Petition for Writ of Certiorari — Brown v. Kinney Shoe Corp.

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No 902% 4:0 may 2) 2001

In the

Supreme Court of the United

THE CLERK

tates

LLOYD BROWN,

Petitioner,

-versus-

KINNEY SHOE CORP., doing business as Foot Locker, doing

business as ASF/Foot Locker, doing business as Champs Sports,

doing business as Lady Foot Locker, doing business as Susie's, doing

__ business as Athletic X-Press,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID BRENNER

Counsel of Record

KRISTIN L. LEMKE

BURNS ANDERSON JURY &

BRENNER, L.L.P.

4807 Spicewood Springs Road,

Bidg. 4, Floor 2

Austin, Texas 78759

(512) 338-5322

Attorneys for Petitioner

nee, Curry a lever Or oo atai Were prgen De 20008 '

Il.

lil.

QUESTIONS PRESENTED

Can an appellate court reverse a district court’s failure

to grant a post-verdict Rule 50 motion for judgment '

on a question of fact not submitted to, considered by

nor found by the jury in its verdict?

Can an appellate court substitute its judgment for that

of the jury, ignoring the standard this Court has set for

reviewing a motion for judgment?

Is it proper to reverse and remand an entire damage

award where only one element of damages is in

dispute?

Is a district court required to ask the jury separate

questions under 42 U.S.C. Section 1981 and Title VI

where the elements and evidence to prove both

theories of liability are the same?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

I. THE APPELLATE COURT ERRED IN

- REVERSING THE DISTRICT COURT’S

FAILURE TO GRANT A POST VERDICT

RULE 50 MOTION FOR JUDGMENT ON A

QUESTION OF FACT NOT SUBMITTED

TO, CONSIDERED BY NOR FOUND BY

THE JURY IN ITS VERDICT

IN CONSIDERING THE CONSTRUCTIVE

DISCHARGE CLAIMS, THE PANEL

IGNORED THE EVIDENCE OF

CONSTRUCTIVE DISCHARGE AND

MISAPPLIED THE STANDARD OF

REVIEW SET FORTH BY THE SUPREME

COURT IN REEVES V. SANDERSON AND

IMPERMISSIBLY SUBSTITUTED ITS

JUDGMENT FOR THE JUDGMENT OF

FREE GRAIL cncenseosieinnionssnititsntnniindasnnaniianilibaiaiaaannsiabin 13

iii

Ill. THE PANEL’S REVERSAL OF THE

ENTIRE DAMAGES AWARD CONFLICTS

WITH THE FIFTH CIRCUIT’S RECENT

HOLDING IN HARDIN v. CATERPILLAR,

TREC, AND WAS ERROR nccccessreccscsnsscscssesescoceseecee 16

IV. 42 U.S.C. SECTION 1981 AND TITLE VI

WERE BOTH SUPPORTED BY THE JURY

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APPENDIX

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CARCURT COURT SUDGMEINT ccccccccccsecsossecssccccssscecssonsscsesses 55a

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TABLE OF AUTHORITIES

CASES

BARROW V. NEW ORLEANS S.S. Ass'n, 10 F.3D 292, 297 (STH

CO, FE ctccnsitsinesininncantsinicsidiioaiolanidabcatinasiianeelitieatiibamesei 14

BOCK V. UNITED STATES, 375 F.2D 479 (9TH Cir. 1967).... 10

BROWN V. KINNEY SHOE CorP., 237 F.3D 556 (STH Cir.

yD SEN SPL NORE EE Sere OA EE SEE SERRE nO |

EMMEL V. COCA-COLA BOTTLING Co., 95 F.3D 627 (7TH Cir.

Sree cscciciechnteeaineinsinisightacitiettacriidaaiiciel ial laiiaiila ti 15

CITY OF NEWPORT V. FACT CONCERTS, INC., 453.

iE yf} RRC re merenien nee ere 9,10

HALL V. STATE FARM FIRE & CAS. Co., 937 F.2D 210 (STH

COR, Fad cxscaiercnieethcnitiininiiinntoncitiniiiiliicansédsiilalsbadains idaiitaiiaein 12

HARDIN V. CATERPILLAR INC., 227 F.3D 268 (STH Cir. 2000)

eRe SNELL SPLIT 8 eS 1 SL SEO: 16

HEBRON V. TOUHY, 18 F.3D 421 (7TH Cir. 1994)................ 10

HILTGEN V. SUMRALL, 47 F.3D 695 (STH Cir. 1995)........... 12

HOBSON V. WILSON, 737 F.2D 1 (D.C. Cir. 1984) ................ 9

HYBERT V. HEARST CorP., 900 F.2D 1050 (7TH Cir. 1990) 15

INVESTMENT SERV. CO. V. ALLIED EQUITIES CorP., 519 F.2D

FS CN Gs. Se eiectbinhictnitpiciniiatid ec ptdeiiiitiaiienienticge ties 9

LAWSON V. TROWBRIDGE, 153 F.3D 368 (7TH Cir. 1998)... 11

LITTLE V. GREEN, 428 F.2D 1061 (STH Cir. 1970)................ 9

MCDANIEL V. SLADE, 404 F.2D 607 (STH Cir. 1968).......... 10

MEADE V. MERCHANTS FAST MOTORLINE, INC., 820 F.2D

re Cals HIND Diccnichitnseccconsdiitnninicicisidnastieininsipababrsiiiainis 17

NEEDHAM V. WHITE LAB., INC., 847 F.2D 355 (7TH CIR.

SSOP scsicsciniaiesiunnsepietinletiissiaenietihbuaeiidiiedanclsih Aaieaaauadatinens dtiele 11

PRESSLEY V. HAEGER, 977 F.2D 295 (7TH Cir. 1992)......... 11

REEVES V. SANDERSON, 530 U.S. 133 (2000).................0000 13

S.A. HEALY Co. v. MILWAUKEE METRO. SEWERAGE DIST.,

ee, ok | RR ee eee 11

SEARS V. SOUTHERN PAC. Co., 313 F.2D 498 (9TH Cir. 1963)

esipnssiaeiids initialed ceiadadiapbadeciatitahabaaaebasdtidata tial 9

SPRINT/UNITED MANAGEMENT CO., 208 F.3D 847 (10TH Cir.

Ts cccctisiriinsnsnsncispiaiiicisesniaiipaleninsiinineniiicegnisihaivininhcitenibiaibiin 17

SWIDERSKI V. MOODENBAUGH, 143 F.2D 212 (9TH Cir. 1944)

PR IESE eR WRIT ARE RE MONEE SAME TEER EAT TO TA Bee 9

UNITED STATES POSTAL SERV. BD. OF GOVERNORS V.

AIKENS, 460 U.S. 711 (1983) .........scccscssseoscossesssesssesesseeees 15

WILLIAMS V. PHARMACIA, INC., 137 F.3D 944 (7TH CR.

Ca iiviecisdecccsccinanccdsciinttincsssctosiiscakeidiesciaddscikinpusmadieisnae 15

STATUTES

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OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit in Brown v. Kinney Shoe Corp., 237 F.3d

556 (5™ Cir. 2001), is set forth in the Appendix hereto (App.

la-20a). The Order of the District Court for the Western

District of Texas in Brown v. Kinney Shoe Corp. is

unreported and set forth in the Appendix hereto (App. 21a-

52a).

The final judgment of the United States Court of

Appeals for the Fifth Circuit affirming in part, reversing in

part and remanding in part the decision of the District Court

of the Western District of Texas was filed on January 15,

2001. The last order on a timely filed petition for rehearing

was filed on February 21, 2001. This petition for writ of

certiorari is filed within ninety (90) days from that date. 28

U.S.C. Section 2101(c).

The jurisdiction of this Court is invoked pursuant to

the provisions of 28 U.S.C. Section 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.

United States Constitution, Amendment VII:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and no

fact tried by a jury, shall be otherwise

reexamined in any Court of the United States,

than according to the rules of the common

law.

Equal rights under the law—42 U.S.C. Section 1981

(a) Statement of equal rights

All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws

and proceedings for the security of persons

and property as is enjoyed by white citizens,

and shall be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of

every kind, and to no other.

(b) "Make and enforce contracts" defined

For purposes of this section, the term "make

and enforce contracts” includes the making,

performance, modification, and termination of

contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the

contractual relationship.

The rights protected by this section are

a a a a i rr iE!

protected against impairment by

tal siecriminati and

impairment under color of State law.

Title VII—42 U.S.C. Section 20000-2

(a) Employer practices.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 discriminate

against any individual with respect to his

compensation, terms, conditions, or privileges —

of employment, because of such individual'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.

Discrimination by Employer—Texas Labor Code Section

21.051

An employer commits an unlawful

employment practice if because of race, color,

disability, religion, sex, national origin, or age

the employer:

(1) fails or refuses to hire an individual,

discharges an individual, or discriminates in

any other manner against an individual in

connection with compensation or the terms,

conditions, or privileges of employment, or

(2) limits, segregates, or classifies an

employee or applicant for employment in a

manner that would deprive or tend to deprive

an individual of any employment opportunity

or adversely affect in any other manner the

status of an employee.

Federal Rule of Civil Procedure 51

No party may assign as error the giving or the

failure to give an instruction unless that party

objects thereto before the jury retires to

consider its verdict, stating distinctly the

matter objected to and the grounds of the

objection.

Federal Rule of Procedure 50 (a) & (b)

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has

been fully heard on an issue and there is no

legally sufficient evidentiary basis for a

reasonable jury to find for that party on that

issue, the court may determine the issue

against that party and may grant a motion for

judgment as a matter of law against that party

with respect to a claim or defense that cannot

under the controlling law be maintained or

defeated without a favorable finding on that

issue.

(2) Motions for judgment as a matter of

law may be made at any time before

submission of the case to the jury. Such a

motion shall specify the judgment sought and

the law and the facts on which the moving

party is entitled to the judgment.

(b) Renewing Motion for Judgment After

Trial; Alternative Motion for New Trial. If,

for any reason, the court does not grant a

motion for judgment as a matter of law made

at the close of all the evidence, the court is

considered to have submitted 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

law; Or

(2) if no verdict was returned;

(A) order a new trial, or

(B) direct entry of judgment as a matter of

law.

STATEMENT OF THE CASE.

Lloyd Brown sued Foot Locker because he was the

victim of intentional discrimination based on a company

practice of assigning African-American managers only to

ethnicaily classified stores. He brought his claims pursuant

to 42 U.S.C. Section 1981, Title VII (42 U.S.C. Section

2000(e)) and the Texas Labor Code. After trial, the jury

returned a unanimous verdict for Mr. Brown, finding

intentional race discrimination and assessing the following

damages: $69,493.00 in past and future lost wages;

$21,500.00 in mental anguish damages; and $250,000.00 in

punitive damages. (App. at 72a-74a). The court entered a

judgment in favor of Mr. Brown. (App. at 56a-57a). Foot

Locker filed a Motion for Judgment following the verdict,

arguing, among other things, that there was no evidence to

support a finding of constructive discharge, despite the fact

that no finding of constructive discharge existed. Foot

Locker argued that since there was ao evidence of

constructive discharge, the court must disregard the jury’s

damage finding in response to Question 2(b), awarding

damages for loss of value of earning capacity.

On appeal, Foot Locker complained that the trial

court committed reversible error by failing to grant an

instructed verdict on Brown’s claim of constructive

discharge. The court of appeals found that there was

insufficient evidence as a matter of law to support a

constructive discharge finding and reversed and remanded

the case for a trial of the entire damage award. (App. at la-

20a.)

REASONS FOR GRANTING THE WRIT.

THE APPELLATE COURT FERRED IN

REVERSING THE DISTRICT COURT’S

FAILURE TO GRANT A POST VERDICT

RULE 50 MOTION FOR JUDGMENT ON A

QUESTION OF FACT NOT SUBMITTED TO,

CONSIDERED BY NOR FOUND BY THE

JURY IN ITS VERDICT.

The verdict form in this case consisted of three

questions. (App. at 72a-74a.) The jury instructions for the

questions, a separate document, were thirteen pages long and

included separate instructions for each question. (App. at

58a-71a.) The first question asked was, “Do you find from a

preponderance of the evidence that Defendant Foot Locker

discriminated against Mr. Brown based on his race? Answer

‘yes’ or ‘no’.” The jury was instructed that in order to

answer “yes” to Question One, it must find that an adverse

employment decision was made by Foot Locker because of

Brown’s race. The jury answered “yes” to Question One and

was directed by the charge to proceed to the instructions for

Question Two which asked, “What sum of money, if now

paid in cash, would fairly and reasonably compensate Mr.

Brown for the damages he has sustained as a result of Foot

Locker’s discrimination against him based on his race?” The

instructions to Question Two were over four pages long and

explained each type of damage requested: lost wages, loss of

wage-earning capacity and damages for past emotional pain,

suffering, inconvenience, mental anguish and loss of

enjoyment of life. The jury awarded damages for each of

these specified damages and then proceeded to Question

Three and awarded punitive damages to Brown.

The district court did not charge the jury on Brown’s

claim of constructive discharge, and the jury did not return a

verdict finding constructive discharge. The jury was

instructed that Brown should prevail if he proved that his race

was a motivating factor in any of Foot Locker’s adverse

employment decisions. (App. at 62a.) The jury unanimously

concluded that Foot Locker did discriminate against Brown

based on his race, and this finding was affirmed by the court

of appeals. (App. at 17a.)

Despite the fact that the district court did not question

the jury regarding constructive discharge and constructive

discharge was never found by the jury, the court of appeals

reversed the district court’s denial of Foot Locker’s motion

for judgment on the issue of constructive discharge and the

court’s damage award in its entirety. The court of appeals

assumed that the compensatory damages awarded in response

to both Questions 2(a) and 2(b) “obviously included damages

relating to both the constructive discharge claim and failure

to promote claim.” (App. at 17a.) Presumably, the court of

appeals arrived at its conclusion based on a portion of the

instruction for Question 2 that referenced constructive

discharge:

In this case, the plaintiff alleges that he was

“constructively discharged.” To find that Mr.

Brown was constructively discharged, you

must find that Foot Locker made Mr. Brown’s

working conditions so intolerable that a

reasonable employee would feel compelled

not to continue working for Foot Locker. If

you find from a preponderance of the

evidence that Mr. Brown was constructively

discharged as a result of discrimination by

Foot Locker, you must award him

compensation for the lost wages, if any

proved by a preponderance of the evidence he

has suffered in the past (in subpart “a”) and

the loss in wage-earning capacity, if any, that

the plaintiff is likely to suffer in the future due

to the discriminatory conduct of Foot Locker

(in subpart “b”).

(App. at 65a-66a.)

However, Foot Locker never objected to the

instructions for Question 2. Therefore, Foot Locker was

precluded from asserting that the portion of the instruction

relating to constructive discharge was reversible error. Little

v. Green, 428 F.2d 1061, 1070 (5 Cir. 1970). Federal Rule

of Civil Procedure 51 states in part, “No party may assign as

error the giving or the failure to give an instruction unless

that party objects thereto before the jury retires to consider its

verdict, stating distinctly the matter objected to and the

grounds of the objection.” The purpose of the rule is to

_ enable the trial judge to avoid error by giving him an

opportunity to correct statements in his charge before the

case is decided by the jury. Investment Serv. Co. v. Allied

Equities Corp., 519 F.2d 508, 510 (9™ Cir. 1975), citing

Swiderski v. Moodenbaugh, 143 F.2d 212 (9" Cir. 1944);

Sears v. Southern Pac. Co., 313 F.2d 498, 505 (9 Cir. 1963).

Accordingly, the delay and expense of a retrial are avoided

when “by design or through sheer neglect, the losing party

fails to make objection at the proper time.” Hobson v.

Wilson, 737 F.2d 1, 31 (D.C. Cir. 1984), citing 9 C. WRIGHT

& A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2551,

at 623 (1971). Where a party does not object to instructions —

before the jury retires, it cannot claim on appeal that the

instructions were erroneous. Id.

In addressing untimely objections, some courts of

appeals have applied the “plain error” rule, an exception to

Rule 51 “suited to correcting obvious instances of injustice or

misapplied law.” City of Newport v. Fact Concerts, Inc.,

453. U.S. 247, 256 (1981). Other courts of appeals have

refused to allow jury instructions in civil litigation to be

considered plain error. See Hebron v. Touhy, 18 F.3d 421,

424 (7™ Cir. 1994) (finding that although the jury was not

instructed to apply the correct body of substantive law, “a

court of appeals may not treat jury instructions in civil

litigation as plain error.”); Bock v. United States, 375 F.2d

479, 480 (9™ Cir. 1967) (stating, “it is firmly established in

this circuit that ‘the ‘plain error’ rule may not be utilized in

civil appeals to obtain review of instructions given or

refused’.” [Citation omitted]). In Fact Concerts, this Court

did not apply the plain error rule due to the novel issue

presented in that case, stating that restricting review to the

plain error standard would not promote the interests of justice

or advance efficient judicial administration in that particular

case. Fact Concerts, 423 U.S. at 257. The Court stated,

however, that while concluding that the interest of justice

warranted plenary consideration in that “unusual case,” the

Court expressed no view regarding the application of plain-

error doctrine by the courts of appeals. Jd.

