No. 95-2531

Virginia L. Stemmons, * * Appellee, * * Appeal from the United States v. * District Court for the Western * District of Missouri. Missouri Department of * Corrections, * * Appellant. *

Submitted: February 14, 1996 Filed: May 7, 1996
Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge. Virginia Stemmons applied to be an Educational Supervisor I at th e school at the Boonville, Missouri, Correctional Center. Before applying for this position, Ms. Stemmons had worked as a teacher for the Missouri Department of Corrections ("the department") for more than twenty years an d had taught at the Boonville prison school for over ten. Although twenty candidates were eligible to interview for the po sition, only eight elected to do so. Three department officials, Mary Hosier, Max Safely, and Dr

. John Bell, conducted the interviews. Acting on the panel's recommendation , the department hired Jay Fuzzell, a white man, for the position.

Ms. Stemmons then sued the department for race discriminatio n pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

### The Honorable Scott O. Wright, United States District Judge 1 

### for the Western District of Missouri.

-2- § 2000e-2(a)(1). Following a two-day trial, the jury returned a verdict for Ms. Stemmons. The department appeals and we affirm.

I. A. T h e department first asserts that the district court erred when it 1 refused to give the j ury a so-called "business judgment" instruction. At the instructions conference, the department proposed the followin g instruction:

An employer has the right to assign work to an employee, to c hange an employee's duties, or to refuse to promote a n employee to a particular job for a good reason, bad reason, or no reason at all absent intentional discrimination based on ... race. You should not find that the failure to promote plaintiff is unlawful just because you may disagree with the defendant's stated reasons or because you believe the decision was harsh or unreasonable, as long as the defendant would have reached the same decision regardless of the plaintiff's ... race. Althou gh the plaintiff raised no objection to this instruction, th e district court rejected it. Instead, it simply instructed the jury to fin d for Ms. Stemmons if " race was a motivating factor" in the decision and if the department would have selected her if she had not been black.

In Walker v. AT&T Technologies , 995 F.2d 846, 849-50 (8th Cir. 1993), we ordered a new tria l because the district court refused to instruct the jury that the defendant had a right to make employment decisions for any
reason s except discriminatory ones. The department argues that Walke r required the district court to give the business judgment instruction in this case. (The department correctly notes that the language of th e proposed instruction was taken directly from the text of Walker

. See id. at 850.)

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Ms. Stemmons, on the other hand, contends that Walker 's holding wa s confined to the narrow facts of that case.

It is true that Walker contains language that can be read to limi t its holding to a specific set of facts. See id. at 849-50. But we also made it clear in Walker that "when a proposed instruction addresses a n issue that is crucial to a fair presentation of the case to the jury, the trial court has the o bligation to give an appropriate instruction on that issue." Id. at 849. It is well settled that an employer "is entitled to make its own subjective personnel decisions ... for any reason that is not discriminatory." Blake v. J. C. Penney Company, Inc. , 894 F.2d 274, 281 (8th Cir. 1990); see also Neufeld v. Searle Laboratories , 884 F.2d 335, 34 0 (8th Cir. 1989) ("cou rts have no business telling [employers] how to make personnel decisions"); Smith v. Monsanto Chemical Co. , 770 F.2d 719, 723 n.3 (8 th Cir. 1985), cert. denied , 475 U.S. 1050 (1986) ("[i]t is a n employer's business prerogative to develop as many arbitrary, ridiculous and irrational rules as it sees fit"). We belie ve, therefore, that, in an employment discrimination case, a business judgment instruction is "crucia l to a fair presentation of the case," Walker , 995 F.2d at 849, and we agree with the department that the district court must offer it whenever it is proffered by the defendant. (A defendant is not, of course, entitled to demand that the business judgment instruction include specific language. Blake , 894 F.2d at 282. "[T]he form and languag e of jury instructions are committed to the sound discretion" of the district court. Walker , 995 F.2 d at 849, quoting Williams v. Valentec Kisco, Inc. , 964 F.2d 723, 731 (8th Cir.), cert. denied , 506 U.S. 1014 (1992).)

