___________

No. 95-3506

___________

Henry N. Tidwell; Herman L. *

Muldrow, *

*

Appellees, *

*

v. *

*

Meyer's Bakeries, Inc., *

*

Appellant. *

___________ Appeal and Cross-Appeal

from the United States

No. 95-3507 District Court for the

___________ Western District of Arkansas.

Henry N. Tidwell, *

*

Appellant, *

*

Herman L. Muldrow, *

*

Plaintiff, *

*

v. *

*

Meyer's Bakeries, Inc., *

*

Appellee. *

__________

 Submitted: April 10, 1996

 Filed: August 21, 1996

__________

Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and

LOKEN, Circuit Judge.

___________
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MAGILL, Circuit Judge.

Henry N. Tidwell, an African-American, worked as a production

supervisor at Meyer's Bakeries, Inc. Following a work schedule

change that Tidwell perceived to be a demotion, he quit his job.

Shortly thereafter, he brought suit under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2, and under the Civil Rights

Act of 1991, 42 U.S.C. § 1981, against Meyer's, claiming that

Meyer's' employment practices were racially discriminatory and

resulted in his constructive discharge.

The jury returned a verdict in favor of Tidwell and awarded

him $34,470 in back pay. The district court, through a subsequent

order, awarded Tidwell front pay and attorney's fees. On appeal,

Meyer's challenges the verdict, claiming that as a matter of law

there was insufficient evidence upon which the jury could conclude

that its working environment was so intolerable that it compelled

Tidwell to quit. Tidwell cross-appeals, challenging the district

court's calculation of front pay damages and attorney's fees. We

agree with Meyer's and reverse. 

I.

Meyer's Bakeries, Inc. is a family-owned business based in

Little Rock, Arkansas. It produces bread products which are sold

to customers throughout the United States. Meyer's' customers

repackage the products and sell them under various private labels.

Meyer's provides English muffins to McDonald's Restaurants and

English muffins and bread sticks to Sam's Club. III Trial Tr. at

579. 

Meyer's has a baking facility located in Hope, Arkansas, that

produces English muffins, bread, and "brown and serve" rolls. The

Hope bakery is divided into five departments, one of which is

production. As the name suggests, the production department mixes
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the dough, operates the ovens, and oversees the packaging of the

finished product. The production department at the Hope bakery is

divided into three operations that correspond to the three products

baked there: muffins, bread and "Lanham." The Lanham operation

produces the "brown and serve" rolls.

Each production line has a shop division and a wrap division,

each with a supervisor. The shop supervisor works at the beginning

of the production line, overseeing the mixing of the dough and

generally ensuring that the dough moves smoothly onto the baking

line. The wrap supervisor works at the end of the production line

where the finished product is packaged and boxed. Generally, shop

and wrap supervisors on each line are paired together, sharing the

same work schedule.

Operating at a normal production rate, Meyer's has one Lanham

shift per day. During the "rush" periods in the months leading up

to Christmas and Easter, Meyer's will run up to four Lanham shifts

each day. The Christmas rush begins in August and lasts for

approximately three months.

Because of the surge in personnel needs during rush periods,

Meyer's typically rearranges employee schedules. Some supervisors

are switched to different shifts and temporary supervisors are

assigned to fill the empty slots. The assistant plant manager,

Mike Nelson, made staffing decisions for production supervisors.

IV Trial Tr. at 635.

From 1991 to 1993, over fifty percent of the production

workers in Hope were African-American. Out of the twelve

production supervisors in Hope in 1987, four were African-American.

By 1993, the number of production supervisors had increased to

eighteen of which eight were African-Americans. Few AfricanAmericans occupied management positions above the level of

production supervisor, however. 
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Tidwell was employed by Meyer's on a full-time basis in the

production department of the Hope bakery from October 27, 1978

until September 25, 1993. For the first eight years of his

employment, Tidwell worked as a production worker, spending time on

all three production lines. In June 1986, Tidwell worked as a

temporary wrap supervisor for first shift Lanham. After Christmas

rush, Tidwell became a full-time production supervisor. As a

production supervisor, Tidwell changed shift and line with some

regularity. 

