MAGILL, Circuit Judge.
African-American firefighters Robert Mems, Nathanial Khaliq, Phillip Webb, Thurman Smith, and Byron Brown (collectively "Appellants") sued their employer, the City of St. Paul, Department of Fire and Safety Services ("City" or "SPFD"), under the Minnesota Human Rights Act ("MHRA"), Minn.Stat. § 363.03 (2000), and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e — 2000e-17 (2000), alleging that they had been subjected to illegal race harassment and had experienced a hostile work environment. Appellants Mems, Khaliq, Smith, and
SPFD is organized into three shifts at each fire station, known as the A, B, and C shifts. Each shift is on duty for twenty-four hours at a time, and the firefighters live, eat, and work at their station while on duty. The shifts rotate so that the B shift relieves the A shift half of the time and relieves the C shift the other half of the time. The firefighters bid for the shift and station they work at through a seniority-based system.
In 1992, eleven African-American firefighters brought a lawsuit against the City, alleging discrimination and harassment between 1975 and 1991. Appellants Mems, Khaliq, Smith, and Brown were parties to the suit. The case settled in June 1994. As part of the settlement, the first minority to sit on the administration, Anthony Carter, an African American, was chosen to serve in the newly created Assistant Chief position. In addition, the settlement released the City from all claims that these Appellants might have had against the City arising before June 17, 1994.
When the settlement was announced, Appellants Mems, Brown, Webb, and Khaliq worked at St. Paul Fire Station 20 on the B shift. At this time, six African-American men and two Caucasian men made up the B shift. The A shift consisted of all Caucasian men. Appellant Smith worked the C shift at station 20, but occasionally filled in for other firefighters on the B shift.
B. Alleged Racial Harassment
1. Appellant Smith
In August 1994, Smith was filling in for an A-shift firefighter, when a Caucasian A-shift firefighter reported the smell of alcohol on Smith's breath. Captain Rodney Bergstrom and District Chief Dick Wiesner asked Smith about the allegation. Smith offered to let them smell his breath and satisfied their concerns.
In the fall of 1996, an African-American B-shift firefighter told B-shift Captain Ross that he saw what appeared to be crack cocaine fall from Smith's locker. Ross reported the information to Assistant Chief Carter. Carter called the St. Paul Police Department, and the police came to the station, where they confronted and questioned Smith. Smith consented to a search of his person and locker, which yielded no drugs.
2. A shift versus B shift in station 20
Appellants testified that, shortly after the 1994 settlement, the A shift started harassing the B shift.
Appellants testified that the A shift sabotaged the fire station several times by hiding cooking utensils, leaving the windows open in the winter time, and turning the heat up excessively before the B shift came on duty. In addition, A-shift Captain Rodney Bergstrom would often conduct a white-glove inspection of the fire department when the B shift was coming off duty and the A shift was coming on
In January 1995, members of the A shift complained that members of the B shift were staying at the station after the B shift ended. In response, the B shift was directed to be out of the station by 8:00 a.m., the time of the shift change. This was the first order of this kind at station 20. Mems and Khaliq subsequently filed a race discrimination claim concerning this order. Assistant Chief Carter rescinded the order and investigated the matter.
In February 1995, an email was sent by a Caucasian A-shift firefighter, Mark Montanari, regarding the 1994 settlement: "I feel that I can fully acept [sic] the healing process much easier for [redaction]. That would help me greatly to be able to work together in a more relaxed mode."
Also in February 1995, a meeting was held between the A- and B-shift members. During this meeting, at least one firefighter admitted that there were racial tensions in the station.
In May of 1995, offensive photographs were posted at station 20 on the bulletin board. Captain Ness was given an oral reprimand for this posting.
In the months following Captain Ness's reprimand, Mems' fire gear, fire rig, and equipment were damaged. Captain Ross and Assistant Chief Carter concluded that the problems with the equipment were likely accidental, and the City investigation concluded that Mems' gear experienced normal wear and tear.
Until May 1995, for a period of at least seven years, Pat McCardle, a Caucasian A-shift firefighter, relieved Webb immediately upon McCardle's arrival at station 20, even if it was before the 8:00 a.m. shift change. On May 16, 1995, without any word to Webb, McCardle did not take a run for Webb that came in before 8:00 a.m. Again, on July 1, 1995, McCardle did not relieve Webb when an alarm came in at 7:48 a.m. When Webb came back from the July run, he confronted McCardle regarding these instances, and an argument ensued. After this confrontation, McCardle complained that he felt threatened by Webb. On November 14, 1995, following an investigation, Webb received a verbal reprimand for violation of the SPFD's policy of respect. On July 3, 1995, McCardle took a run for Webb before 8:00 a.m., and McCardle continued to take runs for Webb until McCardle retired in December 1998.