B. Although the district court erred when it refused to give a bu siness jud gment instruction, a new trial would be in order only if the erro r prejudiced the department. Walker , 995 F.2d at 850;

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Crues v. KFC Corp. , 729 F.2d 1145, 1152 (8th Cir . 1984). In this case, we believe that the omission was not prejudicial because the trial recor d leads us to conclude that the absence of a business judgment instruction did not affect the verdict.

There is no contention that Ms. Stemmons did not make a prima facie
cas e that she was discriminated against because of her race. But th e departm ent articulated a non-discriminatory reason for not hiring Ms

. Stemmons. It claimed that Mr. Fuzzell was selected because he had more, and more recent, admi nistrative experience than Ms. Stemmons. Department officials also claimed that they preferred Mr. F uzzell because he had more comput er experience than Ms. Stemmons and because he dressed mor e professionally than Ms. Stemmons for the interview.
At that point, the burden shifted to Ms. Stemmons to demonstrat e that the department's explanation was pretextual. On e way of doing that was to present "'evidence of conduct or statements by persons involved in th e decisi onmaking process that may be viewed as directly reflecting th e alleged discriminatory attitude ... sufficient t o permit the factfinder to infer that that attitude was more likely than not a motivating factor in the employer's decision.'" Radabaugh v. Zip Feed Mills, Inc. , 997 F.2 d 444, 449 (8th Cir. 1993), quoting Ostrowski v. Atlantic Mut. Ins. Cos. , 96 8 F.2d 171, 182 (2d Cir . 1992); see also Beshears v. Asbill , 930 F.2d 1348, 1354 ( 8th Cir. 1991) (relying on "[c]omments which demonstrate a dis criminatory animus in the decisional process ... or those uttered b y individuals closely involved in employment decis ions") (internal quotation marks and citations omitted). We believe that Ms. Stemmons did indee d produce evidence that a reasonable factfinder could conclude proved that the department's explanation was pretextual.

### -5- Within forty-eight hours after her i nterview, and before she learned that she had not been selected, Ms. Stemmons sent a twenty-nine-page lette r to Gail Hughes, Deputy Director of the Missouri Department of Corrections. In the letter, she complained about the way that she had been treated both before and during her interview, and she express ed her belief that she was mistreated because of her race. She was particularly upset about several comments made by department officials. Ms. Stem mons presented evidence at trial substantiating the complaints in her lette r. She testified that she asked her immediate supervisor, Mr. Safely, if she could leave her class twenty-five minutes b efore the interview. Mr. Safely refused her request and instead allowed her to leave ten minutes early. Ms. Stemmons testifie d that, because she only had ten minutes, she could not change into a suit
or dress for the interview. At trial, one reason the panel members gave fo r preferring Mr. Fuzzell was that he was wearing a suit, whil e Ms. Stemmons was not dressed professionally. (She was wearing pants and a sweater.)

While she waited for her interview t o begin, Ms. Stemmons spoke with Dav id Miller, the Superintendent of the Department of Corrections. Sh e testified that, after informing Mr. Miller that she was interviewing to be
an Educat ional Supervisor I, he told her, "You're not going to get thi s posi tion." (Mr. Miller testified that he said, "You don't want tha t position, do you?") She was upset by his remark and attempted to speak to Dr. Bell about it as he left the interview room. She testified that, afte r relaying the exchange to Dr. Bell, he replied "G ood ol' Miller, did he say that?" Dr. Bell admitted that he might have made such a remark

. Ms. S temmons also testified that, after Dr. Bell made that comment, h e stopped Larry Wilson (another department employee) in the hallway, laughed , and said, "Larry, Vir ginia here is looking for an administration job, can you believe that? Do you have any administration jobs you can let Virgini a have?" (Dr. Bell

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remembered the exchange somewhat differently; he testified that he said, "Larry, do you have Educational Supervisor positions open? Ms. Stemmons is interested in such a position.")

