*The HONORABLE ANDREW W. BOGUE, United States District Judge for

the District of South Dakota, sitting by designation. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1604

___________

Melissa Forshee, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Waterloo Industries, Inc., *

*

Defendant - Appellant. *

___________

Submitted: December 14, 1998

Filed: May 27, 1999

___________

Before BEAM and LOKEN, Circuit Judges, and BOGUE,* District Judge.

___________

LOKEN, Circuit Judge.

On May 31, 1995, Melissa Forshee was hired as a temporary employee at the

Waterloo Industries factory in Pocahontas, Arkansas. On June 17, her supervisor,

Brian Ross, approached Forshee at work and told her “he could make it easier on me

being hired on full time” if she would provide “sexual favors.” Forshee refused. On

June 19, Ross told Forshee “he wasn’t happy with my job performance” and sent her

back to the employment agency, effectively terminating her as a temporary employee.
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Forshee commenced this Title VII action against Waterloo, alleging unlawful sex

discrimination. A jury returned a verdict in her favor, awarding $10,369 in back pay

damages, $9,631 in compensatory emotional distress damages, and $14,733 in

attorneys’ fees. Waterloo appeals, arguing the district court erred in denying

Waterloo’s motion for judgment as a matter of law, in instructing the jury on back pay

damages, and in submitting the issue of emotional distress damages, and abused its

discretion in awarding attorneys’ fees. We affirm the denial of judgment as a matter

of law but reverse in part the award of damages and attorneys’ fees.

I. Denial of Judgment as a Matter of Law

Waterloo argues the district court erred in submitting Forshee’s claim of “quid

pro quo sexual harassment” to the jury and in denying Waterloo’s motion for judgment

as a matter of law. As the Supreme Court recently noted, the term “quid pro quo

sexual harassment,” though recognized as a distinct cause of action in many cases

(usually in dicta), often adds little to a more straightforward Title VII analysis: 

To the extent [the terms quid pro quo and hostile work environment]

illustrate the distinction between cases involving a threat which is carried

out and offensive conduct in general, the terms are relevant when there is

a threshold question whether a plaintiff can prove discrimination in

violation of Title VII. When a plaintiff proves that a tangible

employment action resulted from a refusal to submit to a supervisor’s

sexual demands, he or she establishes that the employment decision itself

constitutes a change in the terms and conditions of employment that is

actionable under Title VII. For any sexual harassment preceding the

employment decision to be actionable, however, the conduct must be

severe or pervasive.

Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2265 (1998) (emphasis added). In

this case, Forshee seeks damages for wrongful discharge, not for supervisor Ross’s

prior sexual advance. That makes this an analytically simple Title VII action for
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wrongful discharge on account of sex discrimination. To instruct the jury on the

elements of so-called quid pro quo sexual harassment, as the district court did without

objection by either party, was unnecessary but not plain error.

Judgment as a matter of law is appropriate if “there is no legally sufficient

evidentiary basis for a reasonable jury to find for” the non-moving party. Fed. R. Civ.

P. 50(a)(1). Viewing the evidence in the light most favorable to Forshee, as we must,

we uphold the denial of Waterloo’s motion. Forshee testified that she refused

supervisor Ross’s request for sexual favors. Though Ross vehemently denied making

such a request, the jury was entitled to resolve this credibility issue in Forshee’s favor.

Forshee was terminated as a temporary Waterloo employee the work day following her

rejection of Ross’s sexual advance. Waterloo contends Forshee did not thereby suffer

a tangible job detriment. That contention is totally without merit. See Ellerth, 118

S.Ct. at 2268-69 (“tangible employment action” is “a significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits”). 

The principal issue at trial was whether Ross’s sexual advance was causally

linked to Forshee’s subsequent termination. Waterloo presented testimony by

superintendent Ken Bates that he made the decision to terminate Forshee because he

heard her make profane remarks about her work assignments that were unacceptable

behavior for a temporary employee. Three other witnesses testified that Bates, not

Ross, made the decision to terminate Forshee. Forshee denied she had ever used

profanity and noted the absence of prior complaints about her work performance.

Though the question is close, we conclude a reasonable jury could reject the testimony

of Waterloo’s witnesses and find that Ross caused Forshee’s termination because she

had rejected his sexual advance. Accordingly, the district court properly denied

Waterloo’s motion for judgment as a matter of law.
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II. Damage Issues

Waterloo challenges both components of the compensatory damages awarded

Forshee by the jury. Regarding the award of $10,369 in lost wages, Waterloo argues

it was based upon the speculative theory that Forshee would have become a full-time

Waterloo employee had she not been terminated, whereas the evidence established that

Waterloo would have laid off Forshee along with its other temporary employees in

December 1995 due to the cyclical nature of its business. We reject this contention for

two interrelated reasons. First, it was not properly preserved because Waterloo did not

include in the record on appeal whatever portion of the trial record, such as Forshee’s

damage exhibits or closing argument, would permit us to infer how the jury might have

calculated this portion of its damage award. Second, Waterloo’s contention that no lost

wages could be awarded after December 1995 is obviously wrong. Waterloo first

employed Forshee as a temporary employee for six months in the last half of 1994. She

was hired again in that capacity in May 1995, and there was testimony by Waterloo

witnesses that the company regularly hired temporary employees to meet its cyclical

needs during the last half of each year. Thus, even if the theory that Forshee would

have been made a full-time employee is quite speculative, that does not undermine the

jury’s relatively modest award for lost wages. Waterloo complains that the district

court instructed the jury to award damages for the entire back pay period, as in Gibson

v. Mohawk Rubber Co., 695 F.2d 1093, 1098-99 (8th Cir. 1982). But we read the

instruction as simply defining the back pay period and letting the jury decide how much

Forshee would have earned at Waterloo had she not been wrongfully terminated. The

lost wages portion of the judgment is affirmed.

