejected that instruction because liability under § 1981 “extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.” Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2367, 105 L.Ed.2d 132 (1989). Williams argues that the district court should have submitted her entire retaliation claim to the jury under the 1991 amendments to the Civil Rights Act. However, the relevant amendment does not apply to cases arising prior to the enactment of the Civil Rights Act. See Rivers v. Roadway Express, Inc., — U.S. -, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994).

Williams also argued at the instructions conference that her retaliation claim is actionable under Patterson because she alleges that KETV failed to hire her for the 1988 position on account of her E.E.O.C. complaint. The district court agreed with this contention but concluded that this aspect of the retaliation claim was adequately encompassed within its instructions regarding the 1988 refusal-to-hire claim. Williams did not object to those instructions. Since she misstated the law in her proposed instruction, and did not object to the instruction as given, this issue was not preserved for appeal. See Fed.R.Civ.P. 51; Jones v. Thompson, 974 F.2d 86, 88 (8th Cir.1992).

Consistent with the court’s ruling that retaliation was a legitimate part of the 1988 claim, counsel for Williams repeatedly emphasized that theory during her closing argument to the jury. Thus, the instructions given on the retaliation claim were not plain error. See Farmland Indus. v. Frazier-Parrott Commod., Inc., 871 F.2d 1402, 1408 (8th Cir.1989).

IV. The Title VII Claims.

After the jury returned its verdicts on the § 1981 claims, the district court entered findings of fact and conclusions of law dismissing Williams’s Title VII claims. Williams argues generally that the district court erred in entering judgment in KETVs favor on her Title VII claims. However, we may not consider this issue generally. The district court properly recognized that, in deciding the Title VII claims, it was bound by the findings contained in the jury’s § 1981 verdicts. See Catlett v. Missouri Highway & Transp. Comm’n, 828 F.2d 1260, 1263 (8th Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1574, 99 L.Ed.2d 889 (1988). The court also recognized that Williams’s Title VII sex discrimination claim, and part of her Title VII retaliation claim, had not been submitted to the jury. It considered those claims de novo. We review these two aspects of the district court’s Title VII ruling under different standards.

Williams argues that the district court erred in rejecting her Title VII refusal-to-hire claims “when the evidence established [her] right to a judgment on all counts.” Because the district court was estopped to resolve the Title VII claims inconsistently with the jury’s § 1981 verdicts, this argument is, in substance, a challenge to the sufficiency of the evidence to support the jury verdicts. As we previously stated, we conclude that there was sufficient evidence to support jury verdicts in favor of either party in this case. Therefore, the portion of the court’s Title VII ruling that was based upon the jury’s verdicts — rejecting the claims of race discrimination and retaliation regarding the 1986 and 1988 refusals-to-hire — must be affirmed. See, e.g., Fray v. Omaha World Herald Co., 960 F.2d 1370, 1378 (8th Cir.1992).

The district court also decided Williams’s sex discrimination and remaining retaliatory claims on the merits. On appeal, Williams does not challenge the dismissal of her sex discrimination claim, but she vigorously argues that the evidence “overwhelmingly supports” her Title VII retaliation claim. The district court found that Williams “did not prove by the greater weight of the evidence that adverse employment action occurred as a result” of her E.E.O.C. complaint. Sherpell v. Humnoke School Dist., 874 F.2d 536, 540 (8th Cir.1989). After carefully reviewing the record, we cannot say that this finding is clearly erroneous.

Although Williams introduced evidence that KETV retaliated by cutting back her hours, making derogatory remarks, taking her off more coveted assignments, and placing negative comments in her personnel file, the record does not reflect that she identified this conduct as actionable “adverse employment action.” She did not request Title VII equitable relief against this conduct, nor did she plead or argue this as a “discriminatory work environment” claim such as the Title VII claim at issue in Gilbert v. City of Little Rock, 722 F.2d 1390, 1394-95 (8th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984). Williams’s objective at trial was monetary relief for KETV’s refusal to promote her in 1986 and 1988: those were the adverse employment actions against which her retaliation evidence was directed. The district court decided the Title VII claims that Williams chose to present in a manner consistent with the jury verdicts, and we must affirm.

The judgment of the district court is affirmed.

1 . The HONORABLE WILLIAM G. CAMBRIDGE, United States District Judge for the District of Nebraska.

2 . There was evidence that personnel involved in the hiring decisions at issue referred to Williams as a "black bitch,” told racial jokes to co-workers, yelled only at Williams and another black female employee, and rebuffed a co-worker who complained that Williams was being treated unfairly.

3 . When told of the production manager's choice to fill the 1986 position, KETV's personnel manager was concerned that the promotion of an employee less senior than Williams might appear racially motivated. Therefore, she directed the production manager to obtain further input from producer-directors for whom the production assistants worked. When a number of directors supported Williams's rival, the personnel manager approved the production manager’s decision.

4 . Williams also argues that the district court erred in resubmitting the verdict without explaining the nature of the inconsistency. While it may seem preferable as a matter of hindsight if the court had explained the perceived inconsistency, the trial judge who has presided at trial and instructed the jury is in the best position to make such decisions. We conclude that the district court neither coerced the jury nor otherwise abused its discretion by rereading its prior instructions. See Karl v. Burlington No. R.R., 880 F.2d 68, 72-73 (8th Cir.1989).