Regardless of the differing standards of review in the

courts of appeals, plain-error has not been asserted in the

present case and does not exist. Furthermore, the alleged

error in the charge in this case neither presents a novel nor

unusual issue, and there has been no miscarriage of justice

warranting an exception to the clear language of Rule 51.

Accordingly, Foot Locker has waived any objection to the

jury charge.

Even assuming that Foot Locker had made a timely

objection to the reference in the charge regarding

constructive discharge, any error was harmless. A jury

charge should not be read in fragments, and review of a

district court’s instructions must be “orbitary and universal,

not narrow and monocular.” McDaniel v. Slade, 404 F.2d

607, 609 (5™ Cir. 1968). If a charge fairly presents the law

when viewed in its full context, it is not rightfully subject to

impugnment. Jd. Even where an objection to a jury

instruction is properly preserved, the hurdle on appeal is a

high one. Lawson v. Trowbridge, 153 F.3d 368, 373 (7 Cir.

1998). Jury verdicts are not set aside because one instruction

that correctly states the law should not have been given. /d.

at 374. The court of appeals in Lawson stated that “’[w]hen

an instruction is given to which no evidence corresponds, the

likely consequence is that the jury ignored it. The error in

giving it is therefore presumed to have been harmiless.”” /d.,

citing S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist., 50

F.3d 476, 481 (7 Cir. 1995) (citing Avitia v. Metropolitan

Club of Chicago, Inc., 49 F.3d 1219, 1225-26 (7 Cir. 1995)

and United States v. Cartwright, 6 F.3d 294, 301 (5* Cir.

1993)). In considering an instruction that should not have

been given, the Seventh Circuit held that a party’s substantial

rights were not affected by the erroneous instruction,

observing that “[jjurors consider the evidence and trial as a

whole; appellate judges must guard against the error of

assuming that jurors dissect instructions as if the sentences

were frogs.” Pressley v. Haeger, 977 F.2d 295, 298 (7 Cir.

1992), citing Needham v. White Lab., Inc., 847 F.2d 355,

358-60 (7 Cir. 1988).

The error, if any, in the charge’s inclusion of a

paragraph regarding constructive discharge was harmless.

The statement was not and has not been alleged to be an

incorrect statement of the law. The reference to constructive

discharge is in one paragraph of four pages of instructions

describing how damages should be assessed only after a jury

has already addressed liability. With respect to the jury’s

finding of discrimination, the charge clearly instructs and

questions the jury regarding Foot Locker’s intentional

discrimination against Mr. Brown based on its failure to

promote Mr. Brown because of his race. It is on this basis

that the jury answered “yes” to question one and awarded

damages in questions two and three. Because the court of

appeals found that there was no evidence as a matter of law

on which to find constructive discharge, it should be

presumed that the jury ignored this instruction and that the

alleged error was harmless.

Furthermore, in evaluating the jury’s response to

Question 2, the court of appeals should have assumed that the

jury’s award was appropriate compensation for Foot Locker’s

intentional discrimination. This is so because the court of

appeals was constitutionally required, under the Seventh

Amendment, to adopt a view of the case that makes the jury’s

answers consistent with their finding of discrimination in

Question 1. Hiltgen v. Sumrall, 47 F.3d 695, 701 (5™ Cir.

1995). Even if the court felt the instruction referenced above

was erroneous, it should not have reversed the judgment

unless the charge as a whole leaves substantial and

ineradicable doubt as to whether the jury was properly guided

in its deliberations. Hall v. State Farm Fire & Cas. Co., 937

F.2d 210, 214 (5" Cir. 1991). Here, despite the fact that the

court of appeals concluded that there was no evidence as a

matter of law from which the jury could have concluded that

Brown was constructively discharged, it concludes that the

jury obviously found he was. Because there was no jury

finding of constructive discharge and Foot Locker failed to

properly assert error either at trial or on appeal, it was error

for the court of appeals to reverse the jury verdict on

damages based on a nonexistent finding.

IN CONSIDERING THE CONSTRUCTIVE

DISCHARGE CLAIMS, THE PANEL IGNORED

THE EVIDENCE OF CONSTRUCTIVE

DISCHARGE AND MiISAPPLIED THE

STANDARD OF REVIEW SET FORTH BY THE

SUPREME COURT IN REEVES V. SANDERSON

AND IMPERMISSIBLY SUBSTITUTED ITS

JUDGMENT FOR THE JUDGMENT OF THE

JURY.

Brown believes it was inappropriate for the court of

appeals to evaluate whether Foot Locker’s conduct amounted

to constructive discharge. However, if the court determined

that the jury found constructive discharge by implication, and

the post-verdict motion for judgment required it to determine

whether there was legally sufficient evidence to support the

implied finding, then the court of appeals failed to apply the

standard of review mandated by this Court in Reeves v.

Sanderson, 530 U.S. 133 (2000). In Reeves, this Court held

that when considering a motion for judgment, the court

should review all the evidence and draw all reasonable

inferences in favor of the nonmoving party. /d at 150. The

reviewing court may not evaluate credibility of witnesses,

weigh the evidence, or draw inferences because all of those

functions are for the jury. Jd. Thus, although the court should

review the record as a whole, it must disregard all evidence

favorable to the moving party. Jd. at 151. A review of the

court of appeals’ opinion can only lead to the conclusion that

Court.

Assuming that the jury found constructive discharge,

in the absence of a jury question, such a finding is supported

by the evidence. The court of appeals concluded that the

only evidence presented by Brown to support his claim of

constructive discharge was identical to the evidence

supporting failure to promote. The court ignored specific

outlined by the trial court in its opinion, and disregarded the

reasonable inferences in Brown’s favor which the jury was

entitled to make in judging the weight of the evidence.

Constructive discharge evidence is analyzed in light

of the seven factors listed in Barrow v. New Orleans SS.

Ass'n, 10 F.3d 292, 297 (5™ Cir. 1994): (1) demotion; (2)

reduction in salary; (3) reduction in job responsibilities; (4)

reassignment to menial or degrading work; (5) reassignment

to work under a younger supervisor, (6) badgering,

harassment or humiliation calculated to encourage the

employee’s resignation; or (7) offers of early retirement [or

continued employment on terms less favorable than the

employee’s former status]. Only one of these factors need

be present in order to support a finding of constructive

discharge. See id.

In the present case, the record reflects that at least five

of the Barrow factors for constructive discharge were

supported by the evidence. For instance, Brown was told he

was being promoted when in fact he received a demotion

(Factor 1) which resulted in a reduction in salary (Factor 2).

(Tr. at 333-337.) After he voiced concerns of being

discriminated against, he was transferred to a store plagued

with violence, curfews and losses (Factor 4). (Tr. at 112-113,

254-256, 299.) The harsh subjective evaluations and audits

which deprived Brown of promotions and pay raises

amounted to behavior that is at least as pernicious as

badgering or harassment, and the overall message Foot

Locker sent to Brown over a period of several years, that his

race rendered him incompetent to manage certain stores, was

humiliating (Factor 6). (Tr. at 100, 135-138, 309-10.)

Although Brown was offered a higher volume ethnic store

immediately before he filed his EEOC complaint, after his

complaint, he was told he was no longer promotable, (Tr. at

141), and, after years of prior service, would have to start all

over again. (Factor 7). (Tr. at 95.) This evidence is not

identical to the evidence of failure to promote. Had the court

of appeals applied the proper standard, drawing all

reasonable inferences in favor of Brown, the court should

have concluded that the evidence supported a finding of

This Court has stated that “fajll courts have

recognized that the question facing triers of fact in

discrimination cases is both sensitive and difficult.” United

States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

716 (1983). A judgment for a plaintiff should be overturned

only if it is concluded that “’no rational jury could have

found for the plaintiff."” Williams v. Pharmacia, Inc., 137

F.3d 944, 948 (7 Cir. 1998), citing Emmel v. Coca-Cola

Bottling Co., 95 F.3d 627, 630 (7 Cir. 1996). This standard

is applied stringently in discrimination cases where witness

credibility is often crucial. id. The court of appeals in

Hybert v. Hearst Corp., 900 F.2d 1050, 1054 (7 Cir. 1990),

acknowledged that “we are particularly careful in

employment discrimination cases to avoid supplanting our

view of the credibility or weight of the evidence for that of

both the jury (in its verdict) and the judge (in not interfering

with the verdict).”

Despite the stringent review that is supposed to be

conducted in discrimination cases, the court of appeals in this

case held that Brown’s move to the Fort Worth Town Center

was not a reduction of responsibility, that the store

not degrading or menial and that he was not subjected to

badgering or harassment designed to encourage his

resignation. Applying the appropriate standard of review, the

court of appeals Panel was not free to draw such inferences

from the record.

Il. THE PANEL’S REVERSAL OF THE ENTIRE

DAMAGES AWARD CONFLICTS WITH THE

FIFTH CIRCUIT’S RECENT HOLDING IN HARDIN

v. CATERPILLAR, INC. AND WAS ERROR.

Assuming the court of appeals properly concluded

that the jury awarded damages for constructive discharge and

that the evidence did not support a finding of constructive

discharge as a matter of law, the court erred in reversing the

entire damages award. The jury’s verdict form separated the

actual damages into three categories: (a) “loss of wages and

benefits from the date of the defendant’s discriminatory

conduct until the present;” (b) “loss of value of earning

capacity from this date into the future;” and (c) “emotional

pain ... from the date of the onset of the discrimination until

the present date.” In the instruction to Question 2, the court’s

instruction relating to constructive discharge carefully limited

it to parts (a) and (b). It made no reference to the award for

mental anguish, nor was it referred to in the award for

punitive damages.

In holding that a remand on all issues of damages was

required, the court of appeals cited Hardin v. Caterpillar Inc.,

227 F.3d 268 (5™ Cir. 2000). Hardin found there was a

practical inseparability of the issues of intent, damages for

emotional injuries and punitive damages. /d at 272. The

court arrived at this holding because it believed that a jury, in

deciding whether to award punitive damages and the amount,

responds to the evidence of intentional acts and the perceived

level of emotional injury in awarding appropriate

compensation. /d at 273. Here, the court expressed concern

that the jury’s finding of compensatory damages in answer to

2(a) and 2(b) may have included damages for constructive

discharge. However, the finding of intentional discrimination

was affirmed, and damages for emotional injuries and

punitive damages, which are tied together according to

Hardin, have not been disturbed by the court of appeals.

Since the award of the emotional injury and punitive

damages flow from the affirmed finding of intentional

discrimination and not from the compensatory damages,

these should not be reversed for a new trial. If compensatory

damages were based on constructive discharge and

constructive discharge was not supported by the evidence,

then this case should be remanded for consideration of

compensatory damages only and not emotional and punitive

damages. The trial court on remand can best address any

concern relating to the linkage of actual and punitive

damages in locating caps for punitive awards after a

resolution by the jury of compensatory damages.

IV. 42 U.S.C. SECTION 1981 AND TITLE VII WERE

BOTH SUPPORTED BY THE JURY VERDICT.

The court of appeals implied in footnote 3 of its

opinion that Brown has waived his Section 1981 claims by

not requesting specific jury instructions. However, neither

the instructions nor the verdict form referenced either Title

VII or Section 1981. The jury was only instructed as to the

burden of proof to find race discrimination, without being

informed as to the specific statutory bases for Brown’s claim.

The elements of Title VII and Section 1981 are parallel, and a

verdict on the issue of liability under Title VII is conclusive

on Section 1981 and vice versa. Heno v. Sprint/United

Management Co., 208 F.3d 847, 852 (10 Cir. 2000). See

also Meade v. Merchants Fast Motorline, Inc., 820 F.2d 1124

(10™ Cir. 1987). Therefore, the court of appeals’ affirmance

of Brown’s failure to promote claim should have and did

support a judgment for the alternative claim arising out of 42

U.S.C. Section 1981.

CONCLUSION.

For all of the reasons stated in this petition, a writ of

certiorari should issue to review the decision of the United

States Court of Appeals for the Fifth Circuit and, ultimately,

reverse that part of the court of appeals’ judgment reversing

the judgment of the district court and remanding for a new

trial on the issue of compensatory, punitive and emotional

damages.

Respectfully submitted,

David Brenner

Kristin L. Lemke

BURNS ANDERSON

JURY & BRENNER,

LLP.

4807 Spicewood Springs

Road, Bldg. 4, Floor 2

Austin, Texas 78759

(512) 338-5322

(Any footnotes trail end of each document)

No. 99-50493

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LLOYD BROWN,

Plaintiff - Appellee-Cross-Appellant,

versus

KINNEY SHOE CORP., doing business as Foot Locker,

doing business as ASF/Foot Locker, doing business as

Champs Sports, doing business as Lady Foot Locker, doing

business as Susie's, doing business as Athletic X-Press,

Defendant - Appellant-Cross-Appellee.

January 15, 2001, Decided

COUNSEL:

For LLOYD BROWN, Plaintiff - Appellee-Cross-Appellant:

David L. Brenner, Kristin Lee Lemke, Burns, Anderson, Jury

& Brenner, Austin, TX.

For KINNEY SHOE CORP, Defendant - Appellant-Cross-

Appellee: Stuart Mallory Reynolds, Jr, Steven A Siegel, Jerry

Hicks, Winstead, Sechrest & Minick, Dallas, TX.

JUDGES:

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

OPINION BY:

E. GRADY JOLLY

OPINION:

E. GRADY JOLLY, Circuit Judge:

This appeal presents a challenge to various aspects of a

jury trial that resulted in a finding of intentional racial

discrimination in violation of Title VII. The plaintiff, Lloyd

Brown, brought this Title VII action against his former

employer, Kinney Shoes, d/b/a Foot Locker, ("Foot Locker").

He alleged racial discrimination based on Foot Locker's

failure to promote him to a managerial position in a "non-

ethnic store." Ultimately, the jury found Foot Locker liable

and awarded Brown $ 69,493 in past and future wages, $

21,500 in mental anguish damages, and $ 250,000 in punitive

damages, plus costs and attorney's fees. The district court

entered a judgment in favor of Brown, but reduced his

damages by $ 1160 to meet the statutory cap. On appeal, Foot

Locker seeks review of (1) the district court's failure to

conduct a Batson inquiry, (2) a number of evidentiary

rulings, and (3) the sufficiency of the evidence to support the

jury's verdict. Brown seeks review of the district court's

rulings on damages, attorney's fees, and a jury instruction on

spoliation.' We reject Foot Locker’s Batson and evidentiary

claims. We also conclude that the evidence is sufficient to

support Brown's failure to promote claim. The evidence is

not sufficient, however, to support his claim for constructive

discharge. While upholding liability for the failure to

promote claim, we remand for a new trial on damages,

including compensatory, emotional, and punitive damages.

Lloyd Brown, who is black, worked for Foot Locker from

February 1989 to December 1995. He began his management

career with Foot Locker in October 1990 in the Killeen Mall

store. Soon after assuming a management position, Brown

perceived and was told by other black managers that black

managers were not hired to manage "non-ethnic stores,” and,

further, that the managers of "non-ethnic stores" were more

often promoted to district manager positions.’ Additionally,

Brown testified that he began to notice that the black

managers were subject to harsher reviews and audits than

were white managers.

In 1993, following Brown's request to be transferred to a

"non-ethnic store,” he was promoted to manager of the Town

Center Mall store in Fort Worth, Texas. The Town Center

Mall store, however, like the Killeen Mall store, was an

"ethnic store." The sales volume of the Town Center Mall!

store was $1.1 million for the year before Brown's arrival.

Although conditions at the Town Center Mall store were,

concededly, anything but ideal (because of problems with

crime, the imposition of a curfew, and store vacancies), the

evidence at trial established that Brown had a difficult time

managing the store. Sales dropped from $1.1 million to $

980,000 in 1993. By 1995, sales had dropped to $577,000

under Brown's management. In 1996, however, Brown was

‘able to increase sales to approximately $609,000. In addition

to declining sales, Brown also received critical evaluations

from Jan Balder, his district supervisor, and from store

auditors. The critical evaluations stemmed from Brown's

problem with "shrinkage," that is, store inventory

unaccounted for.

In early 1995, Brown moved his family from Fort Worth

to Austin, Texas, so that they would be closer to his wife's

mother. Sometime after moving his family to Austin, Brown

applied for a transfer to one of Foot Locker’s two new stores

under construction in Austin. Both of these stores were

categorized as non-ethnic stores.

