Petition for Writ of Certiorari — Couch v. Sprint Corp.
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a Supreme Court, U.S.
rine D
9271743 APR2 41998
OFFICE OF THs cispy
In The
Supreme Court of the United States
October Term, 1997
+
JERRY D. COUCH,
Petitioner,
SPRINT CORPORATION,
Respondent.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
¢
PETITION FOR WRIT OF CERTIORARI
THomas D. RODENBERG
Counsel of Record
Jeter Rains & Byrn, L.C.
1080 W. South Outer Road
Blue Springs, MO 64015
816/229-2132
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Whether Sprint’s commitment to diversity which
included considering a person’s race and sex in making
hiring and promotion decisions thereby creating prefer-
ences in employment decisions based on race and sex is
in violation of Title VII.
2. Whether Sprint’s commitment to diversity which
included considering a person’s race and sex in making
hiring and promotion decisions creates an inference of
discrimination which would support the jury’s unani-
mous verdicts that Sprint discriminated against Couch
based on race and sex.
3. Whether the court’s disregard for the clear stan-
dard to be followed in granting judgment as a matter of
law thereby setting aside unanimous verdicts in favor of
Couch on all claims violates Couch’s right to trial by jury.
4. Whether the district court and Eighth Circuit are
applying inconsistent standards in ruling on judgment as
a matter of law pursuant to Rule 50 by applying one
standard when the motion is granted before submitting
the case to a jury and a different standard when review-
ing such a motion after the case is submitted to the jury
and verdicts are returned.
il
TABLE OF CONTENTS
Page
FETE RAINS COON IGES 6 5s vena Scene cpepeeessans i
CPTI TIE ik 0 Ra een Vie ces ts 1
Pek tg 8 | Ree er pr ert ee eT eye ert 1
STATUTES AND RULES INVOLVED............... 2
STAT EMenITs COP Pepe (Ais alo. eke ces Sein 4
A. SUMMARY OF CLAIMS AND DISPOSITION... 4
Me es ae | Gy 5. epee eee ay Pere nsyna be
REASONS FOR GRANTING THE WRIT ........... 12
1. The Court should grant the writ to determine
whether Sprint’s commitment to diversity which
included considering a person’s race and sex in
making hiring and promotion decisions thereby cre-
ating preferences in employment decisions based on
race and sex is in violation of Title VII .......... 12
2. Whether Sprint’s commitment to diversity which
included considering a person’s race and sex in
making hiring and promotion decisions creates
an inference of discrimination which would sup-
port the jury’s unanimous verdicts that Sprint
discriminated against Couch based on race and
TLE EEE CE PET EE OE Me Co ES TE 17
3. Whether the court’s disregard for the clear stan-
dard to be followed in granting judgment as a
matter of law thereby setting aside unanimous
verdicts in favor of Couch on all claims violates
Couch’s right to trial by jury .................. 20
lii
TABLE OF CONTENTS — Continued
Page
4. Whether the district court and Eighth Circuit are
applying inconsistent standards in ruling on
judgment as a matter of law pursuant to Rule 50
by applying one standard when the motion is
granted before submitting the case to a jury and a
different standard when reviewing such a motion
after the case is submitted to the jury and ver-
NE No aig i fs 6 8b weenie 0 ie 5 27
ee eh a ek wd core k AOR owen W's 60 ham os 30
I eta tr ane get pee ee he eee 6 App. 1
iV
TABLE OF AUTHORITIES
Page
CASES
Adarand Constructors, Inc. v. Pena, 515 U.S. 200
CRs i565 Se dead ae oe ha ad Oi ks Ohi oan 13, 14
Anglen v. Braniff Airways, 237 F.2d 736 (8th Cir.
| RRR AE EEE RN RESIN, AEE MER RAE a ERD See 22
Bevan v. Honeyweli, Inc., 118 F.3d 603 (8th Cir.
BNI bein d cake kas shies ee Chas be ee ke 27
Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997)......... 18
Forbes v. Arkansas Educational Television Comm., 93
PS FT Ce Ge SNE i bi Rida asa pews does Venw bes 25
Fox v. T-H Continental Limited Partnership, 78 F.3d
MOP CBs Sa FI i io oe re a ie ek a7, Bhs he ae
Fullilove v. Klutznick, 448 U.S. 448 (1980)......... 13, 14
Gallick v. Baltimore & Ohio Railroad Co., 372 U.S.
Be CR a io i S58 ee ee ee CAE Sw na cap eat hees 21
Hopwood v. State of Texas, 78 F.3d 932 (5th Cir.),
Core. Gents, 316 TUE Zot CRs aS are ce ager sions 13
Keenan v. Computer Associates Int'l, 13 F.3d 1266
OR Ca RR ae kok ane daasaw kad oes eel 22, 23
Lavender 0. Karn, S27 US. GES CIR). oc vc ice swes cass 26
McDonnell Douglas v. Green, 411 U.S. 792 (1973)..... 27, 28
Messer v. Meno, 130 F.3d 133 (5th Cir. 1997)......... 14
Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796
Coa Ke, Seni ois Ceiba ene ced oa keke 17, 22
Parrish v. Immanuel Medical Center, 92 F.3d 727 (8th
Ce: SOE oe eas has cen kes 22, 28, 29, 30
TABLE OF AUTHORITIES — Continued
Page
Phillips v. ANR Freight Systems, Inc., 945 F.2d 1054
CO EE, BOE is skins .nas dda ss caev as eens 19, 20
Regents of the University of California v. Bakke, 438
SEN IO CAMO cb k beh Sa ohne eh eVERSLI ROT ew es 13
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ..13, 14
Ryther v. KARE 11, 108 F.3d 832 (8th Cir.
EN Re nae he Cen ance ee ee ens te oe ae
Taxman v. Board of Education of the Township of
Piscataway, 91 F.3d 1547 (3rd Cir. 1996) ........ 13, 16
United Steel Workers of America v. Weber, 433 U.S.
BE a og | ESRI IRE Camara atts eats Ae tnd ae aan: he 13, 14
White v. Pence, 961 F.2d 776 (8th Cir. 1992)....... 22, 28
Wygant v. Jackson Board of Education, 476 U.S. 267
CE sic a ea ee Ces Cea RR oe ee eee 13, 14
STATUTES AND RULES
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Steet ee ae vad
PETITION FOR WRIT OF CERTIORARI
Jerry D. Couch (“Couch”) respectfully petitions the
Court for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Eighth Circuit.
¢
OPINIONS BELOW
On December 18, 1997, the Eighth Circuit issued its
opinion affirming the judgment of the district court and
agreeing with the District Court’s analysis and conclu-
sion. See Eighth Circuit Rule 47B. App. 1-2.1 The Eighth
Circuit followed the analysis, conclusions and opinion of
the District Court contained in its written opinion filed
on December 26, 1996. App. 12-31. The opinion of the
Eighth Circuit is reported at 131 F.3d 764. The District
Court opinion is unpublished. On January 28, 1998, the
Eighth Circuit denied Couch’s motion for rehearing by
the panel and for rehearing en banc. App. 32.
2
JURISDICTION
On January 28, 1998, the United States Court of
Appeals for the Eighth Circuit denied the suggestions for
rehearing en banc and by the panel. App. 32. The jurisdic-
tion of this Court is invoked under 28 U.S.C. § 1254(1).
+
' References to the Appendix to this Petition shall be
referred to as “App.” with the page number(s). The trial
transcript shall be referred to as “Tr.” with the page number(s).
Any reference to the Appellate Appendix submitted by Couch
shall be referred to as “Aplt. App.” with the page number(s).
STATUTES AND RULES INVOLVED
Couch brought claims pursuant to Title VII of the
Civil Rights Act of 1964, as amended. The following
statutory provisions are involved:
42 U.S.C. § 2000e-2(a)
It shall be an unlawful employment practice for
an employer (1) to fail or refuse to hire or to
discharge any individual, or otherwise to dis-
criminate against any individual with respect to
his compensation, terms, conditions, or privi-
leges of employment, because of such individ-
ual’s race, color, religion, sex or national origin;
or (2) to limit, segregate, or classify his
employees or applicants for employment in any )
way which would deprive or tend to deprive
any individual of employment opportunities or
otherwise adversely affect his status as an
employee, because of such individual’s race,
color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(j)
Nothing contained in this subchapter shall be
interpreted to require any employer, employ-
ment agency, labor organization, or joint labor-
management committee subject to this subchap- |
ter to grant preferential treatment to any indi-
vidual or to any group because of the race,
color, religion, sex or national origin of such i
individual or group on account of an imbalance
which may exist with respect to the total
number or percentage of persons of any race,
color, religion, sex, or national origin employed
by any employer, referred or classified for
employment by any employment agency or
labor organization, admitted to membership or
classified by any labor organization, or admitted
to, or employed in, any apprenticeship or other
training program, in comparison with the total
number or percentage of persons of such race,
color, religion, sex, or national origin in any
community, State, section, or other area, or in
the available work force in any community,
State, section or other area.
42 U.S.C. § 2000e-3
It shall be an unlawful employment practice for
an employer to discriminate against any of his
employees or applicants for employment, for an
employment agency, or joint labor-management
committee controlling apprenticeship or other
training or retraining, including on-the-job
training programs, to discriminate against any
individual, or for a labor organization to dis-
criminate against any member thereof or appli-
cant for membership, because he has opposed
any practice made an unlawful employment
practice by this subchapter, or because he has
made a charge, testified, assisted, or partici-
pated in any manner in an investigation, pro-
ceeding, or hearing under this subchapter.
This case also involves the correct standard for grant-
ing judgment as a matter of law. Federal Rule of Civil
Procedure 50(b) provides:
If, for any reason, the court does not grant a
motion for judgment as a matter of law made +t
the close of all the evidence, the court is consiu-
ered to have submittec the action to the jury
subject to the court’s later deciding the legal
questions raised by the motion. The movant
may renew its request for judgment as a matter
of law by filing a motion no later than 10 days
after entry of judgment - and may alternatively
request a new trial or join a motion for a new
trial under Rule 59. In ruling on a renewed
motion, the court may: (1) if a verdict was
returned; (A) allow the judgment to stand, (B)
order a new trial, or (C) direct entry of judgment
as a matter of law; or (2) if no verdict was
returned; (A) order a new trial, or (B) direct
entry of judgment as a matter of law.
a
STATEMENT OF THE CASE
A. Summary of Claims and Disposition.
Couch brought claims of reverse discrimination
against Sprint Corporation (“Sprint”) based on sex and
race discrimination and a aretaliation claim each brought
pursuant to Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seqg., and the Missouri
Human Rights Act, Mo. Rev. Stat. § 213.055. Couch con-
tended that Sprint passed over him for promotion based
on his race and sex and retaliated against him for com-
plaining about this conduct. All three claims were sub-
mitted to the jury with unanimous verdicts being
returned in favor of Couch on all claims, assessing com-
pensatory damages as follows: sex discrimination, $5,000;
race discrimination, $10,000; and retaliation, $100,000.