Initially, Tidwell was assigned as the wrap supervisor of

second shift muffins. When the 1987 Christmas rush season began,

Tidwell was sent to first shift Lanham, where he had been stationed

the prior year. After the 1987 Christmas rush period was over,

Tidwell went back to second shift muffins. He went back to first

shift Lanham during the 1988 Christmas rush and remained there

through the 1989 Christmas rush period. He then went back to

second shift muffins and, in addition, he began filling in for

other supervisors on vacation and wherever he was needed. David

Overstreet, a white production worker who had been promoted to

production supervisor earlier that year, replaced Tidwell as first

shift Lanham wrap supervisor.

When the 1990 Christmas rush began, Tidwell was assigned to

second shift Lanham and, after the rush, he went back to second

shift muffins. Again in 1991 he worked second shift Lanham and

returned to supervising the muffin line following Christmas rush.

Prior to the start of the 1992 rush, Tidwell told the production

manager that he preferred to remain with second shift muffins and

wanted to avoid second shift Lanham during the Christmas rush

period because he disliked supervising the untrained workers on

second shift Lanham. II Trial Tr. at 134. After Overstreet left

Meyer's, the production manager told Tidwell that he would be given

his choice of shifts if he agreed to return to the Lanham line.

Tidwell agreed and chose to serve as first shift Lanham wrap
 1

The bakery production manager, Beryl Freeman, was responsible

for promotion decisions in the production department. Freeman,

however, sought Bishop's assistance in evaluating the abilities of

the lower level employees.

 2Bishop denied making this statement to Tidwell. IV Trial Tr.

at 743-44.

 3Tidwell later came to believe he was the better qualified

candidate because he had been employed longer at the bakery and

because he had taken an American Institute of Baking course.

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supervisor. After the 1992 Christmas rush, Tidwell remained on

first shift Lanham as the wrap supervisor until August 22, 1993. 

During this period, Mike Bishop, an African-American assistant

production superintendent, told Tidwell that the bakery would be

hiring a new assistant production superintendent and that he had

recommended Tidwell and Mark Smithers, a white production

supervisor, for the job.1 Bishop also allegedly told Tidwell that

he thought that Tidwell would not be selected because Meyer's would

not want two African-American assistant production superintendents

at the Hope bakery.2 

At the time Meyer's was considering who to promote, Smithers

was already serving as a temporary assistant production

superintendent. IV Trial Tr. at 713. Still, Tidwell believed he

and Smithers were equally qualified candidates. Meyer's offered

Smithers the job.3

 When Tidwell congratulated Smithers on the

promotion, Smithers told him that "Lanham is yours so long as you

are with the company." II Trial Tr. at 150. Tidwell understood

Smithers to mean that he would be the permanent, first shift Lanham

wrap supervisor.

In August 1993, four supervisory positions were eliminated in

a downsizing which resulted in a reassignment of supervisors.

Under the new schedule, no wrap supervisor was assigned to any

particular department. Tidwell was assigned to work "relief" along
 4

Tidwell had made earlier complaints about Meyer's' racially

discriminatory scheduling practices to the bakery production

manager and the assistant production superintendent. In July 1993,

Tidwell and four other African-American production supervisors

filed a race discrimination charge against Meyer's with the Equal

Employment Opportunity Commission, claiming that the production

supervisor shift assignments were determined in a racially

discriminatory manner.

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with three other wrap supervisors, filling various time slots and

production lines as needed. 

On September 25, 1993, Meyer's announced a new schedule to

take effect the next day. Tidwell was removed from the all wrap

supervisor schedule and assigned to serve as second shift Lanham

wrap supervisor. According to the assistant plant manager, Tidwell

was assigned to be one of the two second shift Lanham supervisors

because Meyer's wanted to pair experienced wrap supervisors, in

this case Tidwell, with inexperienced shop supervisors.

Tidwell was upset with the new schedule. Another supervisor,

Charles Scisson, questioned the production superintendent, Red

Rosenbaum, regarding whether the schedule was accurate. After

Rosenbaum determined that the schedule was, in fact, accurate and

was to be worked, Tidwell "got up and walked out." II Trial Tr. at

279.

Tidwell testified that he was upset with the newest schedule

for several reasons. First, he felt that Smithers had broken a

promise to allow Tidwell to stay with first shift Lanham. As

Tidwell testified, "when Mr. Smithers got his promotion [he told

me] that Lanham was mine as long as I was with the company."

