United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 96-4107; 97-1656 

___________

Equal Employment Opportunity *

Commission, *

*

Plaintiff - Appellee, *

*

Bruce M. Ey, *

*

Intervenor Below - Appellee, *

*

v. *

*

HBE Corporation, doing business as *

Adam’s Mark Hotel, *

*

Defendant - Appellant. * Appeals from the United States

* District Court for the 

------------------------- * Eastern District of Missouri.

*

Equal Employment Opportunity *

Commission, *

*

Plaintiff - Appellee, *

*

Dewey R. Helms, *

*

Intervenor Below - Appellee, *

*

v. *

*

HBE Corporation, doing business as *

Adam’s Mark Hotel, *
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*

Defendant - Appellant. *

___________

Submitted: September 8, 1997

Filed: January 27, 1998

___________

Before McMILLIAN, BRIGHT, and MURPHY, Circuit Judges.

___________

MURPHY, Circuit Judge.

HBE Corporation, doing business as Adam’s Mark Hotel (Adam’s Mark), appeals

from a judgment in favor of the Equal Employment Opportunity Commission (EEOC)

and former employees Dewey Helms and Bruce Ey on claims of racial discrimination

and retaliatory discharge. Appellees were awarded front pay and injunctive relief under

Title VII, 42 U.S.C. §§ 2000e-2 and 2000e-3, and back pay, lost benefits, and punitive

damages under the Missouri Human Rights Act (MHRA), Mo. Ann. Stat. §§ 213.055

and 213.070 (West 1997). Appellant seeks judgment in its favor on the retaliatory

discharge claim and a new trial on the racial discrimination claim. It also objects to the

awards of front pay, punitive damages, and attorney fees and to the scope of injunctive

relief. We affirm in part and reverse in part.

I.

Helms and Ey were employees at the Adam’s Mark until they were discharged on

September 12, 1991. At that time Dewey Helms, an African American, had been the

employment manager since February 12, 1990, and Bruce Ey had been the director of

personnel since April 8, 1991. Helms’ initial performance review had rated him

“satisfactory plus” and reflected “very good feedback” from management. An August,
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1991 performance review said he "exceeds standards" although it was later changed to

"meets standards" when Maurice Briquet, the general manager of the hotel, said he did

not want managers described as exceeding standards. The turnover rate of hourly

employees steadily declined during Helms’ tenure at the Adam's Mark. Managers of

various divisions said he was easy to work with and that he consistently referred

qualified, reliable applicants for employment positions. Based on this record Bruce Ey,

who was Helms' superior in the personnel department, recommended that Helms receive

an 8.7 percent salary increase, an above average raise.

On September 5, 1991 Ey recommended to Erick Ohlsson, the corporate director

of personnel, that Helms be promoted to the vacant position of assistant director of

personnel. The Adam's Mark executive committee coordinated operations at the hotel,

and it supported the promotion. Helms was the first African American to be employment

manager and was one of four blacks among the seventy nine managers at the hotel. The

four black managers were among the lowest paid. Ey testified at trial that blacks held

about half of the non-management positions at the hotel and that the labor pool in St.

Louis was predominantly black.

Fred Kummer, the chief executive officer and primary owner of the Adam’s Mark

corporate parent, controlled personnel decisions at the hotel and was closely involved

in employment matters. Kummer testified at trial that he decided to fire Helms because

the personnel department was "a disaster.” He stated that in the personnel files for

which Helms was responsible there were incomplete applications and reference checks,

unexplained gaps in employment histories, and failures to note changes in applicants’

compensation patterns. After Kummer expressed his desire to terminate Helms, Ohlsson

audited seven of his personnel files on September 10, 1991. He discovered that all seven

met company requirements for employment histories, reference checks, and full

completion. They did not reveal the deficiencies given as a reason to fire Helms.
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 When Ohlsson told Ey that the corporate office wanted to fire Helms, Ey

objected. Ey believed that the decision to fire Helms was racially motivated. On

September 6, Briquet had told him that Kummer wanted to get rid of Helms because it

was getting "too dark" in Chestnut's (a cafe near the front entrance in the Adam's Mark)

since Helms was "hiring too many blacks." Briquet had earlier told Ey at his job

interview that Helms was “a good man, but they’re worried about two blacks in there”

and that “I think we can handle that.” Mike Hess, a former director of corporate

personnel, told Ey that Kummer's policy was to exclude blacks from important positions

at the hotel such as general manager or director of personnel. Ey spoke with general

manager Briquet and other members of the executive committee in an attempt to prevent

Helms' discharge.