The first store, the Lakeline Mall store, was projected as a

$900,000 volume store. At trial, there was conflicting

testimony regarding why Brown was not offered a

managerial position at the Lakeline Mall Store. District

Manager Balder testified that Brown was denied a transfer to

this store because it would have constituted a promotion,

when he was not promotable given the drop in sales to just

over $600,000 at the Town Center Mall store. Instead, Foot

Locker promoted Mike Zoiber, a white male, who, Foot

Locker argued at trial, was more qualified based on his work

evaluations. Brown offered testimony, which the jury

apparently believed, demonstrating that Zoiber was less

qualified based on the fact that he had only one year's

experience as a manager at a "rookie" store, a store smaller

than Brown's Town Center Mall store. Additionally, in

response to Foot Locker’s assertion that he was not

promotable, Brown testified that after he was denied the

Lakeline Mall job he was offered a managerial position at a

Fort Worth Outlet Mall store, a store with a sales volume of $

1.4 million to $1.6 million. The Fort Worth Outlet Mall store

had an "ethnic store" classification. To support this

testimony, Brown offered the testimony of the manager of the

Outlet Mall store, Joe Maldonado, who stated that when

Balder offered him the job she indicated that he (Maldonado)

was the second choice for the job in that Brown had already

declined the offer. Balder denies having offered a managerial

position at the Outlet Mall to Brown. The jury, however, was

entitled to reject her testimony, and apparently did.

The second store, the Barton Creek Square Mall store,

was a $400,000 to $500,000 volume. store. Foot Locker

offered evidence establishing that Brown was denied a

transfer to this store because it was classified as a "rookie"

store for entry level managers only. Ultimately, Martin

Rhoads, a Hispanic male manager with no previous

management experience, was hired by Foot Locker to

manage the store.

By November 1995, Brown had become frustrated by his

inability to secure a promotion or even a transfer to a "non-

ethnic store." Consequently, he filed a race discrimination

charge with the EEOC. While the charge was pending, in

early 1996, a new district manager was assigned to Brown's

region, and Brown again expressed to his new manager his

desire to be transferred/promoted to a "non-ethnic store." The

manager told Brown that he would have to prove himself.

Because of this conversation, and Foot Locker’s continual

refusal to transfer/promote him, Brown resigned from Foot

Locker.

On November 26, 1997, Brown filed this Title VII action

against Foot Locker alleging intentional race discrimination.

n3 Following a somewhat lengthy trial, the jury returned a

verdict for Brown finding intentional race discrimination and

awarding him $340,000 in damages.‘ Additionally, the court

awarded Brown costs and attorney's fees in the amount of $

148,339.44.

Foot Locker moved to set aside the verdict under Federal

Rule of Civil Procedure 50, and the court denied its request.

Foot Locker then filed this appeal. Foot Locker seeks review

of: (1) the district court's failure to conduct a Batson inquiry

following its timely objection to Brown's use of all of his

peremptory strikes on white jurors; (2) the grant of one of

Brown's Batson challenges; (3) the denial of Foot Locker’s

motion for judgment on the issue of intentional

discrimination; (4) the denial of Foot Locker’s motion for

judgment on the issue of constructive discharge; (5) a series

of evidentiary rulings centering on the refusal of the court to

allow Foot Locker to offer testimony regarding its use of

merchandising codes, and the reasons why Brown was not

promoted; (6) the entry of judgment for punitive damages in

the absence of any evidence of malice or reckless disregard;

and (7) the entry of judgment for damages for emotional

distress in the absence of any evidence of particular injuries

suffered by Brown.

Brown cross-appeals. He seeks review of the district

court's reduction of punitive damages and denial of

supplemental attorney's fees. If the case is reversed or

remanded, Brown also seeks review of the district court's

denial of his requested jury instruction on spoliation.

Foot Locker challenges both the district court's refusal to

conduct a full Batson inquiry in response to its challenge of

Brown's peremptory strikes, and the court's decision to

sustain Brown's Batson challenge to Foot Locker's

peremptory strike of a black juror.

We first address Foot Locker's claim that the district court

failed to fulfill its duty to conduct a Batson inquiry. The law

is now well settled: "A party to a civil suit can challenge

another party's use of a peremptory strike that excludes a

prospective juror on the basis of that juror’s race." Greater

Plains Equipment, Inc. v. Koch Gathering Systems, Inc., 45

F.3d 962, 964 (Sth Cir. 1995)(citing Edmonson v. Leesville

Concrete Co., 500 U.S. 614, 114 L. Ed. 2d 660, 111 S. Ct.

2077 (1991); Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d

69, 106 S. Ct. 1712 (1986)). In Batson, the Supreme Court

held that equal protection principles prohibit a prospective

juror from being peremptorily challenged on the basis of his

or her race. See Batson, 476 U.S. at 86-87 (stating that by

denying a person participation in jury service on account of

race, the offending party "unconstitutionally discriminated

against the excluded juror"). The Batson Court reasoned that

while it is clear that "an individual juror does not have a right

to sit on any particular petit jury, . . . he or she does possess

the right not to be excluded from one on account of race."

United States v. Huey, 76 F.3d 638, 640 (Sth Cir.

1996)(citing Batson, 476 U.S. at 87).

We have developed a three-step process for evaluating

Batson challenges:

First, the complaining party must make a

prima facie showing that opposing counsel has

exercised a peremptory challenge on the basis

of race. Once this showing has been made, the

burden shifts to the striking party to articulate

a race-neutral explanation for the strike.

Thereafter, the court must determine whether

the Batson claimant has proven purposeful

discrimination.

Great Plains Equipment, 45 F.3d at 964-65 (citing United

States v. Bentley-Smith, 2 F.3d 1368, 1373 (Sth Cir. 1993)).

Once a court has called on counsel to provide race-neutral

justifications for the use of peremptory strikes, we review

only the district court's finding of discrimination, not whether

the party has made a prima facie case. United States v.

Forbes, 816 F.2d 1006, 1010 (Sth Cir. 1987). If the trial court

determines that a party failed to make a prima facie showing,

however, opposing counsel is not required to come forward

with a neutral explanation for the challenges. Soria v.

Johnson, 207 F.3d 232, 239 (Sth Cir. 2000).

To establish a prima facie case, a party is required to

show that the circumstances surrounding the peremptory

challenges raise an inference of purposeful discrimination.

Batson, 476 U.S. at 96; Soria, 207 F.3d at 237. The trial court

should consider all relevant circumstances in determining

whether a prima facie Batson violation can be established.

McGinnis v. Johnson, 181 F.3d 686, 691 (Sth Cir. 1999).

Factors that give rise to an inference of discrimination

include, among others, a pattern of strikes against jurors of a

certain race and the party's statements and questions during

voir dire. United States v. Branch, 989 F.2d 752, 755 (Sth

Cir. 1993). "A prima facie case of racial discrimination

requires a defendant to ‘come forward with facts, not just

numbers alone.” Id. (quoting United States v. Moore, 895

F.2d 484, 485 (8th Cir. 1990)). In this circuit, a trial court's

determination that a party has failed to make a prima facie

showing is accorded a "presumption of correctness, which

can only be rebutted by ‘clear and convincing evidence.”

Soria, 207 F.3d at 238. See also Branch, 989 F.2d at 755 ("a

finding that appellants did not make a prima facie case of

discrimination under Batson . . . is reviewed for clear error").

A party that does not raise facts or make timely Batson

claims in the district court waives the right to raise them on

appeal. See Branch, 989 F.2d at 755 n.2 ("On appeal,

appellants have noted facts in alleged support of their Batson

claim. We may not consider them. . . . The failure to

enunciate these facts in the district court amounts to a

waiver"). Thus, it is important that the district court afford

the parties ample opportunity to create a Batson record. As

the Eighth Circuit has noted,

a defendant who requests a prima facie finding

of purposeful discrimination is obligated to

develop a record, beyond numbers, in support

of the asserted violation. And the district court

. . . must give the defendant a reasonable

opportunity to do so. Such a record will allow

the appellate court to review the findings at

issue.

United States v. Dawn, 897 F.2d 1444, 1448-49 (8th Cir.

1990).

On appeal, Foot Locker argues that the district court

committed reversible error by completely disregarding the

three-step procedure for evaluating Batson claims and by

summarily denying its challenge. Specifically, Foot Locker ==

argues that it raised a timely objection, that it made a prima

facie case of discrimination, and that the judge erred by

failing to require Brown to give race-neutral reasons for his

peremptory strikes.

Brown responds by arguing that Foot Locker failed to

carry its burden under the first prong of the Batson test, that

is, Foot Locker failed to make a prima facie showing that the

challenges were exercised on the basis of race. Brown argues

that by failing to require race-neutral explanations, the court

made a determination that Foot Locker did not make a prima

facie case of discrimination.

In truth, the trial court made no explicit findings at all. It

summarily dismissed Foot Locker’s Batson claim without

allowing Foot Locker to attempt to make a prima facie case.

In response to Foot Locker’s Batson challenge for Brown's

use of peremptory challenges against four white jurors, the

court's only response was, "Well, that objection is overruled."

Because the district court made no explicit findings and did

not allow Foot Locker to state the reasons for its objection,

there is no record on which to rely to determine whether Foot

Locker made a prima facie case.

On appeal, Foot Locker only argues that it established a

prima facie case. It does not argue either that the district court

did not afford it an opportunity to make a prima facie case n5

or that the district court made no finding on the issue. As

such, we must review whether Foot Locker made a prima

facie case when it presented its claim to the district court. The

district court's determination is entitled to a presumption of

correctness.

At the time of the Batson objection, Foot Locker objected

only on the basis that Brown used his four peremptories on

white jurors. Standing alone, these numbers do not make a

prima facie case. Foot Locker did not present other facts that

could have led the court to find an inference of

discrimination. Although the facts in this case--a white

supervisor accused of discrimination against a black

salesman on the basis of race, the fact that race was an issue

10a

during voir dire, and the fact that the plaintiff used all four of

its strikes on white jurors (the jury pool consisted of 12

whites, 3 blacks, and 1 Hispanic)--suggest that Foot Locker

might have made a more convincing showing for a prima

facie case, it did not present and argue these facts in support

of its claim. Instead, Foot Locker raised only the race of the

struck jurors. On this basis, we cannot say that the district

court was clearly erroneous in rejecting the Batson challenge.

Although the record before us contains no articulated

findings by the district court and no argument by counsel on

the issue, we can only conclude that the district court

considered that 75 percent of the jury pool was white and

found no inference of discrimination from the scant facts to

which counsel alluded--strikes against four white jurors.

Therefore, the district court's finding that Foot Locker failed

to make a prima facie case of discrimination was not clearly

erroneous.

Foot Locker also appeals the trial court's decision to

sustain Brown's Batson challenge to Foot Locker's

peremptory strike of one of three black jurors on the panel.

During jury selection, Foot Locker first attempted to strike -

two of the black jurors for cause, stating that one of the

jurors, juror Sims, believed that he had been the defendant in

a frivolous lawsuit, and that the other juror had worked for

the first juror, who might unduly influence her. After the

court refused the cause challenge, Foot Locker used two of

its four peremptories to strike juror Sims and the other black

juror on the sixteen person venire, juror Brown, who had not

been challenged for cause. After Brown challenged the strike

on Batson grounds, the court asked Foot Locker to state its

reasons for striking the jurors. Foot Locker articulated a

reason for striking juror Sims--he had been involved in a

lawsuit and would be hostile to litigants—but the district court

found it pretextual, and sustained the Batson challenge.

Finding that Foot Locker’s neutral reasons were adequate

lla

with respect to juror Brown, however, the court allowed the

juror to be struck.

Although explanations are generally considered to be

race-neutral unless the discriminatory intent is inherent in the

explanation, this determination depends in significant part on

an evaluation of the credibility and demeanor of the attorney

exercising the challenge. Thus, the district court's

determination that a party used peremptory strikes in a

discriminatory manner is entitled to deference, and should

not be overturned absent clear error. United States v. Kelley,

140 F.3d 596, 606 (Sth Cir. 1998).

On the record before us, we cannot say that the district

court was clearly erroneous in concluding that Foot Locker’s

explanation for challenging juror Sims was pretextual. Foot

Locker challenged all three black venire members, either by

peremptory strike or for cause. Although Foot Locker

claimed that it used its peremptory to strike juror Sims

because it was worried that his prior experiences with

litigation would influence him, it did not challenge two white

jurors who had also been parties to litigation. Given these

facts, we will not disturb the district court's finding that Foot

Locker evinced purposeful discrimination in striking juror

Sims. We now turn to the merits of the appeal.

As an initial matter, we must examine the essence of

Brown's claims. Brown claims that Foot Locker intentionally

discriminated against him based on his race during the course

of his employment. The facts, as presented by Brown,

encompass both a failure to promote (or transfer) claim, and a

constructive discharge claim. These two claims, however,

were not clearly separated at trial. The same evidence was

presented to support both claims. The jury instructions on the

issue of intentional discrimination did not discuss the

elements of constructive discharge;® to be sure, constructive

discharge was not addressed until the instruction on the

12a

award of damages. The verdict form did not distinguish the

two issues for the jury; it asked "do you find from a

preponderance of the evidence that Defendant Foot Locker

discriminated against Mr. Brown based on his race?" Despite

this consolidation of failure to promote and constructive

discharge at trial, we must separate these two jury issues to

determine whether there is sufficient evidence to support the

jury award.

Foot Locker contends that the district court erred in

denying its motion for judgment on the issues of, first,

intentional discrimination, which we interpret as failure to

promote, and second, constructive discharge. Foot Locker

argues that Brown provided no evidence to show that Foot

Lockers reasons for failing to promote Brown were

pretextual, or to show that Foot Locker made a calculated

effort to pressure him into resignation.

We review the denial of a party's motion for judgment as

a matter of law de novo, applying the same standard that the

district court used. Rutherford v. Harris County, Texas, 197

F.3d 173, 178 (Sth Cir. 1999). "The district court properly

grants a Rule 50 motion for judgment as a matter of law only

where the facts and inferences indicate a particular outcome

so strenuously that reasonable minds could not disagree.”

Aguillard v. McGowen, 207 F.3d 226, 228-29 (Sth Cir.

2000). In deciding a Rule 50 motion, the court should

consider all the evidence in the light most favorable to the

non-moving party. Id. at 228. "A jury verdict must be upheld

unless ‘there is no legally sufficient evidentiary basis for a

reasonable jury to find’ as it did.” Vadie v. Mississippi State

Univ., 218 F.3d 365, 372 (Sth Cir. 2000) (quoting Fed. R.

Civ. P. 50(aX(1)). Even if this court would reach a different

conclusion as trier of fact, "we are not free to reweigh the

evidence or to re-evaluate credibility of witnesses." Hiltgen

v. Sumrall, 47 F.3d 695, 699 (Sth Cir. 1995).

13a

We start with the basics. To succeed on his Title VII

intentional discrimination claim, Brown must prove by a

preponderance of the evidence that he was denied

employment opportunities because of his race. "An employer

is entitled to judgment as a matter of law on this ultimate

question ‘if the evidence taken as a whole would not allow a

jury to infer that the actual reason for the [employer's

decision] was discriminatory.” Vadie, 218 F.3d at 372

(quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994

(Sth Cir. 1996) (en banc)). After a case has been fully tried on

the merits, as has this one, the inquiry shifts from a focus on

whether the plaintiff has made a prima facie case of race

discrimination to the question of whether the record contains

sufficient evidence to support the jury's finding of race

discrimination. Harrington v. Harris, 118 F.3d 359, 367 (Sth

Cir. 1997). Thus, the question is whether the evidence was

sufficient for the jury to find that Brown was not promoted

because of his race.

Foot Locker contends that the evidence indisputably

showed that Brown had not performed well enough to qualify

for a promotion to a higher volume store, that he was less

qualified than the individual who did get the promotion, and

that he would not have been well placed in a lower volume

store. Furthermore, Foot Locker argues that the cases indicate

that courts should be deferential to the judgment of

employers in making promotion decisions in their businesses.

See Odom v. Frank, 3 F.3d 839, 847 (Sth Cir. 1993) (noting

that judges should be reluctant to substitute their own views

unless disparities are "so apparent as virtually to jump off the

page and slap us in the face"). Brown counters Foot Locker’s

claim with evidence of strong evaluations, and more years of

management experience than the individual who was

selected. Brown also testified that, although not spoken at the

time, he would have been willing to accept a pay cut to

manage the smaller non-ethnic store.

14a

Brown also introduced evidence attempting to show that

Foot Locker's method of promoting managers systematically

treated black candidates differently. The evidence showed

that, for merchandising purposes, Foot Locker classified its

stores based on the racial makeup of each store's customer

base. The evidence also showed that, generally, black

- Managers were not promoted to management positions in

non-ethnic stores.’ There was testimony, conclusionary in

nature, that also suggested that white managers were

promoted more frequently and that black managers were

evaluated more harshly.

