United States Court of Appeals

                            FOR THE EIGHTH CIRCUIT



                                 ___________

                                 No. 97-1075
                                 ___________

Lee Browning,                         *
                                      *
           Appellee,                  *
                                      *
     v.                               *   Appeal from the United States
                                      *   District Court for the Eastern
President Riverboat Casino-           *   District of Missouri.
Missouri, Inc.,                       *
                                      *
           Appellant.                 *

                                 ___________

                                 No. 97-3828
                                 No. 97-3830
                                 ___________

Lee Browning,                         *
                                      *
     Appellee, Cross-Appellant,       *
                                      *
     v.                               *   Appeal and Cross-Appeal from
                                      *   the United States District
President Riverboat Casino-           *   Court for the Eastern District
Missouri, Inc.,                       *   of Missouri.
                                      *
     Appellant, Cross-Appellee.       *

                                 ___________
                   Submitted: September 10, 1997

                       Filed:        March 20, 1998
                                 ___________

Before McMILLIAN, ROSS and MURPHY, Circuit Judges.
                               ___________

ROSS, Circuit Judge.


     President Riverboat Casino-Missouri, Inc. (Riverboat) appeals from
a judgment entered in the district court following a jury verdict finding
that Riverboat discharged Lee Browning from employment as a security office
manager because he was white, in violation of 42 U.S.C. § 1981, Title VII
and the Missouri Human Rights Act (MHRA).    Riverboat now appeals from the
court’s findings of liability and damages.   In a subsequently filed appeal
and cross appeal, now consolidated with the present case, both parties
contest the amount of attorney’s fees awarded by the district court.    For
the reasons set forth below, we affirm the finding of liability and reverse
in part and affirm in part the findings of damages.          We affirm the
conclusions with respect to attorney’s fees.


                                     I.


     Browning was 54 years old at the time he was terminated from his
employment with Riverboat.      He was one of three security managers who
worked for Riverboat; the other two security managers, Moody and Holloway,
as well as Willie Taylor, the director of security and Browning’s immediate
supervisor, were black.      The security department was responsible for
safeguarding Riverboat’s property along the




                                     -2-
Mississippi riverfront in St. Louis, including the riverboats the Admiral
and the Robert E. Lee.       On December 10, 1993, Browning was hired by Taylor
to   work   for   Riverboat     as    a    security     manager,    while    Browning’s    two
counterparts,     Moody   and    Holloway,       were    hired     on   November   18,   1993.
Browning testified that although Taylor told him during the pre-employment
interview that the three security managers would decide who would be
assigned to the day, evening or night shifts, by the time Browning reported
to work he was informed that he had been assigned the undesirable night or
“graveyard” shift, while Holloway would be on the day shift and Moody would
be on the evening shift.              When Browning reminded Taylor that he had
promised to let the security managers work out the shift assignments among
themselves, Taylor replied, “that’s the way it is, if you don’t like it you
can quit.”


       Browning also produced evidence for the purpose of showing that
Taylor treated him unfavorably as compared to the two black security
managers. For example,        Browning alleged that Taylor allowed Holloway to
leave work early on occasion, while Browning was denied the same request.
Taylor criticized Browning for keeping a “messy desk,” while according to
Naomi Purchase, Taylor’s secretary, Browning’s desk was “much neater” than
Holloway’s    desk   which      was       “extremely    messy.”         Holloway   was   never
reprimanded for having a messy desk.             On another occasion, Taylor allegedly
instructed Ms. Purchase, who had previously provided typing services for
all three security managers, not to do any more typing for Browning, while
Taylor allowed her to continue to provide typing for Moody and Holloway.
Further, at some point during Browning’s brief employment with Riverboat,
Naomi Purchase saw Browning come out of Taylor’s office looking “mad” after
a meeting with Taylor.       She asked Taylor if everything was okay, to which
Taylor responded, “that white boy better learn who he’s messing with, he
better get




                                               -3-
his act together.”   Browning was terminated after only sixty-seven days of
employment and was replaced by a white woman.