When Ohlsson asked Ey on September 12 how he planned to terminate Helms,

Ey said he would not do it because he thought the decision was racially motivated.

Ohlsson then called Kummer and Robert Coleman, the vice president of operations, to

inform them about Ey's position. They directed Ohlsson to discharge both Ey and

Helms, and he did so immediately. Helms was the first employment manager to be fired

at the hotel; all previous managers had either left voluntarily or been promoted. Kummer

testified at trial that he was angry when Ey recommended Helms for assistant director

of personnel because that position was being eliminated to save money. He claimed it

was for this reason that he decided to discharge Ey and that he told Ohlsson and

Coleman to terminate him at an appropriate time. 

 Helms and Ey filed complaints with the EEOC which decided to file these

lawsuits under Title VII on their behalf. Helms and Ey then intervened, asserting claims

under both Title VII and the MHRA. The two cases were consolidated for trial which

lasted over three weeks. The jury found for Helms on his MHRA claim of racial

discrimination and awarded him $52,657 in back pay and lost benefits and $3,800,000

in punitive damages. The jury also found in favor of Ey on his claim of retaliatory

discharge and awarded him $60,000 in back pay and benefits and $1,000,000 in
This appeal was docketed as case 96-4107. A separate appeal from the

1

judgment for attorney fees and costs was docketed as case 97-1656 and consolidated

with the main appeal.

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punitive damages. On the Title VII claims the court awarded front pay to Helms in the

amount of $68,239 and to Ey in the amount of $131,571. The court also granted a

permanent injunction against Adam’s Mark to prevent future discrimination, to provide

for reporting to the EEOC, and to redress the harm to Helms and Ey. Finally, the court

awarded Helms and Ey attorney fees and costs: $89,313.50 to Helms and $158,204.43

to Ey.

Adam’s Mark filed a motion for judgment as a matter of law or, alternatively, for

a new trial, as well as a request for remittitur. The district court denied these motions,

and Adam’s Mark appealed from the judgment and the denial of its post trial motions.1

Adam’s Mark claims the two cases should not have been consolidated, objects to certain

evidentiary rulings, and argues that the evidence was insufficient for a retaliatory

discharge claim or for punitive damages. It also objects to the amount of the punitive

damage and front pay awards and to the scope of equitable relief. 

II.

Adam’s Mark argues that the district court erred in consolidating the cases of

Helms and Ey, in allowing a jury trial on their MHRA claims, and in failing to bifurcate

the issues of liability and punitive damages. It complains that the consolidation

permitted evidence relevant only to Helms to be considered in connection with Ey and

permitted the MHRA claims to be heard by a jury. It also argues that trying liability at

the same time as punitive damages led to the introduction of inflammatory evidence

which improperly affected the result.
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All claims and issues sharing common aspects of law or fact may be consolidated

to avoid unnecessary cost or delay, Fed. R. Civ. P. 42(a), and consolidation should be

upheld unless there has been a clear abuse of discretion, EPA v. City of Green Forest,

Arkansas, 921 F.2d 1394, 1402 (8th Cir. 1990). Consolidation is inappropriate,

however, if it leads to inefficiency, inconvenience, or unfair prejudice to a party. Fed.

R. Civ. P. 42(b). 

These cases have common questions of law and fact. Appellees all sought to

present similar evidence about a climate of racial hostility at the Adam’s Mark and the

events immediately preceding and following Helms discharge. This evidence was

relevant to establish both why Helms was fired and why Ey had a reasonable belief that

it was because of racial discrimination. Evans v. Kansas City, Missouri School District,

65 F.3d 98, 100 (8th Cir. 1995), cert denied 116 S.Ct. 1319 (1996) (retaliatory discharge

plaintiffs can show they engaged in protected conduct by opposing employer practices

based on a reasonable belief of discrimination); Estes v. Dick Smith Ford, 856 F.2d

1097, 1103 (8th Cir. 1988) (evidence of employer's racial bias permits inference of racial

discrimination in employment decision). It was therefore appropriate to consolidate

these claims and avoid the inefficiency of separate trials involving related parties,

witnesses, and evidence.