On December 4, 1995, Webb filed a race harassment claim with the St. Paul City Department of Human Rights ("DHR"), alleging that McCardle's failure to take the above-mentioned runs was motivated by racial hostility. B-shift Captain Dubois, a Caucasian, helped Webb to file the complaint.
In February 1996, Captain Dubois filed his own complaint against Harold Strassner, a Caucasian A-shift firefighter, claiming racial hostility. After Strassner learned that he was mentioned in Webb's complaint, Strassner threatened to sue Dubois. At trial and in his complaint, Dubois explained that he was treated poorly by A-shift
In the spring of 1996, B-shift firefighters coming on duty after the A shift found cartoons and articles from the Conservative Chronicle, which Appellants testified they considered racist. Appellants complained to their supervisors about the cartoons. No offensive cartoons appeared in the station again after the complaint.
In early May 1996, DHR finished its investigation of Webb's claim regarding McCardle and forwarded its finding to Chief Fuller. The DHR suggested, in its cover letter, that the City should ensure compliance with anti-discrimination laws because some of the interviewees expressed concerns about a "hostile work environment." Trial Ex. No. 317. DHR found that there was probable cause to believe that McCardle's actions toward Webb were retaliatory for the 1994 settlement and for Captain Ness's reprimand for posting the offensive pictures. In addition, DHR found probable cause to believe that McCardle violated workplace conduct policy by not informing Webb that he no longer would be taking the runs.
On May 20, 1996, Webb called Assistant Chief Carter, asked if the DHR report was complete, and requested a copy. Carter told Webb that in a few days Carter would have something in writing for Webb regarding the report.
On May 21, 1996, Assistant Chief Carter drafted a letter of reprimand for McCardle, but did not send it. Instead, Carter decided to investigate the claim further because he could not find a standard operating procedure that McCardle had violated.
On May 22, 1996, Assistant Chief Carter had two conversations with Webb. First, Carter called Webb to inform Webb that he was still working on putting something in writing regarding the investigation results. At the time of the call, Webb was on duty at station 20. The conversation became hostile. Assistant Chief Carter then ordered Webb to come down to headquarters where their second conversation took place. This conversation was heated as well. Webb returned to station 20 and took the rest of the day off sick. A few days later, Webb was sent for a fitness-for-duty exam.
Shortly thereafter, Carter forwarded the DHR report to the Affirmative Action Director and the City Attorneys' Office. Neither found supporting evidence for the DHR's conclusions that McCardle's actions were retaliatory or that he violated any workplace policy. On June 10, 1996, Carter sent a letter to McCardle indicating that McCardle's actions were not racially motivated and there was not enough evidence to support disciplinary action.
During the summer of 1996, a basketball hoop primarily used by B-shift firefighters was vandalized at least three times. Also during the summer of 1996, Anna Maravelas, a conflict specialist with no training in race relations, was hired to address problems at station 20.
In October 1996, Mems, as President of the Black Firefighters United Organization, sent a letter to the NAACP, requesting that the NAACP, on behalf of African-American firefighters including the Appellants, conduct an independent investigation regarding the concerns with racial hostility because the City was not resolving the problem. On November 15, 1996, a race harassment claim was filed with the Equal Employment Opportunity Commission ("EEOC"), on behalf of the African-American firefighters.
In November 1996, Khaliq met with Chief Fuller. Khaliq gave Chief Fuller a summary of events Khaliq considered racially
In December 1996, Khaliq found two of his magazines destroyed at station 20: American Legacy and Al Jumuah. Al Jumuah was in the trash and covered with grease. The cover of American Legacy, which depicted national guardsmen and African-American children, was ripped in half, with the half of the national guardsmen ripped into small pieces. Khaliq filed a racial harassment complaint with Assistant Chief Carter. Assistant Chief Carter personally interviewed everyone on the A shift and had the police test the magazines for fingerprints. No culprit was found.
Khaliq testified that at some point in 1996 he found his car damaged in the station 20 parking lot: it was scratched and his fender was bent. In addition, Webb testified that some time in 1996 his truck's lug nuts were loosened, almost causing an accident.
Mems and Brown testified that unlike Caucasian firefighters, they were required to wear their full turn out gear to fires. District Chief Verros testified that all Fire Equipment Operators are required to wear their full turn out gear for safety reasons.