     Riverboat presented evidence in an attempt to show that Browning’s
tenure was marked by consistent lapses in performance.        For example, in the
early morning hours of January 25, 1994, while working the late night
shift, Browning was informed that a power box underneath a metal ramp
leading from the levee to the Robert E. Lee was sporadically emitting
sparks during heavy thunderstorms.         Browning stated that he secured the
area by posting a security officer at the site and determined that there
was no combustible material in the vicinity.       Browning further alleged that
he attempted to contact appropriate personnel to deal with the problem, but
he only left messages as he was unable to reach anyone.            Lee Sorenson,
Riverboat’s chief engineer, stated that he was unhappy that he had not been
notified of the sparking incident immediately.        Browning left a report of
the sparking incident for Taylor in the log book when he went off duty at
7:00 a.m.   Nevertheless, Taylor wrote a memorandum to Browning asking him
to submit another report detailing the circumstances “as soon as possible.”
Browning submitted a handwritten memo the next day, but was criticized for
failing to submit a typewritten report.


     The jury returned a verdict in favor of Browning, and the court
entered judgment upon that verdict.       The jury awarded Browning $46,000 in
back pay, $50,000 in emotional distress damages, and $50,000 in punitive
damages.     Thereafter,   the   trial    judge   awarded   Browning   $11,034   in
additional back pay and prejudgment interest and two years of front pay
totalling approximately $30,000.         The trial judge subsequently denied
Riverboat’s Motion for Judgment as a Matter of Law (JAML) or for a new
trial.   Riverboat now appeals the denial of the JAML, arguing that the




                                         -4-
jury should not have been given an instruction under           Price Waterhouse v.
Hopkins, 

(1989), and that the evidence was insufficient to
support the jury’s verdict.       On the damages phase, Riverboat argues the
court erred in submitting Browning’s claims for punitive and emotional
distress damages to the jury and in awarding front pay.


                                        II.


     Riverboat first contends the district court erred in submitting the
Price Waterhouse instruction to the jury and further that the district
court erred in denying its motion for JAML because the jury’s finding of
discrimination was not supported by the evidence.            Appellate review of a
jury verdict is extremely deferential.               The court must consider the
evidence in the light most favorable to Browning, assume that all conflicts
in the evidence were resolved in favor of Browning, assume as proved all
facts that Browning’s evidence tended to prove, and give Browning the
benefit of all favorable inferences that may reasonably be drawn from the
facts proved.   Ryther v. KARE 11, 

, 844 (8th Cir.) (en banc),
cert. denied, 

(1997).           Judgment as a matter of law is
proper   only   when   the   evidence   is    such   that,   without   weighing   the
credibility of the witnesses, there is a complete absence of probative
facts to support the verdict.      

     Under the mixed motive analysis of Price Waterhouse, as modified by
§ 107 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(m), an unlawful
employment practice is established when an individual demonstrates that an
illegitimate criterion was a motivating factor in an adverse employment
action, even though other factors also motivated the action.              Deneen v.
Northwest Airlines, Inc., 

, 435-36




                                        -5-
(8th Cir. 1998).         The defendant may attempt to limit relief to declaratory
judgment, injunctive relief or attorney’s fees by showing that it would
have made the same employment decision in the absence of discriminatory
motive.    

has been interpreted as “conduct or statements by
persons involved in the decisionmaking process that may be viewed as
directly reflecting the alleged discriminatory attitude . . . sufficient
to permit the factfinder to find that that attitude was more likely than
not a motivating factor in the employer’s decision.”                 Thomas v. First Nat’l
Bank,    

,   66   (8th    Cir.      1997)   (quoting     Kriss   v.   Sprint
Communications Co., 

, 1282 (8th Cir. 1995)).                   “Not all comments
that reflect a discriminatory attitude will support an inference that an
illegitimate criterion was a motivating factor in an employment decision.”
Radabaugh v. Zip Feed Mills, Inc., 

, 449 (8th Cir. 1993).                        For
example,       “direct    evidence”      does   not    include    “stray    remarks     in   the
workplace,”       “statements       by     nondecisionmakers,”        or    “statements       by
decisionmakers      unrelated       to   the    decisional     process     itself.”      Price

.