At the close of Couch’s evidence, Sprint filed its
Motion for Judgment as a Matter of Law as to all claims
and punitive damages. The district court granted Sprint’s
Motion as to punitive damages only and did not submit
them to the jury. Pursuant to Federal Rule of Civil Pro-
cedure 50, the court took the remaining issues of the
Motion under advisement and submitted the case to the
jury. After the verdicts in favor of Couch on all claims,
Sprint renewed its Motion for Judgment as a Matter of
Law or in the alternative for a New Trial. On October 25,
1996, the district court heard oral arguments and granted
Sprint’s Motion for Judgment as a Matter of Law thereby
setting aside all three verdicts. The court denied Sprint's
Motion for New Trial.
On November 4, 1996, Sprint filed a motion to alter
or amend the judgment as to the court’s ruling on new
trial. On December 26, 1996, the district court issued its
order granting judgment as a matter of law and granting
the motion to reconsider its ruling on a new trial. App.
12-31. On March 25, 1997, the court issued its order
reversing its earlier ruling on new trial and granted
Sprint a new trial. App. 3-11. Couch appealed the court’s
rulings on judgment as a matter of law and new trial. The
Eighth Circuit affirmed the district court’s decision on
judgment as a matter of law thereby setting aside unani-
mous jury verdicts on all claims. App. 1-2.
B. Relevant Facts.
In 1993, Sprint made a corporate decision to reorga-
nize the Materials Management department (name
changed to “Materials and Services Management”; here-
inafter referred to as “MSM”). John Meyer, Senior Vice
President, was responsible for MSM and was involved in
the decision to reorganize. Couch was employed by
Sprint in the MSM department at the time of the reorgani-
zation.
As a part of the reorganization, Sprint pursued a
corporate-wide commitment to diversity which it
believed was important to its business. Mr. Meyer
expected all management persons reporting directly to
him to share and implement the commitment to diversity.
Mr. Meyer directed that minorities and females be
included on the management team. The commitment to
diversity was separate and apart from Sprint’s affirma-
tive action program. Sprint’s corporate-wide commitment
to diversity was self-imposed, not required by any law.
Sprint did not present any evidence as to an imbalance in
the work force or any other evidence of a history of
discrimination to justify the implementation of the com-
mitment to diversity.
It was undisputed at trial that the commitment to
diversity applied to the actual hiring and promotion deci-
sions at Sprint. Mr. Meyer plainly testified that Sprint’s
commitment to diversity included considering race and
sex in making hiring and promotion decisions.
Q. (to Mr. Meyer) . . . So in terms of this
commitment to diversity, a part of that commit-
ment was considering a person’s race to fill that
position, is that correct?
A. It was one of the elements that we consid-
ered when filling a position, Yes.
Q. And that’s a part of the commitment to
diversity, isn’t that correct?
A. Yes.
i
:
f
:
:
Q. And the person’s sex was also another con-
sideration as a part of the commitment to diver-
sity, is that correct?
A. Yes. (_.. 145, line 24 to 146, line 9)
Q. (to Mr. Meyer) So in hiring and promoting
people to its work force, Sprint is to take into
account that commitment to diversity, correct?
A. Yes.
Q. And that includes, as a part of the commit-
ment to diversity, race and sex, correct?
A. Yes. (Tr. 202, line 24 to 203, line 5)
Kay Brown, Director of Fair Employment Practices,
stated that Sprint’s commitment to diversity included
considering a person’s race and sex in hiring and promo-
tion decisions. Ms. Brown, whose responsibilities
included integrating Sprint’s commitment to diversity,
stated that the commitment was to make sure that Sprint
was diversified in terms of race and sex. She stated that
diversity was key to having a highly representative work
force.
Pursuant to the commitment to diversity, the new
management team for MSM assembled at Mr. Meyer’s
direction included minorities and females. Lauren
Wright, a white female, was selected to be the Assistant
Vice President over MSM. She replaced a male in that
position. When Lauren Wright took over the position,
there were seven white males reporting directly to Ms.
Wright who had previously reported to her male prede-
cessor. Mr. Meyer advised Ms. Wright that as she built
her own management team, she should use that as an
opportunity to find qualified females and minorities. Ms.
Wright herself believed that every hiring and promotion
opportunity was an opportunity to further diversify the
work force.2 Ms. Wright expected those who reported
directly to her to share the commitment to diversity.> Ms.
Wright selected a management team which consisted of
three white males, two minority males and one white
female. The new team began in January 1994.
As a part of the reorganization, Benn Sledge, a black
male, was made the Director of Contracts and National
Agreements (“CNA”), a smaller group within MSM. Mr.
Meyer and Ms. Wright selected Mr. Sledge for the posi-
tion. Ms. Wright told Mr. Sledge during the selection
process that things were getting better at Sprint in terms
of diversity in that minorities and females were able to
advance. Mr. Meyer also told Mr. Sledge that things were
changing at Sprint and that Sprint recognized the need
for diversity and was doing something about it. Mr.
Sledge would serve in that position approximately eigh-
teen months from January 1994 to September 1995.
Mr. Couch was employed by ~>rint at the time of the
reorganization within MSM as a national agreements
negotiator within the CNA group. Mr. Couch had been
2 Several Sprint employees recalled that in a meeting with
all employees of MSM, Ms. Wright said something like she
viewed every hiring and promotion opportunity as an
opportunity to further diversify the work force. Sara Miller, Tr.
667, |. 14-668, 1. 12; Sara Shepherd, Tr. 765, Is. 5-24; Couch, Tr.
1112, Is. 2-20; and Benn Sledge, Tr. 409, 1. 21-410, 1. 6.
3 Donald McCormick, Director of Procurement within
M&SM who reported directly to Ms. Wright, stated that the
commitment to diversity was a commitment to the hiring of
minorities and females. Tr. 830, Is. 10-19.
employed by Sprint approximately nine years when
diversity became the driving commitment of Sprint.
Couch was initially hired by Sprint to begin the national
agreements group as they had not been using national
contracts before that time. From the date of his employ-
ment to the beginning of the reorganization in January
1994, Couch’s performance was rated as either above
expectations or fully satisfactory. Couch was never disci-
plined or demoted during that same time.
During the eighteen month period that Mr. Sledge
served as the Director of CNA, the advancements within
the group went overwhelmingly to females or minorities.
Overall, the facts were undisputed - of the 19 employ-
ment advances in Mr. Sledge’s group, 16 went to females
or minorities. App. 33-34. Couch presented evidence at
trial that white males applied for all but two of these
positions. One of the most sought after positions within
the group was Lead Negotiator. The position was highly
sought after based on the salary grade and salary range.
In early 1994, Sprint posted an announcement for four
available lead negotiator positions. Fifty-two applications
were received for those positions, thirty-six from males
and sixteen from females. All four positions initially
filled in Mr. Sledge’s group were given to females. Couch
applied for all four positions.
In addition, all management positions filled in 1994
by Mr. Sledge went to females or minorities. Manager of
National Agreements was filled twice in 1994 — both
advancements went to females. Sprint violated its own
job posting guidelines and did not post the position the
first time it was filled. Couch applied for the position the
10
second time it was filled and was passed over for a
female. Manager of Corporate Agreements was filled
twice in 1994 — one to a female and one to a black male.
Sprint violated its own job posting guidelines and did not
post the position the first time it was filled. Mr. Couch
was promised by Mr. Sledge that he would be considered
for the position the second time it was filled. Instead, it
was awarded to a less qualified and, according to Couch’s
evidence, an unqualified black male. Couch presented
credible evidence that he was more qualified than Sara
Shepherd, who was promoted over him to Manager
National Agreements in October 1994, and more qualified
than Isaiah Brown, who was hired as a Manager Corpo-
rate Agreements. In the first ten months of the diversity
movement as implemented in Mr. Sledge’s group, all
highly paid or management positions were awarded to
females or minorities.
Couch presented evidence that Sprint’s written job post-
ing guidelines were violated in order to advance females and
minorities. Sprint violated its policy of posting vacancies in
advancing females; Sprint violated its policy that a person be
in their position one year before advancement in favor of
females; and Sprint changed job postings by taking out
requirements to make females and minorities appear quali-
fied for positions. Sprint presented no evidence that white
4 The job requisition for Lead Negotiator which was filled
by Sara Miller was changed by Mr. Sledge to remove the
educational requirement. Mr. Sledge admitted he knew Ms.
Miller would not meet that requirement. The job posting for the
position of Manager Corporate Agreements filled by Isaiah
Brown, a black male, was changed to remove the requirement of
software development and intellectual property knowledge. It
11
male employees were similarly benefited by its violation of
job posting policies.
During Mr. Sledge’s tenure as Director of CNA, only
three employees in his group were adversely affected -
all white males. Couch and another white male were
demoted. Only one position was eliminated as a result of
the reorganization — a white male’s position. No females
Or minorities in Mr. Sledge’s department were demoted.
In nine years of previous employment with Sprint, Couch
had never been disciplined or demoted for any reason. In
less than one year after diversity becomes the aggressive
plan, Couch is demoted.
Couch’s retaliation claim involved his complaint
about being passed over for promotion to Manager
National Agreements for Sara Shepherd. On October 26,
1994, Couch complained to Benn Sledge that he was
passed over for a female. It had been the sixth time in ten
months. Mr. Sledge got very mad and took Couch’s chal-
lenge as a complaint. Just 56 days after his complaint, on
December 15, 1994, Mr. Sledge demoted Couch allegedly
because of his actions in amending a pager contract.
Couch presented credible evidence that the pager con-
tract had to be amended because the provider was suffer-
ing an economic hardship due to abnormally high usage,
that the provider would not continue to suffer the hard-
ship and the contract could be terminated in thirty days.
was undisputed that Mr. Brown did not have this knowledge.
Once Mr. Brown left the company, the position was reposted
and software development and intellectual property knowledge
was once again a requirement for the position.
12
Couch determined that the provider was the only one
who could provide the needed service at the best price.
Couch followed Mr. Sledge’s instructions and fiscal
policies and amended the agreement. Other experienced
contract negotiators testified that circumstances could
arise which would justify renegotiating the terms of an
existing contract, that it was not unusual to renegotiate
even though months or years may remain on the term of
the agreement, that renegotiation could involve an
increased cost to Sprint and that economic hardship to a
vendor could be a basis to renegotiate a contract.
¢
REASONS FOR GRANTING THE WRIT
1. The Court should grant the writ to determine
whether Sprint’s commitment to diversity which
included considering a person’s race and sex in
making hiring and promotion decisions thereby cre-
ating preferences in employment decisions based on
race and sex is in violation of Title VII.
There has been a dangerous course developing in
corporate America. One need only talk to persons
employed in corporate America today to see how wide-
spread this course has become. Corporate America is
dedicating considerable time and resources to this course.
The course is most commonly referred to as “diversity” in
the work place. The course is dangerous because, even
though cloaked in what may appear to be a desirable
goal, it is nothing less than creating preferences based on
race and sex in making employment decisions. Such a
Be a COI Le
= nyane LOPE PR PTR YE ge aT eng
NO PID CRORE SANE ey eye eon eS mae
13
course is in violation of Title VII. Sprint plainly followed
this dangerous course.
The Third Circuit addressed this course in the con-
text of public education. In Taxman v. Board of Education of
the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996), the
school board was unabashed in its position — they termi-
nated a white employee and kept a black employee in the
name of maintaining a “culturally diverse” work force. Id.
at 1552. The issue was so clear cut to the district court
that it granted summary judgment in favor of Ms. Tax-
man. The issue was likewise clear to the Third Circuit.
