Valroy G. Watson v. Paul O'Neill ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1541
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Valroy G. Watson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Paul O'Neill, Secretary of *
the Treasury, *
*
Appellee. *
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Submitted: September 10, 2003
Filed: April 7, 2004 (corrected 4/30/04)
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Before MELLOY, LAY, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Valroy Watson has been employed with the Internal Revenue Service ("IRS")
since 1987. In 1995, the IRS did not select Watson for a Building Management
Specialist position for which he had applied. Watson complained to the Equal
Employment Opportunity Commission ("EEOC") that the IRS had unlawfully
discriminated against him based upon his sex and his race. Watson also claimed that
the IRS retaliated against him for filing a previous EEOC complaint. After the EEOC
denied his claims, Watson commenced this action, asserting claims of sex and race
discrimination and retaliation.
The district court1 dismissed all claims, save one. On Watson's remaining
discrimination claim, based on his non-selection for the Building Management
Specialist position, a jury returned a verdict in favor of the IRS. Watson appeals the
district court's refusal to grant his motion for new trial, and its grant of partial-
summary judgment on the dismissed claims. We affirm.
I. Facts
A. Building Manager Position
In December of 1994, the IRS announced an opening for a new Building
Management Specialist position.2 Watson–who was employed by the IRS in another
position–applied for the Building Management position. The IRS considered Watson
to be qualified for the position; in fact, he was selected as a "Best Qualified
Candidate." Each top candidate was interviewed by a three-person IRS management
panel. The IRS selecting officer for the Building Management Specialist position was
Herb Borchert, an Hispanic male. To assist with the interviewing of candidates,
Borchert selected IRS employees Linda Potter and Bettye Lynn.
During the interviews, each candidate was asked the same series of position-
relevant questions. At the conclusion of the interview process, the candidates were
independently scored by each of the interviewers. All three interviewers rated the
1
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
2
In early 1994, Watson was detailed into an "Acting Building Management
Specialist" position. During his ninety-day detail, he was responsible for maintaining
the environment and overseeing service contracts owned and leased by the IRS. The
person ultimately selected for the open position, Milling Canon, replaced Watson in
the ninety-day detail position.
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same two candidates as the top choices: Watson and Milling Canon. Both Potter and
Lynn gave Watson and Canon identical scores, while Borchert scored Canon one-
point higher than Watson. Borchert looked beyond the interview scores and examined
the files and records maintained by each candidate during their respective ninety-day
stints as "Acting Building Management Specialist." Although Borchert found
Watson's files to be adequate, he concluded that Canon maintained better files.
Consequently, Borchert selected Canon as the new Building Management Specialist.
Fran Meeks and Tim Schillingburg, Borchert's first- and second-line
supervisors, approved Borchert's decision to select Canon for the position. Watson
introduced evidence that both Meeks and Schillingburg had previously made
discriminatory statements concerning Watson. In 1994, Meeks commented that "I'm
not going to let a nigger manage my bitches." Watson also alleged that
Schillingburg–upset with Watson for filing an affidavit in another employee's 1993
EEOC case–stated that Watson would never excel in the agency because he had
assisted in a 1993 case, in which Schillingburg was named as a discriminating
official.
In July 1995, Watson consulted with an EEOC counselor about his non-
selection for the Building Management Specialist position. Watson later filed a
formal complaint of discrimination alleging that his non-selection was the result of
race and gender discrimination. In his formal complaint of discrimination, Watson did
not check the box for "RETALIATION/REPRISAL." He also did not allege any type
of discriminatory conduct indicating retaliation or reprisal. As such, the only claims
administratively accepted and investigated–with regard to the Building Maintenance
Specialist position–were the issues of race discrimination and gender discrimination.
B. Equal Employment Opportunity Specialist Position
In March 1997, Watson also sought EEOC counseling alleging that the IRS
discriminated against him based upon his sex and race by failing to consider him for
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a developmental detail to an Equal Employment Opportunity Specialist position. In
April 2000, the EEOC consolidated Watson's 1995 complaint regarding the Building
Manager position and the 1997 EEOC Specialist complaint. Also, Watson added a
retaliation claim (based on his prior EEOC testimony against Schillingburg) to his
claim involving the Equal Employment Opportunity Specialist detail.
C. Procedural Disposition
After the EEOC denied his claims, Watson sued the IRS seeking damages for
employment discrimination under Title VII of the Civil Rights Act of 1964. Upon
completion of pretrial discovery, the IRS moved for summary judgment with regard
to all issues. The district court granted the IRS's motion on all issues except Watson's
claim of race-discrimination based on his non-selection for the Building Management
Specialist position in 1995. Following a two-day trial, the jury returned a unanimous
verdict in favor of the IRS. Watson filed a motion for a new trial, which the district
court denied. This appeal followed.