        Taylor’s reference to Browning as “that white boy” in the context of
Browning’s employment warrants an inference of discriminatory attitude
sufficient to permit the factfinder to conclude that race was a motivating
factor in the decision to terminate Browning.                    Such use of a racial slur
by a supervisor and the principal decisionmaker in Browning’s termination
constitutes more than a stray remark in the workplace and directly suggests
the existence of bias; no inference is necessary.                    Compare Delph v. Dr.
Pepper Bottling Co., 

, 352 (8th Cir. 1997) (recognizing “black
boy” as a racial slur.)         This comment did not simply evidence an awareness
of the employee’s gender or race, it reveals “a decidedly negative attitude




                                                -6-
toward [white] people on the part of [a person] responsible for [the
employment decision].”     EEOC v. Alton Packaging Corp., 

, 924
n.6 (11th Cir. 1990); see also Beshears v. Asbill, 

, 1354 (8th
Cir. 1991) (direct evidence of discrimination can include employer’s
remarks reflecting discriminatory attitude).


        Aside from his direct proof of discrimination, Browning presented
circumstantial evidence also indicating a discriminatory animus because of
his race, including evidence that Browning was treated unfairly as compared
to Holloway and Moody, in that Taylor denied leave to Browning while
granting leave to Holloway and Moody; criticized Browning’s disorganized
desk,    while   disregarding   Holloway’s    disorganization;   and   provided
secretarial services to Moody and Holloway while limiting Browning’s access
to such services.     Although Riverboat contradicts much of this evidence,
we are constrained to view the evidence in the light most favorable to
Browning.


        Riverboat briefly asserts on appeal that it would have taken the same
action    against Browning even in the absence of racial bias because
Browning’s performance was deficient.       According to Riverboat, Browning’s
performance was deficient in his failure to properly respond to the
sparking incident, to submit typewritten memos, and to attend a layoff of
security officers.    Browning, however, introduced evidence which tended to
show that his performance had not been deficient and that criticisms
leveled against him were not equally directed against Holloway and Moody.



        Because the record contains sufficient evidence to support the jury’s
finding of intentional discrimination, see 

, we
conclude that the district court properly held that Riverboat was not
entitled to judgment as a matter of




                                      -7-
law. Because the mixed-motive analysis was appropriate in this case, we
need not address the sufficiency of the proof under the pretext analysis
set forth in McDonnell Douglas Corp. v. Green, 

, 802 (1973).



                                        III.


     Riverboat   next   argues   that    Browning    did   not   adduce   sufficient
evidence to permit submission of either his punitive damage or emotional
distress damage claims to the jury.           Browning counters that Riverboat is
barred from asserting these arguments because Riverboat did not raise the
arguments in its Rule 50(a) motion at the close of evidence.          Fed. R. Civ.
P. 50(a).


     In its pre-verdict motion filed on January 23, 1996, Riverboat
asserted that the evidence adduced by Browning was insufficient to support
a jury finding that Riverboat terminated Browning because of his race.
Following the verdict, Riverboat filed its motion for judgment as a matter
of law, or in the alternative for a new trial, stating that the “Court
erred in submitting the issue of punitive damages to the jury,” and the
“verdict on Plaintiff’s claim for emotional distress damages was against
the great weight of the evidence and was excessive.”             Riverboat further
objected to the submission of the punitive damages claim at trial, arguing
that the claim was not supported by the evidence in the case.


