Orris Bowles v. Osmose Utilities Services, Inc.

443 F.3d 671, 2006 U.S. App. LEXIS 7654, 87 Empl. Prac. Dec. (CCH) 42,312, 97 Fair Empl. Prac. Cas. (BNA) 1305, 2006 WL 783378
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 29, 2006
Docket05-2069
StatusPublished
Cited by19 cases

This text of 443 F.3d 671 (Orris Bowles v. Osmose Utilities Services, 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
Orris Bowles v. Osmose Utilities Services, Inc., 443 F.3d 671, 2006 U.S. App. LEXIS 7654, 87 Empl. Prac. Dec. (CCH) 42,312, 97 Fair Empl. Prac. Cas. (BNA) 1305, 2006 WL 783378 (8th Cir. 2006).

Opinion

ARNOLD, Circuit Judge.

Osmose Utilities Services, Inc., appeals the judgment of the district court 1 in favor of Orris Bowles on his race discrimination claim. Osmose requests judgment as a matter of law or, in the alternative, that the punitive damages award be set aside or reduced. We affirm the district court’s judgment in all respects.

I.

Orris Bowles was hired in November, 2003, by Steve Fisher, an Osmose foreman, to work on Mr. Fisher’s utility pole treatment crew. On January 6, 2004, Mr. Bowles filed a lawsuit against Osmose under 42 U.S.C. § 1981 claiming that it had subjected him to a racially hostile work environment. After a bench trial, the district court found for Mr. Bowles and awarded him $20,000 in compensatory damages and $80,000 in punitive damages.

A.

Osmose contends that the district court clearly erred in making findings of fact that supported Mr. Bowles’s account of the racial harassment that he suffered and the way that it affected him. We review the district court’s factual findings for clear error. Tadlock v. Powell, 291 F.3d 541, 546 (8th Cir.2002).

The district court found that soon after Mr. Bowles started working on the crew, Mr. Fisher peppered him and the other black crew members with racial insults. The court also made findings consistent with Mr. Bowles’s testimony about specific instances of conduct by Mr. Fisher and the injurious effect of those insults on Mr. Bowles.

“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Although there were some inconsistencies in the trial testimony of Mr. Bowles and his co-workers regarding when Mr. Fisher’s racist conduct began, how certain members of the crew responded, and how some events took place, the district court found this slightly confused set of narratives credible. The stories that Mr. Bowles and his witnesses told were all relatively coherent and differences between the accounts did not affect the matters at the core of this action, namely whether Mr. Fisher repeatedly used racial slurs when addressing the crew members and whether this behavior injured Mr. Bowles. It was not *674 clearly erroneous for the district court to credit the testimony of the crew.

B.

Osmose additionally asserts that, even if the district court did not clearly err in believing Mr. Bowles’s testimony about racial discrimination, the court should have entered judgment for the defendant on the basis of what is called the Ellerth defense. Under Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), if no tangible employment action was taken against the plaintiff, the employer took reasonable care to prevent and correct the objectionable behavior in a timely fashion, and the plaintiff unreasonably failed to mitigate the harm, then the employer is entitled to judgment in its favor.

Osmose contends that Mr. Bowles did not inform Mr. Fisher’s supervisor, Trevor Holmes, of Mr. Fisher’s racially offensive conduct until January 5, 2004, and that it was thus entitled to the Ellerth defense because Mr. Bowles’s delay was unreasonable and gave Osmose only one day’s notice to correct the problem before suit was filed. But Mr. Holmes’s testimony that no complaints of racial discrimination were made until January 5 was the only evidence that supported the Ellerth defense, and the district court disbelieved it. The court instead credited the testimony of Mr. Bowles and his fellow crew members that numerous complaints about Mr. Fisher’s conduct had been made to Mr. Holmes, some as far back as November 2003. The district court found that Mr. Holmes had been informed of the racial slurs soon after they began but that neither he nor his superior investigated the crew members’ accusations before January 5. On that date Mr. Holmes’s supervisor, Eric Hampton, asked Mr. Fisher if the allegations were true and accepted Mr. Fisher’s denial because (according to Mr. Hampton) he “tended to believe” that Mr. Fisher would not do the things that he was accused of.

As we have said, the decision to credit the testimony of certain witnesses and not others is virtually never clear error. See Anderson, 470 U.S. at 575, 105 S.Ct. 1504. And because the district court did not clearly err in believing the testimony that Osmose was given timely notice of the racial harassment but did nothing to correct it, we uphold the court’s rejection of the Ellerth defense, which requires an employer to take reasonable care to correct wrongful conduct in a timely fashion, see Ellerth, 524 U.S. at 765, 118 S.Ct. 2257.

II.

Osmose also appeals the district court’s award of $80,000 in punitive damages. We dispose first of Osmose’s contention that the amount was so excessive as to violate due process.

The Supreme Court has held that when punitive damages are single-digit multiples of compensatory damages they are “more likely to comport with due process” and that few awards that exceed such a single-digit ratio, “to a significant degree, will satisfy due process.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). In addition, where, as here, the amount of compensatory damages is not particularly large, a higher ratio between the punitive and compensatory damages will generally comport with due process. See id. Here the punitive-damages award is four times the compensatory-damages award, well within the single-digit range. We have approved punitive damages awards in this range where the conduct was especially reprehensible, see, e.g., Kim v. Nash Finch Co., 123 F.3d *675 1046, 1067 (8th Cir.1997), and have observed that the gravity of the defendant’s offense is the dominant consideration when determining the constitutionality of such an award, see Diesel Machinery, Inc. v. B.R. Lee Industries, Inc., 418 F.3d 820, 839 (8th Cir.2005).

The district court found on an ample record that as a result of Mr. Fisher’s behavior Mr. Bowles suffered considerable mental anguish.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nolasco v. Solaris Paper
E.D. Virginia, 2025
Nation v. Moore
W.D. Missouri, 2024
Brands International Corp. v. Reach Companies, LLC
103 F.4th 501 (Eighth Circuit, 2024)
John L. Johnson, Jr. v. P Rapid Sheet Metal, LLC
2020 DNH 181 (D. New Hampshire, 2020)
Johnson v. Rapid Sheet Metal, LLC
D. New Hampshire, 2020
Adrian Bryant v. Jeffrey Sand Company
919 F.3d 520 (Eighth Circuit, 2019)
Jennings v. Town of Stratford
263 F. Supp. 3d 391 (D. Connecticut, 2017)
Doss v. American Family Home Insurance
47 F. Supp. 3d 836 (W.D. Arkansas, 2014)
Basham v. American National County Mutual Ins.
979 F. Supp. 2d 883 (W.D. Arkansas, 2013)
Janice Wright v. St. Vincent Health System
730 F.3d 732 (Eighth Circuit, 2013)
TRIM FIT, LLC v. Dickey
607 F.3d 528 (Eighth Circuit, 2010)
Soltys v. Costello
520 F.3d 737 (Seventh Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
443 F.3d 671, 2006 U.S. App. LEXIS 7654, 87 Empl. Prac. Dec. (CCH) 42,312, 97 Fair Empl. Prac. Cas. (BNA) 1305, 2006 WL 783378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orris-bowles-v-osmose-utilities-services-inc-ca8-2006.