Brown also introduced evidence to show that Foot

Locker’s reasons for failing to promote Brown out of the

ethnic store--that the alternative stores were either too big or

too small for his experience level--were pretextual. Brown

testified that Foot Locker offered to promote him to a 1.4 to

1.6 million dollar ethnic store, but refused to promote him to

either a 900,000 doilar or a 300,000 to 500,000 dollar non-

ethnic store. Another Brown witness corroborated this

testimony. Foot Locker presented evidence that it never

offered him management of the 1.4 million dollar store,

directly contradicting Brown's testimony.

Although much of the evidence is conflicting, it is legally

sufficient for a jury to find intentional discrimination. The

jury, exercising its function of determining facts and

weighing credibility, was free to believe Brown's testimony

and evidence over the evidence offered by Foot Locker.

Brown introduced evidence that white managers with similar

evaluations were promoted to non-ethnic stores, and evidence

suggesting that black managers were generally not chosen to

manage non-ethnic stores. Brown testified that despite

requesting positions at non-ethnic stores on multiple

occasions, he was denied the opportunity to manage a non-

ethnic store, although he was apparently promotable to ethnic

stores. Based on that, and similar evidence, the jury could

have concluded that Foot Locker’s claim that Brown was not

15a

qualified for the higher volume store was pretextual, and that

Foot Locker intentionally discriminated against Brown by not

promoting him to a non-ethnic store.

Foot Locker also appeals the district court's denial of Foot

Locker’s motion for judgment on constructive discharge. As

we pointed out earlier, Brown was not discharged. He

resigned. A resignation is actionable under Title VII,

allowing the plaintiff to seek compensatory damages for

events after the resignation, only if the resignation qualifies

as a constructive discharge. To prove a constructive

discharge, a "plaintiff must establish that working conditions

were so intolerable that a reasonable employee would feel

compelled to resign." Faruki v. Parsons, 123 F.3d 315, 319

(5th Cir. 1997). In determining whether a reasonable

employee would feel compelled to resign, we have

considered the relevancy of the following events:

(1) demotion; (2) reduction in salary; (3)

reduction in job responsibilities; (4)

reassignment to meniai or degrading work; (5)

reassignment to work under a younger

supervisor; (6) badgering, harassment, or

humiliation by the employer calculated to

encourage the employee's resignation; or (7)

offers of early retirement [or continued

employment on terms less favorable than the

employee's former status] . . .

Brown v. Bunge Corp., 207 F.3d 776, 782 (Sth Cir. 2000)

(alteration in original) (quoting Barrow v. New Orleans

Steamship Ass'n, 10 F.3d 292, 297 (Sth Cir. 1994)).

Constructive discharge requires a greater degree of

harassment than that required by a hostile environment claim.

Benningfield v. City of Houston, 157 F.3d 369, 378 (Sth Cir.

16a

1998). Discrimination alone, without aggravating factors, is

insufficient for a claim of constructive discharge, as is a

discriminatory failure to promote. Boze v. Branstetter, 912

F.2d 801, 805 (Sth Cir. 1990); Landgraf v. USI Film

Productions, 968 F.2d 427, 429-30 (Sth Cir. 1992), affd, 511

USS. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994).

Brown contends that he resigned because he was

repeatedly denied promotions and transfer opportunities. He

also contends that his 1993 transfer to the Fort Worth Town

Center Mall was actually a demotion--not the promotion he

was promised--because the store was continually losing

money. Because the Fort Worth Town Center Mall store lost

revenue while he was manager, Brown further testified that

he lost ten to fifteen thousand dollars in salary and bonuses.

These facts, without more, are insufficient for a finding

that a reasonable employee in Brown's position would have

felt compelled to resign, particularly in light of the fact that

he was pursuing an EEOC remedy that could have addressed

any discrimination he suffered in failing to be promoted or

transferred. Although, in hindsight, it is clear that Brown's

transfer to the Fort Worth Town Center Mall did not result in

the benefits of a promotion, Brown did not lose

responsibilities by moving to that store. He was indeed the

manager of a larger store initially, which deteriorated only

under his management (for which, it is true, he may not have

been wholly blameworthy). His work was not degrading or

menial, and he was not subjected to badgering or harassment

designed to encourage his resignation. In fact, Brown himself

testified that he was offered a promotion to a 1.4 million

dollar store shortly before he resigned. In essence, Brown's

resignation, as a matter of law, was not justified by working

conditions that had become so intolerable that no reasonable

person could have worked there under those conditions. We

therefore reverse the district court's denial of Foot Locker’s

motion for judgment as a matter of law on the issue of

constructive discharge and any damages resulting therefrom.

17a

This reversal, however, does not affect our holding

affirming liability on Brown's failure to promote claim.

Although the jury verdict form did not separate Brown's

failure to promote and constructive discharge claims-instead,

simply finding Foot Locker liable for racial discrimination--

the constructive discharge aspect of the claim is supported

only by the evidence concerning Brown's failure to be

transferred or promoted. Brown claimed that he was

constructively discharged because he was denied transfers

and promotions to non-ethnic stores. Thus, in finding that

Foot Locker intentionally discriminated against Brown, the

jury necessarily found that Brown was denied transfers and

promotions, or other advancement opportunities, based on his

race. As we have earlier noted, the evidence supports such a

finding. The jury verdict is therefore sufficient to uphold

Foot Locker’s liability on Brown's failure to promote claim.

The compensatory damage award, however, obviously

included damages relating to both the constructive discharge

claim and the failure to promote claim. No compensatory

damages that may be based on the claim of constructive

discharge can stand. Thus, the case must be remanded for a

new trial on compensatory damages.

Furthermore, Foot Locker specifically appeals the award

of both punitive damages and damages for emotional distress.

In this appeal, however, we will not address these specific

damage awards. Because we have overturned the finding of

constructive discharge, all damages, including punitive and

emotional, must be supported by the failure to promote or

transfer claim alone. A new determination of the

compensatory injuries that flow from the claim may

fundamentally affect a jury's determination of emotional and

punitive damages. See Hardin v. Caterpillar, 227 F.3d 268,

272-73 (5th Cir. 2000) (noting the "practical inseparability of

the issues of intent, of damages for emotional injury, and of

punitive damages" and that legal systems reflect the "linkage

18a

of actual and punitive damages in locating caps for punitive

awards"). Thus, all damages must be reconsidered. We

therefore remand for a retrial on the issue of compensatory,

punitive and emotional damages that flow from the failure to

promote.

Finally, we find no reversible error in the evidentiary

issues contested by Foot Locker. We have affirmed the

district court's judgment on liability for intentional

discrimination based on failure to promote, thus, there is also

no need to address Brown's proposed jury instruction on

spoliation. We will not address Brown's request for additional

attorney's fees, the final issue presented in this appeal. The

appropriateness of additional attorney's fees will be more

properly addressed at the conclusion of this remand.

Because we find that the district court properly denied

Foot Locker’s motion for judgment as a matter of law on the

issue of failure to promote, but should have granted Foot

Locker's motion for judgment as a matter of law on the issue

of constructive discharge, we AFFIRM in part, REVERSE in

part, and REMAND for a retrial on the issue of damages.

AFFIRMED in part; REVERSED in part; and

REMANDED.

' Brown introduced evidence that Foot Locker destroyed

documents on the ethnic classification of its stores.

? A considerable amount of time at trial was spent on the

issue of how Foot Locker classified its Texas stores.

3 In his original complaint, Brown alleged claims

pursuant to 42 U.S.C. § 1981 and the Texas Labor Code.

However, at the charge conference, the district court referred

to Brown's claims as only brought pursuant to Title VII.

Brown made no attempt to correct the district court during

19a

the charge conference. Additionally, Brown did not object to

the district court's instructions to the jury limited to Title VII.

* Specifically, the jury awarded Brown $39,833 for loss

of wages and benefits from the date of the defendant's

discriminatory conduct until the present; $29,660 for loss of

value of earning capacity from this date into the future caused

by the defendant's discriminatory conduct; $21,500 for

emotional pain, suffering, mental anguish and the loss of

enjoyment of life; and $250,000 in punitive damages.

> By not giving Foot Locker a full opportunity to make a

Batson record to establish its prima facie case, and by not

making any findings of its own, the district court did not

discharge its duty under Batson. As the Ninth Circuit found

in a similar case,

the district court[] clearly disregarded . . . even

the most basic of Batson safeguards in

summarily overruling, with absolutely no

inquiry or discussion [the plaintiff's] Batson

objection . . . In so doing, the district court

precluded [the plaintiff] from stating, let alone

proving, what appears evident from the

defendants’ use of . . . their . . . peremptory

challenges .. .

Montiel v. City of Los Angeles, 2 F.3d 335, 340 (9th Cir.

1993).

It is unlawful for an employer to discharge or

otherwise discriminate against an employee

because of the employee's race. In order for

Mr. Brown to prevail on his claim against

20a

Foot Locker, he must prove by a

preponderance of the evidence that his race

was a motivating factor in any of Foot

Locker’s adverse employment decisions. An

adverse employment decision is any decision

by an employer such as Foot Locker that

negatively affects an employee such as Mr.

Brown with respect to compensation, tenure,

conditions or privileges of employment.

Taking adverse employment action toward an

employee who is black is not illegal if the

reasons for doing so are unrelated to the

employee's race. Therefore, the fact that Mr.

Brown is black and Foot Locker took adverse

employment actions towards him is not

sufficient, in and of itself, to establish his

claim under the law. Similarly, the fact that

Foot Locker may have mistreated the Plaintiff

or made an unwise decision regarding the

Plaintiffs employment is not sufficient to

establish the Plaintiffs claim under the law.

Finally, simply because you do not agree with

the employment decisions made by Foot

Locker or the manner in which the decisions

were made is not sufficient to establish

Plaintiff's claims under the law. You must find

that an adverse employment decision was

made by Foot Locker because of Mr. Brown's

race in order to answer "yes" to Question One.

’ The evidence on promotion to non-ethnic stores was

primarily anecdotal, because most of Foot Locker’s

documentation on the ethnic classification of stores was

destroyed, allegedly pursuant to Foot Lockers document

retention policies.

2la

No. A 97 CA 859 SS

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN

LLOYD BROWN,

Plaintiff,

versus

KINNEY SHOE CORP., doing business as Foot Locker,

doing business as ASF/Foot Locker, doing business as

Champs Sports, doing business as Lady Foot Locker, doing

business as Susie's, doing business as Athletic X-Press, .

Defendant.

Filed 3/26/99

ORDER

BE IT REMEMBERED that a jury trial was held in

the above-styled cause before a duly empaneled jury selected

on February 1, 1999. This employment discrimination trial

began on February 8, 1999 and ended with a jury verdict on

February 11, 1999. The jury found liability against the

defendant and assessed compensatory damages in the amount

of $39,833 for past lost wages, $29,660 for loss of future

earning capacity, and $21,500 for emotional pain and mental

anguish in the past; and punitive damages in the amount of

$250,000, for a total award of $340,993. Before the Court are

Plaintiff's Motion for Judgment [#81], Plaintiff's Motion for

Assessment of Attorney Fees and Costs [#82]; Foot Locker’s

Motion for Judgment [#85], Defendant’s Objection to

Plaintiff's Motion for Attorneys’ Fees [#86]; and Plaintiff's

Response to Defendants’ Motion for Judgment.fnl After

consideration of the motions, the briefs, the evidence offered

22a

at trial, and the applicable law, the Court enters the following

opinion and orders.

I. Cross Motions for Judgment

A. Background

The plaintiff requests that the Court enter a judgment

on the jury verdict, and the defendant argues the Court should

overrule the jury verdict and/or reduce the amount of the jury

award as a matter of law. Specifically, the defendant argues

(1) the evidence did not support an award of punitive

damages; (2) the amount of punitive damages awarded by the

jury was excessive; (3) the plaintiff provided insufficient

evidence to support an award of damages for mental anguish

and emotional damages; (4) the plaintiff offered insufficient

evidence of constructive discharge; and (5) the plaintiff

provided insufficient evidence of intentional discrimination

based on the race of the plaintiff.

The standard for analyzing a judgment

notwithstanding the verdict (“judgment n.o.v.”) is governed

by Rule 50 of the Federal Rules of Civil Procedure, which

refers simply to “judgment as a matter of law.” See Durish v.

Uselton, 763 F. Supp. 192, 195 (M.D. Tex. 1990). “A motion

for judgment as a matter of law... in an action tried by a jury

is a challenge to the legal sufficiency of the evidence

supporting the jury’s verdict.” Scott v. University of Miss.,

148 F.3d 493, 503 (Sth Cir. 1998) (quoting Harrington v.

Harris, 118 F.3d 359, 367 (Sth Cir.), cert. denied, 118 S. Ct.

603 (1997)).

A judgment n.o.v. should be granted only

when the facts and inferences point so

strongly and overwhelmingly in favor of the

moving party that reasonable persons could

not arrive at a contrary verdict. The court

23a

considers all the evidence—not just the

evidence that supports the nonmovant’s

case—in the light most favorable to the

nonmovant and indulges all reasonable

inferences in favor of the nonmovant. If there

is substantial evidence opposed to the motion,

the motion should be denied. Substantial

evidence means evidence of such quality and

weight that reasonable and fairminded persons

in the exercise of impartial judgment might

reach different conclusions. A mere scintilla

of evidence is insufficient to present a

question for the jury.

Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805-06

(Sth Cir. 1996) (citations omitted) “[A] court should grant a

motion for judgment as a matter of law not only when the

non-movant presents no evidence, but also when there is not

a sufficient conflict in substantial evidence to create a jury

question.” Scott, 148 F.3d at 504 (quotations omitted).

The evidence provided to the jury in this case

presented a situation in which Foot Locker classified its

stores with racial codes and gave insufficient explanation of

how or why it assigned those racial codes. Instead, the

evidence and argument Foot Locker offered suggested a

cover-up complete with document shredding. The evidence

further revealed that although Foot Locker employed black

store managers, those black managers were not provided fair

opportunities to manage non-black stores. The evidence also

suggested black managers were given harsher subjective

evaluations and targeted with stricter audits than white

managers. Most importantly, the evidence demonstrated

Brown was a competent manager who was banished to an

undesirable store and given harsh subjective evaluations after

he made it known he wanted an opportunity to manage non-

black stores. Brown was nevertheless offered a promotion to

24a

a high-volume ethnic store while being denied promotions to

two non-ethnic stores—one because it was “too big” and

Brown was not “promotable”; and one because it was “too

small” and would be a “demotion” for Brown. In its motion

for judgment as a matter of law, Foot Locker urges the Court

to look past this avalanche of evidence suggesting

reprehensible, intentional discrimination and instead accept

all Foot Locker’s evidence at face value—the opposite of the

correct standard for a judgment as a matter of law, which

looks at the non-movant’s evidence in the most favorable

light.

B. Evidence From the Trial

The parties presented far too much evidence at trial to

recite all of it here, though all of it must be, and was,

considered by this Court. However, in an effort to discuss the

evidence in the light and with all reasonable inferences most

favorable to the party opposed to the motion, see Farpella-

Crosby, 97 F.3d at 805, the Court will focus this explanation

of its decision on the evidence favorable to Brown.

5 Foot Locker

The evidence revealed Foot Locker,fn2 an

international shoe and athletic apparel chain, classified its

stores based on the racial makeup of each store’s customer

base. The varying explanations of the classifications showed

generally that stores with 60% or more black clientele were

considered “ethnic”; stores with 95% or more black clientele

were labeled "AA”; stores with 90% to 95% black clientele

were “A”; stores with 75% or 80% to 89% black clientele

were “B”; stores with 60% or 70% to 74% or 79% black

clientele were “C”; and stores with less than 60% or 70%

black clientele were considered “non-ethnic.” Lloyd Brown,

the plaintiff in this case, was a Foot Locker manager who

worked at two AA stores and resigned after he was

repeatedly denied the opportunity to manage “non-ethnic”

25a

Foot Locker regularly sent “420 forms” to store

managers in Texas. These “420 forms” contained various

data about the stores, including the ethnic classification.fn3

Foot Locker argued the classifications were used for

legitimate marketing reasons, but the evidence was certainly

not conclusive that this was true. A reasonable jury could

disbelieve that rationale for the racial classification system

and instead believe the system was used to classify stores for

the purpose of assigning managers.fn4 Foot Locker Regional

Vice President Kevin Rucker, who is in charge of personnel

for Foot Locker but has never worked in Texas, testified that

Foot Locker used the merchandising codes inconsistently.

Rucker encouraged Foot Locker to change the codes to its

current purportedly geographic labels of “urban” and

“suburban.” However, other evidence indicated that under the

new coding, “urban” refers to stores with largely black

clientele and ‘suburban” refers to stores with primarily non-

black clientele. Foot Locker offered into evidence no

memoranda, reports, letters, or notes explaining how the

“merchandising” codes were to be used. Additionally, there

was evidence that no ethnic classification codes were ever

used in the northeastern United States. The fact that Foot

Locker had no documentary evidence of its “merchandising

coding” and that its officers gave widely varying

explanations of the merchandising coding clearly hurt Foot

Locker’s credibility.