Adam’s Mark argues that consolidation allowed the MHRA claims to be tried to

a jury when they could not have been in state court. The availability of a jury trial is a

question of federal law, however, even when state claims are being tried. Gipson v.

KAS Snacktime Co., 83 F.3d 225, 230 (8th Cir. 1996). Because MHRA permits the

recovery of money damages, it is considered a traditional legal action for which a jury

trial is available in federal court. Id. In the circumstances here where Helms and Ey

sought money damages, a jury trial of both their federal and state law claims was not

improper. Id.
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Finally, Adam’s Mark challenges the district court’s failure to bifurcate the issues

of liability and punitive damages since Missouri law permits separation upon request by

either party. See Mo. Stat. Ann. §510.263(1). The federal rules govern all civil actions

tried in federal court, however, and they control over conflicting state law. Fed. R. Civ.

P. 1.; Hanna v. Plumer, 380 U.S. 460, 473-474 (1965). Consolidation of issues and

claims is committed to the discretion of the trial court. Fed. R. Civ. P. 42(a). The

evidence of racially discriminatory conduct was relevant on issues of liability, Estes, 856

F.2d at 1103, racial animus of managers, and punitive damages, Burnett v. Griffith, 769

S.W.2d 780, 787 (Mo. banc 1989). Adam’s Mark was therefore not prejudiced by

admission of such evidence in a single proceeding, and the district court did not abuse

its discretion in declining to bifurcate the issues. 

III.

Adam’s Mark asserts that it is entitled to a new trial because of erroneous

evidentiary rulings. We review a district court's evidentiary rulings for abuse of

discretion, and a new trial should only be granted on the basis of incorrect rulings if it

would be likely to produce a different outcome. Campbell v. Vinjamuri, 19 F.3d 1274,

1276 (8th Cir. 1994). 

A.

Adam’s Mark complains that hearsay and irrelevant evidence was admitted. A

timely and specific objection is necessary for a successful evidentiary appeal in the

absence of plain error. Fed. R. Evid. 103. Bruce Ey testified without objection about

several statements made by Adam’s Mark managers. There was no objection raised to

his testimony that Maurice Briquet told him "they want me to get rid of Dewey”; that

Fred Kummer said Chestnut's was getting "too dark" because Helms was hiring too many

blacks; or that Robert Schultz, another mid-level manager, told him that Anton Piringer,

the president of the hotel, made such a statement about Chestnut’s. Guest
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services manager Donna Killion also testified that she heard Piringer express this

concern about too many black employees in Chestnut’s, and no objection was made.

Schultz testified that Briquet said that having two blacks in the employment office would

drive away white applicants, but Adam’s Mark did not object until after several

questions were answered and never moved to strike the previous testimony. 

The failure to make timely objections precludes Adam’s Mark from now

challenging this testimony since its admission was not plain error, but these statements

were admissible even over objection. The testimony was relevant to establish that racial

bias on the part of management was the actual motive for discharging Dewey Helms,

Estes, 856 F.2d at 1103, and that it was not unreasonable for Bruce Ey to refuse to carry

out the termination because of a belief that the decision was racially motivated, Evans,

65 F.3d at 100. The statements were not hearsay because they were made in the course

of employment by Adam’s Mark managers with authority for management and

employment decisions. Fed. R. Evid. 801(d)(2). 

Adam’s Mark also challenges several statements to which it did make timely

hearsay objections. Bruce Ey testified that Mike Hess said Kummer's policy was to

exclude blacks from positions at the hotel which had “the” as part of their title (the

general manager, the director of personnel, etc). Donna Killion testified that her

immediate supervisor told her to hire only "older black gentlemen" as doormen because

that was what Kummer wanted. Paul Nicoloro testified that Kummer did not like blacks

and that Briquet had said Kummer feared Helms would hire too many. Nicoloro also

testified that Kummer did not want a black woman working in the hotel flower shop.

These statements were not inadmissible. Fred Kummer was the controlling figure in the

running of the hotel, and all aspects of the operation including personnel decisions were

within the scope of his authority. The fact that some of the statements came through

multiple declarants does not matter so long as the test for double hearsay is met. Fed.