II. Summary Judgment
We first consider Watson's appeal of the district court's order granting partial
summary judgment, specifically the court's ruling on his retaliation claim.3 He argues
that the district court erred in its conclusion that he failed to establish a prima facie
case of retaliation in relation to his non-selection as a Building Management
Specialist. We agree. Watson did in fact offer sufficient proof to establish a prima
facie case of retaliation by offering proof that: 1) he engaged in protected
activity–filing an affidavit in a co-worker's EEOC complaint; 2) an adverse
employment action was taken against him–he was not promoted to Building
3
The only aspect of the district court's partial summary-judgment order
addressed in Watson's appeal is the court's ruling on his retaliation claim. Thus, we
will only consider this portion of the partial summary-judgment order in our analysis.
See In re Mid-American Energy Co., 286 F.3d 483, 487 (8th Cir. 2002) (holding that
claims not raised in an appellant's initial brief to our Court are waived).
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Management Specialist; 3) he showed a causal link between the two events–that
Schillingburg (whom we view as a decision maker in the Building Management
Specialist selection) allegedly commented that because of prior EEOC activity,
Watson would never excel at the IRS. See Kiel v. Select Artifacts, Inc., 169 F.3d
1131, 1136 (8th Cir. 1999) (en banc).
Alternatively, the IRS argues that Watson waived his retaliation claim because
Watson failed to raise the issue in his EEOC complaint. The district court, however,
disagreed with the IRS's contention, concluding that:
[Although [Watson] did not raise the retaliation claim in his EEO
complaints, he apparently did raise it at some point during the
administrative process because it was discussed by the EEOC in its
Findings of Fact and Conclusions of Law for the consolidated cases.
Therefore, [Watson's] retaliation claim will not be dismissed based upon
a failure to exhaust administrative remedies.
However, a careful review of the EEOC's "Findings of Fact and Conclusions
of Law" shows that the additional basis of retaliation for prior EEO activity was
added only to the 1997 complaint involving the Equal Employment Opportunity
Specialist detail,4 not to the 1995 Building Manager position.
Plaintiffs in discrimination cases against government agencies must exhaust
their administrative remedies prior to filing a civil action in federal district court.
Brown v. Gen. Serv's. Admin., 425 U.S. 820, 832 (1976). Specifically, Watson was
required to seek timely and appropriate relief from the EEO department of the IRS,
thereby providing the IRS with notice of the charges and an opportunity to comply
4
Because Watson offers no argument on appeal relating to his claim that he
was not selected for a developmental detail as an Equal Employment Specialist in
retaliation for his prior EEO activity, he has waived the issue on appeal. In re Mid-
American Energy Co., 286 F.3d at 487.
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voluntarily with applicable statutes. This procedural requirement also affords the
EEOC the opportunity to settle disputes through conference, conciliation, and
persuasion, thus avoiding unnecessary judicial action. See 42 U.S.C. § 2000e-16(c).
The record reflects that Watson effectively raised claims of race and gender
discrimination with the EEOC in relation to the Building Manager Specialist position,
but it also shows that he made no claim or mention of retaliation.
In Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994),
we extensively considered the requirements for administrative exhaustion:
Allowing a complaint to encompass allegations outside the ambit of the
predicate EEOC charge would circumscribe the EEOC's investigatory
and conciliatory role, as well as deprive the charged party with proper
notice of the charge, as surely as would an initial failure to file a timely
EEOC charge.
As in Williams, Watson's failure to make an assertion of retaliatory motive in relation
to his non-selection as a Building Manager Specialist is fatal to his attempt to
resurrect the issue.
Although the district court's grant of summary judgment in relation to Watson's
claim of retaliation was predicated on the absence of a prima facie case, we may
uphold a grant of summary judgment for any reason supported by the record, even if
it differs from the reason given by the district court. Anderson v. Larson, 327 F.3d
762, 767 (8th Cir. 2003). Consequently, we affirm the district court's dismissal of
Watson's retaliation claim because he failed to properly preserve the issue by
exhausting all available administrative remedies.
III. Evidentiary Rulings Requiring New Trial
Next, we consider Watson's appeal of the district court's denial of his new trial
motion. The decision to grant a new trial is left to the sound discretion of the trial
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court, and we will not disturb the trial court's decision absent a clear showing of
abuse of discretion. Pullman v. Land O'Lakes, Inc., 262 F.3d 759, 762 (8th Cir. 2001).