The evidence showed that generally black managers

of Foot Locker stores were only allowed to manage AA or A-

classified stores, and white managers were selected to

manage every type of store. The plaintiff offered testimony of

several witnesses who managed Foot Locker stores and

noticed this pattern.fnS Only two black managers were

known to have managed non-ethnic Foot Locker stores. One

of these managers, Benjamin Ellis, testified at trial, and he

26a

was a very credible witness and apparently a competent

manager. Ellis testified that he managed four ethnic stores

before he managed a non-ethnic, or “regular,” store. When

Ellis was offered the “regular” store, he was told he was

being offered that particular store because it was getting

heavy “weekend black traffic.”fn6 In trying to discredit Ellis,

counsel for Foot Locker attempted to insinuate Ellis was fired

from his job as manager of a regular store because he broke a

Foot Locker regulation. On redirect examination, Ellis

explained that he quit when he felt he was improperly

investigated for an alleged “release date” violation.fn7

Foot Locker offered no evidence to controvert the

plaintiffs testimony that black managers were generally not

assigned to non-black stores in Texas while white managers

were selected to manage all types of stores. Instead, Foot

Locker offered evidence that black men held various vice

president positions outside of and within Texas, and Foot

Locker had a black vice president sit at the defense table. It

could not have escaped the jury’s notice that Foot Locker

offered only witnesses from offices around the country with

little or no knowledge of facts involved in this case, and none

of these witnesses rebutted Brown’s evidence that only one

or two black managers were ever assigned to non-ethnic

stores.

The jury also heard evidence from Foot Locker

executives that all of Foot Locker’s records had been

destroyed (thrown away, shredded, or deleted from the

computers) regarding the race classification system and the

race of managers at the stores with the various classifications.

Foot Locker offered evidence that the only information about

the racial classification codes was found on the “420 forms,”

which managers generally threw away after they reviewed

them.fn8

2. Lloyd Brown

27a

The plaintiff Lloyd Brown is an African American

man who worked for Foot Locker from February 1989 to

December 1995. He started his management career with Foot

Locker in October 1990 at its Killeen Mall store. It is

undisputed that Brown did an excellent job at Killeen Mall,

repeatedly setting sales records and receiving recognition for

his success. Brown won several awards and raised the sales

volume at his store dramatically. Soon after Brown began

managing the Killeen Store, he met many store managers at

meetings and during audits. Through these contacts, Brown

perceived that black managers were not hired to manage non-

ethnic stores, and managers of non-ethnic stores were more

often promoted to District Manager positions.

Furthermore, he noted that white managers were

generally promoted more rapidly than black managers. Due

to Brown’s ambitions, by 1992 he made it known to his

supervisor, District Manager Jan Balder, that he was

interested in managing non-ethnic stores.

Brown was “promoted” in 1993 to Town Center Mall,

a “AA” store in Fort Worth, after he started making it known

that he wanted to be considered for regular stores.fn9

Although Brown desired a promotion to a non-ethnic store,

he believed Balder’s claim that the opportunity was a

promotion and accepted the position without visiting Town

Center Mall. Brown was told his new store had a sales

volume of $1.1 million per year. When Brown arrived at

Town Center as its new manager in July 1993, he learned it

was not much of a “promotion” at all. The mall store fronts

were thirty- to forty-five-percent vacant. Gangs were

prevalent in the mall and in the neighborhood. There was a

curfew during all mall business hours preventing youths

under 18 years old from shopping in the mall without an

adult.fn10 Auto theft and shootings were normal occurrences

near the mall. The Town Center Mall Foot Locker’s sales

volume had gone from $1.1 million down to $980,000 in

28a

1993, with projected annual sales of $870,000.

Brown replaced Ellis, who was in tum being

“promoted laterally” to a different store. Ellis managed the

Town Center Mall store from 1991 to 1993. The year before

Ellis took over the Town Center Mall store, it had predicted

sales of $2 million. However, the problems with crime, the

curfew, and vacancies soon began, and sales plummeted

during Eliis’s management of the store.

When Ellis was promoted from Town Center, he was

told he would be replaced by an “ethnic” store manager. The

defendants offered testimony suggesting this meant Ellis

would be replaced by a store manager who could handle an

“ethnic” store such as the Town Center Mall, but the jury was

entitled to interpret what that statement meant.

Without a doubt, Brown had a difficult time

managing the Town Center Mall store. Based on the evidence

presented to the jury, anyone would have. After Brown took

over, annual sales dropped to $577,000, but by 1995, Brown

was able to increase sales by $32,000. Aside from the

problems with the mall environment, Brown testified that he

had trouble receiving proper credit for merchandise he

received and/or returned This contributed to a problem

called “shrinkage,” which is the term of art for the percentage

of inventory that is not accounted for. Additionally, while

some evidence suggests Brown was doing well objectively,

the evidence also shows he was subjectively criticized

harsaiy by Jan Balder and by auditors. Throughout these

problems, Brown attempted to keep a positive attitude and

stated in several evaluations and audits that he would work

harder and do better. Foot Locker attacks Brown’s comments _

of his intent to improve as admissions of Brown’s

incompetence and further asserts Brown should have

complained in writing on his evaluations if he was being

treated unfairly.fni11 A possible (and actually more plausible)

29a

interpretation of the comments was that Brown had a good

attitude and wanted to overcome the obstacles in his path.

The jury was certainly entitled to this inference from the

evidence.

In 1995, Brown learned two new Foot Locker-

affiliated stores would be opening in Austin, Texas, and

Brown was interested in managing one of those stores for two

reasons: (1) he was still interested in managing a non-ethnic

store, and (2) Brown’s mother-in-law lived in Austin, and the

Brown family wanted to move closer to her. Brown’s family

in fact moved to Austin on July 29, 1995.fnl2 A new Foot

Locker store would be opened in the newly constructed

Lakeline Mall, and a new Foot Locker-affiliated store called

ASP would open in Barton Creek Square Mall. Brown

applied for and was rejected to manage these stores. Brown

asserts he was rejected because of discrimination, but Foot

Locker argues it had nondiscriminatory reasons for denying

Brown’s requested transfers to the non-ethnic stores in

Austin.

Mike Zoiber,fnl3 who was named manager at the

Lakeline Mall Foot Locker instead of Brown, had only one

year experience as a manager and was still managing his

“rookie” store, a store smaller than Brown’s. Zoiber had

served four years as a Foot Locker associate,fnl4 while

Brown had over four years experience as a manager and six

years as an associate. Like Brown, Zoiber had some good and

some bad qualifications. The jury heard testimony that

Brown’s objective credentials were better than Zoiber’s, and

the jury was of course permitted to believe that testimony.

Brown testified that in October 1995, he was told by his

District Manager, Jan Balder, that the reason he was not

given the Lakeline Mall job was that he was not

“promotable.” Foot Locker argued at trial that Zoiber was

more qualified to manage the $900,000 volume Lakeline

Mall Foot Locker, while Brown had proven himself

30a

incompetent managing a store of lesser volume.

Martin Rhoads was a Hispanic Foot Locker employee

with no management experience prior to his appointment as

manager of the AXP store at Barton Creek Square Mall, the

other Austin non-ethnic Foot Locker-affiliated store to which

Brown requested a transfer. Foot Locker argued the AXP

store given to Rhoads was “too small” for Brown because it

was a Starter store for rookie managers with a sales volume of

$400,000 to $500,000 per year, and it would have been a

demotion for Brown. However, Brown made Foot Locker

aware at the time that he would have been willing to accept a

pay cut in order to have the opportunity to manage the non-

ethnic AXP store. Nevertheless, Brown also learned in

October 1995 that he would not receive his requested transfer

to the AXP store.

If Foot Locker’s Goldilockesque “too big”/’too

small” argument did not ring hollow to the jury, Foot

Locker’s constant criticism of every shortcoming in Brown’s

personnel record may have. Foot Locker spent a large amount

of time pointing out every shortcoming in every evaluation

and audit that it could reveal. However, this may have been a

waste of time because: (1) whites who had similar or worse

problems were promoted; (2) the plaintiff offered evidence of

bias in audits based on race;fn15 and (3) Brown himself was

offered a promotion despite his allegedly horrible record.

Additionally, Foot Locker’s efforts to portray Brown

as an incompetent manager may not have persuaded the jury.

The major problem Foot Locker continuously harped on and

repeatedly asserted was so important was “shrinkage.”

However, Brown offered evidence that he had trouble

receiving proper credit for his inventory. He offered specific

evidence of certain instances in which he was not credited

the proper amount. Foot Locker attacked that evidence as

insufficient to show Brown had an acceptable “shrinkage”

©.

‘4

hal ‘

HAC IE LE ty ge 2 Seep EIR IEG L LAO A LAK WPCA CMA RS sh tn ted

3la

rate, but the concrete evidence was symptomatic of the

problems Brown was going through. Furthermore, despite

Foot Locker’s arguments to the contrary, “shrinkage” is not

the only measure of a manager. Brown was able to meet the

Foot Locker goal of reducing his wage expenses by

decreasing part-time help. As Brown explained, having less

personnel on the sales floor decreases store security and can

lead to more theft, which negatively affects the “shrinkage”

rate. Even Foot Locker Regional Vice President Clyde

Roenbeck testified that Brown tripled his sales goal in 1995,

met three former deficiencies, and showed objective

improvement despite Balder’s subjective appraisal stating

Brown was not doing well. The evidence further showed that

Balder had questionable evaluation practices and was

removed from her position as District Manager in part

because of her failure to accurately evaluate managers.

In comparison to other Foot Locker managers, the

jury could have reasonably founa Brown’s performance was

not as ugly as Foot Locker attempted to paint it. For example,

Zoiber, the manager who was placed in the Lakeline Mall

Foot Locker instead of Brown, had several blemishes and

“unacceptable” ratings on his evaluations. The jury heard

credible testimony that Brown’s objective evaluations were

better than Zoiber’s. Additionally, Ed Fillmore, a white,

former Foot Locker manager, testified that he was actually

promoted to a larger store one week after being audited and

attributed $7,000 in shrinkage, a far greater shrinkage total

-than Brown ever had in any of his audits.

Aside from the evidence that Brown was the most

qualified candidate to manage either the Lakeline Mall or

Barton Creek Square Mall stores, a determination of

discrimination could have been inferred from Balder’s

representations that Brown was “promotable” to a AA store

but not to a non-ethnic store. In September 1995, Brown was

offered a position as manager of the Fort Worth Outlet Mall,

32a

a “AA” store with a sales volume of $1.4 million to $1.6

million. To be sure, the testimony on this point was

contradictory. Brown, who came across as a credible witness,

said he was offered the promotion by Balder, but he turned it

down because he wanted an opportunity to manage a non-

ethnic store. Joe Maldonado, a less credible witness than

Brown, testified he was offered the manager position of the

Fort Worth Outlet Mall and was told by Balder he was the

second choice because Brown had declined Balder’s offer to

manage the store. Balder, who testified by video deposition

and was not a particularly credible witness, asserted she

never offered Brown a position as store manager of the Fort

Worth Outlet Mall. However, the jury could have reasonably

believed Brown’s and Maldonado’s version of the facts over

Balder’s contradictory version. Determining witness

credibility is a job for the jury, not for the Court. If the jury

believed Brown, it could conclude Foot Locker’s argument

was pretextual that Brown was not qualified to manage the

$900,000 Lakeline Mall Foot Locker store. Instead, this

evidence suggests Brown was “promotable” to a $1.5 million

AA store but not to a $900,000 non-ethnic store because of

his race.

By November 1995, Brown realized that his constant

requests to be considered fairly for a non-ethnic store were

fruitless. Therefore, Brown filed a race discrimination

complaint with the Equal Employment Opportunity

Commission (“EEOC”) on November 6, 1995. Foot Locker

entered its appearance in response to the EEOC complaint on

January 8, 1996. No one from Foot Locker ever spoke with

Brown about his EEOC complaint. A new District Manager

was assigned to Brown after he filed his EEOC complaint,

and Brown once again expressed his interest in being

transferred to a non-ethnic store. The District Manager stated

Brown would have to “prove himself? to the new District

Manager, suggesting Brown’s years of patience and effort

managing AA stores would be set aside while less

33a

experienced white managers continued to get promotions.

Brown resigned from Foot Locker in December 1995.

After all this treatment, Foot Locker attempted to

suggest to the jury it was unreasonable for Brown to quit.

This was not only a nonsensical argument, but an offensive

one. Foot Locker was foolish to argue to the Court, and much

less to the jury, that a man unreasonably quit his job after he

was denied the opportunity to manage non-ethnic stores

based on his race after spending several years of his life

working hard and attempting to prove he was as capable as

white managers.

A large amount of statistical evidence was offered at

trial, but the Court disregards that evidence for purposes of

this order. The statistical evidence was not necessary to

support the jury’s verdict, and it is difficult to determine what

the statistics actually meant. The plaintiff's expert did not

perform a sufficiently sophisticated analysis of the statistics

to offer any meaningful information, and the defendant’s

expert offered an overly academic explanation that helped the

jury little and appeared to be more sleight of hand than

anything. The numbers showed that black managers generally

received less pay than white managers. It was never made

clear whether this is because recent good-faith recruitment

efforts have led to the hiring of more black managers or

because it is difficult for black managers to get lucrative

positions due to discrimination. At any rate, the non-

statistical evidence was more than sufficient to lead a rational

trier of fact to believe that Brown was qualified to manage

the non-black stores he applied for, and Foot Locker’s

institutionalized “separate and unequal” classification system

barred him from those stores.

C Analysis of Defendant’s Arguments

l. Evidence of Discrimination

34a

The defendant argues the plaintiff has failed to

provide sufficient evidence of intentional race discrimination

by the defendant. In order to prove a claim for race

discrimination under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, a plaintiff must prove by a

preponderance of the evidence that he was denied

employment opportunities and/or discharged because of his

race. 42 U.S.C. § 2000e-2(a). The burden of proof is on the

plaintiff.

Based on the evidence described above, the jury had

sufficient evidence before it to arrive at “ue conclusion that

the plaintiff was denied numerous “employment

opportunities” because of his race. The evidence clearly

established Foot Locker classified its stores by race.

Evidence was presented to show black managers were

generally denied opportunities to manage stores classified as

“non-ethnic.” The evidence also suggested white managers

were promoted more quickly and black managers were

evaluated and audited more harshly. The jury could have

concluded from the evidence that Brown was the most

qualified manager for one or both of the Austin stores and

was denied a transfer because of his race. There was evidence

that Foot Locker’s offered race-neutral justifications for not

promoting Brown were pretextual: (a) Foot Locker’s

argument Brown was not “promotable” to a $900,000 store

was pretextual in light of evidence Brown was offered a $1.5

million store; (b) the objective evidence of evaluations and

management experience showed Brown was clearly more

qualified than Zoiber for the Lakeline Mall store that was

deemed “too big” for Brown; and (c) Brown’s willingness to

accept a pay cut undercut Foot Locker’s argument that the

AXP store was “too small” for Brown. Finally, as discussed

below, there was sufficient evidence to convince the jury this

intentional discrimination by Foot Locker led to Brown’s

constructive discharge. In short, the plaintiff provided more

than enough evidence of intentional discrimination to support

35a

his Title VII claim.

2. Evidence of Constructive Discharge

The defendant argues the plaintiff was not

constructively discharged. In order to prove constructive

discharge, Brown must establish that working conditions at

Foot Locker “were so intolerable that a reasonable employee

in [his] position would feel compelled to resign.” Webb v.

Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d

532, 539(Sth Cir. 1998) (citing Faruki v. Parsons S.LP., Inc.,

123 F.3d 315, 319 (5th Cir.1997)). Additionally, “[pjart of an

employee’s obligation to be reasonable is an obligation not to

assume the worst, and not to jump to conclusions too fast.”

Id. (citations omitted).

Whether a reasonable employee would feel

compelled to resign depends on the facts of

each case, but we consider the following

factors relevant, singly or in combination: (1)

demotion; (2) reduction in salary; (3)

reduction in job responsibilities; (4)

reassignment to menial or degrading work; (5)

reassignment to work under a younger

supervisor, (6) badgering, harassment, or

humiliation by the employer calculated to

encourage the employee’s resignation; or (7)

offers of early retirement on terms that would

make the employee worse off whether the

offer was accepted or not.

Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297(Sth Cir.

1994).

As discussed above, there was sufficient evidence for

a reasonable jury to conclude that Foot Locker had a system

of classifying its stores with racial coding and then denying

36a

Black managers the opportunity to manage non-ethnic stores.

The evidence did not suggest Brown quit after the first hint of

discrimination or "jump to conclusions too fast.” Webb, 139

F.3d at 539. Based on the evidence before the jury, a

reasonable employee who was continuously denied the

promotion and/or transfer opportunities he merited because

of his race—after several years of patience and trying to

prove he was as capable as managers of other races—could

definitely feel compelled to resign.

