Rep. 983
Ashok K. GUMBHIR, Plaintiff-Appellee/Cross Appellant,
v.
CURATORS OF THE UNIVERSITY OF MISSOURI,
Defendant-Appellant/Cross-Appellee,
Robert W. Piepho; R. Lee Evans, Cross-Appellees.
Nos. 97-3066, 97-3122, 97-3832, 97-4221, 97-4369 and 97-4370.
United States Court of Appeals,
Eighth Circuit.
Submitted May 14, 1998.
Decided Oct. 7, 1998.
Conway L. Hawn, Liberty, MO, argued (Kelly L. McClelland, on the brief), for appellee.
Ann Mesle, Kansas City, MO, argued (R. Kent Sellers and Patrick M. Gavin, on the brief), for appellant.
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, Phаrmacy Dean Robert Piepho, and Professor R. Lee Evans, alleging 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.,
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 communicаtions 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, a waste of our time and a strong indication the case has been massively over-lawyered. We will spare the reаder 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 employеr took adverse employment action against him, and that there was a causal connection between the two. See Kempcke v. Monsanto Co.,
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 оf 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-disсriminatory 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 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 approрriate 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.,
At trial, UMKC sought to introduce evidenсe 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,
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 materiаl 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,
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,
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 defаmation action." Rice,
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.
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,
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 distriсt 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,
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 comрensatory 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 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.1 This was not a 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,
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.
Notes
It might be argued thаt the case as framed by Gumbhir could not have been 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 reasоnably related to the amount at issue. Another response is that of the court in Scheriff v. Beck,
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.