Second, Tidwell testified that he did not want to supervise second

shift production workers, who tended to be less experienced or less

motivated. Third, he believed that this "demotion" to the second

shift represented another example of Meyer's' discriminatory

employment practices.4 On the September 26, 1993 schedule,
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Charlotte Bobo, a white supervisor, was assigned first shift Lanham

wrap supervisor. Bobo had less experience than Tidwell and he

viewed her assignment to first shift Lanham wrap supervisor as a

promotion of a white employee over a more qualified AfricanAmerican employee. 

Tidwell never inquired as to the reasons for Bobo being placed

on first shift Lanham nor did he inform anyone in management that

he believed that he had been promised an assignment to that shift

as long as he worked for the company or that he believed he had

been denied the shift assignment because of his race. 

After walking off the job on September 25, 1993, Tidwell had

no further contact with Meyer's. On October 27, 1993, he filed a

second charge of discrimination against Meyer's with the Equal

Employment Opportunity Commission (EEOC). The EEOC refused to take

action itself, but issued a right to sue letter. Tidwell filed

suit in federal court on March 7, 1994, alleging unlawful race

discrimination and constructive discharge. After a four-day trial,

the jury returned a verdict in favor of Tidwell.

Meyer's moved for judgment as a matter of law at the close of

plaintiff's evidence and after the jury returned its verdict. The

district court denied both motions. Meyer's appeals, arguing that,

as a matter of law, there was insufficient evidence upon which a

reasonable jury could conclude that working conditions were so poor

for Tidwell that he was compelled to quit his employment. Tidwell

cross-appeals, raising two issues. He argues that in awarding

front pay, the district court erred in limiting it to two years

into the future. He also argues that the district court abused its

discretion in reducing counsel's hourly rate and time calculation

in determining the attorney's fee award.
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II.

We review de novo the district court's denial of judgment as

a matter of law. Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483,

1505 (8th Cir. 1992), cert. denied, 506 U.S. 1080 (1993). "A

motion for judgment as a matter of law presents a legal question to

the district court and this court on review: 'whether there is

sufficient evidence to support a jury verdict.'" Smith v. World

Ins. Co., 38 F.3d 1456, 1460 (8th Cir. 1994) (quoting White v.

Pence, 961 F.2d 776, 779 (8th Cir. 1992)). We view the evidence in

the light most favorable to the prevailing party, giving him the

benefit of all reasonable inferences that can be drawn from the

evidence. Smith v. Goodyear Tire & Rubber Co., 895 F.2d 467, 471

(8th Cir. 1990). Judgment as a matter of law is appropriate only

when all of the evidence points in one direction and is susceptible

to no reasonable inference that would sustain the position of the

nonmoving party. Id. After a thorough review of the trial record,

we conclude that there is insufficient evidence, as a matter of

law, to establish that Tidwell was constructively discharged.

To establish a prima facie case of discriminatory discharge,

Tidwell must show that (1) he was a member of a protected class,

(2) he was capable of performing the job, and (3) he was discharged

from the job. See Johnson v. Bunny Bread Co., 646 F.2d 1250, 1253

(8th Cir. 1981); see also Richmond v. Board of Regents of Univ. of

Minn., 957 F.2d 595, 598 (8th Cir. 1992) (prima facie case under

Title VII and section 1981 are identical). Tidwell has met the

first two elements of this test. Because Tidwell was not formally

terminated by Meyer's, he must show that he was nevertheless forced

to leave Meyer's' employment due to constructive discharge. 

To constitute a constructive discharge, the employer must

deliberately create intolerable working conditions with the

intention of forcing the employee to quit and the employee must

quit. See Bunny Bread Co., 646 F.2d at 1256. The plaintiff can
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satisfy the intent requirement by demonstrating that he quit as a

reasonably foreseeable consequence of the employer's discriminatory

actions. Hukkanen v. International Union of Operating Eng'rs, 3

F.3d 281, 285 (8th Cir. 1993). 

A constructive discharge arises only when a reasonable person

would find the conditions of employment intolerable. Id. To act

reasonably, an employee has an obligation not to assume the worst

and not to jump to conclusions too quickly. West v. Marion Merrell

Dow, Inc., 54 F.3d 493, 498 (8th Cir. 1995). An employee who quits

without giving his employer a reasonable chance to work out a

problem has not been constructively discharged. Id.