After a review of the purposes and legislative history of
Title VII, the Third Circuit was left with only one firm
conclusion — “there is no congressional recognition of
diversity as a Title VII objective requiring accommoda-
tion.” Id. at 1558. See also Regents of the University of
California v. Bakke, 438 U.S. 265, 307 (1978) (“Preferring
members of any one group for no reason other than race
or ethnic origin is discrimination for its own sake. This
the Constitution forbids.”); Hopwood v. State of Texas, 78
F.3d 932, 940 (5th Cir.), cert. denied, 116 *.Ct. 2581 (1996)
(holding that “the use of ethnic diversity simply to
achieve racial heterogeneity, even as part of the consider-
ation of a number of factors, is unconstitutional”).
The issue of diversity has been addressed by this
Court most often in the context of a public employer or
public project and under a constitutional analysis. See
Bakke; Fullilove v. Klutznick , 448 U.S. 448 (1980); Wygant v.
Jackson Board of Education, 476 U.S. 267 (1986); Richmond v.
].A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors,
Inc. v. Pena, 515 U.S. 200 (1995). However, in United Steel
Workers of America v. Weber, 433 U.S. 193 (1979), this court
14
addressed whether Title VII permits employers in the
private sector to make race conscious employment deci-
sions absent some need to “eliminate manifest racial
imbalances in traditionally segregated job categories”. Id.
at 197. The general holding was that Title VII “does not
condemn all private, voluntary, race-conscious affirma-
tive action plans.” The action in Weber was not con-
demned because of the clear pattern of racial segregation
in the specified job categories which justified race-con-
scious decisions. Id. at 208. The action likewise did not
“unnecessarily trammel the interests of white employees”
because it did not require the termination of white
employees and did not bar their advancement. Id.
The Court’s cases in this area, whether in the public
or private sector, demand that any decision based on an
otherwise impermissible act of discrimination be justified
by a showing of prior discrimination. Fullilove, 448 U.S. at
518-19; Wygant, 476 U.S. at 276-77; Croson, 488 U.S. at 500;
Adarand, 515 U.S. at 228-29. There must be a remedial
need to justify making employment decisions based on
race and sex or such decisions are in violation of the
Constitution and Title VII. See also Messer v. Meno, 130
F.3d 133, 136 (5th Cir. 1997) (“Diversity programs, no
matter how well-meaning, are not constitutionally per-
missible absent a specific showing of prior discrimina-
tion, because ‘good intentions’ alone are not enough to
sustain a supposedly ‘benign’ racial classification.”) (cit-
ing Adarand, 515 U.S. at 228-29).
Sprint’s conduct in this case is a perfect illustration of
corporate America’s commitment to the course of diver-
sity. It is also a classic case of such a course, however well
meaning, being in violation of Title VII. The undisputed
ee
15
evidence was that Sprint aggressively implemented a
commitment to diversity in hiring and promoting per-
sons. That commitment included considering a person’s
race and/or sex in filling positions. Sprint viewed every
hiring and promotion opportunity as a opportunity to
diversify its work force. It was Sprint’s express intent to
diversify the work force by considering race and sex in
employment decisions.
Sprint’s actions prove this aggressive commitment to
diversity. Mr. Meyer directed the reorganization, held
strongly to the commitment to diversity and directed that
minorities and females be found for the management
team. The management team, previously led by a male
with seven white male managers, became headed by a
female and was newly composed of two black males, a.
white female and three white males. The undisputed
evidence was that in Couch’s department during the time
Benn Sledge was director, Sprint made 19 employment
decisions. Of those 19 advancements, 16 went to minor-
ities and females. Couch was passed over six times for
high paid or management positions in favor of females.
He was also passed over for a less qualified minority
male. The reasonable inference from the evidence is that
Sprint passed over Couch, a white male, based on his race
and sex.
The evidence is undisputed — Sprint pursued diver-
sity with a vengeance and considered race and sex in
making employment decisions. The actions of Sprint
spoke just as loudly as their words. There is no question
that Sprint made race based and gender based employ-
ment decisions pursuant to the goal of diversity. What is
critical is that Sprint did not offer any evidence of a
16
remedial need to make such decisions. The testimony was
that diversity was not required by law; it was wholly
voluntary and completely separate from its affirmative
action program. Furthermore, the evidence showed that
the interests of white males were being unnecessarily
trammeled. In the absence of evidence of prior discrimi-
nation such that race based or gender based decisions
were remedial in nature, Sprint’s commitment to diver-
sity so aggressively implemented is in violation of Title
VII.
The Court should grant a writ to address this issue of
great public importance. Corporate America has chosen
to pursue a course of diversity without regard for the
prohibitions of Title VII and without regard for any need
to do so. It continues undisturbed. In the name of seeking
a diverse work force, Sprint without hesitation admitted
that it considered race and sex in making employment
decisions. Such a course violates Title VII and any corpo-
rate commitment to diversity which is so designed is in
violation of Title VII. The Court granted cert in Taxman
but missed the opportunity to address this issue of great
importance when the case settled. The Court should grant
a writ in this case to again seek to address this unique
and importartt-issue. The Court must communicate to
corporate America that race and gender based decisions
under the guise of diversity violate Title VII.
COPIER con: coer ragpepmpemarnnenenre ee a
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17
2. Whether Sprint’s commitment to diversity which
included considering a person’s race and sex in
making hiring and promotion decisions creates an
inference of discrimination which would support
the jury’s unanimous verdicts that Sprint discrimi-
nated against Couch based on race and sex.
It is vital to the integrity and value of the jury system
that the district court adhere to the high standard of
review before setting aside jury verdicts. As the Eighth
Circuit has concluded, “We are reminded of the univer-
sally adopted standard that judges must be extremely
guarded in granting judgments as a matter of law after a
jury verdict.” Ryther v. KARE 11, 108 F.3d 832, 845 (8th
Cir. 1997). In making its review, the district court must
not weigh the evidence or consider the credibility of the
evidence. Fox v. T-H Continental Limited Partnership, 78
F.3d 409, 413 (8th Cir. 1996). The court must view the
evidence as follows:
(1) consider the evidence in the light most favor-
able to [Couch], (2) assume that all conflicts in the
evidence were resolved in favor of [Couch], (3)
assume as proved all facts that [Couch’s] evidence
tended to prove, and (4) give [Couch] the benefit of
all favorable inferences that may reasonably be
drawn from the facts proved. (underlining
emphasis added)
Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 800 (8th
Cir. 1994). See also Fox, 78 F.3d at 413.
After nearly five days of trial, it was the unanimous
conclusion of six jurors that Sprint discriminated against
Couch based on his race and sex and retaliated against
him when he complained of continuing discrimination.
18
The jury heard the evidence of Sprint’s commitment to
diversity. In light of this evidence, it is simply unbeliev-
able that the district court would reject the unanimous
decision of the jurors and set the verdicts aside.
However, in its opinion, the district court makes no
mention of Couch’s undisputed evidence of Sprint’s com-
mitment to diversity. Unbelievably, Judge Dean Whipple
is completely silent as to the commitment, its express
purpose and goal, and the actions taken by Sprint overall
in Couch’s department. If a person reads only the district
court opinion, accepted completely by the Eighth Circuit,
one would conclude the word “diversity” was never even
mentioned in the trial.
At oral argument, the Eighth Circuit indicated that
the diversity evidence would not be considered based on
its conclusion in Duffy v. Wolle, 123 F.3d 1026 (8th Cir.
1997). David Duffy brought a claim of gender discrimina-
tion and raised the issue of diversity as additional cir-
cumstantial evidence of discrimination. However, the
Duffy case involved evidence of the employer’s “interest
in obtaining a diverse pool of applicants”. Id. at 1038. The
Eighth Circuit concluded that such evidence did not sup-
port a finding of pretext. Id. Couch’s evidence was not
limited to the applicant pool. The undisputed evidence
was that Sprint considered race and sex in making hiring
and promotion decisions. The Duffy case is not controlling
on the diversity evidence in Couch’s case.
The evidence of diversity alone would provide a
reasonable inference of discrimination to support the
jury’s unanimous verdicts. Diversity reigned supreme
and the employment decisions made by Sprint make that
19
truth painfully obvious. With respect to Couch’s claims,
he was passed over for Manager National Agreements for
a female — it was the sixth time he had been passed over
for females. He presented credible evidence of his supe-
rior qualifications. Couch was passed over for Manager
Corporate Agreements for a black male. The black male
clearly did not have one of the stated requirements for
the position — Sprint, not surprisingly, removed that
requirement from the job description. Couch presented
clear evidence of his vastly superior qualifications for the
position. It is certainly a reasonable inference from the
evidence that diversity ruled the day. The jury’s verdicts
were supported by the reasonable inference from the
diversity evidence alone.
The district court’s disregarding the important back-
ground evidence of diversity in this Title VII case may
only be understood by Judge Whipple’s comments in a
prior case. In Phillips v. ANR Freight Systems, Inc., 945 F.2d
1054 (8th Cir. 1991), the plaintiff made an offer of proof as
to background evidence of other discrimination com-
plaints against defendant. Judge Whipple heard the offer
and rejected the evidence. His comments on the record
are very significant in light of his actions in this case:
I am not going to let them in, unproven allega-
tions. Just because lawsuits are filed doesn’t
give credibility to them, especially in these
cases. Those are Title VII cases. Congress cre-
ated a nightmare because they entice anybody
and everybody to file those things and entice
any attorney to file them in the mere chance that
if they win a dollar they can win attorney fees.
So I think any Title VII cases ought to be looked
20
at with suspicion to begin with because it’s a
crap shoot, which everybody engages in.
Id. at 1055. The bias of Judge Whipple has been stated on
the record. This case discloses the danger of that bias in a
case where critical background evidence is totally
ignored by the judge.
The district court and the Eighth Circuit’s decisions
to ignore completely the probative evidence of race and
sex based employment decisions based on Sprint’s com-
mitment to diversity cannot be tolerated by this Court.
The Court should grant the writ to find that evidence of
an employer’s commitment to diversity which created
race and gender based employment decisions is probative
of discrimination and would support the jury’s verdicts
in this case.
3. Whether the court’s disregard for the clear standard
to be followed in granting judgment as a matter of
law thereby setting aside unanimous verdicts in
favor of Couch on all claims violates Couch’s right
to trial by jury.
In this case, the district court decided to submit the
case to the jury and withhold a ruling on judgment as a
~~—matter of law. The district court and the Eighth Circuit
violated Couch’s right to jury when they swept the jury’s
verdicts away by ignoring the high standard for granting
judgment as a matter of law.
The standard for the courts in determining whether
to take a case from the jury or set aside the jury’s verdict
is well settled and very demanding.
a
21
It is not the function of a court to search the
record for conflicting circumstantial evidence in
order to take the case away from the jury on a
theory that gives equal support to inconsistent
and uncertain inferences. The focal point of judi-
cial review is the reasonableness of the particu-
lar inference or conclusion drawn by the jury. It
is the jury, not the court, which is the fact-
finding body. It weighs the contradictory evi-
dence and inferences, judges the credibility of
witnesses, receives expert instructions, and
draws the ultimate conclusion as to the facts.
The very essence of its function is to select from
conflicting inferences and conclusions that
which it considers most reasonable. [citations
omitted] That conclusion, whether it relates to
negligence, causation or any other factual mat-
ter, cannot be ignored. Courts are not free to
reweigh the evidence and set aside the jury ver-
dict merely because the jury could have drawn
different inferences or conclusions or because
judges feel that other results are more reason-
able.
Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108,
114-115 (1963).
The standard is clear and well stated in the Eighth
Circuit. In Fox v. T-H Continental Limited Partnership, 78
F.3d 409 (8th Cir. 1996), the Eighth Circuit discussed the
standard for granting judgment as a matter of law.
A motion for judgment as a matter of law pre-
sents a legal question to the district court, in the
first instance, and to this Court on review:
“whether there is sufficient evidence to support a
jury verdict.” (italics emphasis added)
22
Id. at 413 (citing White v. Pence, 961 F.2d 776, 779 (8th Cir.
1992)). See also Parrish v. Immanuel Medical Center, 92 F.3d
727, 731 (8th Cir. 1996). The court must not weigh the
evidence or consider the credibility of the evidence. Fox,
78 F.3d at 413. The court must view the evidence as
follows:
(1) consider the evidence in the light most
favorable to [Plaintiff], (2) assume that all conflicts
in the evidence were resolved in favor of [Plain-
tiff], (3) assume as proved all facts that [Plain-
tiff’s] evidence tended to prove, and (4) give
[Plaintiff] the benefit of all favorable inferences that
may reasonably be drawn from the facts proved.
(italics emphasis added)
Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 800 (8th
Cir. 1994). See also Fex, 73 F.3d at 413. A motion for
judgment as a matter of law should be granted “only when
all the evidence points one way and is susceptible of no
reasonable inferences sustaining the position of the non-
moving party” (underlining emphasis added). Keenan v.
Computer Associates Int'l, 13 F.3d 1266, 1269 (8th Cir.
1994); Nelson, 26 F.3d at 800. Once the verdicts were
returned, the district court was not free to set them aside
because it disagreed with the jury’s decision and its
determination of the inferences from the evidence.
This court has long held that “[i]n a jury case,
where conflicting inferences reasonably can be
drawn from evidence, it is the function of the
jury to determine what inferences shall be
drawn.”
Ryther,-108 F.3d at 845 (citing Anglen v. Braniff Airways,
237 F.2d 736, 740 (8th Cir. 1956)). If reasonable jurors
ais A i ara a cr neem come
23
could differ, the trial court’s grant of judgment as a
matter of law must be reversed.
Neither the Eighth Circuit nor the district court fol-
lowed this well established standard. First, the Eighth
Circuit expressly states that it agreed with the district
court that there is no “substantial evidence” that Sprint’s
given reasons were a pretext for discrimination. App. 1-2.
The standard for review does not require a finding that
Couch produce “substantial evidence” to avoid judgment
as a matter of law. Even Sprint admitted in its briefing to
the Eighth Circuit that the standard does not require a
finding of substantial evidence. The high standard for
considering judgment as a matter of law requires that all
the evidence point one way and be susceptible of no
reasonable inference sustaining plaintiff’s claims. Keenan,
13 F.3d at 1269. This well established standard is
designed to assure and protect the value of the jury system.
By its own admission, the Eighth Circuit followed the
district court and applied a standard which makes it
much easier for the court to grant judgment as a matter of
law by looking for “substantial evidence.” This error
resulted in a disregard for the value of the jury’s delibera-
tions and verdicts. Both courts obviously failed to apply
the proper standard in reviewing the evidence and con-
sidering judgment as a matter of law.
Second, the standard expressly prohibits the courts
from weighing the evidence. The Eighth Circuit's erro-
neous review of the record looking for “substantial evi-
dence” reveals that they did indeed weigh the evidence.
In their opinion, the Eighth Circuit also refers to Couch’s
evidence as “meager”. The Eighth Circuit obviously
24
engaged in weighing the evidence and, in further disre-
gard for the standard, examined only the evidence which
favored Sprint. For example, the Eighth Circuit recites
that the evidence was that Couch renegotiated a contract
“to Sprint’s detriment”. App. 2. The Eighth Circuit and
the district court do not look at any of Couch’s evidence
which demonstrated that the contract had to be renegoti-
ated and that greater detriment to Sprint would result
from his failure to do so. The Eighth Circuit violated the
well established standard by weighing the evidence and
doing so in favor of Sprint.
The district court likewise overlooked the standard in
reviewing the record. The district court, in rendering its
opinion from the bench, referred to the “believable evi-
dence” as being in favor of Sprint, hence clearly consider-
ing credibility and weighing the evidence. In its written
opinion, the district court continued its disregard for the
standard of review by examining and pointing only to the
evidence supporting Sprint and weighing that evidence
in favor of granting judgment as a matter of law. App.
12-31. The Eighth Circuit and the district court, in spite of
their own recitations that the standard is well established,
both completely failed to follow that standard.
In his brief to the Eighth Circuit, Couch recited eigh-
teen (18) pages of facts found in the record which support
his claims — eighteen (18) pages of facts which provide
sufficient evidence to support the jury’s verdicts on all
claims. It is inconceivable that a court could conclude that
all the evidence pointed one way and was susceptible of
no reasonable inference in favor of Couch’s claims. It is
likewise inconceivable that the court could conclude that
reasonable persons could not differ as to the evidence
25
presented. The only way the district court and the Eighth
Circuit could reach such conclusions and grant judgment
as a matter of law in spite of unanimous verdicts for
Couch on all claims would be to ignore the standard and
apply an improper standard which made it much easier
to justify granting judgment as a matter of law — which is
precisely what was done. By weighing the evidence,
focusing on Sprint’s evidence and requiring that “sub-
stantial evidence” be found to preclude judgment as a
matter of law, the district court and the Eighth Circuit
erroneously rejected the hours of deliberation by six per-
sons in favor of the court’s own opinions.
It is critical that the courts follow the proper standard
for granting judgment as a matter of law after a jury has
rendered its verdict. Ours is a system built on faith in the
ability of a jury of peers to resolve legal disputes. The
Eighth Circuit has stated that it places “great faith” in
juries. Forbes v. Arkansas Educational Television Comm., 93
F.3d 497, 501 (8th Cir. 1997). As Chief Judge Arnold
stated:
We have great faith in juries, and their desire
and ability to follow instructions and make dis-
tinctions among the various issues put before
them. . . . We do not know what our answer
would have been if we had been sitting on the
jury, but that is not important. There was conflict-
ing evidence on this issue, and it could have
gone either way. Making decisions of this kind is
exactly what juries are for. (italics emphasis
added)
Id. at 501. Even as the Eigiuth Circuit stated in Ryther v.
KARE 11, 108 F.3d 832 :%h Cir. 1997):
26
At the end of the day, perhaps most instructive
is the United States Supreme Court's directive in
Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740,
744, 90 L.Ed. 916 (1946):
Only when there is a complete absence of proba-
tive facts to support the conclusion reached does
a reversible error appear. But where, as here,
there is an evidentiary basis for the jury’s
verdict, the jury is free to discard or disbelieve
whatever facts are inconsistent with its conclu-
sion. And the appellate court’s function is
exhausted when that evidentiary basis
becomes apparent, it being immaterial that
the court might draw a contrary inference
or feel that another conclusion is more rea-
sonable. (emphasis added)
This court continues to espouse the essence of
Lavender. (italics emphasis added)
Id. at 845.
In spite of these statements of a high regard for the
jury system, the Eighth Circuit concurred in the district
court’s decision to set aside the jury verdicts. The legal
system demands that cases be decided by juries and
hence the high standard for taking the case from a jury.
The high standard protects the jury’s deliberations and
reasoned verdicts in the event the district court fails to
grant judgment as a matter of law at the close of all the
evidence. This high standard must be followed if faith in
the jury system is to be well placed and have any mean-
ing. As the Eighth Circuit has reasoned, “This demanding
standard [for reviewing judgment as a matter of law]
27
reflects our concern that, if misused, judgment as a mat-
ter of law can invade the jury’s rightful province.” Bevan
v. Honeywell, Inc., 118 F.3d 603, 609 (8th Cir. 1997).
The district court and the Eighth Circuit obviously
disregarded the high standard designed to protect the
jury system and by doing so, violated Couch’s right to
trial by jury. The Court should grant the writ to reinforce
the value of the jury system and their deliberations.
4. Whether the district court and Eighth Circuit are
applying inconsistent standards in ruling on judg-
ment as a matter of law pursuant to Rule 50 by
applying one standard when the motion is granted
before submitting the case to a jury and a different
standard when reviewing such a motion after the
case is submitted to the jury and verdicts are
returned.
In this case, relying on Rule 50, the district court took
Sprint’s motion for judgment as a matter of law under
advisement and submitted the case to the jury. Pursuant
to Rule 50(b), Sprint renewed its motion after the verdicts
were returned and the district court then granted judg-
ment as a matter of law after the jury returned unani-
mous verdicts for Couch. In reaching its decision, the
district court clearly analyzed the motion for judgment as
a matter of law based on the burden shifting analysis set
forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973).
App. 18-22. The district court, as affirmed by the Eighth
Circuit, placed upon Couch the burden of proving pretext
and looked for “substantial evidence” of that proof.
Because the court relied on the burden shifting analysis,
a.
28
it is obvious that the court weighed the evidence to see if
the “substantial” standard had been met.
However, in Parrish v. Immanuel Medical Center, 92
F.3d 727 (8th Cir. 1996), the Eighth Circuit stated very
clearly that there is only one issue before the court when
considering judgment as a matter of law after a jury
verdict is returned:
A motion for judgment as a matter of law pre-
sents a legal question to the district court, in the
first instance, and to this Court on review:
“whether there is sufficient evidence to support
a jury verdict.”
Id. at 732. See also Fox, 78 F.3d at 413 (citing White v. Pence,
961 F.2d 776, 779 (8th Cir. 1992)).
In Parrish, the case was submitted to the jury with a
verdict in favor of plaintiff on age discrimination. After
trial, the defendant in Parrish made a post-trial motion for
judgment as a matter of law. In considering the motion,
the court discussed the burden shifting analysis set forth
in McDonnell Douglas v. Green, 411 U.S. 792 (1973). How-
ever, in considering a motion for judgment as a matter of
law after a jury verdict was returned, the court in Parrish
clearly rejected the burden shifting analysis and set forth
the following standard:
On an appeal after trial, however, we focus our
inquiry on the ultimate factual issue of whether
the employer intentionally discriminated
against the employee rather than on the suffi-
ciency of a party's showing at any particular stage of
the McDonnell Douglas analysis. Morgan v.
Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.
1990). [footnote omitted] (italics emphasis
added)
Parrish, 92 F.3d at 733.
29
In Parrish, as discussed above, the court considered
granting judgment as a matter of law in circumstances
procedurally identical to that in this case. However, in
Parrish, the Eighth Circuit expressly states that the only
issue is whether there is sufficient evidence to support the
jury’s findings and that the burden shifting analysis
should not be followed in considering judgment as a
matter of law after a jury verdict has been returned.
Parrish, 92 F.3d at 732-33. This is true because the jury is
not required to find a prima facie case, a legitimate, non-
discriminatory reason by defendant and then evidence of
pretext in reaching its decision. The jury must only find
that sex or race were determining factors in Sprint's
employment decisions.
The district court’s analysis in this case is in direct
conflict with the standard for review set forth in Parrish.