Based on this evidence, the Barrow factors for

constructive discharge were present. The evidence suggested

that after Brown made it known he wanted an opportunity to

manage a non-ethnic store, he was “promoted” to a highly

undesirable store in what was in reality a demotion.

Additionally, the denial of a promotion or transfer to a non-

ethnic store based on his race had the same effect as

demoting Brown, and the denial of opportunities and harsher

scrutiny based on his race effectively reduced Brown’s

salary.fnl6 Furthermore, the evidence of harsher subjective

evaluations and audits of black managers not only prevented

promotions and pay raises, but it also suggests behavior that

is at least as pernicious as “badgering” or “harassment.”

Being treated more harshly in audits and evaluations is yet

another reason for a black manager to feel compelled to

resign. Finally, the message Foot Locker was sending to

Brown, that he was not able to manage a non-ethnic store

because of his race, was humiliating. Hence, based on the

evidence before the jury and Fifth Circuit law, it was

reasonable to conclude that a reasonable employee in Brown’

$ position would have felt compelled to resign based on the

systematic racial discrimination by Foot Locker. Indeed, a

reasonable jury may have been amazed by Brown’s patience

and endurance in staying with Foot Locker as long as he did.

3. Evidence of Mental and Emotional Damages

37a

Foot Locker argues Brown has offered insufficient

evidence of his mental and emotional damages. Brown did

not offer medical, psychological, or psychiatric expert

testimony on his mental and emotional damages. However, in

the Fifth Circuit there is no rule that “medical evidence or

corroborating testimony is always required for an award of

mental anguish damages.” Migis v. Pearle Vision, Inc., 135

F.3d 1041, 1046 (Sth Cir. 1998).

The plaintiff stated that Foot Locker’s discrimination

against him caused him stress, loss of sleep, inability to enjoy

his family, marital strains, and humiliation. These problems

lasted for two years while Brown worked at the Town Center

Mall and continued after Brown was_ constructively

discharged by Foot Locker. When Brown described his

humiliation at being treated as less of a man because of his

race, he became choked up and cried on the witness stand. It

was up to the jury to determine to what extent this strong,

athletic man’s tears represented mental and emotional

anguish. Additionally, Brown’s wife corroborated his

testimony and stated Brown lost confidence and was upset,

disenchanted, and remote toward herself and their children

because of Foot Locker’s discrimination against him.

In summary, the plaintiff offered sufficient evidence

of mental and emotional anguish to merit a jury finding of

$21,000 in damages based on their analysis of the evidence.

4. Evidence Supporting Punitive Damages

Foot Locker argues Brown is not entitled to punitive

damages because he offered no evidence of malicious or

outrageous discrimination by Foot Locker. “To recover

punitive damages under Title VII, the plaintiff must show

that the defendant acted with ‘malice or with reckless

indifference [to the federally protected rights of an aggrieved

individual].” Farpella-Crosby, 97 F.3d at 809-10 (quoting 42

38a

U.S.C. § 198la(b)1)).

Foot Locker argues there is no evidence Balder or

Rogpbeck, Foot Locker employees, did anything willfully,

recklessly, or with malice toward the plaintiff. However, the

defendant in this case is Foot Locker, not Balder, Roenbeck,

or any other individual. Foot Locker argues that the type of

behavior that would justify punitive damages would be using

racial epithets or derogatory comments about a given race,

threatening employees of a given race with undeserved

disciplinary conduct, and intentionally falsifying documents.

fnl17 Foot Locker’s Motion for Judgment [#85], at 3 (citing

Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927,927 (Sth

Cir. 1996), cert. denied, 1175. Ct. 767 (1997)).

Although there is no evidence of the use of racial

epithets or supervisors expressing overt bigotry against

blacks in this case, there was evidence of undeserved poor

evaluations, undeserved negative consideration for

management positions at non-ethnic stores, and hiding or

intentional destruction of documents. Most importantly, there

is evidence that Foot Locker acted with “malice or reckless

indifference” to the Title VII rights of black employees such

as Brown. The plaintiff presented more than enough evidence

to persuade a rational fact finder that Foot Locker

deliberately implemented a policy and practice throughout

the state of Texas of classifying its stores by race and limiting

black managers to opportunities within “ethnic” stores while

systematically denying black managers the opportunity to

manage “non-ethnic” stores. If this is not acting “willfully,

recklessly, or with malice” toward the right to be free from

race discrimination, the undersigned is not sure what is.

Additionally, the evidence implied that Foot Locker

knew of its wrongdoing and attempted to cover it up. The

detailed “AA, A, B, C” racial classification system in force

when Brown worked for Foot Locker was changed to the

39a

inconsistently explained “urban/suburban” classification

system shortly after Brown filed his EEOC complaint.

Incredibly, Foot Locker through its agents asserted it had no

documentation of its “AA, A, B, C” classification system—

no documentation of why or how it was used, how the

classifications were determined, or which stores had each

classification. This perception of a cover-up, which the Court

has warned Foot Locker about since early in this litigation,

could have offered more evidence of malice to a rational jury.

Foot Locker’s argument that there is no evidence

Brown’s supervisors ever used racial epithets or talked

negatively about Brown’s race misses the mark. Under Fifth

Circuit law, comments about race alone may not even

indicate that Brown was discriminated against by Foot

Locker, because they may be mere “stray remarks.” Smith v.

Berry Co., 165 F.3d 390, 396 (Sth Cir. 1999) (holding that a

supervisor’s prior remark stating that he doubted whether a

woman could perform a given job was merely a “stray

remark” that could not support an inference of

discrimination). The evidence in this case is much more

compelling than one involving name-calling and suggests an

even more reprehensible form of discrimination. Instead of

mere evidence of racial animus by low-level supervisors, it

suggests a deliberate and detailed corporate policy of

classifying stores by race and then denying opportunities to

black managers while keeping all opportunities open to white

managers. There was plenty of evidence for a rational jury to

come to this conclusion, and Foot Locker did little to rebut it

during the trial. Instead, the evidence suggests Foot Locker

attempted a cover-up, indicating it knew the racial

classification system was wrong and intended to hide

information relating to its existence.

De Amount of Punitive Damages

The defendant argues $250,000 is an excessive

40a

amount of punitive damages in light of Fifth Circuit law.

There is a statutory limit of $300,000 total for punitive

damages, future pecuniary damages, and nonpecuniary

damages in Title VII cases. See 42 USC. §

1981a(b\(3\(D).fn18 The applicable damages awarded by the

jury in this case were $250,000 in punitive damages, $29,600

for lost future earning capacity, and $21,500 for mental

anguish. The total of these damages is $301,100, which is

$1,100 over the statutory cap. Therefore, the jury award must

be reduced by $1,100 according to statute, and the Court will

subtract that amount from punitive damages to bring that

award down a bit to $248,900.

The plaintiff requested $2.5 million in punitive

damages in this case, and the jury awarded ten percent of that

amount, or $250,000, which the Court reduces to $248,900

pursuant to statute in this order. Foot Locker cites a case that

has been vacated for rehearing en banc subsequent to the

filing of Foot Locker’s brief for the proposition that

“$100,000 is on the high end for cases of this type in our

circuit.” Deffenbaugh-Wiliiams v. Wal-Mart Stores, Inc., 156

F.3d 581, 598 (Sth Cir. 1998), rehearing en banc granted &

opinion vacated, 1999 WL 107104 (Feb. 26, 1999).

Nevertheless, this citation no longer offers strong authority.

Furthermore, the Deffenbaugh-Williams quotation, to the

extent it may represent good law, is somewhat taken out of

context by Foot Locker. The comparison of a punitive

damages award to punitive damages awards in similar cases

is only one of three factors to be considered in analyzing the

reasonableness of an award of punitive damages. A second

consideration is the ratio of punitive damages to

compensatory damages, and a third and “perhaps the most

important factor is the reprehensibility of the defendant's

conduct. Id; see also BMW of N. Am., Inc. v. Gore, 116 S.

Ct. 1589 (1996) (setting forth these three factors). As

discussed above, Foot Locker’s behavior in deliberately

establishing a racial classification system for its stores and

4la

then denying black managers opportunities to manage non-

ethnic stores based on their race registers high as the

“perhaps most important” reprehensibility factor and merits a

large amount of punitive damages. The ratio of punitive

damages to compensatory damages is 2.7:1, and ratios higher

than 4:1 have been ruled permissible. See BMW, 116 S. Ct.

at 1602. Finally, the Court is not aware of comparable

conduct to that put on this record: an international chain

classifying stores by racial code and then denying employees

of a given race the opportunity to work at certain stores

because of theft race. Considering all these factors, $248,900

is not an excessive amount of punitive damages.

Il. Plaintiff's Motion for Attorney Fees and Costs

The plaintiff seeks an award of $115,747.50 in

attorney fees and $32,591.94 in taxable and non-taxable

expenses. The plaintiff is clearly a “prevailing party” entitled

to reasonable attorneys’ fees and costs pursuant to 42 U.S.C.

§ 1988. Foot Locker objects to the attorney fees and costs to

the extent it argues Brown is not a “prevailing party.” In light

of this order denying Foot Locker’s Motion for Judgment

nearly in full, this argument fails. Foot Locker asserts it

“reserves its right” to object to specific elements of Brown’s

claim for attorney fees. However, Brown has already filed his

motion for an award of attorney fees and costs, detailing

every hour of attorney time, staff time, and costs. The

defendant misconstrues Local Rule CV-7(j) as

“contemplating” that motions for entry of attorney fees shall

be filed after entry of judgment. However, the Local Rule

does not “contemplate” anything and instead clearly states

that “[ajll motions for an award of attorney’s fees shall be

filed and served no later than fourteen (14) days after entry of

judgment.” [T]he plaintiff filed his motion before that

deadline and the defendant has had a full opportunity to

object within ten calendar days of the date of filing of the

plaintiffs motion, as provided in Local Rule 7(j\2). Rather

42a

than stating what the rules “contemplate,” Foot Locker

should follow them. The Court does not recognize the

defendant’s self-proclaimed “reservation of right” to file

untimely objections. Nevertheless, the Court will carefully

evaluate the plaintiffs request for attorney fees and costs.

An award for attorney’s fees is calculated by use of

the “lodestar method.” Riley v. City of Jackson, Miss., 99

F.3d 757, 760 (Sth Cir. 1996). With this method, the district

court must first determine from the attomey’s time records

the appropriate amount of compensable hours, excluding

hours unreasonably spent. Shipes v. Trinity Indus., 987 F.2d

311, 319 (Sth Cir.), cert. denied, 114 S. Ct. 548 (1993). The

court then multiplies this number by an hourly rate, which is

determined by the prevailing community standards for

attorneys of similar experience working on similar cases, to

produce the “lodestar” amount. Id. The court may then adjust

the lodestar upward or downward given its consideration of

the various factors outlined in Johnson v. Georgia Highway

Express, 488 F.2d 714,717-19 (Sth Cir. 1974). Riley, 99 F.3d

at 760. Adjustment may not be made, of course, for Johnson

factors already subsumed in the determination of the lodestar,

which almost always include (1) the novelty and complexity

of the issues; (2) the special skill and experience of counsel;

(3) the quality of representation; (4) the results obtained from

the litigation; (5) preclusion of other employment; and (5)

time and labor required. Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 106 S. Ci. 3088 (1986);

Shipes, 987 F.2d at 320-22. Indeed “most, if not all, of the

relevant factors constituting a ‘reasonable’ attorney’s fee” are

subsumed in the lodestar figure. Pennsylvania, 106 S. Ct. at

3098.

This should have been a standard Title VII race

discrimination case. The case would not have been unusually

complex but for the inexcusable discovery and litigation

43a

tactics of Foot Locker. These tactics, some of which have

been outlined above, caused (1) an increase in the complexity

of the plaintiff's case, (2) an increase in the amount of time

needed for plaintiff's counsel to litigate his case, and (3)

foreclosure of an increased amount of other work plaintiffs

counsel could have done. Although Foot Locker has already

been sanctioned for its abusive discovery behavior, the

plaintiffs counsel is correct in pointing out that subtracting

that amount from the plaintiffs a ward would only nullify the

penalizing and deterrent effect of those sanctions. Because

the defendant engaged in serious discovery abuses which

must be penalized and deterred, the Court will not subtract

the amount of the sanctions.

Additionally, it is clear that the defendant has not

been cooperative in this lawsuit. Plaintiffs counsel and his

staff have had to do everything on theft own. It is unclear

whether the defendant was incompetent or was intentionally

stonewalling throughout this litigation, but it is clear the

defendant increased the costs of the plaintiffs assertion of his

rights in this lawsuit.

Amazingly, Foot Locker’s highest offer of settlement

prior to trial was $6,000. This is an atrocious offer in a

lawsuit in which Foot Locker classified its stores by racial

code, lost or destroyed all records of these racial

classifications or what legitimate purpose they served, faced

empirical evidence that black managers were generally not

allowed to manage “non-ethnic” stores, and refused

employment in non-ethnic stores to a credible and likable

manager who was not “promotable” to the non-ethnic stores

but allegedly was “promotable” to ethnic stores.fnl19 This

lowball offer is a sign of bad faith, stupidity, or both. The

defendant’s conduct cost plaintiff's counsel plenty during this

litigation, and the defendant will now bear that cost because

the plaintiff was the prevailing party. fn20

The bill statement submitted by plaintiffs counsel,

dda

Mr. Brenner, reflects that he and his staff spent 827.70 hours

on this lawsuit. The court finds this number reasonable in

light of the trench warfare the plaintiff was required to

engage in from the beginning of this lawsuit. Mr. Brenner

requests a fee of $175 per hour for himself and his partners;

$125 per hour for his associates and $50 per hour for his legal

assistants. The Court concludes that given the experience,

reputation, and ability of Mr. Brenner and his partners and

associates, these are not an unreasonable fees. This Court has

found that fees up to $190 per hour to be reasonable in Title

VII casesfn20 for attorneys of similar skill to Mr. Brenner

and his partners, and Mr. Brenner requests even less than that

amount.

Multiplying the hourly rate by the hours compensable,

the Court reaches a lodestar of $115,747.50. No other factors

listed in Johnson appear to warrant an adjustment upward or

downward of this figure. The results obtained, while

hopefully sending a long-needed message to Foot Locker,

directly affect only Mr. Brown and not a broad range of

employees at Foot Locker. The plaintiff brings forth no

special time limitations or other circumstances warranting in

increase of the lodestar.

After an examination of the costs requested by the

plaintiff, including reasonable expert costs of $10,500,22 the

Court finds those costs were reasonable and necessary in

light of this litigation. Therefore, the Court will grant the

plaintiff its costs of $32,591.94 in addition to its attorney fees

of $115,747.50, for a total of $148,339.44.

In accordance with the foregoing, the Court enters the

following orders:

IT IS ORDERED that the Plaintiffs Motion for Leave

to File a Response to Defendants’ Motion for Judgment

Exceeding Ten Pages [#87] is GRANTED;

45a

IT IS FURTHER ORDERED that Foot Locker’s

Motion for Judgment [#85] is DENIED;

IT IS FURTHER ORDERED that the Plaintiffs

Motion for Judgment [#81] is GRANTED;

IT IS FURTHER ORDERED that the Plaintiffs

Motion for Assessment of Attorney Fees and Costs [#82] is

GRANTED; and

IT IS FINALLY ORDERED that the plaintiff Lloyd

Brown shall have and recover against the defendant Foot

Locker $90,933.00 in compensatory damages as awarded by

the jury, $248,900.00 in punitive damages as reduced by the

Court from the $250,000 in punitive damages awarded by the

jury, and $148,339.44 in attorney fees and costs as

determined by the Court.

SIGNED this the 25" day of March 1999.

“SAM SPARKS”

UNITED STATES DISTRICT JUDGE

Footnotes

fnlThe Court will grant the Plaintiffs Motion for Leave to

File a Response to Defendants’ Motion for Judgment

Exceeding Ten Pages [#87].

fn2 For the sake of simplicity, “Foot Locker” refers to

Kinney Shoe Corporation d/b/a Foot Locker; ASF/Foot

46a

Locker; Champs Sports; Lady Foot Locker; Susie’s; Lady

Footlocker; and Athletic X-Press.

fn3There was evidence that the “420 forms” did not classify

as “ethnic” stores with a large Hispanic or other minority

clientele.

fn4 The only offered “merchandising reason” for Foot

Locker’s classification was that blacks have larger feet and

Hispanics smaller feet than whites. This testimony may have

alienated a reasonable jury because there was conflicting

evidence of whether there were any Hispanic-coded stores,

which would be pertinent to merchandising under the “foot-

size” theory.