R. Evid. 805. This testimony all involved statements by Adam’s Mark
Appellant also objected to Michael Westerfield’s testimony that, while he was 2

the manager of AJ’s, food and beverage director Joe Dennehy told him the bar was

getting “too dark” and to avoid black liquor and music and to Angela Bilkey’s

testimony that one of her supervisors in hotel security instructed her to monitor black

employees very carefully. We have considered the objections raised to this testimony

and find them to lack merit.

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agents regarding activities within the scope of their employment and is therefore

admissible. Fed. R. Evid. 801(d)(2). 

Statements attributed to Maurice Briquet were properly admitted under this same

rationale. Killion testified that Briquet told her it was hotel hiring policy to exclude

black waitresses from a hotel bar known as AJ's and that "black music" should not be

played there. These statements dealt with bar operations, a matter within Briquet’s

2

authority as general manager of the hotel. Moreover, not all of the statements fit the

rule's definition of hearsay where they were not offered for the truth of the matter

asserted, but rather only to show that the statements were made. Fed. R. Evid. 801(c).

Killion’s testimony that Briquet had said that Dewey Helms would not be

promoted because the corporate office did not want a black to be assistant personnel

director was objected to both as hearsay and for lack of attribution. Briquet's attribution

to "the corporate office," however, was sufficient for admission where the original

speaker's identity can be inferred from the context. See Emmel v. Coca-Cola Bottling

Co. of Chicago, 95 F.3d 627, 631-632 (7th Cir. 1996). Other testimony showing

Kummer's controlling method of operating and the racially biased statements directly

linked to him would have permitted the jury to infer that this statement was made by him.

With the exception of several statements attributed to Briquet, all of this testimony

about comments made by managers was properly admitted. Evidence that Briquet

referred to his co-worker Fred Hamileh as a "camel jockey” and made anti-
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semitic statements should have been excluded because it was not directly relevant to the

issues in this case. Fed. R. Evid. 402, 403. Admission of these statements in the course

of a three week trial with a great volume of evidence was harmless, however. Its impact

would not have been great, and it cannot be said that it would have affected the outcome.

Campbell, 19 F.3d at 1276. 

 B.

Adam’s Mark also objects to the admission of Exhibit 94, a chart which

summarized a number of employment application files at the hotel which had defects

such as incomplete information, unexplained gaps in employment histories, and no

reference checks. These files had been prepared by employees other than Helms and

contained the same types of deficiencies as those which were cited as a reason to

terminate him. Adam’s Mark objects that this summary is improper because it did not

merely summarize documents, is hearsay, is not probative of pretext, and did not permit

proper cross examination because the underlying files were not produced at trial. 

The primary objection made to Exhibit 94 is that it expresses the conclusion of the

preparer, JoEllen McDonald, rather than summarizing other documents. McDonald

testified at trial about how the exhibit was created. She and several assistants examined

almost two hundred employment application files for the period preceding Helms'

termination and looked for the types of problems cited by management. She then

summarized on the exhibit the objective data taken from the hotel files. The exhibit also

cited those applications with more than one type of deficiency as having “multiple

problems.” Rule 1006 permits summaries of voluminous documents, and Exhibit 94 was

properly admitted under that rule because its overall presentation is straightforward and

accurate, rather than argumentative or conclusory. See U.S. v. Possick, 849 F.2d 332,

339 (8th Cir. 1988). It simply summarized information from the employment files under

objective categories used by the hotel.
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Exhibit 94 is not inadmissible under the hearsay rule. It summarized the records

that were kept for all employment applications at the Adam's Mark and that were

routinely completed by the person who reviewed each application. These reports

underlying the exhibit were regularly kept records within the meaning of Rule 803(6) and

therefore not themselves excludable as hearsay.

The argument that Exhibit 94 is not probative of pretext is also without merit. The

exhibit showed that many of the employment files at the Adam’s Mark had deficiencies

of the sort cited for discharging Helms. The exhibit supports an inference of pretext by

showing that other employees kept their files in a manner similar to Helms. The fact that

only he was discharged suggested that this was not the actual reason he was fired. This

is the sort of evidence that would make a reasonable trier of fact, "raise an eyebrow, and

proceed to assess the employer's explanation for this outcome." MacDissi v. Valmont

Industries, Inc., 856 F.2d 1054, 1058 (8th Cir. 1988). 