All of th e relevant witnesses testified that Ms. Stemmons was upset when she began the interview and that she became more upset as th e interview progressed. Ms. Stemmons testified that the panel did not ask her any of the questi ons that the department had scripted for Educational Supervisor interviews. Instead, she testified t hat Dr. Bell asked her the follo wing string of questions: "Suppose nobody wants to work for you ? Suppose ev erybody quits? Suppose nobody will let you come into thei r classroom to evaluate them?" Ms. Stemmons respo nded, "Are you saying this

-- that nobody would want to work for me because I'm a black lady?" She tes tified that Dr. Bell replied, "Yes, Virginia, you're black, and tha t ai n't gonna change, so how are you going to deal with it?" Dr. Bel l testified that he remembered Ms. Stemmons expres sing concern that her race had affected her promotional opportunities, but he did not recall the exac t nature of the exchange. Ms. Hosier, however, testified that she remembere d Dr. Bell making a similar statement to Ms. Stemmons. Mr. Safely als o remembered the comment, but explained that he felt that Dr. Bell was merel y trying to get Ms. Stemmons to answer the original question.

Ms. Hos ier also admitted that she had written the words "block ou t race" in her notes during Ms. Stemmons's interview. During her deposition , Ms. Hosier could not explain what this notation meant. During the trial, however, Ms. Hosier testified that she simply scribbled the note i n response to something Ms. Stemmons said. Ms. Stemmons's attorney pointed out the discrepancy during Ms. Hosier's testimony.

### -7- All of this evidence tends to undermine the department's proffere d reason for denying Ms. Stemmons a promotion, and thus to establish that it
was a pretext. In light of this evidence, moreover, we believe that the distri ct court's failure to give a business judgment instruction wa s harm less error. The department was given the opportunity to presen t eviden ce supporting its assertion that Mr. Fuzzell was selected fo r non-discriminatory reasons. May v. Arkansas Forestry Comm'n , 993 F.2d 632 , 638 (8th C ir. 1993). (The jury was, of course, entitled to draw an y reasonable inferences from the evidence and to credit or discredit an y testimony.) Furthermore, the department's attor ney explained the business judg ment rule to the jury during his closing argument, and the cour t instructed the jury not to find for Ms. Stemmons if she would not have bee n selected regardless of her race.

The recor d in this case is unlike Walker , 995 F.2d at 850, where we found that the defendant was prejudiced by the court's failure to give a business judgment ins truction. In Walker , the plaintiff's case consisted primarily of the test imony of co-workers who indicated that the plaintiff
was the m ost qualified candidate. Id. None of that testimony directl y indicated that the plaintiff's age (the relevant question in Walker ) playe d a part in the hiring decision. Id. In this case, on the other hand, the jury heard testimony that very strongly suggested that race affected the hiring decision.

II. The department also urges us to reverse the judgment becaus e Ms. St emmons's attorney made an improper comment during his closin g argument. The attorney began his remarks by stating, "You know, ladies and gentlemen, I don't take these cases very often, and I only take them when I think there is something there." The department's attorney objecte d to the remark, but the trial court overruled the objection.

### -8- We have held that "to constitute reversible error, statements mad e in closing arguments must be plainly unwarranted and clearly injurious." Griffin v. Hilke , 804 F.2d 1052, 1057 (8th Cir. 1986), cert. denied , 482 U.S. 914 (1987). Reversal is inappropriate "when the error is harmless an d did not a ffect the substantial rights of the parties." Williams v

. Ferment a Animal Health Co. , 984 F.2d 261, 266 (8th Cir. 1993). A part y seeking reversal in circumstances like the present ones must make a "concre te showing" that he or she was prejudiced by the objectionabl e statement. Vanskike v. Union Pacific R.R. Co. , 725 F.2d 1146, 1149 (8th Cir. 1984).

Although counsel should not have expressed his opinion about th e merits of the case, see , e.g. , Johnson v. Bowers , 884 F.2d 1053, 1055-56 (8th Cir. 1989), the department does not claim that the attorney behaved inappropriately at any other time, and we do not believe that this on e isolated remark durin g the closing statement affected the jury's verdict. See Sanders-El v. Wencewicz , 987 F.2d 483, 485 ( 8th Cir. 1993) ("[i]f this
were an isolated incident ... we might have difficulty finding prejudice") ; City of Ma lden v. Union Elec. Co. , 887 F.2d 157, 164 (8th Cir. 1989 ) ("[d]efense counsel's comments were brief and were made in the context of a lengthy closing argument").

III. For t he foregoing reasons, we affirm the judgment of the distric t court.

A true copy.

Attest:

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