Lee Browning v. President Riverboat Casino-Missouri, Inc., Lee Browning v. President Riverboat Casino-Missouri, Inc., Cross-Appellee, 139 F.3d 631 (8th Cir. 1998). · Go Syfert
Lee Browning v. President Riverboat Casino-Missouri, Inc., Lee Browning v. President Riverboat Casino-Missouri, Inc., Cross-Appellee, 139 F.3d 631 (8th Cir. 1998). Cases Citing This Book View Copy Cite
167 citation events (138 in the last 25 years) across 20 distinct courts.
Strongest positive: Janice Warren v. Mike Kemp (ca8, 2023-08-22)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Janice Warren v. Mike Kemp
8th Cir. · 2023 · quote attribution · 1 verbatim quote · confidence high
judgment as a matter of law is proper only when the evidence is such that . . . there is a complete absence of probative facts to support the verdict.
discussed Cited as authority (verbatim quote) Michael Bavlsik v. General Motors
8th Cir. · 2017 · signal: accord · quote attribution · 1 verbatim quote · confidence high
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.
examined Cited as authority (verbatim quote) Weitz Co. LLC v. MacKenzie House, LLC (3×)
8th Cir. · 2012 · signal: see · quote attribution · 3 verbatim quotes · confidence high
appellate review of a jury verdict is extremely deferential
examined Cited as authority (verbatim quote) Weitz Co. LLC v. MacKenzie House, LLC (3×) also: Cited "see"
8th Cir. · 2011 · signal: see · quote attribution · 2 verbatim quotes · confidence high
appellate review of a jury verdict is extremely deferential
discussed Cited as authority (quoted) Crock v. Sears, Roebuck & Co. (2×) also: Cited as authority (rule)
S.D. Iowa · 2003 · quote attribution · 1 verbatim quote · confidence low
djirect evidence' does not include 'stray remarks in the workplace,' 'statements by nondecisionmakers,' or 'statements by decisionmakers unrelated to the decisional process itself
discussed Cited as authority (rule) Tonya Huber v. Westar Foods, Inc.
8th Cir. · 2025 · confidence medium
See Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 954 (8th Cir. 2012) (holding that comments made six months before the -7- decision to fire an employee were not direct evidence of discrimination); Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 635 (8th Cir. 1998) (“‘[D]irect evidence’ does not include ‘stray remarks in the workplace’ . . . .” (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring in the judgment))).
discussed Cited as authority (rule) Sickels v. McDonough
E.D. Mo. · 2024 · confidence medium
Such use of a racial slur by a supervisor and the principal decisionmaker in [plaintiff’s] termination constitutes more than a stray remark in the workplace and directly suggests the existence of bias; no inference is necessary.” 139 F.3d 631, 635 (8th Cir. 1998).
discussed Cited as authority (rule) Fielding v. Allina Health System
D. Minnesota · 2023 · confidence medium
(Fielding Dep. at 82.) He also alleges that Scott said to him, “What do you Blacks do with all your money,” “You Blacks are too direct,” and “You Blacks . . . always want to get the last word in.” (Id.) He said that if he ever went to Scott about anything, “it always ended with ‘you Blacks.’” (Id. at 83.) A statement constitutes direct evidence of discrimination when a factfinder could “find that the [discriminatory] attitude was more likely than not a motivating factor in the employer’s decision.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 6…
discussed Cited as authority (rule) Ma v. Nucor-Yamato Steel Company
E.D. Ark. · 2022 · confidence medium
Johnson Co., 507 F.3d 1149, 1153 (8th Cir. 2007) (citing Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir. 1998) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989))).
discussed Cited as authority (rule) Thompson v. Ottman
W.D. Ark. · 2021 · confidence medium
See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (explaining directive evidence in discrimination cases exists when a party shows a causal link between discriminatory animus and challenged conduct); Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir. 1998) (explaining stray discriminatory remarks by decisionmakers are not direct evidence of discriminatory animus unless they are related to the decisionmaking process).
discussed Cited as authority (rule) Benford v. Schneider National Carriers, Inc.
E.D. Mo. · 2021 · signal: cf. · confidence medium
Cf. Twymon v. Wells Fargo & Co., 462 F.3d 925, 933 (8th Cir. 2006) (“Direct evidence does not include . . . statements by nondecisionmakers.” (cleaned up) (quoting Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 635 (8th Cir. 1998))).
discussed Cited as authority (rule) Valentine v. Valentine
Bankr. E.D. Mo. · 2020 · confidence medium
Damages associated with emotional distress “require proof of evidence of the nature and extent of emotional harm caused by the alleged violation.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 636 (8th Cir. 1998).
discussed Cited as authority (rule) Valentine v. Valentine
Bankr. E.D. Mo. · 2020 · confidence medium
Damages associated with emotional distress “require proof of evidence of the nature and extent of emotional harm caused by the alleged violation.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 636 (8th Cir. 1998).
