## 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 bi tter feuding within the University of Missouri at Kansas City’s Sch ool of Pharmacy (UMKC), Professor Ashok Gumbhir commenced this actio n against UMKC, Pharmacy De an Robert Piepho, and Professor R. Lee Evans, alleging-2-

employment discrimination, violation of Gumbhir’s First Amendment rights in the work place , and defamation. The district court granted summary judgment dismissin g Gumbhir’s de famation and § 1983 First Amendment claims. After a trial, the jur y returned a verdict for UMKC on Gumbhir’s claims of race, national origin, an d disabilit y discrimination. The jury awarded Gumbhir $4,432.20 in lost wages an d benefits on his Title VII retaliation claim, and the court entered judgment on thi s verdict. Gumbhir then moved for sweeping injunctive relief, prospective equitabl e
mo netary relief, and an award of $535,000 in attorneys’ fees and costs. The cour t denied injunc tive 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 o f unlawful retaliation and awarded him $4,423.20 in “lost wages and benefits through the date of th is verdict.” On appeal, UMKC argues it is entitled to judgm ent as a matter of law on this claim. We view the evidence in the light most favorable t o 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, venomou s exchanges between the main protagonists, Professor Gumbhir on the one hand, an d Dean Piepho and Professor Evans on the other, an unprofessional spate o f 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 dist asteful evidence to show that Gumbhir was the villain, while Gumbhir’s openin g bri ef responds with twenty-five pages intended to paint Piepho, Evans, and othe r UMKC supervisors as the black hats. Most of this is irrele vant to the issues on appeal,-3-

a waste of our time and a strong indication the case has been massively over-lawyered. We will spare the reader a tedious review o f 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 o f 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 perce ived as a racially biased environment in the School of Pharmacy. Gumbhi r
re ceived substantially below average salary increases the next three times the School of Pharmacy gave s uch increases. UMKC argues Gumbhir’s complaints about ethnic discrimination were not protected activity, and denying him salary increases was not adv erse employment action. These contentions are frivolous. See Davis v. City o f Sioux City , 115 F.3d 1365, 1369 (8th Cir. 1997); Smith v. St. Louis University , 10 9 F.3d 1261, 1266 (8th Cir. 1997).

The critical issue is whether there was sufficient evide nce of a causal connection bet ween Gumbhir’s protected activity of complaining about racial and ethni c discri mination, and UMKC’s adverse salary actions. The district court properl y instructed the jury that to prove his claim of unl awful retaliation, Gumbhir “must prove by t he greater weight of the evidence that [UMKC] took action against plaintiff fo r exercisi ng his rights to object to race or national origin or disability discrimination. ” The sufficiency issue is cl ose because UMKC presented strong evidence of legitimate non-discriminatory re asons for its salary actions. But giving the verdict the deference to which i t is entitled, we conclude the evidence was sufficient to permit the jur y reasonably to infer that UMKC’s adverse salary actions were motivated at least in part-4-

by an inte nt to retaliate for Gumbhir’s protected activity. Accordingly, the distric t 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 o f $4,423.20, an amount equal to the back pay the jury awarded to th e date of its verdict. It is often appropriate to grant a prospective salary adjustment, or some other form of “front pay,” in an employment discriminati on case. We review the grant or deni al of such equitable relief under the abuse of discretion standard. Se e Newhouse v. McCormick & Co. , 110 F.3d 635, 643 (8th Cir. 1997).

At trial, UMKC sought to introduce evidence that Gumbhir double-billed th e University for certain consulting trips, b ehaved inappropriately to female students, and secretly man aged an HMO in Texas. The district court excluded this evidence. O n appea l, UMKC does not challenge these evidentiary rulings. Instead, it argues th e
co urt abused its discretion by awarding Gumbhir equitable relief without considering th is evidence of employee wrongdoing and unclean hands, citing McKennon v

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

. Mohawk Rubber Company , 695 F.2d 1093 (8th Cir. 1982). We d isagree. While those opi nions stress the importance of considering all relevant circumstances in awardin g equitable relie f, including employee wrongdoing, neither case involved evidence that had been excluded at trial. Indeed, our deci sion in Gibson emphasized that a post-trial deci sion regarding equitable relief may not be based upon findings that conflict wit h those made by the jury. 695 F.2d at 1101. Thus, the district court did not abuse it s discre tion in declining to consider in fashioning equitable relief evidence it ha d exclud ed from the jury’s consideration at trial. The award of a prospective salar y increase is consistent with the jury’s back pay verdict and must be affirmed.-5- III. The Dismissal of Gumbhir’s § 1983 Claims.
Count III of the fifty-one-page Thi rd Amended Complaint asserted claims under 42 U .S.C. § 1983 against UMKC and the individual defendants. One claim is tha t defendants violated Gumbhi r’s First Amendment rights by punishing him for opposing unlawful discrimination and speaking out on matters o f general academic concern. The dis trict court granted summary judgment dismissing Count III. On appeal, Gumbhi r argues t hat genuine issues of material fact preclude summary judgment on his Firs t Amendment § 1983 claim. We review the grant of summary judgment de novo.
It is well settled that UMKC “cannot condition public employment on a basi s that infringes the emp loyee’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 employmen t actions. This was the proper legal standard. See Pickering v. Bo ard of Educ. , 391 U.S. 563, 568-73 (1968); Bausworth v. Hazelwood Sch. Dist. , 986 F.2d 1197, 119 8 (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 so me of his assigned courses. The School of Pharmacy is sued him a letter of censure in December 1993, which became a basis for his state law claim of defamation. The district cour t dismissed this claim on the ground that dissemination of the letter within the UMKC community was not the requisit e publication as that element of the tort was construed in Rice v. Hodapp , 919 S.W.2d 240, 243 (Mo. banc 1996) (“communications b etween officers of the same corporation-6-