Finally, Adam’s Mark argues that it was denied the opportunity for effective cross

examination because the original files were not produced at trial. Rule 1006 requires

only that the documents underlying a summary be made available for copying or

examination at a reasonable time and place unless otherwise ordered by the court. The

originals belonged to the hotel, and the summary itself was disclosed three weeks before

trial, providing ample time to compare it with the originals or to request their production

in court. Having done neither, Adam’s Mark cannot now complain that it was unable

to cross examine effectively regarding its own files. 

C.

Adam’s Mark also argues that the district court committed reversible error by

excluding some of the evidence it offered. It contends that it was error to exclude

evidence that Bruce Ey had stated on his employment application that he left his previous

employer because his program had been terminated when in fact he left to
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avoid investigation of an affair with a subordinate employee. It says this character

evidence was relevant because of his claim of moral opposition to the discharge of

Helms. Character is in issue only when it is an essential element of a claim or defense,

however, see Advisory Committee's Note to Fed. R. Evid. 404(a), and Ey's moral

character was not an essential element of his retaliatory discharge claim. The district

court did not abuse its discretion in excluding this evidence as irrelevant, and it could

also have been excluded under Rule 403.

Adam’s Mark also argues that it was error to exclude evidence that not many

African Americans were enrolled in the hotel management program at the University of

Missouri in order to show there was a small number available for an applicant pool. Its

offer of proof provided no indication that the number of blacks enrolled in the university

hotel management program correlated to the number of black applicants for management

positions at the hotel, however. Absent such a relationship the evidence lacked

relevance and was properly excluded. Fed. R. Evid. 402.

IV.

Adam’s Mark claims the district court erred in denying its motion for judgment

as a matter of law on the retaliatory discharge claim. Although it concedes that there

was a prima facie case of racial discrimination presented in relation to Helms, it argues

that Ey did not step outside his ordinary duties in opposing the discharge of Helms. 

The denial of a motion for judgment as a matter of law is reviewed de novo under

the same standard applied by the trial court. McKnight v. Johnson Controls, Inc., 36

F.3d 1396, 1400 (8th Cir. 1994). Judgment as a matter of law is appropriate only if no

reasonable jury could find for the non-moving party when viewing the evidence in its

favor with the benefit of all reasonable inferences. Fed. R. Civ. P. 50(a); Ryther v.

Kare-11, 108 F.3d 832, 844 (8th Cir. 1997); cert denied, 117 S.Ct. 2510 (1997). The

district court properly denied the motion for judgment as a matter of law because
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there was sufficient evidence produced to support a reasonable finding on each of the

elements of the retaliatory discharge claim: 1) protected conduct, 2) adverse employment

action, and 3) a causal connection between the two. Evans, 65 F.3d at 100.

Employers may not retaliate against employees who oppose racially

discriminatory conduct. 42 U.S.C. § 2000e-3(a); Mo. Ann. Stat. §213.070. Opposition

must be based on a reasonable belief that an employer has engaged in discriminatory

conduct, Evans, 65 F.3d at 100, and it can include refusal to implement a discriminatory

policy. Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir. 1994) (prison guard's refusal to

enforce a policy denying showers only to black inmates was protected conduct). Ey

directly opposed the decision to terminate Helms based on his reasonable belief that the

decision was racially motivated. This made out a claim of protected conduct.

Adam’s Mark argues that Ey did not act in opposition because he did not file a

claim or otherwise "step outside" his employment role. A requirement of “stepping

outside” a normal role is satisfied by a showing that the employee took some action

against a discriminatory policy, See McKenzie v. Renberg's, Inc., 94 F.3d 1478, 1486-87

(10th Cir. 1996); cert denied, 117 S.Ct. 1468 (1997), and that the action was based on

a reasonable belief that the employer engaged in discriminatory conduct. See Evans, 65

F.3d at 100-101. Unlike the plaintiff in McKenzie who merely alerted management of

potential violations of the law in order to avoid liability for the company, Ey refused to

implement a discriminatory company policy. This placed him outside the normal

managerial role which is to further company policy. 

There was also sufficient evidence to support a finding of a causal relationship

between Ey’s protected conduct and his discharge. He was terminated within hours of

his refusal to fire Helms. This short interlude permits an inference of causation. See

Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989) (termination within 30 days of
Adam’s Mark also argues that there must be an exclusive causal connection

3

between the protected conduct and discharge, but a plaintiff must prove that retaliation

was the determinative factor in firing, not that it was the only factor. See Womack, 619

F.2d at 1297 n. 7.