cited Cited as authority (rule) Chedjieu v. Arkansas Natural Resource Commission
E.D. Ark. · 2019 · confidence medium
Id. (quoting Browning v. President Riverboat Casino–Missouri, Inc., 139 F.3d 631, 635 (8th Cir. 1998)).
discussed Cited as authority (rule) Vogt v. State Farm Life Insurance Company
W.D. Mo. · 2018 · confidence medium
“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.” Browning v. President Riverboat Casino–Mo., Inc., 139 F.3d 631, 634 (8th Cir. 1998).
discussed Cited as authority (rule) Barfield v. Sho-Me Power Electric Cooperative (2×) also: Cited "see"
W.D. Mo. · 2018 · confidence medium
“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.” Browning v. President Riverboat Casino–Mo., Inc., 139 F.3d 631, 634 (8th Cir. 1998).
discussed Cited as authority (rule) Massey-Diez v. University of Iowa Community Medical Services, Inc.
8th Cir. · 2016 · confidence medium
Police Dep’t, 491 F.3d 401, 406 (8th Cir. 2007) (finding e-mail stating “ ‘I believe there is a definite need for female officers on the nightwatch’” direct evidence of gender-based discrimination); Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 635 (8th Cir. 1998) (finding use of racial slur by supervisor direct evidence of race-based discrimination).
discussed Cited as authority (rule) Tarasenko v. University of Arkansas
E.D. Ark. · 2014 · confidence medium
It does not include “stray remarks in the workplace,” “statements by nondecisionmakers,” or “statements by de-cisionmakers unrelated to the decisional process itself.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir.1998) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 , 109 S.Ct. 1775, 1804-05 , 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring)).
discussed Cited as authority (rule) New York Marine & General Insurance v. Continental Cement Co.
8th Cir. · 2014 · confidence medium
Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 636 (8th Cir.1998) (“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.”).
discussed Cited as authority (rule) Graham Construction Services v. Hammer & Steel Inc.
8th Cir. · 2014 · confidence medium
Co., 381 F.3d 811 , 821 (8th Cir. 2004) (“[A] motion for judgment as a matter of law at the close of the evidence preserves for review only those grounds specified at the time, and no others.” (citation omitted) (internal quotation marks omitted)); Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 636 (8th Cir. 1998) (same).
discussed Cited as authority (rule) Graham Construction Services, Inc. v. Hammer & Steel Inc.
8th Cir. · 2014 · confidence medium
Co., 381 F.3d 811 , 821 (8th Cir.2004) (“[A] motion for judgment as a matter of law at the close of the evidence preserves for review only those grounds specified at the time, and no others.” (citation omitted) (internal quotation marks omitted)); Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 636 (8th Cir.1998) (same).
discussed Cited as authority (rule) Leichliter v. the Des Moines Register
S.D. Iowa · 2009 · confidence medium
The Eighth Circuit Court of Appeals has defined direct evidence 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.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634-35 (8th Cir.1998) (quotations omitted).
cited Cited as authority (rule) Laymon v. Lobby House, Inc.
D. Del. · 2009 · confidence medium
TruePosition Inc. v. Andrew Corp., 568 F.Supp.2d 500, 513 (D.Del.2008). 22 . 139 F.3d 631, 636 (8th Cir.1998). 23 .
discussed Cited as authority (rule) Elam v. Regions Financial Corp.
S.D. Iowa · 2009 · confidence medium
Servs., Inc., 526 F.3d 356, 359 (8th Cir. 2008), cert. granted, — U.S. -, 129 S.Ct. 680 , 172 L.Ed.2d 649 (2008) (“ ‘Direct evidence’ for these purposes is evidence ‘showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated’ the adverse employment action.”) (quoting Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir.1997)). 4 ‘“[D]irect evidence’ does not include ‘stray remarks in the workplace,’ ‘statements by…
discussed Cited as authority (rule) Quigley v. Winter
N.D. Iowa · 2008 · confidence medium
The Court must grant judgment as a matter of law “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.” Day v. To- *1157 man, 266 F.3d 831 , 836 (8th Cir.2001) (citing Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir.1998)).
discussed Cited as authority (rule) American Family Mutual Insurance v. Miell
N.D. Iowa · 2008 · confidence medium
“A jury verdict will not be set aside unless ‘there is a complete absence of probative facts to support the verdict.’ ” Id. (quoting Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir.1998)).
discussed Cited as authority (rule) M.M. Silta, Inc. v. Cleveland-Cliffs, Inc.
D. Minnesota · 2008 · confidence medium
The purpose of a Rule 50 motion is “to apprise the district court of the alleged insufficiency of the plaintiffs suit before the case is submitted to the jury.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 636 (8th Cir.1998).
discussed Cited as authority (rule) King v. Hardesty (2×) also: Cited "see"
8th Cir. · 2008 · confidence medium
