United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 97-3066; 97-3122; 97-3832;

97-4221; 97-4369; 97-4370

___________

Ashok K. Gumbhir, *

*

Plaintiff - Appellee/ *

Cross Appellant, *

*

v. *

* Appeals from the United States

Curators of the University of Missouri, * District Court for the

* Western District of Missouri.

Defendant - Appellant/ *

Cross - Appellee, *

*

Robert W. Piepho; R. Lee Evans, *

*

Cross - Appellees. *

___________

Submitted: May 14, 1998

Filed: October 7, 1998

___________

Before BEAM, LOKEN, and MURPHY, Circuit Judges.

___________

LOKEN, Circuit Judge.

After years of bitter feuding within the University of Missouri at Kansas City’s

School of Pharmacy (UMKC), Professor Ashok Gumbhir commenced this action

against UMKC, Pharmacy Dean Robert Piepho, and Professor R. Lee Evans, alleging
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employment discrimination, violation of Gumbhir’s First Amendment rights in the work

place, and defamation. The district court granted summary judgment dismissing

Gumbhir’s defamation and § 1983 First Amendment claims. After a trial, the jury

returned a verdict for UMKC on Gumbhir’s claims of race, national origin, and

disability discrimination. The jury awarded Gumbhir $4,432.20 in lost wages and

benefits on his Title VII retaliation claim, and the court entered judgment on this

verdict. Gumbhir then moved for sweeping injunctive relief, prospective equitable

monetary relief, and an award of $535,000 in attorneys’ fees and costs. The court

denied injunctive relief, granted a prospective salary increase of $4,432.20 consistent

with the jury’s verdict, and awarded $110,000 in attorneys’ fees. Both sides appeal.

We reduce the award of attorneys’ fees and otherwise affirm.

I. The Jury’s Finding of Retaliation Discrimination.

The jury found that Gumbhir was the victim of unlawful retaliation and awarded

him $4,423.20 in “lost wages and benefits through the date of this verdict.” On appeal,

UMKC argues it is entitled to judgment as a matter of law on this claim. We view the

evidence in the light most favorable to the jury’s verdict, giving Gumbhir as prevailing

party the benefit of all inferences that may reasonably be drawn from that evidence.

See Kim v. Nash Finch Co., 123 F.3d 1046, 1057-58 (8th Cir. 1997). 

The lengthy trial exposed a rather incredible sequence of petty, venomous

exchanges between the main protagonists, Professor Gumbhir on the one hand, and

Dean Piepho and Professor Evans on the other, an unprofessional spate of

communications that would not be tolerated in a well-functioning work place and that

should have been beneath the dignity and intelligence of the seemingly well-educated

combatants. On appeal, UMKC’s opening brief spends twenty pages marshalling this

distasteful evidence to show that Gumbhir was the villain, while Gumbhir’s opening

brief responds with twenty-five pages intended to paint Piepho, Evans, and other

UMKC supervisors as the black hats. Most of this is irrelevant to the issues on appeal,
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a waste of our time and a strong indication the case has been massively over-lawyered.

We will spare the reader a tedious review of these background facts and move directly

to the evidence we view as critical to Gumbhir’s claim of unlawful retaliation.

A claim of retaliation discrimination requires proof that the employee engaged

in protected activity, that the employer took adverse employment action against him,

and that there was a causal connection between the two. See Kempcke v. Monsanto

Co., 132 F.3d 442, 445 (8th Cir. 1998). Beginning in December 1991, an otherwise

disgruntled Gumbhir made a series of complaints to Piepho and the Vice Provost of

Affirmative Action about ethnic slurs by Evans, about an Associate Dean’s unfavorable

comment concerning immigrants working in the United States, and about what Gumbhir

perceived as a racially biased environment in the School of Pharmacy. Gumbhir

received substantially below average salary increases the next three times the School

of Pharmacy gave such increases. UMKC argues Gumbhir’s complaints about ethnic

discrimination were not protected activity, and denying him salary increases was not

adverse employment action. These contentions are frivolous. See Davis v. City of

Sioux City, 115 F.3d 1365, 1369 (8th Cir. 1997); Smith v. St. Louis University, 109

F.3d 1261, 1266 (8th Cir. 1997). 

The critical issue is whether there was sufficient evidence of a causal connection

between Gumbhir’s protected activity of complaining about racial and ethnic

discrimination, and UMKC’s adverse salary actions. The district court properly

instructed the jury that to prove his claim of unlawful retaliation, Gumbhir “must prove

by the greater weight of the evidence that [UMKC] took action against plaintiff for

exercising his rights to object to race or national origin or disability discrimination.”

The sufficiency issue is close because UMKC presented strong evidence of legitimate

non-discriminatory reasons for its salary actions. But giving the verdict the deference

to which it is entitled, we conclude the evidence was sufficient to permit the jury

reasonably to infer that UMKC’s adverse salary actions were motivated at least in part
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by an intent to retaliate for Gumbhir’s protected activity. Accordingly, the district

court’s judgment on the jury verdict dated May 15, 1997, must be affirmed.