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opposition); Keys v. Lutheran Family & Children's Services of Missouri, 668 F.2d 356,

358 (8th Cir. 1981) (less than two months); Womack v. Munson, 619 F.2d 1292, 1296

(8th Cir. 1980) (twenty three days). The jury could readily infer that Ey's opposition to

the termination of Helms caused his own discharge a day later. This inference was

strengthened by evidence that Kummer ordered Ey discharged when he learned that he

would not comply with the plan for Helms. Adam’s Mark argues that the legitimate

reasons it offered for Ey’s discharge were not disproved, but a claimant need not

disprove all possible reasons for his discharge. He need only offer sufficient evidence

to support a reasonable inference that he was terminated for refusing to fire Helms. The

fact that Adam’s Mark offered evidence of a legitimate motive does not change this

standard. The jury may weigh and reject such evidence as pretextual. Ryther, 108 F.3d

at 844-45. So long as sufficient evidence exists to support a reasonable finding, the

proper weight of the evidence and the inferences to be drawn from that evidence is left

to the jury. Id. The district court did not err in denying the motion for a judgment as a

matter of law on the retaliation claim.3

V.

Adam’s Mark also raises objections to the nature and amount of some of the relief

awarded to the appellees. It objects to the size of the front pay awards, to the

submission of punitive damages and the amount awarded, and to the nature and scope

of the injunctive relief.

A.
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The district court found that Helms and Ey were entitled to five years of front pay.

After hearing expert testimony on the proper method of calculating the amount, the court

awarded Helms $68,239 and Ey $131,571. Adam’s Mark argues that these awards were

too high because it was unlikely that either Helms or Ey would have continued to work

at the hotel for five years in light of the high rate of turnover in the industry and in these

jobs in particular. 

A district court may exercise its equitable discretion to award sufficient front pay

to make a party whole when reinstatement is impractical or impossible. Newhouse v.

McCormick & Co., Inc. 110 F.3d 635, 641 (8th Cir. 1997). Front pay should address

equitable needs such as the ability to obtain employment with comparable compensation

and responsibility, Hukkanen v. International Union of Operating Engineers, Hoisting

& Portable Local No. 101, 3 F.3d 282, 286 (8th Cir. 1993), and the amount is ordinarily

left to the sound exercise of discretion. MacDissi, 856 F.2d at 1060. 

While the district court properly concluded that front pay was appropriate because

the animosity shown between the parties made reinstatement impractical, the size of its

award was greater than the evidence justified. Neither Helms nor Ey had worked at the

hotel long. Helms had been there for nineteen months before his termination, and Ey for

five months. The district court made no separate findings of fact on their expected

tenure, but the record indicates that no one had lasted in Helms’ position for more than

nineteen months and the longest tenure in Ey’s position was twenty six months. Both

found employment elsewhere soon after leaving the Adam’s Mark. Helms took the first

job he was offered within four months of his discharge, as an employment technician

with the State of Missouri. His compensation was almost $6000 per year less than at the

hotel, and his responsibilities were much lower. Ey found temporary employment only

a month after leaving the hotel, and in six months his new employer offered him a

permanent position with a salary almost $25,000 more than he received at the Adam’s

Mark. Ey refused this offer, however, because it would
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have required a permanent relocation to Rochester, New York. He then took a job as

an employment counselor with the state of Missouri at an annual salary of approximately

$20,000. 

The amount of front pay awarded was too large because it assumes that both men

would have remained at the hotel two or three times as long as any of their predecessors.

The turnover in these positions was high, and an award equivalent to one year of front

pay would be more appropriate, giving Helms the benefit of one year longer than any

predecessor and putting Ey closer to the average range for his position. 

B.

Adam’s Mark argues that punitive damages should not have been submitted to the

jury because appellees failed to demonstrate that it engaged in outrageous conduct and

that the amount of punitive damages was excessive and disproportionate to any

misconduct or actual damage. 

Missouri law permits punitive damages when the defendant has engaged in

outrageous conduct. Burnett v. Griffith, 769 S.W.2d at 787; Restatement (Second) of

Torts, §908(2) (1979). The issue should be withheld from jury consideration if the

plaintiffs have not produced sufficient evidence for a reasonable finding in their favor.