The district court carefully scrutinized the motion for
judgment as a matter of law after verdicts had been
returned under the burden shifting analysis. The Eighth
Circuit accepted the district court’s analysis and opinion
and thereby approved a different standard of review for
considering a motion for judgment as a matter of law
after a jury verdict is returned — a standard based on the
burden shifting analysis.
Because Rule 50 permits a district court to rule on
judgment as a maiter of law after a jury verdict, the
Eighth Circuit currently has conflicting standards for con-
sidering said motions, one involving the prima facie case/
burden shifting analysis if the court rules prior to submit-
ting the case, and another standard if the case is submit-
ted and a verdict returned which considers only whether
there was sufficient evidence to support a jury verdict,
30
which was stated in the Parrish case. These standards are
inconsistent. The Court should grant the writ to set forth
the correct standard to be followed in reviewing judg-
ment as a matter of law under Rule 50(b).
+
CONCLUSION
For all of the foregoing reasons, the Petition for a
Writ of Certiorari should be granted.
Respectfully submitted,
THomMas D. ROpENBERG
Counsel of Record
JeTerR Rains & Byrn, L.C.
1080 W. South Outer Road
Blue Springs, MO 64015
816/229-2132
App. 1
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 97-1368WM
Jerry D. Couch, .
; * Appeal from the United
Appellant, , States District Court for
V. * the Western District of
Sprint Corp., § Missouri
Appellee. *
Submitted: November 20, 1997
Filed: December 18, 1997
Before FAGG and HANSEN, Circuit Judges, and PIER-
SOL," District Judge.
FAGG, Circuit Judge.
Jerry D. Couch appeals the district court’s grant of
Sprint Corporation’s motion for judgment as a matter of
law following trial on Couch’s employment-based claims
for gender and race discrimination and retaliation. We
review the district court’s grant of a motion for judgment
as a matter of law under a well-established standard.
Having carefully considered the record and the parties’
submissions, we agree with the district court that there is
*The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota, sitting by designation.
App. 2
no substantial evidence in the record tending to show the
reasons given by those who promoted a woman and hired
a black male for vacant positions instead of Couch, a white
male, were a pretext for gender and race discrimination.
We also agree with the district court that Couch’s related
retaliation claim cannot survive judgment as a matter of
law. Couch worked as a contract negotiator for Sprint
Corporation until his demotion after he amended a pager
agreement to Sprint’s detriment. Although Couch pre-
sented evidence that he complained to his supervisor
about the woman’s promotion (Couch believed he was
better qualified for the position, not that he was denied for
discriminatory reasons), there is no evidence tending to
show that the head of his department (who preferred
termination but deferred to Couch’s supervisor’s recom-
mendation “to put [Couch] where he couldn’t cause as
much damage”) knew about Couch’s complaint until after
the demotion decision was made. Like the district court,
we conclude Couch’s meager evidence would not permit a
jury reasonably to find there was any connection between
Couch’s promotion-related complaint and his demotion
for poor business judgment. Because the controlling law is
clear, our review satisfies us that an opinion would have
no precedential value in this fact-intensive case. We agree
with the district court’s analysis and conclude the district
court correctly granted the motion for judgment as a mat-
ter of law. We thus affirm the judgment without further
discussion. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
App. 3
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JERRY D. COUCH,
)
ae )
Plaintiff, No. 95-0675-CV-W-1
v. ) (Filed March 25, 1997)
SPRINT CORPORATION,
Defendant. )
ORDER
I. Procedural Background
Plaintiff Jerry Couch, a white male, filed this employ-
ment discrimination lawsuit based on three theories of
liability: (1) Sprint discriminated against him due to his
race and (2) due to his gender by failing to promote him,
and (3) Sprint retaliated against him by demoting him.
The lawsuit was brought under both Title VII and the
Missouri Human Rights Act. All three of the claims
involved employment decisions made in Sprint’s Material
and Service Management department.
At the close of all of the evidence at trial, Defendant
Sprint Corporation (“Sprint”) filed a motion for judgment
as a matter of law on Couch’s three theories of liability.
The Court took the motion under advisement. The Court
submitted the matter to the jury subject to a later deter-
mination of the legal questions raised in Sprint’s motion.
See Fed. R. Civ. P. 50(b). The jury returned a verdict in
favor of Couch on all three theories, prompting Sprint to
renew its motion for judgment as a matter of law. Pur-
suant to Rule 50(b), Sprint joined its renewal motion for
App. 4
judgment as a matter of law with a Rule 59(a) motion for
a new trial. On Friday, October 25, 1996, the Court heard
arguments on Sprint’s motion.
After careful consideration of Sprint’s written
motion, Couch’s opposition, and the arguments of coun-
sel, the Court granted Sprint’s motion for judgment as a
matter of law and denied its alternative motion for new
trial. On November 14, 1996, Sprint filed a motion under
Rule 59(e) or Rule 60(b), requesting the Court to recon-
sider the denial of its request for a new trial. In an Order
dated December 26, 1996, the Court set forth its reasoning
for granting Sprint’s motion for judgment as a matter of
law. In the same Order, the Court granted Sprint’s motion
to reconsider its denial of Sprint’s motion for a new trial
and requested further briefing. The matter is now ripe for
decision.
II. Standard for Granting New Trial
Rule 59(a) authorizes the Court to grant a new trial in
some circumstances. Rule 50(c) instructs the Court to
conditionally rule on a party’s motion for new trial when
submitted as an alternative to a motion for judgment as a
matter of law:
If the renewed motion for judgment as a matter
of law is granted, the court shall also rule on the
motion for a new trial, if any, by determining
whether it should be granted if the judgment is
thereafter vacated or reversed, and shall specify
the grounds for granting or denying the motion
for new trial .. .
App. 5
Fed. R. Civ. P. 59(c). Accordingly, Rule 59(c) requires the
Court to grant or deny the motion for a new trial and
specify grounds for its decision.
Federal Rule of Civil Procedure 59 permits a district
court to grant or deny a new trial based on its appraisal
of the fairness of the trial and the reliability of the jury’s
verdict. Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir. 1996).
“A new trial is appropriate when the first trial, through a
verdict against the weight of the evidence, an excessive
damage award, or legal errors at trial, resulted in a mis-
carriage of justice.” Id.
Ill. Discussion
In this case, the Court is convinced that the jury
verdict was against the weight of the evidence and that
permitting the verdict to stand will result in a miscarriage
of justice. The Court finds that Couch’s emphasis on
evidence that the Court should have excluded resulted in
an unreliable jury verdict. The evidence at issue is the
statistical or empirical data offered by Couch to show the
gender and race of those employees who Sprint had
recently hired or promoted.
The dispute about this evidence between the parties
before and during trial focused on the applicability of
Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir.
1988). See, e.g., Tr. Vol. I, at 7-25 (pre-trial conference
discussing motion in limine to exclude certain evidence).
In Estes, the Eighth Circuit Court of Appeals held that a
district court had abused its discretion in an employment
discrimination case when, in a pre-trial ruling, it had
App. 6
categorically excluded some items of “background evi-
dence.” The exclusion included workforce statistics, Estes,
856 F.2d at 1103-04, prior acts of discrimination, id. at
1104, and several racial comments made by a manager, id.
The court of appeals reasoned that the effects of blanket
evidentiary exclusions could be unfairly damaging in
employment discrimination cases, in which plaintiffs
must face the difficult task of persuading the fact-finder
to disbelieve an employer’s account of its own motives.
Id. The court took particular note of the timing of the
district court’s ruling. It found that the district court's
blanket exclusion was particularly egregious because it
was made before trial “rather than during the develop-
ment of the plaintiff’s case before the jury.” Id. at 1103.
Although, in Estes, the Eighth Circuit Court of
appeals cautioned that background evidence should not
be subject to blanket evidentiary exclusions, it has also
indicated that neither can such evidence be subject to
blanket admissibility. In Callanan v. Runyun, 75 F.3d 1293
(8th Cir. 1996), the court stated that “[t]he evidence
. . must assist in the development of a reasonable infer-
ence of discrimination within the context of each case’s
respective facts.” Id. at 1298 (quoting Bradford v. Norfolk S.
Corp., 54 F.3d 1412, 1419 (8th Cir. 1995)); see also Kunzman
v. Enron Corp., 941 F. Supp. 853, 864 (N.D. Iowa 1996)
(collecting cases). Accordingly, “background evidence”
that is facially nondiscriminatory and fails to suggest
discrimination, or which is so unreliable as to be insuffi-
cient to assist in the development of a reasonable infer-
ence of discrimination within the factual context, should
be excluded as either irrelevant under Federal Rule of
Evidence 401 or unfairly prejudicial under Federal Rule
App. 7
of Evidence 403. Consequently, prior to introducing such
evidence, the plaintiff must demonstrate, by offer of
proof, that it meets the criteria of admissibility stated in
Callanan v. Runyun, i.e., that the evidence will assist in the
development of a reasonable inference of discrimination.
Kunzman, 941 F. Supp. at 865 (citing Callanan, 75 F.3d at
1298; Bradford, 54 F.3d at 1419); see Bruno v. W.B. Saunders
Co., 862 F.2d 760, 774-75 (3d Cir. 1989) (Greenberg, J.,
dissenting) (explaining the role of the judge and jury in
evaluating statistical evidence in employment discrimina-
tion cases).
At trial in this case, the Court did not demand such
an offer of proof from Couch when he sought to intro-
duce an assortment of empirical background evidence,
including what may be loosely identified as statistical
evidence of Sprint’s promotional and hiring practices.
Although, for the reasons set forth in Estes, the Court's
denial of Sprint’s pre-trial motion to categorically exclude
this evidence was correct, this decision should have been
reexamined once the trial began to unfold. In so heavily
relying on Estes to permit Couch every opportunity to
prove his case, the Court inadvertently neglected Cal-
lanan, which led to the introduction of distorted and
unfairly prejudicial “statistical” evidence.
The Court does not suggest, however, that reliable
statistical evidence should be excluded in employment
discrimination cases — including disparate treatment
cases. Statistical evidence is often admissible, not to men-
tion powerful, evidence of intent to discriminate in dispa-
rate treatment cases. See Estes, 856 F.2d at 1103-04; 1
App. 8
BARBARA LINDERMAN & Paut GROSSMAN, EMPLOYMENT Dis-
CRIMINATION Law 736-37, 1687-1737 (3d ed. 1996) [hereinaf-
ter LinDERMAN & GrossMAN]. Comparative statistical data
which might suggest that equal employment opportunity
was not the employer’s prevailing policy has some proba-
tive value for the question of whether discrimination has
motivated a particular employee’s treatment. Estes, 856
F.2d at 1103.
Although statistics may sometimes be used to prove
intent, their usefulness depends upon all of the surround-
ing facts and circumstances. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 805 n.19, 93 S. Ct. 1817, 1826, 36 L.
Ed.2d 668 (1973). Statistical evidence should not be
admitted in a disparate treatment case if it unfairly
diverts a jury’s focus from the ultimate issue: whether the
particular plaintiff was a discrimination victim, not
whether others in the company were. LiInDERMAN & Gross-
MAN, supra, at 737; see also Bazemore v. Friday, 478 U.S. 385,
400, 400 n.10, 106 S. Ct. 3000, 3009 n.10, 92 L. Ed.2d 315
(1986) (Brennan, J., joined by all other members of the
Court, concurring in part) (stating that, although defects
in statistical studies usually affect only the statistics’ pro-
bative value and not their admissibility, statistics that are
so incomplete will be inadmissible as irrelevant); Hutson
v. McDonnell Douglas Corp., 63 F.3d 771, 778 (8th Cir. 1995)
(“statistics, to be meaningful indicators of pretext, [must]
evaluate the treatment of comparable employees .