II. The Grant of a Prospective Salary Increase.

The district court granted Gumbhir equitable relief in the form of a prospective

pay increase of $4,423.20, an amount equal to the back pay the jury awarded to the

date of its verdict. It is often appropriate to grant a prospective salary adjustment, or

some other form of “front pay,” in an employment discrimination case. We review the

grant or denial of such equitable relief under the abuse of discretion standard. See

Newhouse v. McCormick & Co., 110 F.3d 635, 643 (8th Cir. 1997). 

At trial, UMKC sought to introduce evidence that Gumbhir double-billed the

University for certain consulting trips, behaved inappropriately to female students, and

secretly managed an HMO in Texas. The district court excluded this evidence. On

appeal, UMKC does not challenge these evidentiary rulings. Instead, it argues the

court abused its discretion by awarding Gumbhir equitable relief without considering

this evidence of employee wrongdoing and unclean hands, citing McKennon v.

Nashville Banner Publishing Company, 513 U.S. 352, 361 (1995), and Gibson v.

Mohawk Rubber Company, 695 F.2d 1093 (8th Cir. 1982). We disagree. While those

opinions stress the importance of considering all relevant circumstances in awarding

equitable relief, including employee wrongdoing, neither case involved evidence that

had been excluded at trial. Indeed, our decision in Gibson emphasized that a post-trial

decision regarding equitable relief may not be based upon findings that conflict with

those made by the jury. 695 F.2d at 1101. Thus, the district court did not abuse its

discretion in declining to consider in fashioning equitable relief evidence it had

excluded from the jury’s consideration at trial. The award of a prospective salary

increase is consistent with the jury’s back pay verdict and must be affirmed.
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III. The Dismissal of Gumbhir’s § 1983 Claims.

Count III of the fifty-one-page Third Amended Complaint asserted claims under

42 U.S.C. § 1983 against UMKC and the individual defendants. One claim is that

defendants violated Gumbhir’s First Amendment rights by punishing him for opposing

unlawful discrimination and speaking out on matters of general academic concern. The

district court granted summary judgment dismissing Count III. On appeal, Gumbhir

argues that genuine issues of material fact preclude summary judgment on his First

Amendment § 1983 claim. We review the grant of summary judgment de novo.

It is well settled that UMKC “cannot condition public employment on a basis that

infringes the employee’s constitutionally protected interest in freedom of expression.”

Connick v. Myers, 461 U.S. 138, 142 (1983). The district court concluded Gumbhir

had not spoken out on matters of public concern; that if he did it was to denigrate his

academic colleagues, not to benefit the public; and that he presented no evidence his

criticism of Piepho and Evans was a substantial factor in any adverse employment

actions. This was the proper legal standard. See Pickering v. Board of Educ., 391 U.S.

563, 568-73 (1968); Bausworth v. Hazelwood Sch. Dist., 986 F.2d 1197, 1198 (8th Cir.

1993). After careful review of the summary judgment record, we agree with the district

court’s conclusions and affirm the dismissal of Gumbhir’s § 1983 claims. 

IV. The Defamation Claim.

In 1992, Gumbhir refused to teach some of his assigned courses. The School of

Pharmacy issued him a letter of censure in December 1993, which became a basis for

his state law claim of defamation. The district court dismissed this claim on the ground

that dissemination of the letter within the UMKC community was not the requisite

publication as that element of the tort was construed in Rice v. Hodapp, 919 S.W.2d

240, 243 (Mo. banc 1996) (“communications between officers of the same corporation
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in the due and regular course of the corporate business, or between different offices of

the same corporation, are not publications to third persons”). 

Gumbhir argues the district court misapplied Rice because there is evidence the

letter was distributed to the entire School of Pharmacy faculty, and “[d]efamatory

statements made by company officers or supervisors to non-supervisory employees

constitute a publication for purposes of a defamation action.” Rice, 919 S.W.2d at 243.

However, even assuming other faculty members were non-supervisory employees for

purposes of this rule, Missouri courts recognize a qualified privilege, to be determined

by the court as a matter of law, for a good faith communication “in which the person

making the communication has an interest or in reference to which he has a duty, and

to a person having a corresponding interest or duty.” Id. at 244. Internal

communications related to the solving of personnel problems are entitled to this

privilege. See Blake v. May Dept. Stores Co., 882 S.W.2d 688, 690 (Mo. App. 1994);

Lovelace v. Long John Silver’s, Inc., 841 S.W.2d 682, 685 (Mo. App. 1992). Having

reviewed the summary judgment record de novo, we conclude the district court

correctly applied Rice. The dismissal of Gumbhir’s defamation claim is affirmed.