in the due and regular cour se of the corporate business, or between different offices of the same corporation, are not publications to third persons”).
Gumbhir argues the distri ct court misapplied Rice because there is evidence the le tter was distributed to the entire School of Pharmacy faculty, and “[d]efamator y statemen ts made by company officers or supervisors to non-supervisory employee s constitute a publication for purposes of a defamation action.” Ri ce , 919 S.W.2d at 243. Howe ver, even assuming other faculty members were non-supervisory employees for purposes of this rule, Misso uri 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 mak ing the communication has an interest or in reference to which he has a duty, and to a p erson having a corresponding interest or duty.” Id. at 244. Interna l

commun ications related to the solving of personnel problems are entitled to thi s privilege. See Blake v. May Dept. Stores Co. , 882 S .W.2d 688, 690 (Mo. App. 1994); Lovelace v. Long John Si lver’s, Inc. , 841 S.W.2d 682, 685 (Mo. App. 1992). Having reviewed the summary judgment record de novo, we conclude the district cour t correctly applied Rice . The dismissal of Gumbhir’s defamation claim is affirmed.

V. The Award of Attorneys’ Fees.

Gumb hir initially requested an award of $488,960.25 in attorneys’ fees an d $45 ,909.55 in costs. The district court advised that it would reduce this reques t because of limited success and invited Gumbhir to brief the issue fur ther. 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 $15,0 00 in costs. The court cited four categories of unreasonable billing claims and also concluded that Gumbhir had ach ieved very limited success in the litigation because only three of nine claim s survived summary judgment, retaliation was not his major claim, he received only a fra ction of the compensatory damages sought and no punitive damages, and he wa s denied the wide-ranging equitable relief requested. Both sides appeal this ruling.-7-

UMKC ar gues Gumbhir is entitled to no fee because of his “inexcusabl e 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 , 13 4 F.3d 1333, 1336 (8th Cir.), petition for cert. filed , 66 U.S.L.W. 3800 (U.S. Jun. 4, 1998).

Gumb hir urges us to grant the fees and costs he requested. His amended fe e petition was based upon attorney hours allegedly spent on the litigation and what h e claimed were reasonable hourly rates, reduced by ten percent because of the distric t

co urt’s finding of limited success. “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expend ed on the litigation multip lied by a reasonable hourly rate.” Hensley v. Eckerhart , 461 U.S. 424, 43 3 (1983); see City of Riverside v. Rivera , 477 U.S. 561, 569 n.4 (1986). In determining what hours were reasonably expended in this cas e, the district court properly examined whether particular claimed hours were unreasonable and the question of limite d 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 relevan t bec ause attorneys “should not be permitted to run up bills that are greatl y disproportionate to the ultimate bene fits that may be reasonably attainable.” Copeland v. Marshall , 641 F.2d 880, 908 (D.C. Cir. 1980) (en banc) (MacKinnon, J., concurring).

In h is closing argument to the jury, counsel for Gumbhir requested lost salar y damages of $20,832 plus an unspeci fied amount for emotional distress. A lawyer who does not urge the jur

y 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 substantia

l 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 attorneyIt might be argued that the case as framed by Gumbhir could not have bee n 1 effecti vely litigated to a fully tried conclusion for this amount of attorney time. On e response to that contention is that competent attorneys are adept at finding ways o f litigating cases so that the time expended is reasonably related to the amount at issue. Another response is that of the court in Sch eriff 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 sh ould have prevailed. The argument should have been resolved within the community or in so me forum other than the courts [and] that it did not is unfortunate.

-8- to run up a bill of $450,000 to $500,000 to litigate this type of damage claim. W e 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 dis trict 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 suffere d fro m a rancorous employment dispute that degenerated into unlawful racial or ethni c 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

su ccess. “[T]he most critical factor in determining the reasonableness of a fee award is the de gree of success obtained.” Farrar v. Hobby , 506 U.S. 103, 114 (1992)

. Gu mbhir 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 th e $20 ,832 in quantifiable damages he requested, and the court awarded an additiona l $4,423.20 in the fo rm of a prospective pay increase. Although pro rata fee reductions bas ed upon the relationship between damages requested and damages awarded ar e often inappropriate, we conclude that this approach is if anything a generous method-9-

of determ ining the appropriate reduction for limited success in this case. The tota l dam ages awarded Gumbhir were $8,846.40 or 42.5% of the lost salary damages h e requested. Therefore, a reasonable attorneys’ fee award cannot exceed 42.5% o f $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.