Wright v. Over-the-Road, 945 S.W.2d 481, 489 (Mo. App. W.D. 1997). 

Considerable evidence supported the submission of punitive damages to the jury.

Several witnesses testified that Fred Kummer and other officials showed bias against

blacks and sought to exclude them from management positions and all but the lowest

level positions that were visible to the public. Testimony also showed that top managers

sought to banish music and other atmospheric traits that they associated with blacks and

that African American managers received lower compensation than their white

counterparts. The evidence suggested that top managers acted to prevent African
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Americans from rising above a certain level of employment. Hotel officials intentionally

discriminated against Helms and discharged him because of his race and then discharged

Ey for objecting to that decision as illegal. Retaliating against managers who oppose

racial discrimination undermines the civil rights laws. These actions, many years after

the laws forbidding racial discrimination became widely known, support a finding of

outrageous conduct and an award of punitive damages. The district court did not err by

submitting the issue to the jury. 

The amount of any punitive damages awarded should be what is needed to punish

and deter the defendant in addition to the compensatory award. Coleman v. Rahija, 114

F.3d. 778, 787 (8th Cir. 1997); citing Smith v. Wade, 461 U.S. 30, 54 (1983). Helms

received a punitive damages award of $3,800,000 and Ey received $1,000,000. These

awards must be examined in light of the twin policy aims of punishment and deterrence.

Call v. Heard, 925 S.W.2d 840, 848 (Mo. banc 1996); citing Pacific Mutual Life

Insurance. Co. v. Haslip, 499 U.S. 1, 19 (1991). Under Missouri law a non-exhaustive

list of factors should be considered, including the severity of the defendant's misconduct,

the presence of any aggravating or mitigating factors, and the financial status of the

defendant. Id at 849.

The evidence of discrimination and retaliation must be considered together with

the other relevant factors in considering the appropriateness of the awards. There was

evidence that a policy of racial discrimination existed under the direction of high level

management at the Adam’s Mark, that Helms was targeted to be fired because he was

black, and that Ey was terminated after refusing to fire Helms because he believed the

decision was racially motivated. Deliberately restricting the opportunities of individuals

on the basis of their race and punishing others for opposing that policy violates the law.

Such action is misconduct that should be deterred and punished. Helms and Ey did not

have a reasonable expectation of a long period of employment at the hotel, however, and

both quickly found other work, even if it was less satisfying. The injunction

appropriately included measures to remedy the violation of the interests protected under
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the civil rights laws, and Helms and Ey were not subjected to personal harassment or

other abusive treatment. The punitive damages awards amounted to five percent of the

corporate parent’s net worth which is a very high ratio. See Cash v. Beltman North

American Co., Inc., 900 F.2d 109, 111 (7th Cir. 1990). The ratio of punitive to

compensatory damages is also very high. See BMW of North America, Inc. v. Gore,

116 S.Ct. 1589, 1602-03 (1996); Haslip, 499 U.S. at 23-24. Although the MHRA does

not place a ceiling on punitive damages, the jury awards substantially exceed those

previously upheld under the Missouri statute: $350,000 in Kimzey, 107 F.3d at 578

(extended period of sexual harassment involving managers and constructive discharge);

$15,000 in In re Estate of Latimer, 913 S.W.2d 51, 52 (Mo. App. W.D. 1995) (discharge

based on handicap status); $400,000 in Kientzy, 990 F.2d at 1054 (discharge based on

gender); and $125,000 in Finley v. Empiregas, Inc. of Potsoi, 975 F.2d 467, 472 (8th

Cir. 1992) (failure to promote based on gender). 

Missouri law provides for remittitur when a jury award exceeds what is fair and

reasonable, Mo. Ann. Stat. §537.068 (West 1997), and this procedure applies to punitive

damage awards as well. Mo. Ann. Stat. §510.263(6) (West 1997). Remittitur allows

punitive damages to be set at an equitable amount without a time-consuming and

inefficient retrial of this single issue. Fust v. Francois, 913 S.W.2d 38, 49 (Mo. App.

E.D. 1995). Determining the proper amount to be remitted requires an analysis of

factors identical to those used to assess the reasonableness of the award. See Moore v.