We have looked at the evidence in this case in the light most

favorable to Tidwell, and conclude that there is no indication that

Meyer's acted with the intention of forcing Tidwell to resign or

that Tidwell's resignation was a reasonably foreseeable consequence

of Meyer's' actions. While there is evidence that Tidwell was

discriminated against on the basis of his race, we hold that there

was insufficient evidence to establish that a reasonable person

would find the working conditions at Meyer's intolerable. Without

this evidence, a finding of constructive discharge cannot be

sustained.

Rather than presenting one event as the defining moment in his

employment at Meyer's, Tidwell points to a number of incidents and

circumstances spread over several years which he claims, taken

together, forms a complex tapestry of discrimination. See

Appellee's Br. at 12; see also Burns v. McGregor Elec. Indus.,

Inc., 955 F.2d 559, 564 (8th Cir. 1992) ("[T]he trier of fact must

keep in mind that each successive episode has its predecessors,

that the impact of the separate incidents may accumulate, and that

the work environment created may exceed the sum of the individual

episodes." (quotation & citation omitted)); Aman v. Cort Furniture

Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996) ("discrimination
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analysis must concentrate not on individual incidents, but on the

overall scenario" (quotation & citation omitted)). 

At trial, Tidwell offered evidence that Meyer's acted in a

racially discriminatory manner in making shift assignments. White

production supervisors were favored for positions on the first

shift of all the production lines. Meyer's usually assigned

Tidwell to the second shift. Tidwell wanted the first shift Lanham

wrap assignment because the workers on the first shift tended to be

more experienced and more motivated. His poor shift assignments,

Tidwell argues, had the secondary effect of impeding his salary

advancement, forcing him to do more hands-on work, and requiring

him to work at less desirable times. Supervisors' raises were

based on performance evaluations conducted annually, and first

shift supervisors were more likely to receive a high evaluation

because the workers under them were better. Despite these

disadvantages, in 1993 Tidwell was the sixth highest paid

production supervisor of the sixteen at the Hope bakery. 

Tidwell also claimed that Meyer's failed to promote him to

assistant production superintendent because of his race. Bishop

allegedly had told Tidwell that he would not be made assistant

production superintendent because Meyer's did not want two AfricanAmericans at that management level. Tidwell testified that he

believed he was better qualified than Smithers, the white employee

who received the position instead. Tidwell had taken an American

Institute of Baking course that Smithers had not. Tidwell had also

been employed by the bakery longer. Smithers, however, had been

working as a production supervisor longer than Tidwell. II Trial

Tr. at 150. At the time Meyer's made the promotion decision,

Smithers had been serving as a temporary assistant production

superintendent. 

In situations more egregious than this, where a better

qualified employee is repeatedly turned down for promotions in
 5

Herman Muldrow, an African-American who worked at Meyer's as

a production supervisor and was a co-plaintiff with Tidwell at

trial, testified that he overheard Mike Nelson say "I got my HNIC

in charge of it" while Nelson was speaking on the telephone to a

salesman. III Trial Tr. at 404. According to Muldrow, HNIC stood

for "Head Nigger in Charge." Id. at 404-05. Assuming that Muldrow

was correct in explaining what HNIC meant, then Nelson overstepped

the bounds of acceptable workplace behavior. Because there is no

evidence that Tidwell heard or knew of Nelson's comment, however,

this instance of insulting, racist language does not create an

intolerable workplace for Tidwell.

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favor of inferior candidates, we can foresee that a negative and

degrading atmosphere sufficient to constitute constructive

discharge might exist. In this instance, however, where Tidwell

lost a single promotion opportunity to an arguably better qualified

candidate, the overwhelming compulsion to quit that is necessary

for constructive discharge is not created. As we recently stated

in West, 54 F.3d at 498, "frustration and embarrassment at not

being promoted do not make work conditions sufficiently intolerable

to constitute constructive discharge." See also Maney v. Brinkley

Mun. Waterworks & Sewer Dep't, 802 F.2d 1073, 1075-76 (8th Cir.

1986) (African-American plaintiffs who were passed over for a

promotion in favor of a less qualified white employee were victims

of discrimination, but were not constructively discharged).

According to Tidwell, the straw that broke the camel's back

was the announcement of the September 26, 1993 work schedule. This

schedule moved him to second shift Lanham wrap. Tidwell wanted,

and claimed he had been promised by Smithers, to be permanently

staffed as first shift Lanham wrap production supervisor.