Moreover, William Randall, Foot Locker’s

“merchandising expert” was an expert in merchandising

makeup, crafts, and health foods. He had no experience with

shoe or clothing retailers. Foot Locker counsel only made this

shortcoming more painfully obvious by grasping for straws

and pointing to the fact that Foot Locker sells one cologne—

presumably the Michael Jordan cologne. Foot Locker’s

expert offered potentially relevant evidence on _ the

importance and reasonableness of merchandising toward the

ethnicity of the customer; but Foot Locker never showed how

its merchandising codes were determined or how they were

utilized in serving customers of different races or ethnicities.

fnS The jury heard evidence from several Foot Locker

employees stating their personal knowledge of the race of

managers of various types of stores. Corporate records

reflecting the races of the managers and the racial coding of

the stores would have been a preferable source of

information, but Foot Locker made it clear throughout

discovery and throughout the trial that it had no trace of such

information.

Foot Locker’s only offered “evidence” of its coding

system came in the form of a list of stores with a handwritten

47a

listing of the classifications of the stores. Foot Locker could

provide no evidence whatsoever as to who created the list,

and it could not offer a single corporate representative to

verify the accuracy of the list. Therefore, the Court ruled the

evidence was inadmissible because it could not be

authenticated as required by Fed. R. Civ. Evid. 901.

fn6 It is noteworthy that Ellis’s account of the “heavy black

weekend traffic” reason for his assignment to the “regular”

store was uncontested by any testimony offered by Foot

Locker.

fn7 A “release date” is a given date for release of a new Foot

Locker product. Foot Locker managers are not permitted to

sell the new product before its “release date.” Ellis told an

account of a woman who was a repeat Foot Locker customer

who promised her son a pair of new Air Jordan basketball

shoes if he improved his grades. The woman came to Ellis

the Wednesday prior to a Friday release date for the new Air

Jordans. Ellis told the woman he could not sell the shoes

prior to the release date. After an extended discussion in

which the woman explained she could not arrive to wait in

line at 7:00 a.m. Friday because she had to work, Ellis agreed

to accept the woman’s money ahead of time, placed a note

and receipt in the safe explaining the transaction, and

arranged for a pair of new Air Jordans to be set aside for the

woman to pick up on or after the release date. Ellis believed

this procedure did not violate the release date rule and instead

complied with Foot Locker’s corporate mantra of pleasing

repeat customers. When the receipt was discovered in a later

audit, Ellis was taken to task for violating release date policy.

Fed up with Foot Locker’s treatment of him after ten years of

stellar employment performance, Ellis quit Foot Locker and

immediately got another job in the retail business.

The testimony showed that Foot Locker had no policy

of terminating every manager who committed a release date

violation; therefore, this was another example of a black Foot

ee ee

48a

Locker manager being treated harshly and in a discriminatory

manner.

fn8 Foot Locker has engaged in obfuscation regarding its

ethnic coding of its stores since the outset of this litigation.

On April 13, 1998, the plaintiff filed its First Motion to

Compel and For Sanctions [#5]. The plaintiff complained that

the defendant failed to respond to initial interrogatories and

generally gave plaintiffs counsel the runaround. Foot Locker

failed to respond to the plaintiffs motion, and the Court

therefore granted the plaintiffs motion as unopposed on May

4, 1998. The Court taxed $1,000 in sanctions against Foot

Locker, overruled Foot Locker’s objections to the

interrogatories, and gave Foot Locker seven days to fully

answer and respond to the plaintiffs discovery requests.

On August 24, 1998, the plaintiff filed Plaintiffs

Second Motion for Sanctions [#15], and on September 3,

1998, the plaintiff filed his Motion to Strike Fact Witnesses

[#27]. Foot Locker responded to these motions, and the Court

held a hearing on the motions on September 11, 1998. The

Second Motion for Sanctions arose because Foot Locker

alleged it did not have information designating which stores

were AA, A, B, C, and regular stores because it has switched

to a classification system of “urban,” “suburban,” and

“super” stores. The plaintiff argued this was disingenuous

because the AA, A, B, C system had been implemented until

1996 or 1997, and the plaintiff filed his EEO complaint at the

beginning of 1996. The plaintiff suggested spoliation of

evidence had occurred and should be punished. Foot Locker

argued it did not destroy evidence and that it offered the

plaintiff “urban,” “suburban,” “super,” data that gave the

plaintiff the information he needed because stores classified

as “urban” under the new system would have been classified

“AA” or “A” under the “old” system. Foot Locker never

explained, because it could not, how the plaintiff could derive

complete information on the AA, A, B, C, and regular stores

based on the current classification of urban, suburban, and

49a

super stores—even the basic information of which individual

stores were classified as AA, A, B, or C.

The Court found it incredible that Foot Locker and/or

its counsel were unable to provide store records from merely

two or three years ago and that defense counsel

misunderstood the plaintiffs theory and the information he

sought through discovery. The urban/suburban breakdown

clearly did not show the breakdown for the heart of the

matter—whether black managers were discriminated against

in opportunities to manage “regular” stores. It is possible that

any black managers in the “suburban” stores only manzged

previous ethnic B and C stores and no “regular” sicres, and

that fact could not possibly be determined from the data

given to the plaintiff by Foot Locker. Therefore, the Court

ordered Foot Locker to come up with verified information

reflecting the designation of the various stores under the AA,

A, B, C categorization.

Regarding the Motion to Strike Fact Witnesses, the

plaintiff complained that throughout discovery Foot Locker

only identified five individuals who had knowledge of the

relevant facts in the case, but Foot Locker listed seventeen

additional persons on its witness list filed on September 1,

1998, after discovery had closed. Although the Court could

have stricken all witnesses because of the failure to timely

designate them, the Court instead allowed Foot Locker to

designate its four most important witnesses, subject to

depositions by the plaintiff at the cost of Foot Locker. Due to

Foot Locker post-discovery revelation of new fact witnesses,

which revealed counsel’s apparent fundamental

misunderstanding of federal procedure, the Court had to

move the trial date from October 1998 to February 1999.

Lo and behold, after the Court made it clear it was not

going to tolerate Foot Locker’s stonewalling, on September

15, 1998, Foot Locker “found” alleged records indicating the

classification of its stores under the “old” AA, A, B, C

system. By September 22, 1998, Foot Locker filed an

apologetic brief, blaming everything on an underling named

50a

Mark Becker who had the files in his office all along. The

“diligent” Foot Locker executives and lawyers were shocked

and appalled at this incompetence and revealed everything to

the Court as soon as they could (one week after the

“revelation”). Foot Locker gave this information to the

plaintiff, asserting it complied with the Court’s order to

provide verified information on the AA, A, B, C

classification system.

Thereafter, the Court assessed sanctions of

$11,433.88 in attorney fees and expenses against Foot Locker

for its continual discovery abuses. By the time of trial, it

became clear no Foot Locker representative would

authenticate the “discovered” records of the Foot Locker

store classifications. No one would state who completed the

documents or whether the documents were accurate.

Therefore, the plaintiff was back to square one, without any

evidence from Foot Locker records of how its stores were

classified by race, which would enable the plaintiff to

confirm or deny his theory of discrimination based on the

strong evidence he already had.

The plaintiff filed a request for a spoliation instruction

at trial. It was a close question for the Court, but it denied the

plaintiff's motion. Nevertheless, the jury was permitted to

make its own inferences based on the evidence presented at

trial about any potential cover-up and/or document hiding by

Foot Locker.

fn9 When Brown was “promoted” out of the AA-classified

Killeen Mall store, he was replaced there by a black manager.

fnl0 This curfew had a severe impact on Foot Locker

business because the 13-18-year-old demographic group is a

primary target of Foot Locker’s marketing.

fnl1 Leave it to litigation attorneys to suggest that a good

way to get a promotion is to criticize one’s evaluators and

avoid taking responsibility and that an employee expressing

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his intent to improve his performance is demonstrating

incompetence.

fnl2 The jury heard this evidence and Foot Locker’s

argument that Brown wrongly felt he was entitled to a store

in Austin. The jury also had the discretion to give that

argument as much or as little weight as it deserved.

fnl3 The parties referred repeatedly to Mike “Zoiber,” as do

several documents, but several other Foot Locker records

spell his name “Ziober.”

fnl4 Foot Locker refers to its employees who work in its

stores as “associates.”

fn15 Benjamin Ellis testified that he assisted in several audits

in Texas at the time of Brown’s employment at Town Center

Mall, and Ellis noticed audit elements were scrutinized more

strictly in stores with black managers. Moreover, Ellis stated,

“You can always find something wrong in an audit.” Foot

Locker auditor Robert Parrott testified he had never seen a

black manager treated differently on an audit, but this is yet

another credibility determination for the jury.

fnl6 Evidence was presented to the jury that suggested

Brown could have been promoted to a higher sales volume

store or been on a faster track to a lucrative District Manager

position or even possibly a Regional Vice President position

if his advancement opportunities were not limited by Foot

Locker’s apparent caste system of assigning black managers

primarily to ethnic stores.

fnl7 It is noteworthy that Foot Locker does not include

intentionally destroying documents as an example of

behavior justifying an award of punitive damages.

fnl8 “The sum of the amount of compensatory damages

52a

awarded under this section for future pecuniary losses,

emotional pain, suffering, inconvenience, mental anguish,

loss of enjoyment of life, and other nonpecuniary losses, and

the amount of punitive damages awarded under this section,

shall not exceed, for each complaining party—. . . in the case

of a respondent who his more than 500 employees in each of

20 or more calendar weeks in the current or preceding

calendar year, $300,000.” Id.

fnl9 Additionally, the paltry $6,000 was barely half of the

amount Foot Locker was sanctioned for discovery abuses.

fn20 The Court warned both parties early in the litigation to

take their settlement offers seriously and to be proud of those

offers. While Foot Locker certainly is not proud of that offer

in light of the result of the lawsuit, the Court will not assess

extra penalties toward. Foot Locker for unreasonable

settlement negotiations since the compensatory damages,

punitive damages, attorney fees, and costs should be

sufficient to teach Foot Locker a lesson. (But many things

about Foot Locker’s behavior have surprised this Court.)

fn21 See, e.g., Bragg v. Texas Dep't of Criminal Justice,

Cause No. A-96-C A-217-SS (W.D. Tex. (1997).)

fn22 See 42 U.S.C. § 1988(c).

53a

No. 99-50493

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LLOYD BROWN,

Plaintiff - Appellee-Cross-Appellant,

versus

KINNEY SHOE CORP., doing business as Foot Locker,

doing business as ASF/Foot Locker, doing business as

Champs Sports, doing business as Lady Foot Locker, doing

business as Susie's, doing business as Athletic X-Press,

Defendant - Appellant-Cross-Appellee.

January 15, 2001, Decided

February 21, 2001, Filed

JUDGES:

Before JOLLY, SMITH, and BARKSDALE, Circuit

Judges.

OPINION BY:

E. Grady Jolly

OPINION:

ON PETITION FOR REHEARING AND REHEARING

EN BANC

PER CURIAM:

The Petition for Rehearing is DENIED and no member of

this panel nor judge in regular active service on the court

54a

having requested that the court be polled on Rehearing En

Banc, (FED. R. APP. P. and 5TH CIR. R. 35) the Petition for

Rehearing En Banc is also DENIED.

ENTERED FOR THE COURT:

“E. Grady Jolly”

United States Circuit Judge

55a

No. 99-50493

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LLOYD BROWN,

Plaintiff - Appellee-Cross-Appellant,

versus

KINNEY SHOE CORP., doing business as Foot Locker,

doing business as ASF/Foot Locker, doing business as

Champs Sports, doing business as Lady Foot Locker, doing

business as Susie's, doing business as Athletic X-Press,

Defendant - Appellant-Cross-Appellee.

Filed 1/15/01

JUDGMENT

This cause was considered on the record on appeal and was

argued by counsel.

It is ordered and adjudged that the judgment of the District

Court is affirmed in part and reversed in part, and the cause is

remanded to the District Court for further proceedings in

accordance with the opinion of this Court.

IT IS FURTHER ORDERED that each party bear its own

costs on appeal.

56a

No. A 97 CA 859 SS

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN

LLOYD BROWN,

Plaintiff,

versus

KINNEY SHOE CORP., doing business as Foot Locker,

doing business as ASF/Foot Locker, doing business as

Champs Sports, doing business as Lady Foot Locker, doing

business as Susie's, doing business as Athletic X-Press,

Defendant.

Filed 3/26/99

FINAL JUDGMENT

BE IT REMEMBERED that on this the 25th day of

March 1999 the Court entered an order in the above-styled

cause granting to a great extent Plaintiff's Motion for Entry

of Judgment and denying Defendant’s Motion for Judgment

as a Matter of Law. Pursuant to that order, the Court enters

the following final judgment:

IT IS ORDERED, ADJUDGED, AND DECREED

that the plaintiff Lloyd Brown do have and recover judgment

against Kinney Shoe Corporation d/b/a Foot Locker,

ASP/Foot Locker, Champs Sports; Lady Foot Locker,

Susie’s; Lady Footlocker; and Athletics X-Press in the

amount of $339,833.00 plus attorney fees and costs in the

amount of $148,339.44 and all costs taxed by the Court, and

that judgment shall bear interest of 4.918% per annum, for

57a

which let execution issue; and

IT IS FINALLY ORDERED, ADJUDGED, AND

i DECREED that all further relief not specifically granted is

: DENIED.

SIGNED on this the 25th day of March 1999.

: “SAM SPARKS”

i UNITED STATES DISTRICT JUDGE

: UNITED STATES COURT OF APPEALS

58a

No. A 97 CA 859 SS

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN

LLOYD BROWN,

Plaintiff,

versus

KINNEY SHOE CORP., doing business as Foot Locker,

doing business as ASF/Foot Locker, doing business as

Champs Sports, doing business as Lady Foot Locker, doing

business as Susie's, doing business as Athletic X-Press,

Defendant.

Filed 2/10/99

JURY INSTRUCTIONS

MEMBERS OF THE JURY:

You have heard the evidence in this case. 1 will now

instruct you on the law that you must apply. It is your duty to

follow the law as I give it to you. On the other hand, you at

the judges of the facts. Do not consider any statement that |

have made during the trial or make in these instructions as an

indication that I have any opinion about the facts of this case.

After I instruct you on the law, the attorneys will have

an opportunity to make their closing arguments. Statements

and arguments of the attorneys are not evidence and are not

instructions on the law. They are intended only to assist the

jury in understanding the evidence and the parties’

contentions.

59a

The burden is on the plaintiff in a civil action such as

this to prove every essential element of his claim by a

“preponderance of the evidence.” A preponderance of the

evidence simply means the amount of evidence that

persuades you that the plaintiffs claim is more likely true than

not true.

In determining whether any fact has been proved by a

preponderance of the evidence, you may, unless otherwise

instructed, consider the testimony of all witnesses, regardless

of who called them, and all exhibits received in evidence,

regardless of who produced them. If the proof fails to

establish any essential part of the plaintiff's claim by a

preponderance of the evidence, then you must find for the

defendant as to that claim.

You are the sole judges of the credibility or

“believability” of each witness and the weight to be given the

witness’s testimony. An important part of your job will be

making judgments about the testimony of the witnesses who

testified in this case. You should decide whether you believe

what each person had to say, and how important that

testimony was. In making that decision I suggest you ask

yourself a few questions: Did the person impress you as

honest? Did the witness have any particular reason not to tell

the truth? Did the witness have a personal interest in the

outcome of the case? Did the witness have any relationship

with any party to the case? Did the witness have a good

memory? Did the witness have the opportunity and ability to

understand the questions clearly and answer them directly?

Did the witness’s testimony differ from the testimony of

other witnesses? These are a few of the considerations that

will help you determine the accuracy of what each witness

said.

In making up your mind and reaching a verdict, do not make

any decisions simply because there were more witnesses on

——_ |

60a

one side than the other. Do not reach a conclusion on a

particular point just because there were more witnesses

testifying for one side on that point. You must think about the

testimony of each witness and decide how much you believe

of what each witness said. The testimony of a single witness

may be sufficient to prove any fact, even if a greater number

of witnesses testified to the contrary—if after considering all

the other evidence you believe that single witness.

The testimony of a witness may be discredited by

showing that the witness testified falsely concerning a

material matter, or by evidence that at some other time the

witness said or did something, or failed to say or do

something, which is inconsistent with testimony the witness

gave at this tral.

You should keep in mind, of course, that a simple

mistake by a witness does not necessarily mean that the

witness was not telling the truth as he or she remembers it,

because people may forget certain details or recollect events

inaccurately. So, if a witness has made a misstatement, you

need to consider whether that misstatement was an

intentional falsehood or simply an innocent lapse of memory.

The significance of that may depend on whether it has to do

with an important ant fact or with only an unimportant detail.

While you should consider only the evidence in this

case, you may draw reasonable inferences from the testimony

and the exhibits that you feel are justified in the light of

common experience. In other words, you may make

deductions and reach conclusions that reason and common

sense lead you to thaw from the facts that have been

established by the testimony and evidence in the case. There. .

are two types of evidence that you may consider. One is

direct evidence, such as testimony of an eyewitness. The

other is indirect or circumstantial evidence, which is the

proof of a chain of circumstances that indicates the existence

6la

or nonexistence of certain other facts. As a general rule, the

law makes no distinction between direct and circumstantial

evidence, but simply requires that you find the facts from a

preponderance of all the evidence, both direct and

circumstantial.