Missouri-Nebraska Express, Inc., 892 S.W.2d 696, 714 (Mo. App. W.D. 1994).

Consideration of these factors demonstrates that a substantial reduction in the punitive

damage awards would be appropriate. A deliberate violation of well-settled law

prohibiting racial discrimination and retaliation deserves both punishment and deterrence

but a penalty of five percent of the corporate parent’s net worth is excessive. After

considering the nature and extent of the misconduct, the impact on the individual

plaintiffs, a reasonable relation between the compensatory and punitive damages, and

an amount sufficient to punish and deter under all the circumstances, we find an

appropriate amount of punitive damages is $380,000 for Helms and $100,000 for Ey.
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C.

Adam’s Mark also objects to some of the injunctive relief awarded by the district

court on the Title VII claims. The court ordered Adam’s Mark to expunge its

employment records of all reference to the circumstances surrounding the firing of Helms

and Ey and to provide both men with letters of recommendation. It permanently

enjoined racial discrimination or retaliation against employees who oppose

discrimination and required management to attend annual education programs on race

discrimination for three years, to make an annual submission for three years to the EEOC

of a statement of compliance and a report of all discipline or discharge of black

employees, and to notify all employees of the scope of relief awarded. It also required

appointment of a neutral monitor to oversee employment decisions at the hotel for three

years. The monitor was to have full access to HBE's employment files and the power

to investigate any claim of racial discrimination. Adam’s Mark argues that the court

went too far in requiring appointment of a neutral monitor because the described

oversight and investigatory authority would go beyond the bounds of the discrimination

shown in this case. 

A court may exercise its discretion to fashion injunctive relief to remedy the

effects of racial discrimination. Briscoe v. Fred's Dollar Store, 24 F.3d 1026, 1028 (8th

Cir. 1994). That discretion is not unlimited, however, and is reviewed for abuse. Id.

Provisions of an injunction may be set aside if they are broader than necessary to

remedy the underlying wrong. Easly v. Anheuser-Busch, Inc., 758 F.2d 251, 263 (8th

Cir. 1985). 

At oral argument counsel was asked if a monitor had ever been appointed and, if

not, whether court-ordered compliance had been sought. The answer to both
On October 31, 1996 appellants petitioned the district court to stay enforcement 4

of the injunction pending appeal. No action was taken by the district court until after

counsel was asked at oral argument on September 8, 1997 whether a monitor had been

appointed. The district court entered an order on September 12 denying the motion

before it, and appellants moved on September 22 for this court to stay enforcement.

That motion is now dismissed as moot.

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questions was no. The fact that appellees had not pursued the matter indicates that this 4

provision was not necessary to remedy the harm in this case. The immediate harm to

Helms and Ey was remedied by the order to expunge their employment records of all

reference to their discharge and to provide recommendation letters. The injunction

against continued discrimination is designed to prevent similar misconduct. Appointment

of a monitor would only address speculative future harm. See Easly, 758 F.2d at 263.

There is no indication that any relief is necessary beyond the annual reports to the EEOC

and the other provisions of the injunction. The order requiring appointment of a third

party monitor was broader than necessary, and it is therefore reversed.

D.

Finally, Adam’s Mark objects to the award of attorney fees and costs. A

prevailing party in a Title VII lawsuit may recover attorney fees, 42 U.S.C. § 2000e5(k), and other litigation expenses, Pinkham v. Camex, Inc., 84 F.3d 292, 294-95 (8th

Cir. 1996). Adam’s Mark argues that the award should be vacated because it is entitled

to judgment as a matter of law on the retaliatory discharge claim and an award to Helms

would be premature before completion of the new trial it seeks. It has not challenged

the reasonableness of the number of hours, hourly rate, or costs used to compute the

award, however. Since Helms and Ey have prevailed on their claims they are entitled

to fees, and appellant has not demonstrated that the district court abused its discretion

or that the amount awarded is unreasonable. See Catlett v. Missouri
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Highway and Transportation Commission, 828 F.2d 1260, 1270 (8th Cir. 1987). The

award of attorney fees and costs is therefore affirmed. 

VI.

For these reasons the judgment is affirmed in all respects except for the amounts

awarded for front pay and punitive damages and for that portion of the injunction which

calls for appointment of a third party monitor. We reverse the district court on these

points and remand for further proceedings consistent with this opinion.

A true copy.

Attest:

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