3. Khaliq and District Chief Zilliox in Station 14
In December 1998, while Khaliq was working in station 14, District Chief Zilliox denied Khaliq a meal hour over the Christmas holiday, and in response, Khaliq filed a race harassment complaint against Zilliox. Chief Zilliox testified that due to staffing levels, he could not give everyone a meal hour, and that, accommodating as many people as possible, several firefighters at several stations could not take a meal hour.
C. Procedural history
Appellants commenced this action in the United States District Court for the District of Minnesota
On November 19, 2001, the jury trial commenced. After a three-week trial and ten days of jury deliberation, the jury found the City liable to Appellant Webb only. Specifically, the jury found (1) in favor of Appellant Webb, awarding him $1 in damages; (2) that Appellants Mems and Khaliq failed to establish that the City knew or should have known of the harassment and failed to take prompt and effective remedial action; (3) that Appellant Brown failed to establish that harassment affected a term, condition, or privilege of his employment; and (4) that Appellant Smith failed to establish a causal nexus between the harassment and his race. The district court entered final judgment on the verdict on February 15, 2002, and denied Appellants' subsequent motion for a new trial. This appeal follows.
Appellants present four arguments on appeal. First, Appellants claim that the
A. Evidentiary Rulings
First, Appellants argue that the district court abused its discretion by excluding (1) the expert testimony of Dr. John Taborn, and (2) other evidence of their prima facie case. We disagree.
1. Dr. Taborn's Testimony
Appellants proffered Dr. Taborn's testimony as an expert witness on emotional damages.
A district court's decision to impose a discovery sanction under Federal Rule of Civil Procedure 37 will not be reversed by this court, absent abuse of discretion. Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir.1999) (citation omitted). Similarly, this court reviews a district court's decision to exclude expert testimony for abuse of discretion. General Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Ultimately, Appellants must show two things to gain relief from a faulty evidentiary ruling: (1) that the district court abused its discretion, and (2) that the evidentiary ruling was prejudicial to the point of producing a different verdict. See Bevan v. Honeywell, Inc., 118 F.3d 603, 612 (8th Cir.1997).
"In order to impose sanctions under Rule 37, there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party." Chrysler Corp., 186 F.3d at 1019 (citation omitted). The district court found a willful violation of the expert pretrial discovery order and prejudice to the City because of that violation. Accordingly, the district court excluded Dr. Taborn's testimony as a sanction for Appellants' "egregious abuse of the judicial process." D. Ct. Op. at 3.
Under Federal Rule of Civil Procedure 26(a)(2)(B), a testifying expert must submit a signed written report prior to trial, containing, inter alia, "a complete statement of all opinions to be expressed and the basis and reasons therefor" and "the data or other information considered by the witness in forming the opinions." Fed. R.Civ.P. 26(a)(2)(B) (2003). Additionally, the district court's pretrial orders required expert discovery and disclosure to be completed before trial commenced. Under Federal Rule of Civil Procedure 26(e), a party is required to supplement and seasonably amend disclosures.
Dr. Taborn re-interviewed each Appellant during the recess week of trial. Dr.
The main argument that Appellants rely on is that the district court inaccurately determined that Dr. Taborn's notes were a supplemental report and thus abused its discretion in excluding the testimony. However, the City correctly points out that the rules required Appellants to disclose "a complete statement of all opinions to be expressed and the basis and reasons therefor" and "the data or other information considered by the witness in forming the opinions" and to supplement that disclosure if necessary. Fed.R.Civ.P. 26(a)(2)(B), 26(e). Appellants failed to do so.
Despite Appellants' arguments, the district court was well within its discretion in excluding the testimony as a sanction for failure to comply with the rules of discovery. See Chrysler Corp., 186 F.3d at 1022 (discussing that a district court need not impose the least onerous sanction and that sanctions are not only to penalize, but to deter). Accordingly, it is unnecessary to review the district court's reconsideration of its Daubert ruling. We conclude that the district court did not abuse its discretion in excluding the testimony of Dr. Taborn.
2. Other Evidence
Appellants claim that the district court abused its discretion by unfairly excluding other evidence that would have established their prima facie case of discrimination
As mentioned above, Appellants must show that the district court abused its discretion and that the ruling was prejudicial to the point of producing a different result. See Bevan, 118 F.3d at 612. Having thoroughly reviewed the record and the parties' arguments, we find no abuse of discretion. Moreover, even assuming arguendo there was an error, we are convinced that the rulings would not have altered the outcome of the jury verdicts.
B. Jury Instructions
Second, Appellants argue that the district court abused its discretion in its formulation of jury instructions 12, 16,
1. Jury Instruction Number 12
Instruction number 12, entitled "The Issue," reads as follows:
J.A. at 389 (emphasis added). Appellants suggest that the City never claimed that Appellants failed to take advantage of corrective opportunities. We disagree.