Waterloo next argues the district court erred in submitting the issue of emotional

distress damages to the jury. We agree. Forshee’s evidence of emotional distress was

based entirely upon her own testimony. She testified that after being terminated she

“went home and sat and cried about the rest of the day,” and that she was forced to

take a job at lower pay and work two jobs. Significantly, her distress emanated from
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the loss of a job, not from Ross’s improper sexual advance: “I didn’t really think about

that right then. The only thing I knew was, I got fired, lost my job, didn’t have a job

anymore.” 

An award of damages for emotional distress must be supported by competent

evidence of “genuine injury.” Carey v. Piphus, 435 U.S. 247, 264 n.20 (1978). While

a compensatory damage award may be based solely on plaintiff’s own testimony,

Forshee’s testimony did not identify and describe the kind of severe emotional distress

that warranted the awards in cases such as Delph v. Dr. Pepper Bottling Co., 130 F.3d

349, 357-58 (8th Cir. 1997). Forshee suffered no physical injury, she was not

medically treated for any psychological or emotional injury, and no other witness

corroborated any outward manifestation of emotional distress. After the termination,

rather than return to the employment agency, Forshee found a new job on her own

almost immediately, and while her income declined, there is no testimony explaining

why the award of damages for lost wages is not sufficient to make her whole. Finally,

while Ross’s sexual advance was disgusting, it did not humiliate Forshee in front of her

co-workers, compare the harassing conduct of co-workers in Hall v. Gus Construction

Co., 842 F.2d 1010, 1012 (8th Cir. 1988) (upholding modest emotional distress

awards), and Forshee admitted it was not the source of her post-termination distress.

We conclude the evidence was insufficient to submit this issue to the jury. Thus, the

award of $9,631 in emotional distress damages must be reversed. See Price v. City of

Charlotte, 93 F.3d 1241, 1250-56 (4th Cir. 1996), cert. denied, 520 U.S. 1116 (1997);

Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 939-40 (5th Cir. 1996), cert. denied,

519 U.S. 1091 (1997).

III. The Award of Attorneys’ Fees

Conceding that Forshee as prevailing party is entitled to an attorneys’ fee award,

see 42 U.S.C. §2000e-5(k), Waterloo argues the district court abused its discretion by

awarding Forshee’s lead attorney an enhanced fee based upon an hourly rate above his
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normal hourly rate. We agree. Forshee’s motion for an attorneys’ fees award

represented that attorney Murrey Grider’s normal hourly rate was $100 per hour and

requested that this rate be enhanced to $150 per hour because Grider represented

Forshee “on a contingency basis.” Without explanation, the district court based its

award on an hourly rate of $125 for attorney Grider.

“The most useful starting point for determining the amount of a reasonable fee

is the number of hours reasonably expended on the litigation multiplied by a reasonable

hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Reasonable hourly

rates are “the prevailing market rates in the relevant community.” Blum v. Stenson,

465 U.S. 886, 895 (1984). In City of Burlington v. Dague, 505 U.S. 557, 567 (1992),

the Supreme Court held that “enhancement for contingency is not permitted under

[federal] fee-shifting statutes.” Thus, Forshee’s motion to the district court requested

a fee enhancement for an impermissible reason. 

An upward adjustment to an attorney’s lodestar hourly rate is permissible “in

certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the

record and detailed findings by the lower courts.” Pennsylvania v. Delaware Valley

Citizens’ Council for Clear Air, 478 U.S. 546, 565 (1986). “Because the lodestar

amount may already compensate the applicant for exceptionally good service and

results, however, the fee applicant must do more than establish outstanding service and

results. The applicant also must establish that the quality of service rendered and the

results obtained were superior to what one reasonably should expect in light of the

hourly rates charged and the number of hours expended.” In re Apex Oil Co., 960 F.2d

728, 732 (8th Cir. 1992). Here, the case was not unusually difficult or complex to

prepare and try, the result while favorable to Forshee was not exceptional, Forshee

gave only an impermissible reason for enhancement, and the district court made no

“detailed findings” that would justify an enhanced fee award. In these circumstances,

we conclude that an award to attorney Grider based upon an hourly rate above his

normal hourly rate of $100 per hour was an abuse of discretion. See Kientzy v.
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McDonnell Douglas Corp., 990 F.2d 1051, 1062 (8th Cir. 1993). Finally, we reject

Waterloo’s contention that the district court abused its discretion in awarding a fee

based upon the hours attorney M. Joseph Grider spent in assisting attorney Murrey

Grider prepare for and attend the trial. The court reasonably reduced the hours claimed

by Joseph Grider to eliminate any duplicative effort.

The judgment of the district court dated January 21, 1998, is modified to

eliminate the award of $9,631.00 compensatory damages. Paragraph 2 of the district

court’s order of February 10, 1998, awarding attorneys’ fees is modified to read:

“Plaintiff’s counsel, Murrey L. Grider, is awarded a fee at the rate of $100 per hour for

105.70 hours for a total of $10,570.00.” As so modified, the judgment and order are

affirmed. 

A true copy.

Attest:

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