Objectively, the newly-appointed Smithers promised Tidwell only

that Lanham "is yours"; there is no testimony that he ever

mentioned a particular shift. II Trial Tr. at 150. In addition,

Smithers' statement constitutes a mere hortatory statement which he

had no authority to ensure was fulfilled. Work schedules at

Meyer's were set by the assistant plant manager, not by assistant

production superintendents. IV Trial Tr. at 634.5
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Even assuming that Smithers had intended to promise Tidwell a

slot on first shift Lanham, the unforeseen work force reduction

combined with the beginning of Christmas rush forced Meyer's to

make significant adjustments in the work schedules. The bakery

eliminated four of the sixteen production supervisor positions, a

quarter of the employees at that level. As a consequence of this

schedule adjustment, Tidwell was required to work second shift

Lanham wrap. Dissatisfaction with a work assignment is, as a

matter of law, normally not so intolerable as to be a basis for

constructive discharge. See Carter v. Ball, 33 F.3d 450, 459 (4th

Cir. 1994) ("Dissatisfaction with work assignments, a feeling of

being unfairly criticized, or difficult or unpleasant working

conditions are not so intolerable as to compel a reasonable person

to resign.").

Other surrounding circumstances further mitigated the impact

of Tidwell's assignment to the second shift. Throughout his career

at the bakery, Tidwell had been moved from shift to shift depending

on the particular production stresses of the moment. Prior to

1991, when Smithers promised Tidwell he could stay with the Lanham

line, Tidwell spent most of his time on second shift Lanham or

second shift muffins, moving to first shift only during the

Christmas rush season. The schedule posted on September 25, 1993,

was a temporary schedule, establishing shift staffing for the next

week. II Trial Tr. at 310, 312. At the most, this schedule would

have lasted about three months, until the end of the Christmas

rush. In addition, there was nothing objectively undesirable about

Tidwell's new work hours. On four of his six workdays, his shift

started at 11 a.m. and ended at 7 p.m. 

The schedule change did not mean a reduction in pay,

responsibility, benefits, or job title for Tidwell. Nelson, who is

in charge of scheduling, testified that the September 26, 1993

schedule change occurred because the production rate for the Lanham

line was too low for rush period. IV Trial Tr. at 619. To achieve
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this goal, Meyer's sought to form supervisor pairs that matched

experienced supervisors with relatively inexperienced ones.

Tidwell was moved to the second shift to be the senior supervisor.

Nor was Tidwell's assignment to the second shift a harbinger

of imminent dismissal or even a sign that he would not be

considered for future promotions. Mike Bishop, an African-American

assistant production superintendent, had been promoted from

production supervisor while he was working primarily on the second

and third shifts. IV Trial Tr. at 712. In fact, Tidwell had every

reason to believe that Meyer's had confidence in his abilities as

a supervisor. The September 26, 1993 schedule came a few months

after Tidwell's annual evaluation. In June 1993, Tidwell received

a performance rating of 3.6, the highest he had ever received, and

the seventh highest rating of the sixteen production supervisors.

A performance rating of 3.6 translates into a pay increase of 3.6%.

Furthermore, upon seeing the new schedule, Tidwell did not

give Meyer's an opportunity to explain the situation or remedy it.

Once he confirmed that the schedule posted on September 25 had been

printed correctly and would be implemented the next day, he quit.

"Society and the policies underlying Title VII will be best served

if, wherever possible, unlawful discrimination is attacked within

the context of existing employment relationships." West, 54 F.3d

at 498 (quoting Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 66

(5th Cir. 1980)). Tidwell's decision to forego any effort at

communicating his grievance to Meyer's reinforces the fact that he

acted unreasonably when he quit. 

What is missing from this catalogue of evidence is any

indication that Tidwell faced objectively intolerable working

conditions. While the conditions under which Tidwell worked may

have been unpleasant and tinged with discriminatory acts, they do

not create an intolerable atmosphere that would allow Tidwell's

quitting to be considered a constructive discharge. 
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III.

For the reasons stated above, we reverse the district court,

remand to the district court, and direct that it grant judgment as

a matter of law in favor of Meyer's Bakeries. Because Tidwell has

failed to establish, as a matter of law, that he was the victim of

discriminatory company action that compelled him to quit, we need

not decide his cross-appeals on damages and attorney's fees other

than to say, as we now do, that on remand the awards for front pay

and damages are to be vacated and judgment on such claims entered

in favor of Meyer's Bakeries. 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.