‘(C]lompany-wide’ statistics . . . have relatively little rele-
vance to determining discriminatory animus of the speci-
fic manager who made the ultimate decision”); Callanan,
75 F.3d at 1298 (“The evidence . . . must assist in the
App. 9
development of a reasonable inference of discrimination
within the context of each case’s respective facts.”).
Accordingly, if a proponent’s offer of proof exposes
that the statistical evidence is insufficient to assist in the
development of a reasonable inference of discrimination
within the context of the case’s respective facts, the evi-
dence should be excluded as irrelevant or unfairly preju-
dicial. See Fed. R. Ev. 401, 402, 403; Goetz v. Farm Credit
Services, 927 F.2d 398, 405-06 (8th Cir. 1991) (“Statistical
evidence has some probative value in determining
whether the decision to terminate an employee was based
on the employee’s age. However, the statistical evidence
must be of a kind and degree sufficient to raise the
inference that the employment decision was based upon
an impermissible factor such as age”); David W. Peterson,
Employment Law: The Big Case — The Use of Experts in Big
Cases, SA92 ALI-ABA 677, 687 (1996) (describing the
appropriate use of statistics).
In this case, counsel for Couch repeatedly referred to
empirical data — and charts demonstrating those data — of
Sprint’s hiring and promotional practices. See, e.g., Ir.,
vol. II, at 207, et seq. (testimony of Lauren Wright). The
data and charts purported to show the race and gender of
the employees who had been hired and promoted within
a relevant time period. Couch introduced it to show that
more women and non-whites had been promoted or hired
than had been white men. The evidence, however, was
distorted. It included positions and people that were not
similarly-situated to Couch. See Tr., vol. II, at 73-74,
120-26 (discussing problems with Couch’s empirical
data). Moreover, Couch failed to use an expert witness to
App. 10
evaluate the data.! Consequently, confusion consistently
attended its use. See id. Furthermore, without an expert —
and with the accompanying confusion - the Court was
precluded from making any informed judgment about
admissibility, i.e., about whether the data even suggested
discrimination. See Peterson, supra, at 687 (describing the
appropriate use of statistics).
As the trial progressed, it became apparent that the
jury had been unfairly misled by the “statistical” data.
The Court is convinced that the jury’s confusion led to an
unreliable verdict.2 As a result, the Court will grant
Sprint a new trial if its Order granting Sprint’s motion for
judgment as a matter of law is reversed.
IV. ORDER
Based on the foregoing, it is hereby ORDERED that
the Court’s previous ruling denying Sprint’s motion for a
new trial in the alternative to its motion for judgment as a
matter of law is VACATED. It is further
1 By contrast, the workforce statistics at issue in Estes were
much more sophisticated than those presented by Couch, and
doubtlessly evaluated before the jury by expert witnesses. See
Estes, 856 F.2d at 1103-04. Consequently, the Eighth Circuit had
“no reason to assume that Estes’s explanation of the data [was]
less plausible than Ford's.” The same is not true in this case.
2 From Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 778
(8th Cir. 1995) and other cases cited herein, it should be clear to
Plaintiff why the empirical data at issue did not support his
opposition to Defendant’s motion for judgment as a matter of
law, as Plaintiff continues to assert in his brief opposing a new
trial.
App. 11
ORDERED that Sprint’s motion for a new trial under
rules 59 and 50 is GRANTED.
/s/ Dean Whipple
Dean Whipple
United States
District Judge
Date March 25, 1997
App. 12
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JERRY D. COUCH,
)
vate.
Plaintiff, ) No. 95-0675-CV-W-1
v. ) (Filed Dec. 26, 1996)
SPRINT CORPORATION, ;
Defendant. )
MEMORANDUM AND ORDER
I. Procedural Background
Plaintiff Jerry Couch, a white male, filed this lawsuit
based on three theories of liability: (1) Sprint discrimi-
nated against him due to his race and (2) due to his
gender by failing to promote him, and (3) Sprint retali-
ated against him by demoting him. The lawsuit was
brought under both Title VII and the Missouri Human
Rights Act (“MHRA”). All three of the claims involved
employment decisions made in Sprint’s Material and Ser-
vice Management (“M&SM”) department.
At the close of Plaintiff's evidence at trial, Sprint
moved for judgment as a matter of law on Couch’s claim
for punitive damages. In a bench ruling, the Court
granted Sprint’s motion and refused to submit the issue
to the jury. At the close of all the evidence, Defendant
Sprint Corporation (“Sprint”) filed a motion for judgment
as a matter of law on Plaintiff’s three theories of liability.
The Court took the motion under advisement. Pursuant
to Rule 50(b), the Court submitted the matter to the jury
subject to a later determination of the legal questions
App. 13
raised in Sprint’s motion. The jury returned a verdict in
favor of Plaintiff, prompting Sprint to renew its motion
for judgment as a matter of law. On Friday, October 25,
1996, the Court heard arguments on Sprint’s motion.
After careful consideration of Sprint’s written motion,
Plaintiff’s opposition, and the arguments of counsel, the
Court granted Defendant’s motion for judgment as a
matter of law and denied its alternative motion for new
trial. This Order states in further detail the reasons for the
Court's holding.
Il. Standard for Granting Judgment as a Matter of Law
Judgment as a matter of law is appropriate when the
evidence points one way and is susceptible of no reason-
able inference sustaining the position of the nonmoving
party. White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992).
Although every reasonable inference is to be drawn in the
plaintiff’s favor, an inference is reasonable only if it can
be drawn from the evidence without resorting to specula-
tion. Frieze v. Boatmen’s Bank of Belton, 950 F.2d 538, 541
(8th Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)
(stating that, upon motion for summary judgment or
motion for directed verdict, a judge must ask “whether a
fair-minded jury could return a verdict for the plaintiff on
the evidence presented” and that “a mere existence of a
scintilla of evidence” in support of the plaintiff’s position
will be insufficient).
App. 14
III. Factual Background
The evidence adduced at trial established that Jerry
Couch began his employment with Sprint in 1986.
Between 1986 and 1989, Couch held a number of posi-
tions, always reporting to white males. Although Couch
performed satisfactorily from 1986 until 1990, his evalua-
tions consistently reflected his need to improve his lead-
ership and communication skills.
In 1990, Couch began working under Mike McCor-
mick, a white male, in the National Agreements Depart-
ment of the M&SM division. When Couch joined the
department as a level 75 National Agreements Negotia-
tor,| two women were already working in the group -
Sara Miller, a level 76 Senior Negotiator, and Sara Shep-
herd, a level 75 Negotiator. During the three years that
McCormick supervised these three individuals, Plaintiff
consistently earned ratings of “3” or “fully satisfactory”
while Shepherd and Miller almost always earned ratings
”
of “2” or “above expectations.” Plaintiff’s evaluation
forms continued to indicate a weakness in leadership and
communication skills. By contrast, Shepherd’s and Mil-
ler’s evaluations indicated that leadership and communi-
cation skills were strengths.
In 1992, McCormick promoted Shepherd from a level
75 National Agreements Negotiator to a level 76 Senior
Negotiator. McCormick testified that he had the option of
| Positions at Sprint are typically numerically classified
with higher numbers corresponding to higher ranking
positions.
TE Oe ee eT eT
App. 15
promoting both Shepherd and Plaintiff at that time. How-
ever, McCormick further testified that he promoted only
Shepherd, because, unlike Plaintiff, she had consistently
shown outstanding skills and an ability to exceed the
minimum requirements of the position.
In September 1993, Lauren Wright became the Assis-
tant Vice President of Finance in charge of the Materials
and Service Management Department. Both she and John
Meyer testified that one of her goals in this new position
was to improve business operations and gain greater
acceptance and usage of the Department by the internal
customer base. After spending her first three months
evaluating the strengths of the employees in the depart-
ment, Wright announced a major reorganization in Janu-
ary 1994.
As part of the reorganization, McCormick was pro-
moted to a director position, as was Dave Fogelman,
another white male employed at Sprint. Benn Sledge, a
black male, became the director responsible for the
National Agreements Group.
With his promotion to a director position, McCor-
mick’s Manager, National Agreements position became
open. In June 1994, Miller was, with McCormick’s recom-
mendation, named Manager of the National Agreements
department. In this position, Miller supervised both Sara
Shepherd and Couch, as well as two new National Agree-
ments negotiators who had been brought into the depart-
ment.
In October 1994, the position of Manager, National
Agreements became available. Four individuals applied
for the position, and two - Plaintiff and Shepherd — were
App. 16
interviewed. Benn Sledge testified that he chose Shep-
herd to fill the vacancy after consulting with McCormick
who had supervised both individuals for three years.
McCormick indicated to Sledge that Shepherd had consis-
tently outperformed Plaintiff and that her strengths -
including, leadership, judgment, and decisiveness — were
important for this managerial position. Sledge, having
interviewed and worked with both candidates, concurred
with McCormick and promoted Shepherd to the position
of Manager, National Agreements.
After Sprint announced Shepherd’s promotion to
Manager, National Agreements, Plaintiff complained to
Sledge that he should have been promoted. During this
conversation, Plaintiff compared and contrasted his expe-
rience and background with that of Shepherd and argued
that he was better qualified for the position. Plaintiff did
not specifically state that he believed that Shepherd had
gotten the job because of her gender or that he had been
denied the promotion because he was a man.
The next month, the position of Manager, Corporate
Agreements became available. Sprint maintained a formal
application procedure, which required interested parties
to submit a Job Interest Request (“JIR”) form to be consid-
ered for posted positions. Plaintiff testified that submis-
sion of a JIR is a well-known procedural prerequisite to
applying for a posted position at Sprint and that he knew
of no internal candidate who received a posted position
without first filling out a JIR.
Nonetheless, Plaintiff did not submit a JIR for the
Manager, Corporate Agreements position. Instead, Plain-
tiff testified that he told Sledge that he would like to be
App. 17
considered for the position. At trial, Sledge acknowl-
edged the conversation but stated that he assumed that if
Plaintiff was interested in a particular position, he would
have applied for the position by submitting a JIR. Sledge
further testified that an identical Manager, Corporate
Agreements position had been available less than four
months earlier and was awarded to Ted Freese, a white
male. Ultimately, the new Manager, Corporate Agree-
ments position was awarded to Isaiah Brown, a black
male and former manager for Hallmark Cards, who
applied and interviewed for the position.
During this same time period, Plaintiff was renego-
tiating a contract with Air Signal, Sprint’s national pager
provider. Sprint had negotiated a contract with Air Signal
under which Sprint employees were able to receive an
unlimited number of pages for a flat fee. In the summer
of 1994, Air Signal contacted Plaintiff expressing displea-
sure with the current terins of the contract. Air Signal
complained that a relatively small number of Sprint
employees were receiving a large number of pages on a
daily basis resulting in unexpected costs to Air signal. Air
Signal requested that Plaintiff renegotiate the contract to
put a cap on the number of pages each Sprint employee
could receive for free and establishing a per page cost for
pages exceeding the predetermined ceiling. Air Signal’s
suggestion provoked complaints from several Sprint
departments. Lee Jobe, a Sprint employee based in
Atlanta, testified that he telephoned Plaintiff directly to
protest any proposed change to the contract because the
increased cost would force his department to exceed its
budget. Plaintiff orally assured Jobe that he would take
no action without Jobe’s input. Nonetheless, the evideace
App. 18
showed that Couch amended the contract without afford-
ing Jobe an opportunity to comment on the change. When
Jobe learned of the change, he contacted both Lauren
Wright and Benn Sledge to complain.
