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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 817

## Text

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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 '

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i

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?

li
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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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

Vv
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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l
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).

2

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.

(c) Protection against impairment
The rights protected by this section are

a a a a i rr iE!

3
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

4

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.

5

(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

(C) direct entry of judgment as a matter of
law; Or
(2) if no verdict was returned;

(A) order a new trial, or

(B) direct entry of judgment as a matter of
law.

6
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.)

7
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

8
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

9

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,

10

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

11

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

12

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.

13

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

ee
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

14

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

15
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.

16

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.

17

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.

18
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

la
(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:

2a

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.

I
A

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

3a
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,

4a

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

Sa

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.

B

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

6a

remanded, Brown also seeks review of the district court's
denial of his requested jury instruction on spoliation.

Ii

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.

A

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:

7a

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

8a

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).

B

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

9a

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.

C

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.

it

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).

A

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.

B

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.

IV

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.

V

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.

VI

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).

© The district court's jury instruction read as follows:

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”

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1832%3A1. Public record. Not legal advice.