Price Waterhouse, 490 U.S. at 277 , 109 S.Ct. 1775 (O’Connor, J., concurring); Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir.1998) ("Not all comments that reflect a discriminatory attitude will support an inference that an illegitimate criterion was a motivating factor in an employment decision.”) (citation omitted). 8 .
discussed Cited as authority (rule) Jerald Ramlet v. E.F. Johnson Company
8th Cir. · 2007 · confidence medium
Id. “‘[D]irect evidence’ does not include ‘stray remarks in the workplace,’ ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers unrelated to the decisional process itself.’” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir. 1998), quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989).
discussed Cited as authority (rule) Ramlet v. E.F. Johnson Co.
8th Cir. · 2007 · confidence medium
Id. “ ‘[D]irect evidence’ does not include ‘stray remarks in the workplace,’ ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers unrelated to the decisional process itself.’ ” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir.1998), quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989).
discussed Cited as authority (rule) Pospisil v. O'Reilly Automotive, Inc.
N.D. Iowa · 2007 · confidence medium
However, direct evidence does not include “ ‘stray remarks in the workplace,’ ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers unrelated to the decisional process itself.’ ” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir.1998) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring)).
discussed Cited as authority (rule) ESTATE OF BLUME v. Marian Health Center
N.D. Iowa · 2007 · confidence medium
The court must grant judgment as.a matter of law “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.” Day v. Toman, 266 F.3d 831 , 836 (8th Cir.2001) (citing Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir.1998)).
discussed Cited as authority (rule) Habben v. City of Fort Dodge
N.D. Iowa · 2007 · confidence medium
As the Eighth Circuit Court of Appeals has explained, Direct evidence is evidence that establishes “a specific link between the [alleged] discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the employer’s decision.” Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir.2003) (quotations omitted) (alteration in original). “ ‘[D]irect evidence’ does not include ‘stray remarks in the workplace,’ ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers unr…
discussed Cited as authority (rule) Ramlet v. E.F. Johnson Co.
D. Minnesota · 2006 · confidence medium
Direct evidence consists of “conduct or statements by persons involved in the deci- *860 sionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude ... sufficient to permit the factfinder to find that the attitude was more likely than not a motivating factor in the employer’s decision.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir.1998) (citations omitted).
discussed Cited as authority (rule) King v. Hardesty
W.D. Mo. · 2006 · confidence medium
Browning v. President Riverboat Casino-Missouri, 139 F.3d 631, 635 (8th Cir.1998) (“Direct evidence does not include stray remarks in the workplace, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself.” (quotation omitted)).
discussed Cited as authority (rule) Shirdena M. Twymon v. Wells Fargo & Company, Doing Business as Wells Fargo Home Mortgage, Inc.
8th Cir. · 2006 · confidence medium
Direct evidence is evidence that establishes “a specific link between the [alleged] discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the employer’s decision.” Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir.2003) (quotations omitted) (alteration in original). “ ‘[D]irect evidence’ does not include ‘stray remarks in the workplace,’ ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers unrelated to the decisional process itself.’ ” Browni…
discussed Cited as authority (rule) Shirdena M. Twymon v. Wells Fargo & Co.
8th Cir. · 2006 · confidence medium
Thus, our analysis regarding Twymon’s Title VII claims addresses the claims brought under Iowa law, and a separate discussion is unnecessary. -11- ‘statements by decisionmakers unrelated to the decisional process itself.’” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir. 1998) (quoting Price Waterhouse, 490 U.S. at 277 ).
discussed Cited as authority (rule) Azimi v. Jordan's Meats, Inc.
1st Cir. · 2006 · confidence medium
“An award of damages for emotional distress must be supported by competent evidence of ‘genuine injury,’ ” Bailey v. Runyon, 220 F.3d 879, 882 (8th Cir.2000) (some internal quotation marks omitted) (quoting Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 531 (8th Cir.1999)), the proof of which is distinct from the proof required to show discrimination, see id. (citing Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 636 (8th Cir.1998)); see also id. at 882 (rejecting the argument that emotional harm is “inherent” in a finding of liability for sexual harassment under …
discussed Cited as authority (rule) Lopez v. Aramark Uniform & Career Apparel, Inc.
N.D. Iowa · 2006 · confidence medium
What is required is “ ‘evidence of the nature and extent of the emotional harm caused by the alleged violation.’ ” Id. at 880-81 (quoting Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 636 (8th Cir.1998)).
discussed Cited as authority (rule) Jane Tatum v. Dept. of Health