Thereafter, Sledge, Angela Webster, Sara Miller, and
Sara Shepherd investigated the amendment. Sprint wit-
nesses testified that the investigation revealed that Plain-
tiff had exercised poor business judgment in agreeing to
the amendment. Moreover, although Air Signal had
claimed economic hardship as the basis for the amend-
ment, Air Signal’s general manager, Colleen Hodge, testi-
fied that the renegotiated deal actually resulted in
additional profit to Air Signal. Following the investiga-
tion, Plaintiff was demoted from a level 75 to a level 74.
IV. Discussion
A. Race Discrimination.
Plaintiff’s race discrimination claim arose out of the
promotion of Isaiah Brown to Manager, Corporate Agree-
ments in November 1994. Plaintiff alleged that he was
more qualified than Brown, who is a black male.
To prove a prima facie case of race discrimination
under Title VII of the MHRA,? Plaintiff must establish
four elements: 1) that he belongs to a protected class
2 The Missouri Supreme Court has held that discrimination
claims brought under the Missouri Human Rights Act are
analyzed the same as claims brought under Title VII. Midstate
Oil v. Missouri Comm'n on Human Rights, 679 S.W.2d 842, 845-86
(Mo. 1984). Consequently, the state and federal claims can be
considered jointly.
App. 19
under Title VII, such as race; (2) that he applied and was
qualified for a job for which the employer was seeking
applicants; (3) despite his qualifications, he was rejected;
and (4) that after his rejection, the position remained
open or was filled by a member of a different race.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Plaintiff established a prima facie case.* The burden then
shifted to Sprint, which was required to rebut the pre-
sumption of discrimination. In this case, Sprint rebutted
the presumption of discrimination by producing evidence
that the failure to promote Couch was due to a legitimate,
nondiscriminatory reason. First, Sprint presented evi-
dence that Isaiah Brown was qualified. Both Sledge and
Wright testified that Brown’s proven leadership skills at
his previous position with the military and management
position at Hallmark Cards were instrumental in their
decision to hire him. Second, Sledge testified that,
because Couch did not fill out a JIR form to apply for the
Manager, Corporate Agreements position, Sprint was not
aware that he desired to be considered for the position.
Plaintiff testified that he did not fill out a JIR even though
he knew Sprint had a written policy that a JIR had to be
submitted for any posted position. He further testified
that he knew of no other Sprint employee who ever
received a posted position at Sprint without first complet-
ing a Job Interest Request form (“JIR”).
3 The Court’s pre-trial Order, dated September 12, 1996,
addressing Defendant’s motion for summary judgment
analyzes the effect of Couch’s failure to apply on his ability to
establish a prima facie case of discrimination.
App. 20
Once Sprint met its burden of demonstrating a legiti-
mate, non-pretextual reason for failing to promote Couch,
Couch was required to demonstrate the existence of evi-
dence of some additional facts that would allow a jury to
find that Sprint’s proffered reason was a pretext and that
the real reason for its action was intentional discrimina-
tion. See St. Mary’s Honor Center v. Hicks, 113 S. Ct. 2742,
2747, 125 L.Ed.2d 407 (1993). Couch failed to do so. The
bulk of Plaintiff’s evidence sought to suggest that,
because Sledge was black, his participation in the hiring
of another black male was evidence of discrimination
against Couch. The claim is insufficient as a matter of law
for two reasons. First, a black supervisor’s decision to
hire an employee who is also black is hardly probative
evidence of intent to discriminate against Couch. Second,
the uncontradicted evidence showed that Sledge was not
the sole decision maker in hiring Brown. The evidence
demonstrated that Wright, McCormick, Miller, and Shep-
herd also interviewed Brown and concurred in the deci-
sion to hire him. Thus, the evidence merely demonstrated
that a black man was hired into a position that Plaintiff
desired but for which he did not formally apply. Plaintiff
has failed to set forth sufficient affirmative evidence dem-
onstrating that a factual issue of pretext and the ultimate
issue of intentional discrimination exists.
Nevertheless, Plaintiff argues the Court’s pre-trial
Order, dated September 12, 1996, addressing Defendant’s
motion for summary judgment determined that the evi-
dence supported a reasonable inference of discrimination.
Plaintiff misconstrues that Order. There, the Court
expressly noted that Defendant’s motion argued only that
Plaintiff failed to satisfy all elements of a prima facie case
App. 21
because he failed to apply for the position. See Couch v.
Sprint, No. 95-0675-CV-W-1, Order of September 12, 1996,
at 5 n.3. The Court explained that it would rarely grant
summary judgment based solely on the claim that a plain-
tiff failed to satisfy an element of a prima facie case of
discrimination.* In the Eighth Circuit, a plaintiff need
introduce only “some” evidence supporting each element
to make out a prima facie case, which then shifts the
burden of production to the employer. Landon v. North-
west Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995) (stating
that, while plaintiff’s evidence “would not require a rea-
sonable juror to return a verdict in favor” of the plaintiff,
it was sufficient to satisfy the minimal requirement of
“some” evidence to establish a prima facie case). In the
pre-trial Order, the Court found that Couch’s conversa-
tion with Sledge, during which Couch indicated that he
desired to be considered for the Manager, Corporate
Agreements position, was sufficient to support the prima
4 Essentially, Sprint asked the wrong question in its pre-
trial motion for summary judgment. Discrimination suits
involve three steps. First, a plaintiff must establish a prima facie
case of discrimination. Establishing a prima facie case is a
minimal burden because it is intended to force the employer to
produce evidence of a legitimate reason for its action — evidence
which is very difficult to procure without this procedural
prompting. Once (1) the prima facie case is established, and (2)
the employer proffers a legitimate reason for its employment
decision, then the suit moves to the third step and the focus
again switches to the plaintiff. At this point, the plaintiff bears
the burden of demonstrating the employer’s intent to
discriminate. The pre-trial Order addressed only the first step.
This Order addresses the third step, however, and finds
Plaintiff’s evidence of discrimination insufficient as a matter of
law.
App. 22
facie case. See, e.g., Chambers v. Wynne School District, 909
F.2d 1214, 1217 (8th Cir. 1990) (indicating that a prima facie
case is sometimes established even though Plaintiff never
formally applied for the disputed position); Johnson v.
Minnesota Historical Society, 931 F.2d 1239, 1242-43 (8th
Cir. 1991) (indicating that elements of a prima facie case
must be flexible). The Court expressly reserved its judg-
ment, however, on whether Plaintiff’s evidence, including
the prima facie case, supported a reasonable inference of
intent to discriminate. The Court reaches that question
now and finds that Couch’s evidence, as a matter of law,
fails to support a reasonable inference of discrimination.
B. Gender Discrimination
Plaintiff alleged that Sprint promoted Sara Shepherd
to Manager, National Agreements because of her gender.
Each of Sprint’s witnesses testified that Shepherd’s pro-
motion was based on her superior skills and qualifica-
tions and had nothing to do with her gender. Plaintiff met
his burden of introducing “some” evidence to satisfy each
element of the prima facie case.
The burden of production then shifted to Sprint to
proffer a legitimate, non-discriminatory reason for pro-
moting Shepherd. Sprint satisfied this burden. Plaintiff
admitted that Shepherd met the qualifications stated on
the job description for the Manager, National Agreements
position at the time of her promotion. Shepherd’s quali-
fications included a Bachelor of Science in Business
Administration, over ten years of procurement experi-
ence, and approximately four years of national agree-
ments experience. In addition, Shepherd consistently
App. 23
earned job performance evaluations that were superior to
those of Plaintiff, and she had been promoted to senior
negotiator by McCormick, a white male, prior to the time
Wright or Sledge came to the department. Shepherd's
qualifications were confirmed by her superiors. Mike
McCormick, Benn Sledge, and Lauren Wright all testified
that Shepherd was more qualified for the Manager,
National Agreements position than Plaintiff and had
superior communication and leadership skills. They testi-
fied that these skills were paramount given the nature of
the Manager position. By contrast, McCormick testified
that Plaintiff lacked the communication and leadership
skills necessary for a management position. Miller, who
previously held the position and who supervised both
Shepherd and Plaintiff, also stated that Shepherd’s skills
were more suited to the position. All of Plaintiff’s super-
visors testified that Plaintiff lacked the leadership and
communication skills necessary for a management posi-
tion.
The burden of persuasion then rested on Plaintiff to
demonstrate that Sprint intentionally discriminated
against Couch. To succeed on his gender discrimination
claim, Plaintiff needed to prove that Sprint’s stated rea-
sons for promoting Sara Shepherd were not true but
merely pretextual and that Sprint’s actual motive for the
decision was intentional discrimination based on gender.
See Rothmeier v. Investment Advisors, Inc., 85 F.3d 1328,
1335 (8th Cir. 1996) (upholding district court’s finding
that the evidence was insufficient for a reasonable trier of
fact to infer discrimination even though the plaintiff may
have created a factual dispute as to the issue of pretext);
App. 24
see also Piantadia v. Wyman Center, Inc., 927 F. Supp. 1226,
1243 (E.D. Mo. 1996).
Plaintiff failed, as a matter of law, to meet his burden.
Neither Title VII nor the MHRA eliminates an employer’s
right to make a business decision regarding its
employees, absent intentional discrimination. Piantadia,
927 F. Supp. at 1242. “While an employer’s judgment may
seem poor or erroneous to outsiders, the relevant ques-
tion is simply whether the given reason was pretext for
illegal discrimination.” Clay v. Hyatt Regency Hotel, 724
F.2d 721, 725 (8th Cir. 1984); accord Ruby v. Springfield R-12
Public School Dist., 76 F.3d 909, 912 n.7 (8th Cir. 1996)
(“We note that ‘our inquiry is limited to whether the
employer gave an honest explanation of its behavior
. rather than to weigh the wisdom of any particular
employment decision.’ ”) (citations omitted); Hutson v.
McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995)
(“the employment discrimination laws have not vested in
the federal courts the authority to sit as super-personnel
departments reviewing the wisdom or fairness of the
business judgments made by employers, except to the
extent that those judgments involve intentional discrimi-
nation”). The evidence at trial was susceptible to only one
interpretation — Sprint’s management personnel exercised
business judgment and promoted Sara Shepherd to Man-
ager, National Agreements because of her superior quali-
fications and not because of her gender. No reasonable
jury could find otherwise.
App. 25
C. Retaliation
Sprint demoted Couch from a level 75 to a level 74
position in December 1994. Couch argued that he was
demoted in retaliation for his complaint to Sledge, which
objected to Sara Shepherd’s promotion to the position of
Manager, National Agreements in October 1994. Sprint,
on the other hand, argued that it demoted Couch for
exercising poor judgment and failing to seek supervisory
approval before amending the pager agreement with Air
Signal.