     A party is required to have raised the reason for which it is
entitled to judgment as a matter of law in its Rule 50(a) motion before the
case is submitted to the jury and reassert that reason in its Rule 50(b)
motion after trial if the Rule 50(a) motion proves unsuccessful.           Rockport
Pharmacy, Inc. v. Digital Simplistics, Inc., 

, 197




                                        -8-
(8th Cir. 1995).      Thus, a Rule 50(a) motion is a prerequisite to a Rule
50(b) motion because the party must apprise the district court of the
alleged insufficiency of the plaintiff’s suit before the case is submitted
to the jury.


      In Jarvis v. Sauer Sundstrand Co., 

, 323 n.4 (8th Cir.
1997), the court considered whether a party’s pre-verdict motion, which did
not specifically include a reference to insufficiency of the evidence with
respect to liquidated damages under the ADEA, could support the grant of
JAML on that basis.    The court held the JAML grounds were fairly raised in
the   pre-verdict   motion    through   the   defendant’s    argument    that   the
plaintiff’s evidence was insufficient to support the ADEA claim.         

stated that the movant’s grounds for the motion need not be stated
with technical precision, and further that the plaintiff failed to show
that he lacked fair notice or that he did not have an opportunity to cure
deficiencies in his proof.      

v. McDonnell Douglas Corp., 

, 1061 (8th Cir.
1993), on the other hand, the defendant argued in its motion for directed
verdict that the evidence was insufficient to support a finding of sex
discrimination, and only raised its claim related to emotional distress
damages for the first time in its post-verdict motion.         We concluded that
defendant’s    post-verdict   motion,   encompassing   the   emotional    distress
damages claim, raised new grounds and therefore it exceeded what was
permitted under Rule 50(b).       Accordingly, we refused to consider the
sufficiency of the emotional distress evidence.


      Here, as in Jarvis, Riverboat argued in its Rule 50(a) motion, that
the evidence was insufficient for a finding of race discrimination.
Following Jarvis, we conclude




                                        -9-
this argument was sufficient to apprise the district court of the alleged
insufficiency of plaintiff’s suit with respect to the punitive damages
claim.     Kientzy, however, controls our conclusion with respect to the
emotional distress damages claim.    As in Kientzy, Riverboat failed to raise
any claim regarding emotional distress damages in its Rule 50(a) motion for
judgment as a matter of law.      Instead the issue was raised for the first
time in its post-verdict Rule 50(b) motion.       Unlike punitive damages, which
involve proof of a heightened degree of discrimination, Riverboat’s claims
with respect to emotional distress damages require proof of evidence of the
nature and extent of emotional harm caused by the alleged violation.         See
Carey v. Piphus, 

, 263-64 & n.20 (1978);          Patterson v. P.H.P.
Healthcare Corp., 

, 938 (5th Cir. 1996), cert. denied, 117 S.
Ct. 767 (1997).     This proof is wholly unrelated to the proof required to
show discrimination.     Therefore, while the Rule 50(a) argument addressed
the sufficiency of the evidence to support a discrimination claim, and by
extension, punitive damages, such argument failed to apprise the district
court     of   Riverboat’s   challenges      to   emotional   distress   damages.
Accordingly, Riverboat is barred from appealing the denial of its Rule
50(b) motion as to the sufficiency of the evidence of emotional distress
injury.    We now turn to the punitive damages claim.


        To collect punitive damages under Title VII or § 1981, Browning was
required to demonstrate that Riverboat engaged in discrimination “with
malice or with reckless indifference to [his] federally protected rights.”
42 U.S.C. § 1981(b)(1);      Kim v. Nash Finch Co., 

, 1063 (8th
Cir. 1997) (standard for punitive damages same under Title VII and § 1981).
In order to recover punitive damages under the MHRA, Browning had the
burden to show that Riverboat’s “conduct [was] outrageous because of its
evil motive or reckless indifference to the rights of others.”