8th Cir. · 2005 · confidence medium
“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.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir. 1998).
cited Cited as authority (rule) JANE TATUM, — v. ARKANSAS DEPARTMENT OF HEALTH, a PUBLIC BODY CORPORATE, —
8th Cir. · 2005 · confidence medium
Inc., 139 F.3d 631, 634 (8th Cir.1998).
discussed Cited as authority (rule) Jung v. George Washington University
D.C. · 2005 · signal: cf. · confidence medium
Cf. Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir.1998) (use of a racial slur related to the employment termination decision by the supervisor/decision maker "directly suggests the existence of bias[, and] no inference is necessary”).
discussed Cited as authority (rule) Bunda v. Potter
N.D. Iowa · 2005 · confidence medium
What is required is “ ‘evidence of the nature and extent of the emotional harm caused by the alleged violation.’ ” Id. at 880-81 (quoting Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 636 (8th Cir.1998)).
discussed Cited as authority (rule) Anthony Ash v. Tyson Foods, Inc.
11th Cir. · 2005 · confidence medium
While the use of “boy” when modified by a racial classification like “black” or “white” is evidence of discriminatory intent, see Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir.1998) (indicating that the use of “that white boy” was evidence of a discriminatory attitude), the use of “boy” alone is not evidence of discrimination.
discussed Cited as authority (rule) Van Cleve v. Society of St. Vincent De Paul
N.D. Iowa · 2004 · confidence medium
The Eighth Circuit Court of Appeals has defined direct evidence 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.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634-35 (8th Cir.1998) (quotations omitted).
discussed Cited as authority (rule) Fawn Wilson v. Brinker International, Inc.
8th Cir. · 2004 · confidence medium
"This Court will not set aside a jury verdict `unless there is a complete absence of probative facts to support the verdict.'" MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 927 (8th Cir.2004) (quoting Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir.1998)).
discussed Cited as authority (rule) Wilson v. Brinker International, Inc.
8th Cir. · 2004 · confidence medium
“This Court will not set aside a jury verdict ‘unless there is a complete absence of probative facts to support the verdict.’ ” MacGregor v. Mallinckrodt, Inc., 373 F.3d *770 923, 927 (8th Cir.2004) (quoting Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir.1998)).
discussed Cited as authority (rule) Ann MacGregor v. Mallinckrodt, Inc.
8th Cir. · 2004 · confidence medium
This Court will not set aside a jury verdict “unless there is a complete absence of probative facts to support the verdict.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir. 1998) (internal citation omitted).
discussed Cited as authority (rule) Ann MacGregor v. Mallinckrodt, Inc., a Delaware Corporation Tyco International, Ltd., a Bermuda Based Corporation Jerry Mattys and Hans Stover
8th Cir. · 2004 · confidence medium
This Court will not set aside a jury verdict “unless there is a complete absence of probative facts to support the verdict.” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir.1998) (internal citation omitted).
discussed Cited as authority (rule) Sherman v. Kasotakis
N.D. Iowa · 2004 · confidence medium
For a punitive damages award to stand, “[t]he defendant’s conduct must be shown to have been ‘motivated by evil motive or intent, or ... reckless or callous indifference to the federally protected rights of others.’ ” Gorman, 257 F.3d at 749 (quoting Smith v. Wade, 461 U.S. 30, 56 , 103 S.Ct. 1625 , 75 L.Ed.2d 632 (1983)); Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 636 (8th Cir.1998) (recognizing that to collect punitive damages under § 1981 the plaintiff must demonstrate that the defendant engaged in discrimination “ ‘with malice or with reckless indif…
Retrieving the full opinion text from the archive…
Lee BROWNING, Appellee,
v.
PRESIDENT RIVERBOAT CASINO-MISSOURI, INC., Appellant; Lee BROWNING, Appellee, Cross-Appellant, v. PRESIDENT RIVERBOAT CASINO-MISSOURI, INC., Appellant, Cross-Appellee
97-1075, 97-3828 and 97-3830.
Court of Appeals for the Eighth Circuit.
Mar 20, 1998.
139 F.3d 631
1998 U.S. App. LEXIS 5280
David F. Yates, St. Louis, MO, argued (Patricia L. Cohen and Carrie L. Schierer, St. Louis, MO, on the brief), for Appellant., John D. Lynn, St. Louis, MO, argued, for Appellee.
McMillian, Ross, Murphy.
Cited by 111 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 65%
Citer courts: S.D. Iowa (1)
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 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-em-ployment 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[*634] get 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 jury should not have been given an instruction under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (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, 108 F.3d 832, 844 (8th Cir.) (en banc), cert. denied, — U.S. -, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (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. Id. at 845.