The law does not require any party to call as

witnesses all persons who may have been present at any time

or place involved in the case, or who may appear to have

some knowledge of the matters in issue at this trial. Nor does

the law require any party to produce as exhibits all papers

and things mentioned in the evidence in the case.

A corporation, such as Foot Locker, of course may act

only through natural reasons such as its agents or employees.

Any authorized action by an official, employee, or agent of a

corporation constitutes an action by that corporation.

Therefore, Foot Locker is responsible for any unlawful acts

of its officials, employees, or agents made while they were

acting within the scope of the authority given them by Foot

Locker or within the scope of their duties as an official,

employee, or agent of Foot Locker. Evidence that an act was

done as part of the job assigned to an official or employee of

Foot Locker is sufficient for you to conclude that the act was

authorized by Foot Locker.

Under federal law, it is unlawful for an employer to

intentionally discriminate against any person with respect to

compensation, tenure, conditions, or privileges of

employment because of such person’s race. In this case, the

plaintiff, Lloyd Brown, alleges that the defendant, Foot

Locker, discriminated against him in his employment because

of his race. He claims that Foot Locker’s refusal to promote

or transfer him to management positions in Foot Locker

stores with predominantly white clientele was undertaken

because of his race, African-American. The defendant, Foot

Locker, claims that the reasons Mr. Brown was not offered

BED Sa ea Na SHER ATIC RNA ERR REN SESE SY ES ID ,

62a

the promotions or transfers he requested were based upon

business decisions having nothing to do with his race.

Attached to this Jury Charge is a Verdict Form that

contains three questions. Before answering a particular

question on the Verdict Form, you must consider the

instructions for that question provided below. Bear in mind,

members of the jury, that you may or may not ultimately

answer every question. Carefully follow the “roadmap”

instructions contained below and on the Verdict Form to

determine which questions you must answer.

Instructions for Question One

Question One asks: “Do you find from a

preponderance of the evidence that Defendant Foot Locker

discriminated against Mr. Brown based on his race?”

It is unlawful for an employer to discharge or

otherwise discriminate against an employee because of the

employee’s race. In order for Mr. Brown to prevail on his

claim against Foot Locker, he must prove by a preponderance

of the evidence that his race was a “motivating factor” in any

of Foot Locker’s adverse employment decisions. An “adverse

employment decision” is any decision by an employer such

as Foot Locker that negatively affects an employee such as

Mr. Brown with respect to compensation, tenure, conditions,

or privileges of employment. Taking adverse employment

action toward an employee who is tlack is not illegal if the

reasons for doing so are unrelated to the employee’s race.

Therefore, the fact that Mr. Brown is black and Foot Locker

took adverse employment actions toward him is not

sufficient, in and of itself, to establish his claim under the

law. Similarly, the fact that Foot Locker may have mistreated

the plaintiff or it made an unwise decision regarding the

plaintiff's employment is not sufficient to establish plaintiff s

claim under the law. Finally, simply because you do not

63a

agree with the employment decisions made by Foot Locker

or the manner in which the decisions were made is not

sufficient to establish plaintiffs claims under the law. You

must find that an adverse employment decision was made by

Foot Locker because of Mr. Brown’s race in order to answer

“yes” to Question One.

If you find that Foot Locker made an adverse

employment decision toward Mr. Brown solely because of

factors other than his race, you must decide in favor of Foot

Locker. Only if you decide that Mr. Brown’s race was a

factor that motivated or played a part in Foot Locker’s

adverse employment decision can you decide in favor of Mr.

Brown. Mr. Brown need not prove his race was the sole

motivation or the primary motivation in an adverse

employment decision. Mr. Brown need only prove that his

race played a part in Foot Locker’s adverse employment

_ decision—even though other factors may have also motivated

Foot Locker.

Although Mr. Brown must show that Foot Locker

intentionally discriminated against him, he is not required to

produce direct evidence of discrimination. Intentional

discrimination may be inferred from the existence of other

facts. You may consider any statement made or act done or

omitted by any individual whose intent is in issue, and all

other facts and circumstances which indicate his or her state

of mind.

If, after considering all these factors, you find from a

preponderance of the evidence that race was a motivating

factor in Foot Locker’s adverse employment decision toward

Mr. Brown, you must answer Question One on the Verdict

Form “yes” and proceed to answer Question Two. If you do

not so find, answer Question One “no” and answer no further

questions.

64a

Instructions for Question Two

Question Two asks: “What sum of money, if now

paid in cash, would fairly and reasonably compensate Mr.

Brown for the damages he has sustained as a result of Foot

Locker’s discrimination against him based on his race?”

If Mr. Brown has proved, by a preponderance of The

evidence, his discrimination claim against Foot Locker—that

is, you have answered Question One “yes”—you must

determine the damages to which Mr. Brown is entitled. You

should not inierpret the fact that I am giving the following

instructions about the plaintiffs damages as an indication in

any way that I believe that he should, or should not, win. It is

your task first to decide whether Foot Locker is liable. | am

instructing you on damages only so that you will have

guidance in the event you decide that Foot Locker is liable

and that Mr. Brown is entitled to recover money from Foot

Locker.

If you find that Foot Locker is liable to Mr. Brown on

his employment discrimination claim, you must determine,

from a preponderance of the evidence, an amount that is fair

and reasonable compensation for Mr. Brown’s damages.

These damages are called compensatory damages. The

purpose of compensatory damages is to make the plaintiff

whole—that is, to compensate the plaintiff for the damage, if

any, that he has suffered.

You may award compensatory damages only for

injuries that Mr. Brown proved resulted from Foot Locker’s

wrongful conduct. The damages that you award must be fair

compensation for all of Mr. Brown’s damages, no more and

no less. Compensatory damages are not allowed as...

punishment and cannot be imposed or increased to penalize

the defendant. You should not award compensatory damages

for speculative injuries, but only for those injuries Mr. Brown

has actually suffered or, in the case of damages for future loss

65a

of earning capacity, those damages he is also reasonably

likely to suffer in the future.

If you decide to award compensatory damages, you

should be guided by dispassionate common sense.

Computing damages may be difficult, but you must not let

the difficulty lead you to engage in arbitrary guesswork. On

the other hand, the law does not require that Mr. Brown

prove the amount of his losses with mathematical precision

but only with as much definiteness and accuracy as

circumstances permit. You must use sound discretion in

fixing an award of damages, drawing reasonable inferences

where you find them appropriate from the fact and

circumstances in evidence.

Mr. Brown’s claim for damages includes distinct

types of damages, as set forth in subparts “a” through “c” of

Question Two on the Verdict Form. You must consider each

separately and enter separate amounts for each type of

damage on the Verdict Form. You must not include the same

types of damage in more than one subpart.

If you answered Question One “yes,” Mr. Brown may

be entitled to the lost wages established by a preponderance

of the evidence that he would have earned if Foot Locker had

not discriminated against him. This amount consists of the

wages Mr. Brown would have received from Foot Locker if it

had not discriminated against him, less the total amount

established by a preponderance of the evidence that Mr.

Brown has earned or could have earned during the same

period in wages and benefits from employment.

In this case, the plaintiff alleges he was

“constructively discharged.” To find that Mr. Brown was

constructively discharged, you must find that Foot Locker

made Mr. Brown’s working conditions so intolerable that a

reasonable employee would feel compelled not to continue

66a

working for Foot Locker. If you find from a preponderance

of the evidence that Mr. Brown was constructively

discharged as a result of discrimination by Foot Locker, you

must award him compensation for the lost wages, if any,

proved by a preponderance of the evidence lie has suffered in

the past (in subpart “a”) and the loss in wage-earning

capacity, if any, that the plaintiff is likely to suffer in the

future due to the discriminatory conduct of Foot Locker (in

subpart “b”).

A person who claims damages resulting from the

wrongful act of another h is a duty under the law to use

reasonable diligence to mitigate—that is, to avoid or

minimize—those damages. If you find that Foot Locker is

liable and Mr. Brown has suffered damages, Mr. Brown may

not recover for any item of damage which he could have

avoided through a reasonable effort. If you find by a

preponderance of the evidence Mr. Brown unreasonably

failed to take advantage of an opportunity to lessen his

damages, you should deny him recovery for those damages

which he would have avoided had he taken advantage of the

opportunity.

You are the sole judge of whether Mr. Brown acted

reasonably in avoiding or minimizing his damages. An

injured plaintiff may not sit idly by when presented with an

opportunity to reduce his damages. However, he is not

required to exercise unreasonable expenses in mitigating the

damages. Foot Locker has the burden of proving the damages

which Mr. Brown could have mitigated. In deciding whether

to reduce Mr. Brown’s damages because of his failure to

mitigate, you must weigh all the evidence in light of the

particular circumstances of the case, using sound discretion

in deciding whether Foot Locker has satisfied its burden of

proving that Mr. Brown’s conduct was not reasonable.

Any award of future lost earning capacity necessarily

67a

requires that payment be made now for a loss that a plaintiff

will not actually suffer until some future date. Therefore, if

you should find that Mr. Brown is entitled to future lost

earning capacity, then you must determine the present value

in dollars of such future damages. An award of an amount

representing future losses is more valuable to the plaintiff if

he receives it today than if he received it in the future. It is

more valuable because the plaintiff can earn interest on it for

the period of time between the date of the award and the date

he would, in the normal course of time, have gotten the

money. Thus, you should adjust the amount of any award for

future losses by the amount of interest that the plaintiff can

earn on that amount in the future.

Under the law, Mr. Brown is also entitled to damages

for past emotional pain, suffering, inconvenience, mental

anguish, and loss of enjoyment of life resulting from

unlawful discrimination, if any. Subpart “c” of Question Two

involves this type of injuries. If you determine that Mr.

Brown has proven by a preponderance of the evidence that he

has experienced such damages as a consequence of Foot

Locker’s discriminatory action, you may award him damages

for those injuries.

No evidence of the value of intangible things, such as

mental pain and suffering, has been or need be introduced.

You are not trying to determine value, but an amount that

will fairly compensate the plaintiff for the damages he has

suffered. There is no exact standard for fixing the

compensation to be awarded for these elements of damage.

Any award that you make should be fair in light of the

evidence.

When considering the amount of monetary damages

to which Mr. Brown may be entitled for these injuries, if any,

you should consider the nature, character, and seriousness of

any emotional pain, suffering, mental anguish, and loss of

68a

enjoyment of life Mr. Brown experienced. You must also

consider its extent or duration, as any award you make must

cover damages endured by Mr. Brown since the wrongdoing,

to the present time.

If you have answered Question Two by awarding

money damages, answer Question Three. If you do not find

Foot Locker liable for money damages under Question Two,

proceed no further.

Instructions for Question Three

If you have found that Foot Locker intentionally

discriminated against Mr. Brown based on his race and you

have awarded him compensatory damages on that claim, the

law allows, but does not require, you to award punitive

damages. These are awarded in exceptional cases as a

punishment of the defendant and as a warning to others to

keep them from following the defendant’s example.

You may award punitive damages if Mr. Brown has

proved that Foot Locker acted with malice or willfulness or

with callous and reckless indifference to the safety or rights

of others. One acts willfully or with reckless indifference to

the rights of others when he acts in disregard of a high and

excessive degree of danger about which he knows or which

would be apparent to a reasonable person in his condition.

Mr. Brown has introduced what he considers evidence

of Foot Locker’s malicious or callous and reckless disregard

for his rights because of his race. You may find that one, all,

or none of these examples indicate Foot Locker’s evil-

minded intent toward Mr. Brown. Again, it is for you to

determine the credibility, relevance, and significance of each

piece of evidence and whether it supports Mr. Brown’s

contention that punitive damages should be awarded.

69a

If you determine that Foot Locker’s conduct was so

shocking and offensive as to justify an award of punitive

damages, you may exercise your discretion to award those

damages. In making any award of punitive damages, you

should consider that the purpose of punitive damages is to

punish a defendant for its conduct, and to deter the defendant

and others from engaging in similar conduct in the future.

The law does not require you to award punitive damages.

However, if you decide to award punitive damages, you must

use sound reason for setting the amount of the damages. The

amount of an award of punitive damages must not reflect

bias, prejudice, or sympathy toward any party. However, the

amount can be as large as you believe necessary to fulfill be

purposes of punitive damages. You may consider the

financial resources of the defendant in fixing the amount of

punitive damages.

Punitive damages must bear a reasonable relationship

to the plaintiff's actual injury. However, no single numerical

equation has been made to easily link punitive to

compensatory damages. In determining a _ reasonable

relationship to the actual injury, you must consider all

relevant factors. These include the impact or severity of the

defendant’s conduct, the nature of the wrong, the situation

and sensibilities of the parties concerned, the amount of

compensatory damages, the attitudes and actions of the

defendant’s top management after the misconduct was

discovered, the extent to which such conduct offends a public

sense of justice and propriety, the effect of the damages

award on the defendant’s financial condition, and any

punishment the defendant may receive from other sources.

Deliberations and Verdict

Any verdict must represent the considered judgment

of each juror. In order to answer a question or return a

verdict, it is necessary that each juror agree to the verdict. In

70a

other words, the answers to your questions and your verdict

must be unanimous.

Answer each question from the facts as you find

them. Do not decide who you think should win and then

answer the questions accordingly. Do not let bias, prejudice

or sympathy play any part in your deliberations. A

corporation, a state agency, and a person are equal before the

law and must be treated as equals in a court of justice.

It is your duty as jurors to consult with one another

and to deliberate in an effort to reach agreement, if you can

do so without violence to your individual judgment. Each of

you must decide the case for yourself, but only after an

impartial consideration of the evidence in the case with your

fellow jurors. In the course of your deliberations, you may

choose to re-examine your own views and even change your

mind completely after discussing the evidence with the other

jurors. However, do not surrender your honest conviction as

to the weight or the effect of the evidence solely because of

the opinion of your fellow jurors or for the sole purpose of

reaching a verdict.

Remember at all times that you are not partisans. You are

judges—judges of the facts. Your sole interest is to seek the

truth from the evidence in the case.

Upon retiring to the jury room you should first select

one of your number to act as your presiding juror who will

preside over your deliberations and will be your

spokesperson here in Court. A Verdict Form has been

prepared for your convenience.

You will take the Verdict Form to the jury room, and

when you have reached unanimous agreement as to your

verdict, you will have your presiding juror fili it in, date and

sign it, and then return to the courtroom.

7la

If, during your deliberations, you should desire to

communicate with the Court, please reduce your message or

question to writing signed by the presiding juror and pass the

note to the court security officer who will bring it to my

attention. I will either answer your question in writing or

bring you back to the courtroom for other verbal instructions.

If you send a written message or question to the Court,

however, do not volunteer any information on the progress of

the jury in reaching a verdict.

Submitted the 10th day of February 1999 at 3 o’clock

p. m..

UNITED STATES DISTRICT JUDGE

72a

No. A 97 CA 859 SS

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN

LLOYD BROWN,

Plaintiff,

versus

KINNEY SHOE CORP., doing business as Foot Locker,

doing business as ASF/Foot Locker, doing business as

Champs Sports, doing business as Lady Foot Locker, doing

business as Susie's, doing business as Athletic X-Press,

Defendant.

Filed 3/26/99

VERDICT FORM

We, the jury, unanimously answer the following

questions by a preponderance of the evidence:

QUESTION ONE

Do you find from a preponderance of the evidence

that Defendant Foot Locker discriminated against Mr. Brown

based on his race?

Answer “yes” or “no.”

ANSWER: yes

73a

If you have answered “yes” to Question One, proceed

to “Instructions for Question Two” in the Jury Instructions. If

you have answered “no” to Question One, answer no further

questions.

QUESTION TWO

What sum of money, if now paid in cash, would fairly

and reasonably compensate Mr. Brown for the damages he

has sustained as a result of Foot Locker’s discrimination

against him based on his race?

Answer separately in dollars and cents, if any.

Loss of wages and benefits from the date of the

defendant’s discriminatory conduct until the present.

$39,833.00

Loss of value of earning capacity from this date into

the future caused by the defendant’s discriminatory

conduct.

$29,660.00

Emotional pain, suffering, inconvenience, mental

anguish, and loss of enjoyment of life suffered by

the plaintiff from the date of the onset of the

discrimination until the present date.

$21,500.00

If you have answered Question Two by awarding

money damages, proceed to “Instructions for Question

Three” in the Jury Instructions. If you do not find Foot

Locker liable for money damages under Question Two,

proceed no further.

QUESTION THREE

74a

What sum of money, if any, should be awarded to Mr. Brown

as punitive damages against Foot Locker?

Answer in dollars and cents, if any.

$250,000,00

Signed the 1 1th day of February 1999 at 12:55 o'clock p.m.

“Presiding Juror”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.