In fact, the City did claim that Appellants failed to take affirmative steps to mitigate the situation, and furthermore offered proof that Appellants failed to avail themselves of the City's anti-harassment complaint procedures. Proof that an employer promulgated an anti-harassment policy with complaint procedures and proof that an employee failed to use the complaint procedures is relevant in determining employer liability for a supervisor's alleged racial harassment that does not result in a tangible injury, as it may constitute a defense. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Therefore, we find no abuse of discretion by the district court with regard to instruction number 12.
2. Jury Instruction Number 16
Instruction number 16, entitled "Unwelcome Harassment," states that "[i]n order to constitute harassment, the conduct must be `unwelcome' in the sense that each Plaintiff did not solicit or invite it, and each Plaintiff regarded the conduct as undesirable or offensive." J.A. at 394. We need not resolve Appellants' complaints with regard to this instruction because the jury found that each Appellant suffered unwelcome harassment, and accordingly, the argument is moot.
3. Jury Instruction Number 18
Instruction number 18, entitled "Hostile or Abusive Work Environment," provides:
J.A. at 396-97. Appellants claim that the elements of hostile and abusive work environment in instruction number 18 differed from the elements in instruction number 15,
First, instruction number 18 explains in more detail the contours of the elements of a hostile work environment,
4. Jury Instruction Number 22
Instruction number 22, entitled "Damages Period," provides:
J.A. at 402 (emphasis added). Appellants argue that "unlawful acts" was never defined and misled the jury. We note that this instruction can only affect Webb, as the jury only reached the issue of damages in his case. In light of the jury instructions as a whole, we find that this term was not misleading. Accordingly, we find no abuse of discretion.
C. Damages Period
Third, Appellants argue that the district court inappropriately narrowed the damages period: (1) Appellants argue that the district court erred in limiting the damages period under MHRA to one year; and (2) Appellants argue that in light of the new rule for damages in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the district court incorrectly limited the damages period under Title VII. We must note initially that these arguments regarding the damages period only apply to Appellant Webb because the jury did not reach damages for any of the other Appellants. At trial, Webb contended that he should be able to recover damages for illegal acts occurring since the June 1994 settlement.
In Appellants' opening brief, they argued that the correct damages period under the MHRA would allow Appellants to recover under the continuing violation theory and thus allow consideration of otherwise time-barred acts as part of the continuing violation. The Appellants' argument with regard to the damages period under MHRA has merged into the argument regarding Morgan. The MHRA requires that all charges of discrimination be filed with the EEOC within one year of the alleged discrimination. See Minn. Stat. § 363.06.
In Morgan, the Supreme Court held that "[a] charge alleging a hostile work environment claim ... will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." 122 S.Ct. at 2077. The question for liability as well as damages after Morgan is whether the acts complained of are part of the same unlawful employment practice. If so, then all of the acts may be considered so long as one of the acts falls within the limitations period. If not, then only the acts which fall in the limitations period may be considered.
The Supreme Court explained the difference between discrete discriminatory acts and a series of separate acts that
On the other hand, the Supreme Court opined that a hostile work environment claim typically involves a series of separate acts, which together constitute the unlawful employment practice. Id. at 2074. Because these acts are part of the same claim, the Court held that an employer may be liable for all of the acts, and in order for the claim to be timely, only one act in the series must have occurred within the limitations period. Id.
The Court explained that first "[a] court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice," and second the court must determine whether any act that is part of the same claim falls within the statutory time period. Id. at 2076.
In the case at bar, the jury found the City vicariously liable for the harassment against Webb. In order to find the City liable under Title VII and the MHRA,
The McCardle incident, and the City's response thereto, involved a series of discrete events each constituting its own unlawful employment practice. Those occurring after November 5, 1995, and so within the damages period, include the reprimand of Webb for intimidating McCardle, the rejection of Webb's race harassment charge against McCardle, and the order to report for a fitness-for-duty exam. These discrete acts were properly before the jury under instruction number 22 and the special verdict form. Moreover, these discrete acts, under Morgan, cannot be used to revive pre-limitations acts for the purposes of recovering damages because they are separate and distinct unlawful employment practices. 122
D. New Trial Motion
Finally, Appellants claim that the district court should have granted their motion for a new trial. We review the denial of a motion for a new trial for abuse of discretion. Jones v. TEK Indus., Inc., 319 F.3d 355, 358 (8th Cir.2003) (citation omitted). Grant of a motion for a new trial is only appropriate "if the verdict is against the great weight of the evidence and  allowing it to stand would result in a miscarriage of justice." Id. (citation and internal quotation omitted).