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., 132 F.3d 431, 435-36 (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. Id.

“Direct evidence” 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 [*635] v. First Nat’l Bank, 111 F.3d 64, 66 (8th Cir.1997) (quoting Kriss v. Sprint Communications Co., 58 F.3d 1276, 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., 997 F.2d 444, 449 (8th Cir.1993). For example, “direct evidence” does not include “stray remarks in the workplace,” “statements by nondecision-makers,” or “statements by decisionmakers unrelated to the decisional process itself.” Price Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1805.

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., 130 F.3d 349, 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 toward [white] people on the part of [a person] responsible for [the employment decision].” EEOC v. Alton Packaging Corp., 901 F.2d 920, 924 n. 6 (11th Cir.1990); see also, Beshears v. Asbill, 930 F.2d 1348, 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 Beshears, 930 F.2d at 1354, we conclude that the district court properly held that Riverboat was not entitled to judgment as a matter of law. Because the mixed-motive analysis was appropriate in this ease, we need not address the sufficiency of the proof under the pretext analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (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 puni[*636] tive damages to the jury,” and the “verdict on Plaintiffs 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., 53 F.3d 195, 197 (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 plaintiffs suit before the case is submitted to the jury.

In Jarvis v. Sauer Sundstrand Co., 116 F.3d 321, 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 plaintiffs evidence was insufficient to support the ADEA claim. Id. The court 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. Id.

In Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 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 this argument was sufficient to apprise the district court of the alleged insufficiency of plaintiffs 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, 435 U.S. 247, 263-64 & n. 20, 98 S.Ct. 1042, 1052-53 & n. 20, 55 L.Ed.2d 252 (1978); Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 938 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 767, 136 L.Ed.2d 713 (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 dis-tress 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., 123 F.3d 1046, 1063 (8th Cir.1997) (standard for punitive damages same under Title VII and § 1981). In order to recover punitive damages under the[*637] 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.” Kientzy, 990 F.2d at 1062 (citing Burnett v. Griffith, 769 S.W.2d 780, 789 (Mo.1989) (en banc)). Punitive damages under Missouri law are appro-, priate only upon a showing of discriminatory conduct that would “shock the conscience and cause outrage.” Karcher v. Emerson Elec. Co., 94 F.3d 502, 509 (8th Cir.1996), cert. denied , — U.S. -, 117 S.Ct. 1692, 137 L.Ed.2d 820 (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., 107 F.3d 568, 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 thé 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 damages. 94 F.3d at 509 (citing Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 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,

XV'

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., 110 F.3d 635, 643 (8th Cir.1997) (victim of age discrimination can recover both front pay and punitive liquidated damages).

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 compensa[*638] tion 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. Delph, 130 F.3d at 358. 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.

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.

1

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