Adakai v. Front Row Seat, Inc. ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 1 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KEVIN ADAKAI,
Plaintiff-Appellee,
v. No. 96-2249
(D.C. No. CIV-94-1321-BB)
FRONT ROW SEAT, INC., doing (D. N.M.)
business as Video City, a New Mexico
corporation,
Defendant-Appellant,
and
GERALD W. STANSBURY and
TAMMY D. STANSBURY,
individually,
Defendants.
ORDER AND JUDGMENT *
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Defendant Front Row Seat, Inc. 1 appeals from a jury verdict awarding
plaintiff Kevin Adakai $18,000.00 actual damages and $5,000.00 punitive
damages in this Title VII action. We affirm.
Mr. Adakai was hired as a shift manager by defendant in its video rental
store. He was fired approximately two and one-half weeks later. Mr. Adakai
alleged he was fired because of his Native American race and his long hair which
he stated was an integral part of his heritage. Defendant contended that
Mr. Adakai had voluntarily terminated his employment, see Appellee’s Supp.
App. at 1 (Pretrial order) and, in the alternative, that if he had been terminated,
it was because he had failed to comply with defendant’s grooming standards
relating to his long hair, and not because of his race, see id. at 2; Appellant’s
App. A-28 at 2-3 (Brief in support of defendants’ motion for summary judgment).
On appeal defendant argues the district court erred in denying its motion
for summary judgment and motion for judgment as a matter of law. Defendant
1
The individual defendants, Gerald W. and Tammy D. Stansbury, co-owners
of Front Row Seat, Inc. were dismissed by Mr. Adakai at trial. We, therefore,
refer only to defendant Front Row Seat, Inc. in this order and judgment.
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also asserts the evidence was insufficient to support the jury’s verdict, testimony
by one witness was incorrectly excluded, and the evidence was insufficient to
warrant a jury instruction on punitive damages.
Defendant argues that Mr. Adakai failed to establish a prima facie case
under Title VII and, therefore, the district court should have granted its motion
for summary judgment. When a Title VII case has been fully tried to a jury, the
issue of whether the plaintiff has established a prima facie case drops out, and we
only consider whether the plaintiff proved his claim at trial. See Coleman v. B-G
Maintenance Management of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997)
(citing Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1491
(10th Cir. 1994)). We do not review this issue.
Defendant also argues the district court erred in denying its motion for a
judgment as a matter of law, see Fed. R. Civ. P. 50(a), and that the evidence was
insufficient to support the jury’s verdict. We are unable to review these
arguments. “It is the responsibility of appellant’s counsel to file an appendix
sufficient for consideration and determination of the issues on appeal.” 10th Cir.
R. 30.1.1. Tenth Cir. R. 10.1.1 requires the appellant to “ordinarily” include the
entire trial transcript in its appendix when sufficiency of the evidence is raised.
While defendant did include a major portion of the transcript, significant
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omissions are present. We have no idea whether the omitted portions 2 are truly
irrelevant or whether they contain evidence contrary to defendant’s position.
Further, due to the omissions, testimony is presented by witnesses who are
unidentified to this court. Defendant has made no attempt to assist the court by
identifying who is testifying.
Defendant contends that the district court erred in not permitting it to
present the contents of Ms. Stansbury’s conversation with an unavailable witness,
Mr. McManus. Mr. Adakai was permitted to present statements Mr. McManus
had made to him pursuant to Fed. R. Evid. 801(d)(2).
We review the trial court’s evidentiary decisions for abuse of discretion and
we are particularly deferential on ruling concerning the admission of hearsay
evidence. United States v. Knox, No. 95-5274, 1997 WL 574549, at *3 (10th Cir.
Sept. 17, 1997). We will reverse the district court’s ruling only “if a substantial
right of the party is affected.” Fed. R. Evid. 103(a).
Mr. Adakai testified that Mr. McManus related to him derogatory
statements Mr. and Ms. Stansbury, co-owners of the video store, had made to him
regarding Mr. Adakai’s race. Counsel for Ms. Stansbury advised the court he
wished to present her version of the conversations as an inconsistent statement.
2
While Mr. Adakai has submitted several additional pages of trial transcript,
there are not sufficient to remedy defendant’s omissions.
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An inconsistent statement is not hearsay and may be admitted if the inconsistent
statement meets certain requirements as listed under Fed. R. Evid. 801(d)(1).
Clearly, counsel sought admission of Ms. Stansbury’s version of the conversation
“to prove the truth of the matter asserted.” Id. Rule 801(c).
Counsel now seeks admission of the conversation under Rule 806 as an
impeaching statement. This ground was not presented to the district court and we
will not consider it here, except to determine whether the district court’s ruling
amounted to plain error. See Pandit v. American Honda Motor Co., 82 F.3d 376,
379 (10th Cir. 1996) (while “[w]e review evidentiary rulings for abuse of
discretion, . . . if the complaining party fails to make a contemporaneous
objection, we determine only if the ruling was plain error”).
The record before us shows that Ms. Stansbury was permitted to rebut the
testimony that she had made racially disparaging comments. She testified that she
would never make the comments attributed to her. Ms. Stansbury could not have
hoped to do more. No reversible error occurred.
Finally, defendant argues that the evidence was insufficient to submit the
issue of punitive damages to the jury. Whether the evidence is sufficient to
support an award of punitive damages is a question of law which we review
de novo. See Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1262
(10th Cir. 1995).
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In a Title VII case, punitive damages may be awarded “if the complaining
party demonstrates that the respondent engaged in a discriminatory practice or
discriminatory practices with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). The
defendant’s acts need not have been “extraordinarily egregious” to support a
finding of punitive damages. See Luciano v. Olsten Corp., 110 F.3d 210, 220
(2d Cir. 1997). “The requisite level of recklessness or outrageousness [required
to support punitive damages] can be inferred from management’s participation in
the discriminatory conduct.” Kim v. Nash Finch Co., Nos. 95-2021, 95-2074,
1997 WL 471351, at *19 (8th Cir. Aug. 20, 1997) (quotation omitted).
Here, the evidence shows that the Stansburys were reported as calling
Mr. Adakai a “scuzzy Navajo,” Appellant’s App. TTD at 198, and a “long-haired,
scuzzy Navajo guy,” Appellee’s Supp. App. at 18. Mr. Stansbury reportedly told
Mr. McManus to “get rid of that goddamned Indian.” Appellant’s App. TTD
at 49. Ms. Stansbury reportedly stated, “We can’t have that guy working for us”
after she had called Mr. Adakai that “long-haired, scuzzy Navajo guy.”
Appellee’s Supp. App. at 19. Testimony was also presented that “‘scuzzy,
long-haired Navajo’ was repeated several times over the course of that week.”
Id. at 20.
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Ms. Stansbury denied these statements, but the credibility of the witnesses
is one for the jury which we will not disturb. See Thunder Basin Coal Co. v.
Southwestern Pub. Serv. Co., 104 F.3d 1205, 1212 (10th Cir. 1997); see also
FDIC v. Hamilton, No. 96-6104, 1997 WL 430022, at *4 (10th Cir. July 28, 1997)
(“We are not empowered to undertake a review of the evidence which would
amount to a trial de novo”). The evidence cited could be viewed by the jury as
sufficient to show malice or reckless indifference to Mr. Adakai’s federally
protected right to be free of discriminatory practices because those rights were
violated by management itself.
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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