Watson seeks a new trial based on the district court's exclusion of all "evidence
of [a] pattern and practice of discrimination." In raising objections to a district court's
evidentiary rulings, an appellant is required to denote with "specificity with record
references" the allegedly erroneous ruling and the improperly excluded evidence.
United States v. Cates, 251 F.3d 1164, 1167 (8th Cir. 2001). Watson, however, failed
to cite to the district court's ruling in the record, and as is our practice–without any
arguments or citations to the record that would assist us in judging the merits of his
claim of error–we decline to address it. United States v. Darden, 70 F.3d 1507, 1517
n.3 (8th Cir. 1995)
With regard to the objectionable evidentiary rulings at Watson's trial, we will
only address those sufficiently identified and discussed in Watson's brief. See, e.g.,
Jasperson v. Purolator Courier Corp., 765 F.2d 736, 740 (8th Cir. 1985) (holding
that failure to discuss an issue in an appellate brief constitutes abandonment of that
issue). We review evidentiary rulings made at trial by a district court for an abuse of
discretion, according such decisions "substantial deference." Life Plus International
v. Brown, 317 F.3d 799, 803 (8th Cir. 2003).
A. Prior Promotion Attempts
Watson cites authority supporting the relevance of "corporate atmosphere"
evidence and contends that the district court categorically excluded evidence of
Watson's prior promotion attempts and the IRS's pattern of changing the promotion
process. However, he made no offer of proof with respect to this exclusion. Absent
a proper offer of proof, we review under the plain-error standard and reverse only if
there has been a miscarriage of justice. Williams v. Wal-Mart Stores, Inc., 922 F.2d
1357, 1362 (8th Cir. 1990). The plain-error exception "must be confined to the most
compelling cases, especially in civil, as opposed to criminal, litigation." Johnson v.
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Ashby, 808 F.2d 676, 679 n.3 (8th Cir. 1987). This case does not compel a plain-error
reversal. Watson had already introduced evidence that he was careful in preparing for
the application process because of his prior experiences seeking promotions, thus the
evidence withheld would have been cumulative.
B. Affirmative Action Undertakings
Watson next argues that the district court wrongfully excluded "Evidence
Touching on The IRS's Affirmative Action Goals." Watson's entire argument on this
point consisted of one sentence alleging that he attempted to offer into evidence
testimony regarding affirmative-action reports that reflected deficiencies within the
agency that needed to be corrected. Allegations of error not accompanied by
convincing argument and citation to authority need not be addressed on appeal. Fed.
R. App. R. 28(a)(9)(A). As a result, we regularly decline to consider cursory or
summary arguments that are unsupported by citations to legal authorities. United
States v. Stuckey, 255 F.3d 528, 531 (8th Cir. 2001); United States v. Wadlington, 233
F.3d 1067, 1081(8th Cir. 2000); United States v. Gonzales, 90 F.3d 1363, 1369 (8th
Cir. 1996).
C. Racial Comment
Watson also contends that the district court erred by excluding a highly
offensive racial remark allegedly made by one of Watson's managers. The comment
came from Meeks, who, according to Watson's witness, stated that she would "never
have a nigger supervising her bitches." Watson attempted to introduce this evidence
through Diane Perkins, a former IRS employee; however, the IRS objected. The
district court convened a bench conference. After the bench conference, the court
sustained the objection.5
5
The district court addressed the admission of the statement prior to trial and
indicated Watson would need to establish adequate foundation.
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Following the court's ruling, Watson's counsel attempted to state the basis for
admission of the statement but did so in only vague terms and made no offer of proof
through questioning either the purported declarant or the witness. Watson correctly
notes that inflammatory racial remarks are admissible to establish an on-going pattern
of racial harassment and discriminatory animus. White v. Honeywell, 141 F.3d 1270,
1276 (8th Cir. 1998). However, we do not believe the district court abused its
discretion in concluding in this case that the proper foundation for admissibility of
the statement had not been established. The district court found that there was little,
if any, evidence that Meeks, as opposed to Borchert, was the actual decision maker.
The court further found that a 1991 statement was too remote in time to support an
inference of discriminatory animus in a 1995 promotion decision. Based on the offer
of proof made by Watson at trial, we cannot conclude that the district court abused
its discretion in denying the admission of the statement.
III.
After careful consideration of the record and the arguments on appeal, we
conclude that because Watson failed to exhaust his administrative remedies, his claim
of retaliation is not viable. Further, we find no abuse of discretion in the district
court's refusal to grant Watson a new trial based on his numerous allegations of
evidentiary error. For the foregoing reasons, we affirm the district court's grant of
partial summary judgment and its denial of Watson's motion for new trial.
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