A prima facie case of retaliation consists of three ele-
ments: (1) statutorily protected activity; 2) adverse
employment action; and 3) a causal connection between
the adverse employment action and the protected activity.
Evans v. Kansas City, Mo. School Dist., 65 F.3d 98, 100 (8th
Cir. 1995). In this case, Plaintiff testified that he never
told any Sprint manager or employee that he believed he
had been denied a promotion for discriminatory reasons.
Couch’s only allegation. of protected activity occurred
when Plaintiff complained on one occasion to Benn
Sledge that he though he was better qualified than Sara
Shepherd for a promotion.5 Thus, Couch’s retaliation
claim turns on that incident. The Court finds that the
° Couch’s deposition testimony that discusses his
complaint to Sledge approximates Couch’s testimony at trial:
Well, I spoke about her. I didn’t specifically state she
was a white female, et cetera, I spoke about her. I
pointed out in detail the variances and the differences
in her qualifications and experience between myself
and Sara Shepherd.
Dep. of Jerry D. Couch, Parag. 9-20, at 190.
App. 26
claim fails as a matter of law because Couch did not
establish a causal connection between his demotion and
his complaint to Sledge about Sara Shepherd’s promo-
tion.®
The evidence established that Couch complained to
Sledge about Shepherd’s promotion. The evidence also
demonstrated that, two months following the complaint,
Sprint suspended Couch without pay after he renegoti-
ated a pager contract with Air Signal. Wright, Jobe, and
Sledge testified that Sprint believed that Couch’s decision
was an exercise of extremely poor business judgment that
damaged relations between Jobe’s department, which
was an internal client, and the M&SM department. They
further testified that the renegotiation of the Air Signal
contract was the catalyst for Couch’s demotion. Lauren
Wright, the head of the group, testified that she
instructed Sledge to fire or demote Couch because of his
exercise of poor judgment in renegotiating the contract.
Plaintiff produced no evidence that Wright had any
knowledge of Couch’s complaint to Sledge about Sara
Shepherd’s promotion. Moreover, the uncontradicted evi-
dence showed that Sara Shepherd, Sara Miller, and
Angela Webster were each consulted regarding the
appropriate disciplinary action to be taken against Couch.
Plaintiff produced no evidence that any of these individ-
uals knew that Plaintiff complained to Sledge regarding
6 Because the Court finds that Plaintiff failed to establish a
causal connection between the protected activity and the
demotion, the Court does not address whether the language of
Couch’s complaint to Sledge could be reasonably construed as a
complaint of gender discrimination sufficient to support a
reasonable inference of retaliation.
App. 27
Sara Shepherd’s promotion. In short, Plaintiff offered no
evidence that Sledge told anyone that Plaintiff com-
plained about Shepherd’s promotion. Furthermore, Plain-
tiff produced no evidence that his complaint to Sledge
tainted Sledge’s assessment of Plaintiff's skills. Based on
Couch’s meager evidence, a reasonable jury could not
find that Plaintiff’s complaint played any role in Plain-
tiff’s demotion without resorting to speculation. Conse-
quently, judgment as a matter of law is appropriate.
D. Punitive Damages
To collect punitive damages under Title VII, as
amended by the Civil Rights Act of 1991, Plaintiff was
required to show that Sprint engaged in discrimination
“with malice or reckless indifference to [his] federally
protected rights.” 42 U.S.C. § 198la(b)(1). Varner v.
National Supermarkets, 94 F.3d 1209, 1214 (8th Cir. 1996).
To collect punitive damages under the MHRA, Plaintiff
was required to show that Sprint’s conduct was “outra-
geous because of its evil motive or reckless indifference
to [Plaintiff’s rights].” Id.; Kientzy v. McDonnell Douglas
Corp., 990 F.2d 1051, 1062 (8th Cir. 1993); accord Nelson v.
Boatmen’s Bancshares, Inc., 26 F.3d 796, 804 (9th Cir.1994)
(to recover punitive damages, Missouri law requires
showing of conduct that would “shock the conscience
and cause outrage”); Turic v. Holland Hospitality, Inc., 85
F.3d 1211, 1216 (6th Cir. 1996) (finding that an employer’s
discriminatory decision to discharge an employee for
considering having an abortion was duplicitous and lack-
ing in empathy but did not support a punitive damages
award under Civil Rights Act of 1991); Pandazides v. Vir-
ginia Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir. 1994) (a
App. 28
showing of more than intentional discrimination is
required to recover punitive damages under Civil Rights
Act of 1991). The evidence did not support a finding that
Sprint was malicious or recklessly indifferent to Couch’s
right to require his employer to assess his work perfor-
mance and make employment decisions without regard
to race or gender. At the close of Plaintiff’s evidence, it
was clear that, before making an employment decision,
Sprint supervisors routinely consulted with those familiar
with Couch’s performance. The evidence did not demon-
strate reckless or malicious decisions contaminated by
consideration of race and gender.
E. New Trial
Pursuant to Rule 50(b), Sprint joined its renewal
motion for judgment as a matter of law with a Rule 59(a)
motion for a new trial. In its bench ruling, the Court
denied the motion for a new trial. On November 14, 1996,
Sprint filed a motion under Rule 59(e) or Rule 60(b),
requesting the Court to reconsider. Sprint asserts that the
Court did not properly consider the motion and did not
specify the grounds for denying the Rule 59(a) motion as
required by Rule 50(c).
1. Rule 50(c): Conditional Ruling on Motion
for New Trial When Motion for Judgment as
a Matter of Law is Granted
Rule 59(a) authorizes the Court to grant a new trial in
some circumstances. Rule 50(c) instructs the Court to
conditionally rule on a party’s motion for new trial when
App. 29
submitted as an alternative to a motion for judgment as a
matter of law:
If the renewed motion for judgment as a matter
of law is granted, the court shall also rule on the
motion for a new trial, if any, by determining
whether it should be granted if the judgment is
thereafter vacated or reversed, and shall specify
the grounds for granting or denying the motion
for new trial. If the motion for a new trial is thus
conditionally granted, the order thereon does
not affect the finality of the judgment. In the
case the motion for new trial has been condi-
tionally granted and the judgment is reversed
on appeal, the new trial shall proceed unless the
appellate court has otherwise ordered. In case
the motion for new trial has been conditionally
denied, the appellee on appeal may assert error
in that denial; and if the judgment is reversed
on appeal, subsequent proceedings shall be in
accordance with the order of the appellate court.
Fed. R. Civ. P. 59(c) (emphasis added). Accordingly, Rule
59(c) required the Court to grant or deny the motion for a
new trial and specify grounds for its decision. The Court
agrees that it did not properly consider Sprint’s motion
for new trial. Plaintiff was not afforded an opportunity to
respond to the written motion and neither party had an
opportunity at the hearing to argue their positions. Fur-
thermore, the Court failed to specify grounds for the
denial. Consequently, the Court will reexamine its ruling.
App. 30
2. Motion to Reconsider Under Rules 59(e) or
60(b)
A motion under Federal Rule of Civil Procedure 59(e)
to alter or amend a judgment draws into question the
correctness of a judgment. Norman v. Arkansas Dept. of
Educ., 79 F.3d 748, 750 (8th Cir. 1996). Rule 59(e) was
adopted to codify the district court’s power to rectify its
own mistakes in the period immediately following the
entry of judgment. Id. Alternatively, a Rule 60(b) motion
serves to relieve a party from a final judgment or order
on one of six specified grounds. See Fed R. Civ. P. 60(b).
The last articulated ground is a catch-all provision that
authorizes “any other reason justifying relief from the
operation of the judgment.” Id. The Eighth Circuit has
interpreted this Rule to provide for extraordinary relief
“which may be granted only upon an adequate showing
of exceptional circumstances.” United States v. Young, 806
F.2d 805, 806 (8th Cir. 1986) (per curiam). Under either
Rule 59 or 60, the Court finds it necessary to reconsider
its ruling denying Sprint’s motion for a new trial. As a
result, because the Court did not hear argument on the
motion for new trial and because Couch did not have the
opportunity to submit a written response to Sprint's
motion, the Court will permit Plaintiff twenty (20) days
from the date of this Order to file a motion and brief
opposing Sprint’s motion for new trial under Rule 59(a).
V. ORDER
Based on the foregoing, it is hereby ORDERED that
Sprint’s Motion for Judgment as a Matter of Law on Jerry
App. 31
Couch’s race, gender, and retaliation claims is
GRANTED. It is further
ORDERED that the Court will reconsider its denial of
Sprint’s motion for new trial under either Rule 59(e) or
60(b). The Court therefore ORDERS Plaintiff to file a
motion and brief opposing Sprint’s motion for new trial
within fifteen (15) days from the date of this Order. The
Court wili not consider a reply brief.
/s/ Dean Whipple
Dean Whipple
United States District Judge
Date December 26, 1996
App. 32
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 97-1368WMKC °
nS
Appellant, * Suggestion for Rehearing
vs. : En Banc
Sprint Corp., ‘
Appellee. :
The suggestion for rehearing en banc is denied. The
petition for rehearing by the panel is also denied.
January 28, 1998
Order Entered at the Direction of the Court:
/s/ Michael E. Gans
Clerk, U.S. Court of Appeals, Eighth Circuit
App. 33
DEPOSITION
EXHIBIT
4
4-16-96
PROMOTIONS AND HIRES - GRADES 74-79
CONTRACTS & NATIONAL AGREEMENTS
January 1, 1994 to October 13, 1995
NAME/RACE/SEX
Sara Miller (WF)
Carol Bales (WF)
Vicki Moreno (WF)
Mary Ann Sligh (WF)
Joyce Christanio (BF)
Julie D’Agostino (WF)
Patricia Porter (WF)
John E. Gallegos (HM)
Sara Shepherd (WF)
David Moe (WM)
Linda Hart (WF)
Sara Miller (WF)
DATE POSITIONS
3/94 Sr. Nat. Agr.
Nego. to Mgr.
Nat. Agr.
4/5/94 Buyer/Corp. Agr.
Nego.
5/94 Contracts Nego. to
' Nat. Agr. Nego.
5/19/94 Nat. Agr. Adm.
5/31/94 Exec. Asst. to
Corp. Agr. Nego.
6/23/94 Lead Negotiator
6/94 Sr. Cont. Nego. to
Lead Nego.
7/10/94 Corp. Agr. Nego.
7/94 Sr. Nat. Agr.
Nego. to Mgr.
Corp. Agr.
7/94 Sr. Cont. Nego. to
Mgr. Corp. Agr.
9/19/94 Lead Negotiator
10/16/94 Mgr. Nat. Agr. to
Lead Nego.
App. 34
Sara Shepherd (WF) 10/24/94
Isaiah (Ike) Brown (BM) _ 1/16/95
Carol Lineberry (WF) 1/95
Judy Novosel (WF) 1/10/95
Ben Wilson (WM) 1/10/95
Debra Rector (WF) 5/2/95
Kevin Neuer (WM) 5/15/95
PLAINTIFF’S
EXHIBIT
50
Mgr. Corp. Agr. to
Mgr. Nat. Agr.
Mgr. Corp. Agr.
Nat. Agr. Nego.
Corp. Agr. Nego.
to Nat. Agr. Nego.
Assoc. Corp. Agr.
Nego. to Corp.
Agr. Nego.
Contracts. Coor. to
Corp. Agr. Nego.
Lead Negotiator
Case No. CV95-0675
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