V. The Award of Attorneys’ Fees.

Gumbhir initially requested an award of $488,960.25 in attorneys’ fees and

$45,909.55 in costs. The district court advised that it would reduce this request

because of limited success and invited Gumbhir to brief the issue further. Gumbhir then

urged the court to award $458,263.57 in attorney’s fees and $46,576.98 in costs. The

court reduced the award to $110,000 in attorneys’ fees and $15,000 in costs. The court

cited four categories of unreasonable billing claims and also concluded that Gumbhir

had achieved very limited success in the litigation because only three of nine claims

survived summary judgment, retaliation was not his major claim, he received only a

fraction of the compensatory damages sought and no punitive damages, and he was

denied the wide-ranging equitable relief requested. Both sides appeal this ruling.
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UMKC argues Gumbhir is entitled to no fee because of his “inexcusable

behavior.” We reject this attempt to reargue the adverse jury verdict on retaliation.

Gumbhir was a “prevailing party” entitled to some fee. The question is how much. See

Warner v. Independent Sch. Dist. No. 625, 134 F.3d 1333, 1336 (8th Cir.), petition for

cert. filed, 66 U.S.L.W. 3800 (U.S. Jun. 4, 1998). 

Gumbhir urges us to grant the fees and costs he requested. His amended fee

petition was based upon attorney hours allegedly spent on the litigation and what he

claimed were reasonable hourly rates, reduced by ten percent because of the district

court’s finding of limited success. “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); see City of Riverside v. Rivera, 477 U.S. 561, 569 n.4 (1986). In determining

what hours were reasonably expended in this case, the district court properly examined

whether particular claimed hours were unreasonable and the question of limited

success. But it overlooked another aspect of reasonableness -- the question whether the

requested fee award when based upon hours allegedly expended exceeds the amount

that could ever be reasonable for a case of this nature. This question is relevant

because attorneys “should not be permitted to run up bills that are greatly

disproportionate to the ultimate benefits that may be reasonably attainable.” Copeland

v. Marshall, 641 F.2d 880, 908 (D.C. Cir. 1980) (en banc) (MacKinnon, J., concurring).

In his closing argument to the jury, counsel for Gumbhir requested lost salary

damages of $20,832 plus an unspecified amount for emotional distress. A lawyer who

does not urge the jury to award a specific amount for emotional distress damages, and

whose remaining claim for compensatory damages is $20,832, cannot expect that the

jury will award substantial emotional distress damages. In other words, counsel knew

from the outset that this case involved only a relatively modest claim for compensatory

damages, perhaps $50,000 to $75,000 at most. It was not reasonable for an attorney
It might be argued that the case as framed by Gumbhir could not have been

1

effectively litigated to a fully tried conclusion for this amount of attorney time. One

response to that contention is that competent attorneys are adept at finding ways of

litigating cases so that the time expended is reasonably related to the amount at issue.

Another response is that of the court in Scheriff v. Beck, 452 F. Supp. 1254, 1261 (D.

Colo. 1978):

The dispute here is personal. The relatively small sums awarded by the

jury indicate that in the general scheme of things, the affair was minor and

should never have happened. Good sense among intelligent, if unfriendly,

people should have prevailed. The argument should have been resolved

within the community or in some forum other than the courts [and] that it

did not is unfortunate.

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to run up a bill of $450,000 to $500,000 to litigate this type of damage claim. We

conclude that if the jury in this case had awarded Gumbhir the full amount he requested

in closing argument, a reasonable fee could not have exceeded $110,000, the amount

awarded by the district court for Gumbhir’s far more limited success. This was not a 1

case with broad civil rights implications. It was a damage action for injury suffered

from a rancorous employment dispute that degenerated into unlawful racial or ethnic

retaliation. 

If an award of $110,000 would have been appropriate had Gumbhir been fully

successful, the actual award must be substantially reduced because of his very limited

success. “[T]he most critical factor in determining the reasonableness of a fee award

is the degree of success obtained.” Farrar v. Hobby, 506 U.S. 103, 114 (1992).

Gumbhir did not succeed on his claims for institutional equitable relief. He prevailed

on only one of his personal damage claims. The jury awarded him $4,423.20 of the

$20,832 in quantifiable damages he requested, and the court awarded an additional

$4,423.20 in the form of a prospective pay increase. Although pro rata fee reductions

based upon the relationship between damages requested and damages awarded are

often inappropriate, we conclude that this approach is if anything a generous method
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of determining the appropriate reduction for limited success in this case. The total

damages awarded Gumbhir were $8,846.40 or 42.5% of the lost salary damages he

requested. Therefore, a reasonable attorneys’ fee award cannot exceed 42.5% of

$110,000, or $46,750. 

The district court’s attorneys’ fee award is reduced to $46,750. As so modified,

the judgment of the district court is affirmed, including its award of $15,000 in costs.

A true copy.

Attest:

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