Appellants claim that the district court abused its discretion because the jury's verdict was against the great weight of the evidence, warranting a new trial. Having thoroughly reviewed the record, we disagree and find no abuse of discretion in the denial of the new trial motion.
For the aforementioned reasons, we affirm.
HEANEY, Circuit Judge, dissenting.
I dissent from Section II.C. of the majority's opinion, which misinterprets and misapplies the damages analysis presented in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). I would grant Appellants a new trial because the district court erred by narrowing Appellants' damages period for their claim under the Minnesota Human Rights Act (MHRA).
At trial, Appellants contended that they should be able to recover damages for all acts contributing to the hostile work environment that took place beginning in June of 1994 (the time the prior race discrimination suit was settled). The district court disagreed, and narrowed the damages period to one year under the MHRA. Thus, while the jury heard evidence of racially hostile acts occurring as far back as 1994, it could only award damages for a limited period for each plaintiff.
In Morgan, the Court reaffirmed that claims are to be divided into two categories: those based on discrete discriminatory acts, and those based on a hostile work environment. Morgan, 122 S.Ct. at 2071-75. Discrete discriminatory acts include failing to promote, denial of a transfer, and refusing to hire. Id. at 2073. Because each of these acts could independently support a discrimination claim, the statute of limitations runs independently for each discrete act. Id. at 2071. In contrast, the Court held that because hostile work environment claims attack one continuing unlawful
The majority recognizes that the district court used the wrong legal analysis, yet holds Appellants are not entitled to relief. In so doing, the majority posits that our analysis should be limited to Webb because he was the only plaintiff to recover damages. This is simply incorrect. Morgan, in fact, announced the opposite proposition: the plaintiff need not prove damages occurred within the statutory period so long as any act contributing to the hostile work environment did. See Morgan, 122 S.Ct. at 2073 ("The `unlawful employment practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own."). Our circuit has, until now, interpreted Morgan accordingly. See Jensen v. Henderson, 315 F.3d 854, 859 (8th Cir.2002) ("Only the smallest portion of that [unlawful employment] `practice' needs to occur within the limitations period for the claim to be timely."). The majority diverges from that beaten path. By holding that a hostile work environment plaintiff must prove damages within the statutory period before a jury can consider acts beyond the statutory period, essentially returns our circuit to its position in Madison, a framework squarely rejected by the Supreme Court.
As illustrated above, the proper question is not whether Appellants proved damages from conduct within the statutory period, but rather whether any act contributing to the allegedly hostile work environment took place within the statutory period. Clearly, each of these plaintiffs produced such evidence: Smith was the subject of what he contends was an unreasonable search of his locker and belongings due to his race in 1996, and the B shift firefighters — Mems, Brown, Webb, and Khaliq — presented evidence that they were victims of a plethora of racially-motivated acts, all of which occurred within each's respective statutory limitation period.
Each of the plaintiffs satisfied Morgan's threshold requirement of alleging some act contributing to the hostile work environment that is not time-barred. Accordingly, each of the plaintiffs was the victim of trial court error when the court limited their respective damages periods. This error prevented the jury from fully considering numerous acts that occurred in 1994, 1995, and, for some of the plaintiffs, in 1996. Obviously, consideration of these acts may have changed the jury's mind. I therefore believe a new trial is appropriate for all Appellants, with the district court employing the analysis put forth by the Supreme Court in Morgan.
Even if the majority's position were to stand, its analysis with regard to Webb is flawed. The majority suggests that the district court properly limited the damages period for Webb because all of the acts that Webb alleged to have happened within the statutory period were discrete acts rather than part of a hostile work environment. See Ante at 785 ("[T]hese discrete acts, under Morgan, cannot be used to revive pre-limitations acts for the purpose of recovering damages because they are separate and distinct unlawful employment
While it may be that Webb's reprimand and the rejection of Webb's discrimination claim were discrete acts of discrimination, see Morgan, 122 S.Ct. at 2073 (noting discrete discriminatory acts include failing to promote, denial of a transfer, refusing to hire), the majority overlooks the other acts complained of by the B shift firefighters: racially offensive cartoons and magazines left at the station; vandalism of B shift amenities at the station; and the loosening of Webb's vehicle lug nuts while he was at work, to name a few. All of these acts happened within the statutory limitations period. Clearly, these are not independently actionable discrete acts, but rather are acts contributing to Webb's claim that he, along with other B shifters, was subjected to a racially hostile work environment. Thus, the majority has not only misinterpreted Morgan, it has misapplied its own analysis to plaintiff Webb. Accordingly, I dissent.
J.A. at 393.