                                      -10-


(citing Burnett v. Griffith, 

, 789
(Mo. 1989) (en banc)).    Punitive damages under Missouri law are appropriate
only upon a showing of discriminatory conduct that would “shock the
conscience and cause outrage.”     Karcher v. Emerson Elec. Co., 

,
509 (8th Cir. 1996), cert. denied, 

(1997).          Riverboat now
argues that evidence at trial was insufficient to meet either the state or
federal standard for punitive damages.


      To support his punitive damages claim, Browning argues that Taylor
acted with malice by willfully discriminating against him because of his
race and that Gary Armentrout, who was assigned by Riverboat to investigate
the discrimination charge, acted with reckless indifference to Browning’s
rights by failing to meaningfully investigate his complaints of racial
discrimination.1


      We agree with Riverboat that this evidence does not support a finding
either that Riverboat acted with malice or deliberate indifference or that
its conduct was outrageous.     This evidence is in stark contrast to the type
of evidence that this court has found will support an award of punitive
damages.   See, e.g., Kimzey v. Wal-Mart Stores, Inc., 

, 575-76
(8th Cir. 1997) (evidence that manager and supervisor repeatedly made
crude, sexist comments to plaintiff, called her highly offensive names and
kicked her; plaintiff complained directly to the offending managers and
others but no action was taken).     Further, in Karcher we held that § 1981a
requires a showing of more than intentional discrimination to recover
punitive




      1
        The record shows that the chairman of the parent company directed a high-
ranking executive, Gary Armentrout, to investigate Browning’s claims. After
interviewing Browning and Taylor and reviewing materials they each provided,
Armentrout concluded that Browning’s termination was justified.
                                       -11-


(citing Pandazides v. Virginia Bd. of Educ., 

, 830 n.9 (4th Cir. 1994)).     A review of the record reveals that
neither Taylor’s actions, nor Riverboat’s response thereto rose to the
level to support a punitive damages award.    Accordingly, we conclude that
the trial court erred in submitting the punitive damages claim to the jury
and the punitive damages award must be set aside.


                                     IV.


     The trial judge awarded Browning two years of front pay amounting to
approximately $30,000 in order to compensate him for future lost income
between October 15, 1996 and December 21, 1998.   Riverboat argues Browning
was not entitled to front pay because the front pay constitutes an overlap
in remedies and therefore amounts to a windfall.    Riverboat’s argument is
moot in light of our prior conclusion that Browning is not entitled to
punitive damages.   Compare   Newhouse v. McCormick & Co., 

, 643
(8th Cir. 1997) (victim of age discrimination can recover both front pay
and punitive liquidated damages).




                                     -12-
                                         V.


      Riverboat argues in its consolidated appeal that Browning is not
entitled to attorney’s fees notwithstanding his prevailing party status
because Browning’s attorney was disbarred by the State of Missouri prior
to completion of his contingency fee agreement with Browning.                      In its
response to Browning’s fee petition, Riverboat only challenged the amount
of fees requested and did not raise the question of whether his attorney’s
disbarment precluded an award of fees.             Because Riverboat did not raise
this issue before the district court, we will not consider the argument on
appeal.


      Riverboat also challenges various aspects of the district court’s fee
award,    including    claims   that   the      fees   awarded   were   excessive     and
unreasonable because of the lack of complexity of the case, the duplicative
nature of certain fees, and the award of fees for undocumented hours.                  On
cross appeal, Browning challenges the district court’s decision to reduce
the   hourly   rates   of   Browning’s   attorneys      and   its   refusal   to    award
compensation for communication costs.         Because the district court is in the
best position to determine the reasonableness of attorney’s fees, we will
not disturb a district court’s award of fees unless there has been an abuse
of discretion.   

.         Following our review of the record
and the arguments of the parties, we find no abuse of discretion in the
district court’s award of fees in the present matter.


                                         VI.




                                         -13-
     We have considered each of Riverboat’s remaining arguments and find
them to be without merit.   Accordingly, the judgment of the district court
is reversed with respect to the punitive damages award.   The remainder of
the district court’s decision is affirmed.


     A true copy.


           Attest:


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




                                    -14-